Laura Lundquist

(CN) Wildlife advocates in Montana argued in federal court Monday against the state extending wolf and coyote trapping and snaring in grizzly bear habitat during the winter.

The Flathead-Lolo-Bitterroot Citizen Task Force and WildEarth Guardians want to stop Montana Fish, Wildlife & Parks from allowing the state’s wolf trapping and snaring season to potentially begin on Nov. 27 and run for three and a half months. In Montana, coyote trapping is allowed year-round. However, most of the arguments centered on wolf regulations.

The plaintiffs argued that the state agency is violating the Endangered Species Act by allowing such trapping and snaring in some grizzly bear habitat at a time of year when grizzly bears are still outside their hibernation dens and at risk of being accidentally caught, constituting illegal "take" under the Endangered Species Act. Capturing the bears is legal only when the U.S. Fish and Wildlife Service has issued a take permit. Montana Fish, Wildlife & Parks has not applied for such a permit for recreational trapping, the organizations say.

“The regulations that are in place are reasonably certain to lead to a grizzly bear stepping into a trap somewhere. So the benefit of the doubt has to go to the listed species,” said plaintiff attorney Tim Bechtold. “Because it’s likely that grizzly bears will be out of their dens in December and in March, it’s likely that they’ll be on lands outside of the occupied zone, and it’s reasonably likely that they’ll be exposed to traps.”

Starting in 2021, the Montana Legislature has passed several bills to allow more hunting and trapping methods in an effort to kill more wolves. That’s when snares were first allowed in Montana, along with baiting and a longer season. However, when it came to implementing the laws, the state agency knew it couldn’t allow some activities where threatened grizzly bears and lynx were known to be.

In 2022, Fish, Wildlife & Parks designated much of western Montana as an area where the trapping start date could be delayed, depending on whether or not grizzly bears were in their dens as determined by area biologists. The statewide season would start in late November and go until mid-March, but in western Montana where grizzly bear populations are recovering, the start date could be slid back to Dec. 31, depending on what bears were doing.

This year, grizzly bears are still active, due to a slow-coming winter in Montana, which saw the warmest September on record and is experiencing a warm, dry November.

State bear biologist Cecily Costello said the injunction hearing that Montana did not intend to start the trapping season Monday, which Molloy said was wise.

The plaintiffs also argue that bears are also emerging from their dens earlier in the year, and while the trapping season’s starting date can change, the end date doesn’t. Based upon the testimony of retired biologists, the plaintiffs say the season should end a month earlier in mid-February to avoid harming bears.

In August 2023, the wildlife commission approved a regulation change that shrank the area with the floating start date, eliminating a large swath of land between the north and south populations, among other reductions.

During the past few years, grizzlies have been newly documented in those excluded areas of land as they slowly expand into other parts of the state. Recently, a grizzly was photographed near the Upper Missouri Breaks National Monument, hundreds of miles east of the nearest official occupied area. The organization argues that the new regulation increases the risk of trapping a bear.

However, state attorney Rachel Clerget argued that biologists redid the map in February 2023 using a different methodology to determine with more certainty where bears would be. So while the area was smaller, the new map shows areas where the likelihood of finding a bear has increased 11%, Clerget said.

“The certainty is about place,” Clerget said. “The data of incidental take shows that the only place you’re reasonably certain to find a bear is in those occupied places. The case here has to be based on reasonable certainty.”

Clerget also argued the question of immediacy, saying that Molloy shouldn’t grant an injunction now, because the plaintiffs haven’t sued for one before, even though the state has allowed some wolf trapping since 2013 and some grizzlies were known to have been caught in traps in 2013-2014.

But Bechtold said the case was justified by new evidence that only came to light in August 2022, including evidence of trapping “take” that wasn't limited to killing grizzly bears. University of British Columbia researcher Clayton Lamb published a peer-reviewed article documenting several grizzly bears captured between 2016 and 2020 had lost toes to traps, particularly the body-gripping Conibear traps. Lamb noted the toe loss may have influenced conflict behavior, because three of four individuals with amputated toes were later involved in human-bear conflicts.

Clerget argued that no bears have been reported caught recreationally in Montana since 2013. She also cited a report written by Costello and retired bear biologist Tim Manley, where they calculated that trappers reported catching grizzly bears in their traps 73% of the time. However, Bechtold pointed out that the report was based on collared bears and the reporting and calculation considered only whole bears, not limbs or toes.

Molloy, known for his probing questions, asked both attorneys what the status quo was, because that is what would be put in place if he granted an injunction. Clerget said the status quo would be the 2022 regulations with the larger area with the variable season start date. Bechtol said the status quo would allow no trapping anywhere until the end of December.

“The state argues this is a mandatory injunction. I think it’s prohibitory,” Bechtold said. “What we’re asking the court to do is to prohibit the trapping in those times when it’s reasonably likely that a grizzly bear is going to be out of its den somewhere in Montana. We’re asking the court to tell the state you can’t start until after Dec. 31 and you have to stop after Feb. 15, because those are times when biologists are reasonably certain that a grizzly bear won’t step in a trap.”

Molloy said he’d try to get an injunction decision out quickly, considering the looming season.