Laura Lundquist

(Missoula Current) The state of Montana is headed to a trial over allowing wolf traps in grizzly bear habitat.

On Wednesday, Missoula federal district judge Donald Molloy announced that he would not consider a summary judgment ruling on whether the state of Montana was harming grizzly bears by allowing wolf trapping in areas where bears could be moving.

Because the defendants - the state of Montana and its intervenors - could not agree with the plaintiffs, the Flathead-Lolo-Bitterroot Citizen Task Force, on the facts of the case, he decided the case should go to a trial.

“The state really did not address the merits in their motion for summary judgment,” Molloy said.

Instead, Molloy asked the attorneys to address any issues that could affect the trial.

FWP attorney Alexander Scolavino said the state questioned the expertise of some of the plaintiffs’ witnesses. According to Rule 26, a law that spells out legal discovery and disclosure requirements, witnesses who give expert testimony must also submit written reports of their knowledge and experience.

Scolavino took issue with some of the reports, saying they lacked citations. Scolavino said the state didn’t think the plaintiffs’ witnesses qualified as “experts” because it seemed they might give opinions instead of just scientific fact. The plaintiffs have deposed eight witnesses, including former FWP bear biologist Tim Manley.

Molloy said he would require all witness reports to meet Rule 26, and the attorneys agreed to submit the reports by Sept. 6. Molloy also cautioned the attorneys that the reports should include details necessary to the case. If a detail is in the reports and an opposing attorney tries to object to it during trial, Molloy said he would overrule the objection. And vice versa.

In May 2023, the Flathead-Lolo-Bitterroot Citizen Task Force filed a 60-day notice of intent to sue the state of Montana, Governor Greg Gianforte and Fish, Wildlife & Parks commissioner Lesley Robinson, alleging that too many grizzly bears are being maimed and ultimately killed by traps and snares in Montana after the state liberalized trapping regulations starting in 2021. In August 2023, the FWP commission approved an FWP map created in February 2023 that reduced the area within the state where the trapping season had to be delayed until grizzly bears were in their dens.

The group filed its formal complaint in September 2023 and was joined by WildEarth Guardians. Ten days later, the plaintiffs asked the judge for an injunction to put the trapping season on hold while the case proceeded. They asked for the injunction to apply to both wolf and coyote trapping.

On Nov. 21, a week before wolf trapping was to open, Molloy granted the injunction for wolf trapping but not for coyote trapping because the plaintiffs hadn’t adequately shown how coyote regulations related to grizzly bear harm. The injunction shortened Montana’s wolf trapping and snaring season throughout most of the state to Jan. 1 to Feb. 15 when grizzly bears were likely to be in their dens. The Ninth Circuit Court of Appeals upheld Molloy’s ruling on April 23.

On May 6, the Montana Farm Bureau Federation, Montana Stockgrowers Association and the Montana Woolgrowers Association intervened on the side of the state of Montana, saying that the trapping and snaring of coyotes “is an essential management tool for ranchers.”

On Wednesday, Lawson Fite, attorney for the intervening ranchers, asked Molloy not to approve any future injunctions on coyote trapping, arguing that coyote traps are too small to cause the “severe” harm that could justify an injunction. Fite said there were three recorded instances of grizzly bears being caught in coyote traps over the past decade and they were released on-site. As long as coyote traps are set properly so that they don’t endanger livestock, as required by law, there’s little threat to grizzly bears, Fite said.

“So to the extent that your honor were to consider injunctive relief, we strongly urge the court to rest on the finding you made in the fall, which we believe is correct, that there is simply not a tie between injuries to grizzly bears and the regulatory system for coyote trapping,” Fite said.

Minnesota attorney Gary Leistico, arguing for the intervening Montana Trappers Association and the related Outdoor Heritage Coalition, said the case shouldn’t move forward because the plaintiff’s 60-day notice of intent to sue was inadequate. He said it should have included the Montana Department of Livestock as a defendant because a coyote isn’t a “furbearer,” which are overseen by FWP.

Molloy said he considered the 60-day notice to be adequate, so it was up to the Appeals Court to decide otherwise. But it doesn’t need to go that far. Molly said there’s an easy remedy that the state could take to save a lot of time and money. The state could document how trapping harms grizzly bears and ask the U.S. Fish and Wildlife Service for an incidental take statement, which would exempt the activity from Endangered Species Act requirements.

“I don’t understand why we’re litigating this when it would be a matter of the agency taking into account what the state is doing, and needs to do, and granting or denying the incidental take statement. It addresses a lot of the issues that are of concern here,” Molloy said.

The attorneys proposed setting the trial during the first week of December.

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