Flathead-Lolo-Bitterroot Citizen Task Force v. Montana

98 F.4th 1180

FLATHEAD-LOLO-BITTERROOT CITIZEN TASK FORCE; WildEarth Guardians, Plaintiffs - Appellees, v. State of MONTANA; Lesley Robinson; Greg Gianforte, Defendants - Appellants.

No. 23-3754

United States Court of Appeals, Ninth Circuit

Argued and Submitted January 12, 2024 Pasadena, California

Filed April 23, 2024

Appeal from the United States District Court for the District of Montana, Donald W. Molloy, District Judge, Presiding, D.C. No. 9:23-cv-00101-DWM

Timothy M. Bechtold (argued), Bechtold Law Firm PLLC, Missoula, Montana, for Plaintiffs-Appellees.

Sarah M. Clerget (argued), Assistant Attorney General; Alexander R. Scolavino, III, Attorney; Kevin Rechkoff, Agency Counsel; Montana Department of Fish and Wildlife Parks, Helena, Montana; for Defendants-Appellants.

Matthew G. Monforton, Monforton Law Offices PLLC, Bozeman, Montana; Gary

R. Leistico, Leistico & Esch PLLC, Clear Lake, Minnesota; for Amicus Curiae Montana Trappers Association, National Trappers Association, and Fur Takers of America, Inc.

Before: Richard C. Tallman and Mark J. Bennett, Circuit Judges, and Robert S. Lasnik, District Judge.^*

Opinion by Judge Bennett;

Partial Concurrence and Partial Dissent by Judge Tallman

OPINION

BENNETT, Circuit Judge:

In this case, we review the district court's order granting a preliminary injunction. The order limited wolf trapping and snaring¹ in certain parts of Montana to January 1, 2024 through February 15, 2024—when, as the district court found, it is reasonably certain that almost all grizzly bears will be in dens. Thus, under the injunction, Montana cannot authorize any wolf trapping and snaring (in the specified areas) anytime outside that period.

The Flathead-Lolo-Bitterroot Citizen Task Force, a nonprofit public interest organization, together with WildEarth Guardians (collectively, "Plaintiffs") sued the State of Montana ("State"); the Chair of the Montana Fish and Wildlife Commission ("Commission")², Lesley Robinson; and Governor Greg Gianforte (collectively, "Defendants"). Plaintiffs allege that Montana's laws authorizing recreational wolf and coyote trapping and snaring, including the regulations approved by the Commission, allow the unlawful taking of grizzly bears in violation of § 9 of the Endangered Species Act ("ESA"), 16 U.S.C. § 1538.

The district court granted Plaintiffs' motion for a preliminary injunction as to wolf trapping and snaring only.³ Defendants filed an expedited interlocutory appeal. We have jurisdiction under 28 U.S.C. § 1292(a)(1). Under our limited and deferential standard of review, we affirm the district court's grant of injunctive relief. But the injunction is overbroad in two respects. It is geographically overbroad, and thus we remand for the district court to expeditiously reconsider the geographic scope. But to prevent harm to Plaintiffs, the current geographic scope remains in place until the district court reconsiders the geographic scope. The injunction is also overbroad as to wolf trapping and snaring related to the State's research activities. We therefore vacate that part of the injunction and remand for the district court to make proper modifications to the scope of its order consistent with this opinion.

I.

A.

In 1973, Congress passed the ESA, 16 U.S.C. §§ 1531-1544. "[T]he ESA sets forth a comprehensive program to limit harm to endangered species within the United States." Or. Nat. Res. Council v. Allen, 476 F.3d 1031, 1033 (9th Cir. 2007). "Section 9 of the ESA establishes a blanket prohibition on the taking of any member of a listed endangered species," id. (footnote omitted) (citing 16 U.S.C. § 1538(a)(1)(B)), unless the "take" is authorized by the relevant federal agency, 16 U.S.C. § 1539. A "take" means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Id. § 1532(19). Species listed as either "endangered" or "threatened" are protected under the ESA.⁴ See 50 C.F.R. § 17.31(a); Crow Indian Tribe v. United States, 965 F.3d 662, 671 (9th Cir. 2020). The ESA allows private parties to sue to enjoin ESA violations. 16 U.S.C. § 1540(g).

In 1975, the grizzly bear was listed as "threatened" under the ESA, and it is still listed as "threatened." See Amendment Listing the Grizzly Bear of the 48 Conterminous States as a Threatened Species, 40 Fed. Reg. 31734 (July 28, 1975); U.S. Fish & Wildlife Serv., Grizzly Bear, https://www.fws.gov/species/grizzly-bear-ursus-arctos-horribilis (last visited Jan. 14, 2024). In 1975, about 700 to 800 grizzlies were in the 48 contiguous states, living primarily in areas of Wyoming, Washington, Montana, and Idaho—the same areas where they are found today. U.S. Fish & Wildlife Serv., Grizzly Bear, supra. Most lived in Montana or Yellowstone National Park in areas now called the Northern Continental Divide Ecosystem and the Greater Yellowstone Ecosystem, respectively. These areas are still home to most of the grizzlies in the 48 contiguous states. Id. About 2,000 grizzlies currently live in these two areas and in the Cabinet Yaak Ecosystem, an area of northwestern Montana and northern Idaho. Id.

Montana has allowed recreational wolf trapping since 2012. In 2020, the wolf trapping season opened on December 15 and closed on February 28, statewide. In 2021, the Montana Legislature required the Commission to also authorize snaring of wolves and extended the length of the wolf trapping and snaring season ("trapping season") to the first Monday after Thanksgiving through March 15. Mont. Code Ann. § 87-1-304(8) (2021); id. § 87-1-901(1) (2021). But since 2021, in the "estimated occupied grizzly bear range" ("occupied grizzly range"),⁵ also called the "occupied grizzly bear habitat," the default start date "floats," meaning that instead of a fixed date, the start date can be any time from the Monday after Thanksgiving until December 31. See Montana Fish, Wildlife & Parks, 2023 Furbearer Trapping and Hunting Regulations 15, https://fwp.mt.gov/binaries/content/assets/fwp/hunt/regulations/2023/2023-wolf-and-furbearer-final-for-web.pdf ("2023 Regulations"); Montana Fish, Wildlife & Parks, 2022 Furbearer Trapping and Hunting Regulations 15, https://fwp.mt.gov/binaries/content/assets/fwp/hunt/regulations/2022/wolf-and-furbearer-final-for-web.pdf ("2022 Regulations"); Montana Fish, Wildlife & Parks, 2021 Montana FWP Wolf Hunting and Trapping Regulations 6, https://fwp.mt.gov/binaries/content/assets/fwp/hunt/regulations/2021/2021-wolf-final-for-web.pdf. The floating start date is determined by the Commission based on its assessment of real-time, on the ground observations of grizzly bear activities. 2023 Regulations, supra, at 15. So essentially, in those areas where it is estimated that grizzlies reside or show habitat use, the default start date is December 31 unless the Commission announces an earlier start date. The Commission is also permitted under the regulations to adjust the trapping season end date if there is a "non-target capture"⁶ of a grizzly bear. Id. at 2, 15.

For the 2021 and 2022 trapping seasons, Montana opted to use easily identifiable landmarks, such as roads or creeks to delineate the boundaries of the occupied grizzly range. This adjustment resulted in a larger area than the actual occupied grizzly range, and so during the 2021 and 2022 seasons, Montana applied floating start dates to areas outside the actual occupied grizzly range. The floating start dates for 2021 varied between December 15 and 27, and for 2022, between December 12 and 24.

In August 2023, the Commission adopted the 2023 Regulations. As in past years, it set the wolf trapping season from the first Monday after Thanksgiving through March 15, 2024, but with floating start dates for the occupied grizzly range. However, due to criticism that its prior use of landmarks to delineate the boundaries of the occupied grizzly range included areas with no grizzlies, Montana's map of the occupied grizzly range for the 2023 trapping season used the actual occupied grizzly range boundaries.⁷ For the 2023 season, Montana also used a new mapping method, which purportedly resulted in a more precise map of the occupied grizzly range. These changes resulted in a smaller occupied grizzly range than in prior years, and consequently, the early default start date—the first Monday after Thanksgiving—would apply to more areas than before.

B.

On September 11, 2023, Plaintiffs filed this suit in the United States District Court for the District of Montana. The operative amended complaint alleges that Montana's recreational wolf and coyote trapping and snaring laws are causing and will cause the unlawful "take" of grizzly bears in violation of § 9 of the ESA. Plaintiffs seek a declaration that Montana's laws violate the ESA and an injunction barring Defendants from violating the ESA.

On September 22, 2023, Plaintiffs moved for a preliminary injunction, asking the district court to "enjoin the State of Montana from authorizing wolf trapping and snaring in occupied grizzly bear habitat in Montana to avoid irreparable harm until a ruling on the merits in this matter." Plaintiffs' brief in support of its motion referenced a bulletin issued by the MFWP, which stated that "Grizzly bears have the potential to be found anywhere in the western two-thirds of Montana (west of Billings)." Montana Fish, Wildlife & Parks, Hunters Must Expect to See Bears (Aug. 30, 2023, 8:41 AM), https://fwp.mt.gov/homepage/news/2023/aug/0830---hunters-must-expect-to-see-bears. The bulletin warns the public about the presence of grizzlies and provides a list of precautions for hunters. Id.

Defendants requested and received an extension to respond to the motion and eventually responded on October 23, 2023. On November 3, 2023, Plaintiffs submitted their reply brief, in which they more specifically asked the district court to "enjoin the 2023 regulations and to require Montana to establish regulations that are reasonably certain not to lead to the...