Flathead-Lolo-Bitterroot Citizen Task Force v. Montana

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FLATHEAD-LOLO-BITTERROOT CITIZEN TASK FORCE and WILDEARTH GUARDIANS, Plaintiffs, v. STATE OF MONTANA, LESLEY ROBINSON, and GREG GIANFORTE, Defendants, and MONTANA TRAPPERS ASSOCIATION, OUTDOOR HERITAGE COALITION, MONTANA STOCKGROWERS ASSOCIATION, MONTANA WOOL GROWERS ASSOCIATION, and MONTANA FARM BUREAU FEDERATION, Defendant-Intervenors.

No. CV 23-101-M-DWM

United States District Court, D. Montana, Missoula Division

August 28, 2024

OPINION AND ORDER

Donald W. Molloy, District Judge.

In September 2023, Plaintiff conservation groups sued the State of Montana (“State”), Montana Fish and Wildlife Commission Chair Lesley Robinson, and Governor Greg Gianforte (collectively, “State Defendants”), under § 9 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1538(a)(1)(B), seeking to curb the State's “continued authorization and recent expansion of wolf trapping and sharing in grizzly bear habitat” to avoid any unlawful “take” of grizzly bears. (See Docs. 1,4.) The United States Court of Appeals for the Ninth Circuit upheld this Court's preliminary injunction, which limited Montana's 2023-2024 recreational wolf trapping and snaring season temporally, “to the time period when it is reasonably certain that almost all grizzly bears will be in dens.”^[1] (See Docs. 33,58.) The Court declined to preliminarily enjoin coyote trapping and snaring because Plaintiffs had not adequately tied their requested relief to the challenged regulations. (Doc. 33.) After the appeal, the Montana Trappers Association and Outdoor Heritage Coalition (“Montana Trappers”), and the Montana Stockgrowers Association, Montana Wool Growers Association and Montana Farm Bureau Federation (“Agricultural Groups”) intervened to protect their abilities to trap and snare under Montana's current laws. (See Docs. 48, 71.)

Currently pending are Plaintiffs' motion for summary judgment (Doc. 54), which State Defendants and Montana Trappers oppose, (Docs. 64, 82), and the Agricultural Groups' cross-motion for summary judgment on the issue of coyote trapping and snaring, (Doc. 76). Plaintiffs allege State Defendants are violating the ESA by allowing wolf and coyote trapping and snaring when and where grizzly bears are out of their dens. Plaintiffs seek to extend this Court's preliminary injunction until the State obtains an incidental take permit from the United States Fish and Wildlife Service, and to extend the wolf-trapping injunction to include coyote trapping. Defendants generally argue that this Court lacks subject matter jurisdiction over Plaintiffs' claims due to procedural deficiencies in Plaintiffs' 60-day notice of intent to sue and failure to include necessary parties. Jurisdictional concerns aside, Defendants insist that genuine disputes of material fact preclude summary judgment. Defendants, collectively, dispute Plaintiffs' facts because, they argue, the bulk of Plaintiffs' evidence is inadmissible as their witnesses were not disclosed as experts, thus they are limited to lay witness testimony and cannot testify to the ultimate issue-whether future take of grizzly bears is reasonably certain to occur under the State's current trapping and snaring regulatory regime.

Relatedly, also before the Court are State Defendants' and Montana Trappers' motions to compel expert disclosures and to strike. (See Docs. 87 and 92.) Plaintiffs oppose. (Doc. 92 at 2.) The case management plan the parties agreed to in December 2023 did not contain an expert disclosure deadline and there was no trial date set in this case. Early this year, the parties engaged in witness depositions. However, Plaintiffs did not submit any expert disclosures until May 21, 2024, (see Doc. 86 at 4-6), after State Defendants refused to pay for the depositions of Plaintiffs' witnesses and argued on summary judgment that none of Plaintiffs' offered testimony was admissible evidence because their witnesses were not designated experts under Federal Rule of Civil Procedure 26. In response to Plaintiffs' expert disclosures, on Friday, May 31, 2024, State Defendants filed a motion to compel additional expert disclosure, arguing Plaintiffs' disclosures were not satisfactory under Rule 26(a)(2)(B), and that all witness testimony in Plaintiffs' motion for summary judgment that is based on anything other than personal knowledge or experience should be stricken under Rule 37(c)(1). Plaintiffs counter that their recent disclosures are adequate, but alternatively, the Court should rule in their favor based solely on the record evidence and undisputed facts. A motions hearing was held on June 26, 2024, during which the parties argued the pending motions and were ordered to propose a timeline to complete expert disclosures and other pretrial matters in anticipation of a trial on the merits. The Court issued a Scheduling Order on June 27, 2024, setting the matter for a bench trial on December 2, 2024. (See Doc. 101.)

Because genuine issues of material fact persist, Plaintiffs' and Agricultural Groups' motions for summary judgment are denied. State Defendants' and Defendant-Intervenors' motions to strike are denied as moot and motions to compel expert disclosures are granted in part. The arguments regarding subject-matter jurisdiction are discussed first below, followed by the expert disclosure issues and the merits of the parties' respective motions for summary judgment.

ANALYSIS

1. Subject-Matter Jurisdiction

Federal courts have limited jurisdiction; as a result, the power of the federal court is limited to that which is authorized by Article III of the United States Constitution and statutes enacted by Congress. Kokkonen v. Guardian Life Ins. Co of Am., 511 U.S. 375, 377 (1994). “[S]ubject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630 (2002)).

On summary judgment, Defendants argue this Court lacks subject-matter jurisdiction over the case because Plaintiffs' 60-day notice of intent to sue was procedurally deficient. Specifically, State Defendants allege Plaintiffs: (1) failed to notify the Secretary of the Department of Interior; (2) failed to articulate any alleged violation relating to coyotes; (3) failed to notify the Montana Department of Livestock; and (4) remitted the notice of intent to sue prior to the approval of the 2023-2024 Furbearer, Wolf, and Trapping Regulations. Defendants' jurisdictional arguments are discussed in turn.

A. Failure to Notify the Secretary of Interior

Defendants' first argue that Plaintiffs failed to notify the Secretary of Interior, as required by 16 U.S.C. § 1540(g)(2)(A)(i). Defendants are incorrect.

The ESA authorizes “any person” to bring a civil action “to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof.” 16 U.S.C. § 1540(g)(1)(A). However, the ESA provides that “[n]o action may be commenced under subparagraph (1)(A) of this section ... prior to sixty days after written notice of the violation has been given to the Secretary, and to any alleged violator of any such provision or regulation.” Id. § 1540(g)(2)(A)(i). “A failure to strictly comply with the notice requirement acts as an absolute bar to bringing suit under the ESA.” Sw. Ctr. for Bio. Diversity v. U.S. Bureau of Rec., 143 F.3d 515, 520 (9th Cir. 1998); Klamath-Siskiyou Wildlands Ctr. v. MacWhorter, 797 F.3d 645, 647 (9th Cir. 2015) (“This sixty-day notice requirement is jurisdictional.”).

Although Plaintiffs only addressed their 60-day notice of intent to sue to United States Fish and Wildlife Service Director Martha Williams and Grizzly Bear Recovery Coordinator Hilary Cooley, Montana Governor Greg Gianforte, and Montana Fish, Wildlife and Parks Director Hank Worsech, (Doc. 64-1 at 1), attached to their reply, Plaintiffs provided documentation that shows they also notified the Secretary, via email, on May 10, 2024. (Doc. 85 at 3.) Thus, Plaintiffs notified the Secretary of their intent to bring this lawsuit against State Defendants. See Strahan v. Coxe, 939 F.Supp. 963, 977 (D. Mass. 1996) (“All that is required is competent evidence that [Plaintiff] notified the Secretary [] of his intent to bring suit against the Defendants.”).

B. Failure to Articulate any Alleged Violation Relating to Coyotes

Defendants next argue Plaintiffs failed to articulate any alleged violation relating to coyote trapping and snaring in their 60-day notice of intent to sue. Defendants are again incorrect.

“The purpose of the 60-day notice provision is to put the agencies on notice of a perceived violation of the statute and an intent to sue. When given notice, the agencies have an opportunity to renew their actions and take corrective measures if warranted.” Sw. Ctr., 143 F.3d at 520 (internal quotation marks omitted). “In many cases, an agency may be able to compel compliance through administrative action, thus eliminating the need for any access to the courts.” Hallstrom v. Tillamook Cnty., 493 U.S. 20, 29 (1989). “This policy would be frustrated if citizens could immediately bring suit without involving federal or state enforcement agencies.” Id.

“[A] notice need not provide the exact details of the legal arguments that the plaintiffs intend to eventually make.” Conserv. Cong. v. Finley, 774 F.3d 611,618 (9th Cir. 2014). “To provide proper notice of an alleged violation, a would-be plaintiff must ‘[a]t a minimum ... provide sufficient information ... so that the [notified parties] could identify and attempt to abate...