A federal court on Tuesday mostly upheld a judge’s decision last fall to limit Montana’s wolf trapping and snaring season to six weeks in January and February over what he said was the potential for grizzly bears to incidentally get caught in the traps in violation of the Endangered Species Act.

The 9^th Circuit Court of Appeals, in a 2-1 decision, upheld the main part of District Court Judge Donald Molloy’s November order, which limited wolf trapping and snaring season to Jan. 1 to Feb. 15 to ensure as many grizzlies were in their dens as possible and could not be caught in the wolf traps.

But the circuit court panel disagreed with the portion of his order that limited the season length in hunting Regions 1 through 5 and in Blaine, Hill, and Phillips counties, and said the lower court needed to modify that part of its original order to only include areas where grizzly bears are known to live.

The panel also vacated the part of the order that the court said appeared to have prohibited Montana Fish, Wildlife and Parks from trapping wolves for scientific purposes, which the state says is necessary and often happens during the summer months. The order says plaintiffs’ attorneys had agreed to the injunction not applying to scientific research trapping.

The order comes as the plaintiffs in this case seek a permanent injunction to keep the restrictions on wolf trapping seasons in place, as a judge in Idaho implemented similar restrictions there, and as conservation groups appeal the U.S. Fish and Wildlife Service’s decision that wolves don’t need heightened Endangered Species Act protections in the states that are allowed to manage their wolf populations.

The two groups that challenged Montana’s 2023 wolf trapping regulations, WildEarth Guardians and the Flathead-Lolo-Bitterroot Citizen Task Force, said they see the decision as a small victory as they continue to push for a permanent injunction in the district court.

“We must give grizzly bears a fair shot at recovery, and hostile state management like Montana’s has a long way to go before it measures up to what wildlife and the public need,” said Lizzy Pennock, the carnivore coexistence attorney for WildEarth Guardians.

The defendants in the case, Gov. Greg Gianforte and Fish and Wildlife Commission Chair Lesley Robinson, almost immediately appealed Molloy’s November order to the 9^th Circuit. Their attorneys argued the district court wrongly considered new arguments and materials submitted by the two conservation groups, applied the wrong injunction standard, and that the injunction did not prevent irreparable harm and was geographically overbroad.

The circuit court panel, in the majority opinion, disagreed with the state on nearly everything but the geographic overbreadth argument.

Judge Judge Mark J. Bennett and Judge Robert S. Lasnik, a Washington district court judge sitting on the appeals panel for the case, also said that the court’s consideration of a news story highlighting a sighting of a grizzly bear as far east as one had been spotted in 100 years, which was published just before the hearing, was not improper.

The state had also argued that Molloy used the wrong injunction standard by saying the plaintiffs had shown the case involved a serious question on the merits rather than meeting the higher standard of showing that they had a likelihood to succeed in the case.

But Bennett wrote that the 9^th Circuit uses the “serious questions” test, and Molloy correctly used that as well. Bennett wrote that the conservation groups had shown evidence grizzly bears are not limited to geographical borders, are attracted to baited traps and can get caught in them.  He also said they had shown grizzly bears would be active outside of their dens during the state’s proposed trapping season, which was to start on a floating date sometime between Nov. 27 and Dec. 1 and run through March 15.

“Given all the evidence, it was plausible for the district court to find a reasonably certain threat of imminent harm to grizzly bears should Montana’s wolf trapping and snaring season proceed as planned,” Bennett wrote. “In other words, the district court’s finding was not implausible given plaintiffs’ evidence and the evidence as a whole.”

Judge Richard C. Tallman disagreed with the other two judges on that finding, offering a partial dissent in which he said Molloy based his decision off speculative evidence offered by the plaintiffs and their exhibits.

“The record viewed in totality does not support a finding that irreparable harm is likely, other than just possible,” he wrote. “Of the four exhibits, ten declarations, and nine affidavits submitted by the plaintiffs, the bulk of the information provided is speculative in nature, offering theories about what could happen in the face of climate change or food scarcity, instead of offering any actual evidence that the harm is likely to occur.”

The other two judges disagreed with his assessment however, saying Tallman was giving more weight to evidence that would undermine Molloy’s decision than to the evidence that led him to make his decision.

“Because the district court’s finding of a reasonably certain threat of imminent harm was not implausible on the record, we must affirm that finding,” Bennett wrote.

District court will have to decide new geographic boundaries

But all of the judges agreed that the geographic area to which the season restrictions applied was too broad and said there was not enough evidence in the record to conclude having restrictions across more than half the state was necessary to prevent the accidental capture of grizzly bears.

Molloy’s decision on where the season restrictions would apply seems to have been based on the plaintiffs’ citing of a news release from FWP saying grizzlies have the potential to be found “anywhere in the western two-thirds of Montana” and a news story about the bear being spotted near the Missouri and Judith rivers in eastern Montana. But the judges said those did not constitute enough evidence to close off all wolf trapping west of Billings except for six weeks out of the year.

“The bulletin’s statement is thus couched in speculation and is too hypothetical to support the conclusion that grizzlies will likely be present in all areas of west of Billings such that the injunction’s geographic scope is necessary to protect the grizzlies,” Bennett wrote.

The judges remanded the geographic scope question back to the district court and asked it to make a finding “expeditiously.” But they also ordered that the current geographic scope stay in place until a new one is decided. Montana’s wolf hunting and trapping season concluded on March 15.

Meanwhile, the Montana Trappers Association and Outdoor Heritage Coalition have intervened in the district court case in an attempt to loosen the restrictions. Also, the two conservation groups that are plaintiffs in the case last week filed for summary judgment, asking Molloy to extend the injunction permanently and to include coyote trapping and snaring season restrictions that are identical to the wolf season restrictions – something Molloy declined to do with the preliminary injunction, meaning they can still be trapped and snared year-round for the time being.

It’s currently unclear how the court will handle the remanded geographic question in conjunction with the request for a permanent injunction, but attorneys for Gianforte and Robinson will have until May 6 to file their opposition to the request, and the two sides will have about another month to fully brief their arguments, at which time the decision would rest in the court’s hands.

Montana Fish, Wildlife and Parks spokesperson Greg Lemon said FWP agreed the geographic area of the original injunction was too broad and said the state was focused back on the district court case.

Pennock and Mike Bader, a consultant to the Flathead-Lolo-Bitterroot Citizen Task Force, said the state needed to acknowledge how climate change was shortening grizzlies’ den times and start to better acknowledge how some of its hunting and trapping policies could harm animals, like grizzlies, that do still have protections under the Endangered Species Act.

“The State of Montana cannot be entrusted with management responsibility for grizzly bears because they are acting irresponsibly towards carnivores and predators,” Bader said.

Alanna Mayham

(CN) — An order limiting wolf trapping and snaring in Montana’s grizzly bear territory survived the scrutiny of a Ninth Circuit panel Tuesday, but the question of how much land a federal judge can restrict to protect the state’s threatened grizzlies from wolf traps remains.

In January, a three-judge panel took a skeptical view of a 2023 injunction that prohibited wolf trapping in a broad swath of western Montana outside of the narrow timeframe of Jan. 1 to Feb. 15 annually, or when grizzlies are most likely to be hibernating in dens.

U.S. District Judge Donald Molloy’s preliminary injunction was aimed at protecting grizzlies from wolf traps — an issue opponents say is becoming more common because the warming climate is pushing bears to forage later into the winter and even earlier in the spring.

But Molloy’s order prohibited trapping in a much larger part of Montana than what conservation groups requested and did not follow the state’s scientific determination of where grizzly bears live.

On Tuesday, two-thirds of the panel affirmed Molloy’s injunction because the plaintiff organizations — Flathead-Lolo-Bitterroot Citizen Task Force and WildEarth Guardians — demonstrated that Montana’s recreational wolf trapping and snaring regulations would harm grizzly bears in violation of the Endangered Species Act.

“Under our limited and deferential standard of review, we affirm the district court’s grant of injunctive relief,” wrote U.S. Circuit Judge Mark J. Bennet, a Donald Trump appointee, with the concurrence of U.S. District Judge Robert S. Lasnik, a Bill Clinton appointee.

Senior U.S. Circuit Judge Richard C. Tallman partially dissented, explaining that he would have vacated the entire injunction because the plaintiffs’ evidence falls short of proving that irreparable harm is likely — not just possible.

“While I agree with the majority that plaintiffs established a serious question on the merits, the evidence of record establishes that plaintiffs failed to show a reasonably certain threat of imminent harm to grizzly bears should Montana’s wolf regulations remain in force,” the Clinton appointee wrote.

Tallman also argued that the plaintiffs’ evidence is too speculative to warrant an injunction, particularly regarding how climate change affects grizzly denning habits and the plaintiffs’ lack of verified reports of grizzly bears getting caught in recreational wolf traps after 2013.

The other judges disagreed.

“As the district court pointed out, one of plaintiffs’ experts declared that ‘only 12% of unpermitted grizzly bear killings are actually reported,’ and that the ‘data shows that trappers who find grizzly bears in their traps are highly unlikely to call a government agent,’” Lasnik wrote.

Lasnik added how Montana’s evidence showed that over 25% of grizzly bear killings go unreported, suggesting that verified reports are not the best indicator of how often grizzlies are trapped.

All three judges could agree that the injunction is geographically overbroad.

“The district court enjoined wolf trapping and snaring ‘in all areas included in wolf regions one through five, plus Hill, Blaine and Phillips counties,’” Lasnik wrote. “That comprises what appears to be more than half of the entire state of Montana and includes expansive areas outside the occupied grizzly range and even some areas east of Billings — areas that plaintiffs did not even ask to be covered by the injunction.”

The panel also took up Montana’s argument of how the injunction prohibits state researchers from trapping and snaring wolves in the summer for scientific purposes — even though the injunction never prevented that.

On March 19, Montana filed an unopposed motion to modify the injunction so it could allow the Montana Department of Fish, Wildlife and Parks and other management agencies to trap wolves for scientific and livestock conflict management purposes. Molloy denied the request on March 25, explaining that such agencies already had the authority to perform research trapping and they were unaffected by the injunction.

“Apparently the Ninth Circuit wasn’t aware of that,” said Mike Bader of Flathead-Lolo-Bitterroot in an interview.

Bader also noted how Tallman in his dissent did not acknowledge a permanent injunction from U.S. Magistrate Judge Candy Dale in March that banned all wolf trapping and snaring in Idaho’s panhandle, Clearwater, Salmon and Upper Snake regions between March 1 and Nov. 30 — the grizzly bear’s non-denning season.

“She actually cited the Molloy injunction ruling as an influence on her ruling, so we hope we can get a permanent injunction because then we would have common law in the Ninth Circuit from both Idaho and Montana,” Bader said.

And that hope might not be far from reality, especially since Molloy’s injunction will stay in place until he adjusts the geographic scope of the order. Bader said a final ruling on the plaintiffs’ motion for summary judgment could arrive within the next few months and that a favorable outcome would also prohibit coyote traps in grizzly territories.

“I think the big issue is climate change,” Bader said, adding how states rely on outdated data for grizzly denning behaviors.

“Especially this past winter, we had reports of females with cubs out in January and a lot of bears out well into December and even past Christmas,” Bader said. “So, the old dates really don’t apply because of the change.”

Montana’s winter is shaping up to have been among the worst for snowpack in 25 years and, combined with current outlooks, has water forecasters warning that streamflow levels this summer could be well below normal across most of the state.

Early last month, Montana forecasters and water supply specialists said the state would need above-average snow during March and early April, and a wet and cool spring, to keep the meager snow left from melting away too quickly and causing low river and streamflows through the growing season and likely drought.

But according to state and federal reports and presentations released during the past two weeks, the recovery the snowpack made in February and early March tapered off in the weeks since and hasn’t continued to the extent forecasters hoped.

“It’s not likely a full recovery to normal snowpack conditions will occur by May 1 this year across most of Montana,” Montana Snow Survey staff wrote in the April water supply forecast issued by the Natural Resources Conservation Service earlier this month.

“Below normal snowpack conditions on May 1 could be supplemented by above normal spring and summer precipitation, assuming snowpack deficits aren’t too large. Best case scenario would be a return to cooler weather and above normal precipitation for the next months.”

Since 1991, the median day that Montana’s snowpack as a whole reached its peak is April 14, at 18 inches of snow water equivalent, which is the amount of water contained in the snowpack. So far this year, the statewide snowpack peaked at 13.2 inches of snow water equivalent on April 11, three days earlier than normal and nearly 5 inches of snow water equivalent below normal.

The current snowpack of 12 inches of snow water equivalent statewide is just 74% of normal for this time of year, but also in the 7th percentile when compared to 1991-2020. To start the month, one in seven snow monitoring stations in Montana was showing its lowest or second-lowest snowpack on record. More than one-third of them were reporting a snowpack in the 10th percentile or less compared to 1991-2020.

It’s still possible that storms and cooler weather over the next couple of weeks buoy the snowpack at higher elevations and inhibit the melt-off, but this is typically the time of the year the snowpack starts what most people hope will be a gradual decline.

Last year, the snowpack peaked at 18.1 inches of snow water equivalent on April 25, but a quick melt-off ensued because of unseasonably warm temperatures. Two weeks later, the snowpack was at 12.5 inches of snow water equivalent, and it was completely gone by June 21. The median snow-free date is June 28.

As of Monday, the snowpack was gone in the Bear Paw basin. It sat at 45% of median in the Upper Missouri Basin and between 50% and 69% of normal in the Sun-Teton-Marias, Upper Clark Fork, Bitterroot, Smith-Judith-Musselshell, Upper Yellowstone, Gallatin, Lower Clark Fork, and Flathead basins.

The Jefferson (70%), St. Mary and Kootenai (75% respectively), Madison (76%), Tongue (77%), Powder (78%), and Bighorn (85%) basins were all between 70% and 90% of their average snowpack for this time of the year on Monday.

Last week, Dr. Dennis Todey, director of the Midwest Climate Hub for the U.S. Department of Agriculture, said the Upper Missouri River was running at close to its lowest point above Fort Peck in recent decades, which could have ramifications as the river heads east into the Upper Midwest, which just had one of its driest and warmest winters in 100 years.

On the other side of the state, the U.S. Army Corps of Engineers agreed earlier this month to approve a request from the Confederated Salish and Kootenai Tribes’ Energy Keepers, Inc., to raise Flathead Lake’s spring level by two feet to 2,885 feet and hold more water in the lake.

Energy Keepers said it anticipates 2024 will be similar to the record-low flows seen in 2023 that kicked off a political firestorm surrounding the lake’s levels so it started refilling the lake early and believes the lake will be between 2,888 feet and 2,891 feet by the end of May.

“By taking these actions early in the season we increase the likelihood Flathead Lake will reach its maximum elevation in what forecasters are predicting as another dry year,” said Energy Keepers CEO Brian Lipscomb. “Should we experience unforeseen precipitation then we can make further adjustments. By May, we are prepared to make further changes to standard operations depending on weather conditions.”

Most streamflows are forecast to be between 70% and 85% of normal across all of Montana’s river basins, but could be near normal in parts of northwest, southwest, and southern Montana that saw a better snowpack this year.

But rivers including the Bighole, Blackfoot, Little Bighorn, Tongue, Clark Fork, Smith, Sun, and Teton are expected to see streamflows for April through July below 65% of normal, according to the latest forecasts.

Those streamflows will be critical to recreation and especially agricultural production this summer, and the relatively dry winter has led to an overall expansion of drought since the beginning of the year, as the area of the state experiencing moderate and severe drought has more than doubled.

But drought conditions improved in Montana throughout March and into the beginning of April. During the past two weeks, moderate and severe drought has declined in southeastern Montana, and less of east-central Montana is abnormally dry than a week before. But after extreme drought disappeared for a week earlier this month, it has shown back up in northern Flathead County and northwestern Mineral County.

“Extreme drought conditions were introduced in the mountainous region along the Idaho and Montana border due to concerns about low snow amounts and possible early snowmelt,” National Drought Mitigation Center forecasters wrote in last Thursday’s report.

The next two weeks could bring some relief if current forecasts hold. The Climate Prediction Center is forecasting above-average precipitation over the next 6-14 days, including a possible storm this weekend that could bring rain to lower elevations and snow above 5,500 feet, according to the National Weather Service.

But the forecast for early May currently shows above-average temperatures statewide, and the forecast for May through July shows above-average temperatures and below-average precipitation for western Montana, though it also shows equal chances of below- or above-average precipitation and temperatures for eastern Montana for that period.

That will coincide with the El Niño that has persisted through winter ending, and an increasing likelihood that La Niña starts to develop into August, according to the Climate Prediction Center, which typically means cooler and wetter winters in Montana because the jet stream stays further north.

But July through October are currently forecast to bring above-normal temperatures and below-normal precipitation for Montana, according to the Climate Prediction Center. That means the next several weeks will be key in determining how summer shapes up water-wise.

“Given the widespread low forecasts, above normal precipitation over the next couple of months and a slow melt of the snowpack would be most beneficial for the upcoming summer,” the latest water supply forecast says. “Additionally, a wet summer could help to sustain streamflows later in the season.”

This story was initially published by The Daily Montanan, a nonprofit news organization and part of the States News network, covering state issues. Read more at dailymontanan.com.