Ctr. for Biological Diversity v. Little
| Decision Date | 22 August 2022 |
| Docket Number | 1:21-cv-00479-CWD |
| Parties | CENTER FOR BIOLOGICAL DIVERSITY, FOOTLOOSE MONTANA, FRIENDS OF THE CLEARWATER, GALLATIN WILDLIFE ASSOCIATION, GLOBAL INDIGENOUS COUNCIL, THE HUMANE SOCIETY OF THE UNITED STATES, INTERNATIONAL WILDLIFE COEXISTENCE NETWORK, NIMIIPUU PROTECTING THE ENVIRONMENT, SIERRA CLUB, TRAP FREE MONTANA, WESTERN WATERSHEDS PROJECT, WILDERNESS WATCH, and WOLVES OF THE ROCKIES, Plaintiffs, v. BRAD LITTLE, Governor of Idaho; ED SCHRIEVER, Director of Idaho Department of Fish & Game; and DERICK ATTEBURY, DAVE BOBBITT, GREG CAMERON, LANE CLEZIE, RON DAVIES, DON EBERT, TIM MURPHY, Members of the Idaho Fish and Wildlife Commission, Defendants. |
| Court | U.S. District Court — District of Idaho |
Plaintiffs a diverse group of conservation and animal welfare organizations, allege that the Governor of Idaho, the Director of the Idaho Department of Fish and Game, and members of the Idaho Fish and Game Commission have implemented a regulatory scheme that continue to authorize and have expanded, the ability to trap and snare gray wolves. Specifically, Plaintiffs contend that Idaho's gray wolf trapping and snaring laws and regulations are reasonably certain to cause the unlawful “take” of grizzly bears and Canada lynx in violation of Section 9 of the Endangered Species Act (ESA), 16 U.S.C. §§ 1531-1544.
The Court has before it Plaintiffs' motion for temporary restraining order and preliminary injunction to halt Defendants' continued, and recently expanded authorization of wolf trapping and snaring in Idaho's grizzly bear habitat,[1] which comprises the Panhandle, Clearwater, Salmon, and Upper Snake regions. Plaintiffs contend immediate relief prior to a decision on the merits is essential to avoid future unlawful trapping and snaring of grizzly bears in violation of the ESA. Plaintiffs' motion is most specifically related to the expansion of Idaho's gray wolf trapping laws and regulations.
The Court heard oral argument on Plaintiffs' motion and took it under advisement. After considering the parties' written briefs, arguments, and relevant authorities, the Court will deny Plaintiffs' motion.
The grizzly bear, Ursus arctos horribilis, was listed as threatened under the ESA in 1975, in response to dwindling numbers resulting in an estimated population in the lower 48 states of 700 to 800 individuals. To aid grizzly bear recovery, the United States Fish and Wildlife Service (“FWS”) designated six areas as grizzly bear recovery zones. Idaho encompasses portions of four designated recovery zones in the Selkirk, Cabinet-Yaak, Greater Yellowstone, and Bitterroot ecosystems. Grizzly Bear Recovery Zones and Estimated Distributions-U.S. Fish and Wildlife Serv., SPECIES STATUS ASSESSMENT FOR THE GRIZZLY BEAR IN THE LOWER-48 STATES: A BIOLOGICAL REPORT 62 (Jan 2021).[2] Idaho's grizzly bear populations are concentrated in and around northern Idaho's Cabinet-Yaak, Selkirk, and Greater Yellowstone ecosystems. Plaintiffs claim grizzly bears have “increasingly been confirmed near” the Bitterroot ecosystem. However, Defendants deny that there are any known grizzly bear populations in the Bitterroot ecosystem, and contend that, while bears have been observed there, they are likely transient young males that have not remained in the ecosystem.
Grizzly bears are habitat generalists that may, at times, be found on private land. However, private land is often unsuitable habitat for grizzly bears in Idaho and, because of the potential for bear/human conflict, grizzly bears found on private land are often removed. See Scrimshaw Decl., Ex. G. (Dkt. 6-13) (table documenting grizzly bear/human conflicts in Idaho between 2009 - 2020). Grizzly bears are also a conservation reliant species. Defendants contend that the State of Idaho has put substantial resources into grizzly bear conservation.
In 2020, two grizzly bears were killed in incidents directly or indirectly involving wolf snares in northern Idaho's panhandle region. Bear number one was a subadult male grizzly. According to the Idaho Fish & Game Report of Investigation, a report was received from a mushroom picker who found a dead grizzly bear on or about May 3, 2020. Niemeyer Decl., Ex. C. (Dkt. 6-11.) The bear was found in a ravine, with a wolf snare “very tightly around its neck and another wolf snare wrapped around its front left paw.” Investigation revealed that the young male grizzly died from an “unlawful wolf snare around its neck.” The snares had been set “side by side hanging below a log,” and an elk carcass had been left behind the log as bait. The report indicated that the snares were “standard wolf snares with kill springs” that “did not have trap identification tags as required by Idaho state law.” It was reported also that the state of the elk remains indicated the snares “had been set quite some time ago,” possibly “during the winter,” and that the bear had been dead for several days.
The case remains under investigation, with violation charges noted as: “killing of a closed season grizzly bear - a threatened species; wolf trapping during a closed season; trapping with unmarked traps.” Niemeyer Decl., Ex. C. According to Brian Johnson, the investigating officer, the grizzly bear Johnson Decl. ¶ 9. (Dkt. 19-3.) Johnson surmised that “[t]he condition of the grizzly bear and other observation of the site also indicated the snares were not checked at least once every 72 hours, and the capture was not reported to the Department as required by Commission rules.” Id. There remains insufficient evidence to prosecute any person for the violations. Id. ¶ 10.
Bear number two was a subadult male bear shot and killed in Boundary County in August of 2020 by a hunter who mistook it for a black bear. Niemeyer Decl., Ex. D. (Dkt. 6-11.) According to the Idaho Department of Fish and Game Case Report, officer Brian Johnson received a telephone call on August 31, 2020, about a bear that had been shot and killed on trail number 35 above Spruce Lake. Id.; Johnson Decl. ¶ 11. The hunter who shot the bear met officer Johnson later that day, and relayed that he mistook the bear for a black bear. Neimeyer Decl., Ex. D; Johnson Decl. ¶ 12. The bear was located and found with a broken wolf snare around its neck, and an ear tag from British Columbia. Neimeyer Decl., Ex. D; Johnson Decl. ¶13. The bear was noted to be an adult male in good physical condition. Neimeyer Decl., Ex. D; Johnson Decl. ¶ 15.
Officer Johnson reported that the snare Johnson Decl. ¶ 16. The individual who killed the grizzly bear was issued a citation for killing the grizzly bear during closed season. Niemeyer Decl., Ex. D. Johnson Decl. ¶ 17.
Plaintiffs reference also an incident years ago involving a third bear caught in a trap meant for a wolf. On or about May 25, 2012, regional wildlife biologist Bryan Aber, who was employed by the Idaho Department of Fish and Game, captured one subadult female grizzly in a foothold trap (Minnesota Brand MB-750) that he had set to capture wolves for radio collaring near Hatchery Butte on the Caribou-Targhee National Forest. Aber Decl. ¶ 4. (Dkt. 19-1.) The capture occurred at a time closed to non-agency wolf trapping in a large block of national forest land, and at a time still closed under current seasons. The bear suffered minor swelling and a small (less than 1 inch) scratch on the bear's trapped front left foot. Id. ¶ 6. The bear was radio-collared as Bear 706, and she became a subject of the Grizzly Bear Study Team's ongoing research and monitoring for grizzly bears in the Greater Yellowstone Ecosystem. Id. The bear was monitored, and in 2014, reports indicated she was observed with two yearlings. Id. at ¶ 8.[3] As further evidence of bears caught in traps or snares intended for other animals, Plaintiffs include a report from the State of Montana, which shows that, between 2010 and 2018, seven grizzly bears were caught in traps intended for coyotes and wolves. Scrimshaw Decl., Ex. D. (Dkt. 6-13.) Four of the seven reports indicate grizzly bears were caught in traps intended for coyotes. All four bears were immobilized and released. Three other reports involving wolf traps indicate: (1) “2 grizzly toes [found] in trap;” (2) “immobilized and relocated [bear], survived and bear cast its collar following year;” and (3) “unverified reports of a grizzly running around with a trap on its foot.”
Defendants' data on wolf trapping, which goes back to 2011, does not reveal a single incident where a grizzly bear was caught in a legal wolf trap set under the regulatory scheme Plaintiffs challenge, and Defendants have no record of any grizzly bear known to have been trapped incidentally to otherwise lawful, state-licensed wolf trapping by private individuals in Idaho. Decl. of Oelrich ¶ 6. (Dkt. 19-5.) See also Decl. of Boudreau ¶ 35. (Dkt. 19-2, “Idaho does not have a record of a radio-collared grizzly being trapped or snared by a private individual in Idaho, with or without trapper reporting.”)
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