Case 1:21-cv-00479-CWD Document 25 Filed 08/22/22 Page 1 of 23
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`UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF IDAHO
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`Case No. 1:21-cv-00479-CWD
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`MEMORANDUM DECISION AND
`ORDER
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`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,
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`Plaintiffs,
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`v.
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`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,
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`Defendants.
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`MEMORANDUM DECISION AND ORDER - 1
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`Case 1:21-cv-00479-CWD Document 25 Filed 08/22/22 Page 2 of 23
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`INTRODUCTION
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`Plaintiffs, a diverse group of conservation and animal welfare organizations, allege
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`that the Governor of Idaho, the Director of the Idaho Department of Fish and Game, and
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`members of the Idaho Fish and Game Commission have implemented a regulatory
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`scheme that continue to authorize, and have expanded, the ability to trap and snare gray
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`wolves. Specifically, Plaintiffs contend that Idaho’s gray wolf trapping and snaring laws
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`and regulations are reasonably certain to cause the unlawful “take” of grizzly bears and
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`Canada lynx in violation of Section 9 of the Endangered Species Act (ESA), 16 U.S.C.
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`§§ 1531-1544.
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`The Court has before it Plaintiffs’ motion for temporary restraining order and
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`preliminary injunction to halt Defendants’ continued, and recently expanded,
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`authorization of wolf trapping and snaring in Idaho’s grizzly bear habitat,1 which
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`comprises the Panhandle, Clearwater, Salmon, and Upper Snake regions. Plaintiffs
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`contend immediate relief prior to a decision on the merits is essential to avoid future
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`unlawful trapping and snaring of grizzly bears in violation of the ESA. Plaintiffs’ motion
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`is most specifically related to the expansion of Idaho’s gray wolf trapping laws and
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`regulations.
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`1 The motion before the Court does not implicate Plaintiffs’ second cause of action, which alleges
`Idaho’s wolf trapping and snaring laws and regulations violate the ESA because they cause the unlawful
`take of Canada lynx.
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`MEMORANDUM DECISION AND ORDER - 2
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`The Court heard oral argument on Plaintiffs’ motion and took it under advisement.
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`After considering the parties’ written briefs, arguments, and relevant authorities, the
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`Court will deny Plaintiffs’ motion.
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`FACTS
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`The grizzly bear, Ursus arctos horribilis, was listed as threatened under the ESA in
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`1975, in response to dwindling numbers resulting in an estimated population in the lower
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`48 states of 700 to 800 individuals. To aid grizzly bear recovery, the United States Fish
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`and Wildlife Service (“FWS”) designated six areas as grizzly bear recovery zones. Idaho
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`encompasses portions of four designated recovery zones in the Selkirk, Cabinet-Yaak,
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`Greater Yellowstone, and Bitterroot ecosystems. Grizzly Bear Recovery Zones and
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`Estimated Distributions—U.S. Fish and Wildlife Serv., SPECIES STATUS ASSESSMENT
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`FOR THE GRIZZLY BEAR IN THE LOWER-48 STATES: A BIOLOGICAL REPORT 62 (Jan.
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`2021).2 Idaho’s grizzly bear populations are concentrated in and around northern Idaho’s
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`Cabinet-Yaak, Selkirk, and Greater Yellowstone ecosystems. Plaintiffs claim grizzly
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`bears have “increasingly been confirmed near” the Bitterroot ecosystem. However,
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`Defendants deny that there are any known grizzly bear populations in the Bitterroot
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`ecosystem, and contend that, while bears have been observed there, they are likely
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`transient young males that have not remained in the ecosystem.
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`2 The map depicting Grizzly Bear Recovery Zones referenced in Plaintiffs’ complaint and
`Defendants’ answer may be found on the FWS’s website, www.fws.gov, and accessed at the following
`link: https://ecos.fws.gov/ServCat/DownloadFile/196991. The same map is attached as Ex. A to the
`Scrimshaw Declaration. (Dkt. 6-13.)
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`MEMORANDUM DECISION AND ORDER - 3
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`Case 1:21-cv-00479-CWD Document 25 Filed 08/22/22 Page 4 of 23
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`Grizzly bears are habitat generalists that may, at times, be found on private land.
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`However, private land is often unsuitable habitat for grizzly bears in Idaho and, because
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`of the potential for bear/human conflict, grizzly bears found on private land are often
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`removed. See Scrimshaw Decl., Ex. G. (Dkt. 6-13) (table documenting grizzly
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`bear/human conflicts in Idaho between 2009 – 2020). Grizzly bears are also a
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`conservation reliant species. Defendants contend that the State of Idaho has put
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`substantial resources into grizzly bear conservation.
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`In 2020, two grizzly bears were killed in incidents directly or indirectly involving
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`wolf snares in northern Idaho’s panhandle region. Bear number one was a subadult male
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`grizzly. According to the Idaho Fish & Game Report of Investigation, a report was
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`received from a mushroom picker who found a dead grizzly bear on or about May 3,
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`2020. Niemeyer Decl., Ex. C. (Dkt. 6-11.) The bear was found in a ravine, with a wolf
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`snare “very tightly around its neck and another wolf snare wrapped around its front left
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`paw.” Investigation revealed that the young male grizzly died from an “unlawful wolf
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`snare around its neck.” The snares had been set “side by side hanging below a log,” and
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`an elk carcass had been left behind the log as bait. The report indicated that the snares
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`were “standard wolf snares with kill springs” that “did not have trap identification tags as
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`required by Idaho state law.” It was reported also that the state of the elk remains
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`indicated the snares “had been set quite some time ago,” possibly “during the winter,”
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`and that the bear had been dead for several days.
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`The case remains under investigation, with violation charges noted as: “killing of a
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`closed season grizzly bear – a threatened species; wolf trapping during a closed season;
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`MEMORANDUM DECISION AND ORDER - 4
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`Case 1:21-cv-00479-CWD Document 25 Filed 08/22/22 Page 5 of 23
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`trapping with unmarked traps.” Niemeyer Decl., Ex. C. According to Brian Johnson, the
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`investigating officer, the grizzly bear “was captured at a time when there were no open
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`wolf seasons. In addition, these ground snare sets were unlawful in Idaho because they
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`were: (1) set within 30 feet of visible bait (elk parts); (2) they did not contain a
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`breakaway device or a cable stop incorporated in the loop of the snare; and (3) they did
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`not have identification tags indicating they were set by a licensed trapper.” Johnson Decl.
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`¶ 9. (Dkt. 19-3.) Johnson surmised that “[t]he condition of the grizzly bear and other
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`observation of the site also indicated the snares were not checked at least once every 72
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`hours, and the capture was not reported to the Department as required by Commission
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`rules.” Id. There remains insufficient evidence to prosecute any person for the violations.
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`Id. ¶ 10.
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`Bear number two was a subadult male bear shot and killed in Boundary County in
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`August of 2020 by a hunter who mistook it for a black bear. Niemeyer Decl., Ex. D. (Dkt.
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`6-11.) According to the Idaho Department of Fish and Game Case Report, officer Brian
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`Johnson received a telephone call on August 31, 2020, about a bear that had been shot
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`and killed on trail number 35 above Spruce Lake. Id.; Johnson Decl. ¶ 11. The hunter
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`who shot the bear met officer Johnson later that day, and relayed that he mistook the bear
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`for a black bear. Neimeyer Decl., Ex. D; Johnson Decl. ¶ 12. The bear was located and
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`found with a broken wolf snare around its neck, and an ear tag from British Columbia.
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`Neimeyer Decl., Ex. D; Johnson Decl. ¶13. The bear was noted to be an adult male in
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`good physical condition. Neimeyer Decl., Ex. D; Johnson Decl. ¶ 15.
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`MEMORANDUM DECISION AND ORDER - 5
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`Case 1:21-cv-00479-CWD Document 25 Filed 08/22/22 Page 6 of 23
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`Officer Johnson reported that the snare “did not contain a breakaway device or a
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`cable stop incorporated in the loop of the snare, which would make it unlawful to place []
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`in Idaho as a ground set snare. Grizzly bears, especially younger males, may traverse
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`wide areas, and the…snaring of this grizzly bear could have occurred in Canada, Idaho,
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`or Montana.” Johnson Decl. ¶ 16. The individual who killed the grizzly bear was issued a
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`citation for killing the grizzly bear during closed season. Niemeyer Decl., Ex. D. Johnson
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`Decl. ¶ 17.
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`Plaintiffs reference also an incident years ago involving a third bear caught in a
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`trap meant for a wolf. On or about May 25, 2012, regional wildlife biologist Bryan Aber,
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`who was employed by the Idaho Department of Fish and Game, captured one subadult
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`female grizzly in a foothold trap (Minnesota Brand MB-750) that he had set to capture
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`wolves for radio collaring near Hatchery Butte on the Caribou-Targhee National Forest.
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`Aber Decl. ¶ 4. (Dkt. 19-1.) The capture occurred at a time closed to non-agency wolf
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`trapping in a large block of national forest land, and at a time still closed under current
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`seasons. The bear suffered minor swelling and a small (less than 1 inch) scratch on the
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`bear’s trapped front left foot. Id. ¶ 6. The bear was radio-collared as Bear 706, and she
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`became a subject of the Grizzly Bear Study Team’s ongoing research and monitoring for
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`grizzly bears in the Greater Yellowstone Ecosystem. Id. The bear was monitored, and in
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`2014, reports indicated she was observed with two yearlings. Id. at ¶ 8.3
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`3 Plaintiffs’ complaint and brief reference only three grizzly bears found in Idaho that were
`captured by snares meant for wolves.
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`MEMORANDUM DECISION AND ORDER - 6
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`Case 1:21-cv-00479-CWD Document 25 Filed 08/22/22 Page 7 of 23
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`As further evidence of bears caught in traps or snares intended for other animals,
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`Plaintiffs include a report from the State of Montana, which shows that, between 2010
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`and 2018, seven grizzly bears were caught in traps intended for coyotes and wolves.
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`Scrimshaw Decl., Ex. D. (Dkt. 6-13.) Four of the seven reports indicate grizzly bears
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`were caught in traps intended for coyotes. All four bears were immobilized and released.
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`Three other reports involving wolf traps indicate: (1) “2 grizzly toes [found] in trap;” (2)
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`“immobilized and relocated [bear]…survived and bear cast its collar following year;” and
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`(3) “unverified reports of a grizzly running around with a trap on its foot.”
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`Defendants’ data on wolf trapping, which goes back to 2011, does not reveal a
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`single incident where a grizzly bear was caught in a legal wolf trap set under the
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`regulatory scheme Plaintiffs challenge, and Defendants have no record of any grizzly
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`bear known to have been trapped incidentally to otherwise lawful, state-licensed wolf
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`trapping by private individuals in Idaho. Decl. of Oelrich ¶ 6. (Dkt. 19-5.) See also Decl.
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`of Boudreau ¶ 35. (Dkt. 19-2, “Idaho does not have a record of a radio-collared grizzly
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`being trapped or snared by a private individual in Idaho, with or without trapper
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`reporting.”)
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`Wolf Trapping Laws and Regulations
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`Effective July 1, 2021, Idaho readopted all prior existing rules for wolf trapping
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`and consolidated them into the rule chapter applicable to the trapping of other species.
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`Idaho further adopted legislation, contained in Idaho Senate Bill 1211 (2021), which
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`resulted in the amendment of the Idaho Fish and Wildlife Commission’s Wolf Season
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`MEMORANDUM DECISION AND ORDER - 7
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`Case 1:21-cv-00479-CWD Document 25 Filed 08/22/22 Page 8 of 23
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`Proclamation for 2021 – 2022. The specific laws and regulations challenged are set forth
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`below.
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`Idaho Code § 36-201(3) establishes that “[w]olf trapping season shall be open
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`year-round on all private property, so long as individuals are in compliance with the
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`permission requirements of Idaho Code § 36-1603 before entering private property.”
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`Previously, wolf trapping and snaring on private property was prohibited between April 1
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`and September 9 annually. Compl. ¶ 60. (Dkt. 1.)
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`Idaho Code § 36-408 specifies that “[a]ll Idaho wolf tags will be valid for hunting,
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`trapping, and snaring in any unit when seasons are open at the time of take. There shall
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`be no limit to the number of wolf tags that an individual can purchase. All appropriate
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`fish and game education requirements must be met.” Previously, Idaho limited wolf tags
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`to 15 wolves per season per person. Compl. ¶ 60.
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`Idaho Code 36-1107(c), pertaining to control of depredation of wolves on
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`livestock and domestic animals, was amended to allow that “[w]olves may be disposed of
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`by any federal agency, state agency, private contractor, political subdivision of the state
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`of Idaho, or agency of another state….” See also Idaho Code § 36-1107(d). Plaintiffs
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`contend these rules “authorize a new program of state-sponsored, private-contractor wolf
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`killing in partnership with Idaho’s Wolf Depredation Control Board.” Compl. ¶ 60.
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`In addition to state law, the Idaho Fish and Wildlife Commission adopts wolf
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`hunting and trapping seasons and general rules yearly, and has done so since 2011. Decl.
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`of Oelrich ¶ 9, Exs. A – I. (Dkt. 19-5.) The 2021-22 Gray Wolf Hunting & Trapping
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`Seasons & General Rules were published by the Idaho Department of Fish and Game.
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`MEMORANDUM DECISION AND ORDER - 8
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`Case 1:21-cv-00479-CWD Document 25 Filed 08/22/22 Page 9 of 23
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`The 2021-22 rules state that there is no daily or season limit on wolves, but that no person
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`may take more wolves than the number of legal tags they possess. Scrimshaw Decl., Ex.
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`E. (Dkt. 6-13.) Wolf tags bought with a trapping license are valid for the trapping year,
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`which is July 1 - June 30. Persons trapping for wolves must possess a valid trapping
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`license, and obtain a Wolf Trapper Education course validation. Id.
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`Wolf trappers may use only ground sets for trapping gray wolves, which are
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`defined as “any foothold trap or snare originally set in or on the land, including any traps
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`elevated up to a maximum of thirty-six (36) inches above the natural ground level. Size
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`restrictions on body-gripping traps mean they are not allowed for wolves.” Id. It is illegal
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`to “place any ground set snare without a break-away device OR cable stop incorporated
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`within the snare loop;” “[t]o place any foot-hold trap with an inside jaw spread greater
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`than nine (9) inches;” and “[t]o place any ground set body-gripping trap that has a
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`maximum jaw opening when set, of greater than seven and one-half inches measured
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`from the inside edges of the body gripping portions of the jaws, within thirty (30) feet of
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`any bait, lure or other attractant.” Id.
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`The rules state that the “[n]on-target capture of endangered species (such as
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`grizzly bear and lynx) or other federally protected animals is not authorized for trappers
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`targeting wolves, and non-target captures are subject to federal prosecution.” Id. Wolf
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`trappers are advised to “avoid locations (such as the Panhandle and Greater Yellowstone
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`Area) at times when endangered species may be captured (such as when grizzly bears are
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`out of dens). Trappers who capture endangered species should contact the nearest Fish
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`MEMORANDUM DECISION AND ORDER - 9
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`Case 1:21-cv-00479-CWD Document 25 Filed 08/22/22 Page 10 of 23
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`and Game Office for help with safe release of the animal or other assistance….” Id. Wolf
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`traps must be visited “at least once every seventy-two (72) hours….” Id.
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`The Idaho Fish and Wildlife Commission adopted different regulations applicable
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`to private, versus public, lands. Id. On private land, wolf hunting season dates were
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`between July 1, 2021 – June 30, 2022. Hunter use of private land must comply with
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`trespass laws, as well as any specific restrictions private property owners may have for
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`hunting on their property. Regulations also dictate whether foothold traps or snares are
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`allowed depending upon the season dates and the location of the private land. Regulations
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`applicable to wolf hunting on public lands between July 1, 2021 – June 30, 2022, varied
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`depending upon the area and season.
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`The 2021 legislation did not result in changes to wolf trapping seasons previously
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`set by the Commission for public lands. Trever Decl. Ex. A. (Dkt. 19-4.) Trapping
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`seasons on public lands in the Selkirk/Cabinet-Yaak and Greater Yellowstone Recovery
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`Areas remain restricted to the period between November 15 – March 31, based on
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`alignment with grizzly bear denning periods. In other Government Management Units
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`(GMUs) with longer public land seasons, snaring is not allowed outside of Nov. 15 –
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`March 31 (trapping restricted to foothold only for earlier fall seasons). Id.; Oelrich Decl.
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`¶ 8.
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`In sum, the recently enacted state laws and Idaho Fish and Wildlife Commission
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`regulations effective July 1, 2021, and applicable to the 2021-2022 wolf trapping season,
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`not only re-adopted previous laws and regulations related to trapping and snaring of
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`wolves, but also expanded prior regulations to authorize: (1) a permanent, year-round
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`MEMORANDUM DECISION AND ORDER - 10
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`wolf-trapping season on private property, whereas previously wolf trapping was
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`prohibited statewide between May 1st and September 9th;4 (2) an unlimited number of
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`wolf tags per person, up from the previous cap of 15 wolf tags per person; and (3) state-
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`sponsored, private-contractor wolf eradication in partnership with the Idaho Wolf
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`Depredation Control Board.
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`LEGAL STANDARD
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`Standard for Issuing an Injunction
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`The ESA’s citizen suit provision allows private parties to enforce the ESA’s
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`1.
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`substantive provisions under certain circumstances. 16 U.S.C. § 1540(g). The Court may
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`“enjoin any person, including the United States and any other governmental
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`instrumentality or agency…who is alleged to be in violation of any provision of this
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`chapter or regulation issued under the authority thereof.” 16 U.S.C. § 1540(g)(1).
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`The purpose of a preliminary injunction is to preserve the status quo and prevent
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`the “irreparable loss of rights” before a final judgment on the merits, while the purpose of
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`a temporary restraining order is to preserve the status quo until a hearing may be held on
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`the appropriateness of a preliminary injunction. See Textile Unlimited, Inc. v. A. BMH
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`and Co., 240 F.3d 781, 786 (9th Cir. 2001); Reno Air Racing Ass’n v. McCord, 452 F.3d
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`1126, 1130–31 (9th Cir. 2006). Both remedies are extraordinary and should not be
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`4 There was no change to the wolf trapping season on public land effected by the change in state
`law. The 2021 – 2022 Gray Wolf Hunting & Trapping Seasons and General Rules allowed trapping on
`public lands between November 15 – March 31.
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`MEMORANDUM DECISION AND ORDER - 11
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`Case 1:21-cv-00479-CWD Document 25 Filed 08/22/22 Page 12 of 23
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`awarded as a matter of right, but only “upon a clear showing that the plaintiff is entitled
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`to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).
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`Under the Winter test,5 a party is entitled to a preliminary injunction if it
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`demonstrates: (1) a likelihood of success on the merits and a possibility of irreparable
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`injury, or (2) the existence of serious questions on the merits and a balance of hardships
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`tipping in its favor. Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1400 (9th Cir. 1992).
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`These are not two independent tests, but the extremes of the continuum of equitable
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`discretion. Id.
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`The Winter test, however, is not the test for injunctions under the ESA. Sierra
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`Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir. 1987) (citing Tennessee Valley Auth. v.
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`Hill, 437 U.S. 153, 174 (1978)); Friends of the Earth v. United States Navy, 841 F.2d
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`927, 933 (9th Cir. 1988). In cases involving the ESA, Congress removed from the courts
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`their traditional equitable discretion in injunction proceedings of balancing the parties’
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`competing interests. Friends of the Earth, 841 F.2d at 933 (quoting Marsh, 816 F.2d at
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`1383). The “language, history, and structure” of the ESA demonstrates Congress’
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`determination that the balance of hardships and the public interest tips heavily in favor of
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`protected species. Tennessee Valley Auth., 437 U.S. at 174; Friends of the Earth, 841
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`F.2d at 933; Marsh, 816 F.2d at 1383.
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`Nevertheless, these cases do not stand for the proposition that courts no longer
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`must look at the likelihood of future harm before deciding whether to grant an injunction
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`5 The standards for both a temporary restraining order and a preliminary injunction are the same.
`All. for Wild Rockies v. Pierson, 550 F. Supp. 3d 894, 898 (D. Idaho 2021).
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`MEMORANDUM DECISION AND ORDER - 12
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`under the ESA. The Court is not obligated to grant an injunction for every violation of the
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`law. Tennessee Valley Auth., 437 U.S. at 193. Plaintiffs must make a showing that a
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`violation of the ESA is at least likely in the future. Cf. Amoco Production Co. v. Village
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`of Gambell, 480 U.S. 531, 545 (1987) (in NEPA case, if injury to the environment “is
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`sufficiently likely, the balance of harms will usually favor the issuance of an injunction”).
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`In other words, the plaintiff must show “[a] reasonably certain threat of imminent harm to
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`a protected species” before an injunction may be issued. Marbled Murrelet v. Pac.
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`Lumber Co., 83 F.3d 1060, 1066 (9th Cir. 1996). Proof of a threat of extinction to the
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`species is not required, but a plaintiff must, at a bare minimum, establish a definitive
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`threat of future harm based on something other than mere speculation. Nat’l Wildlife
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`Fed’n v. Burlington N.R.R., 23 F.3d 1508, 1512 n.8 (9th Cir. 1994); Center for Biological
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`Diversity v. Otter, No. 1:14-cv-258-BLW, 2016 WL 233193 *4 (D. Idaho Jan. 8, 2016).
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`2.
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`Endangered Species Act Prohibitions on Take
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`Congress enacted the ESA in 1973 to “provide for the conservation, protection,
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`restoration, and propagation of species of fish, wildlife, and plants facing extinction.”
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`Wyo. Farm Bureau Fed’n v. Babbitt, 199 F.3d 1224, 1231 (10th Cir. 2000) (quoting S.
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`Rep. No. 93-307, at 1 (1973), reprinted in 1982 U.S.C.C.A.N. 2989). The ESA provides
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`various levels of protection depending upon how a species is classified. The three ESA
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`classifications are: (1) endangered, (2) threatened, and (3) experimental populations. See
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`16 U.S.C. §§ 1538(a), 1539(j). “Endangered” species are entitled to the highest level of
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`protection. See Animal Welfare Inst. v. Martin, 588 F.Supp.2d 70, 97-98 (D. Me. 2008)
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`(internal citation omitted). A threatened species is “any species which is likely to become
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`MEMORANDUM DECISION AND ORDER - 13
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`an endangered species within the foreseeable future throughout all or a significant portion
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`of its range.” 16 U.S.C. § 1532(20).
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`The ESA defines “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap,
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`capture, or collect, or attempt to engage in any such conduct.” Id. § 1532(19). When a
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`species is listed as endangered, it is unlawful for any person to “take any such species.”
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`16 U.S.C. § 1538(a)(1)(B). Regulations promulgated by the United States Department of
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`Interior forbid the taking of grizzly bears, except in certain specified circumstances. 16
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`U.S.C. § 1538(a)(1)(G), 50 C.F.R. § 17.40(b)(1)(i)(A). Thus, the mere trapping of a
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`grizzly bear, even if released alive, constitutes a taking under § 9 of the ESA. See Center
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`for Biological Diversity v. Otter, No. 1:14-cv-258-BLW, 2016 WL 233193 *4 (D. Idaho
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`Jan. 8, 2016). See also United States v. Charette, 893 F.3d 1169, 1171 (9th Cir. 2018)
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`(citing regulations applicable to take of grizzly bears). Neither party disputes here that
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`there was a “taking” of the two bears found in Idaho in 2020, constituting a violation of
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`Section 9 of the ESA. See Center for Biological Diversity v. Otter, 2016 WL 233193 *4.6
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`6 Although Plaintiffs include a reference to the trapping of the female grizzly in 2012 by Idaho
`Fish and Game officials, “Federal, State, or Tribal authorities may take grizzly bears for scientific or
`research purposes, but only if such taking does not result in death or permanent injury to the bears
`involved.” 50 C.F.R. § 17.40(b)(1)(ii)(D). While the female bear caught by regional wildlife biologist
`Bryan Aber was caught in a snare intended for capturing and radio collaring wolves, the capture did not
`occur during trapping season and it occurred incidental to research studies. The bear was released without
`permanent injuries.
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`MEMORANDUM DECISION AND ORDER - 14
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`

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`Case 1:21-cv-00479-CWD Document 25 Filed 08/22/22 Page 15 of 23
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`ANALYSIS
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`Plaintiffs contend that Idaho’s wolf trapping and snaring laws and regulations “are
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`reasonably certain to continue to result in take of threatened species,” and that the
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`authorization of the same has caused, and is reasonably certain to cause, the take of
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`grizzly bears in violation of the ESA. Plaintiffs rely upon evidence of past take reported
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`in Idaho which concerned two deceased bears reported in May and August of 2020 with
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`snares around their necks. Plaintiffs contend the two instances of prior take are indicative
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`of likely future take, especially considering the recent expansion of the wolf trapping and
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`snaring regulations which will now permit trapping and snaring on private lands in the
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`summer months, when bears are likely to be seeking food before hibernation.
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`
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`Defendants maintain that Plaintiffs’ case rests on speculation, as there has been no
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`report in the past decade of a licensed wolf trapper complying with Idaho trapping
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`seasons and rules having captured a grizzly bear. Accordingly, Defendants argue
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`Plaintiffs have not established a likelihood of success on the merits, because the record
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`currently before the Court does not establish a causal link between Idaho’s laws and
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`regulations and the take of the two bears. Defendants explain that Plaintiffs’ reliance on
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`past take is insufficient to show that irreparable harm is likely if Idaho’s laws and
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`regulations are not enjoined, because neither bear was taken by an Idaho licensed wolf
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`trapper utilizing legal traps and snares authorized by Idaho’s laws and regulations.
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`2.
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`
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`Causation
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`The Court finds Plaintiffs have not shown they are likely to succeed on the merits
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`of their claim based solely upon the two incidents of past take documented in Idaho.
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`MEMORANDUM DECISION AND ORDER - 15
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`Case 1:21-cv-00479-CWD Document 25 Filed 08/22/22 Page 16 of 23
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`Defendants’ decision to authorize and now expand the ability of Idaho hunters to trap and
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`snare gray wolves on private land in the summer months does not appear reasonably
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`related to the take of the two grizzly bears. As Defendants point out, Plaintiffs have no
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`evidence that either bear was snared by a lawful wolf snare or trap set in compliance with
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`Idaho’s regulatory scheme. Further, it was not certain that the second bear, which was
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`shot and killed in August of 2020, was snared in Idaho, as the bear had British Columbia
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`ear tags.
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`
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`Plaintiffs insist that reports from other jurisdictions demonstrate that non-target
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`species, including grizzly bears, are routinely captured by traps and snares meant for
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`wolves or coyotes. Plaintiffs claim this evidence establishes that grizzly bear snaring
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`incidents are the rule rather than the exception. For instance, Plaintiffs point to Montana’s
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`report of seven grizzly bears caught in traps intended for wolves and coyotes, as well as
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`reports from Canada regarding the same. They also point to the female grizzly caught in
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`the foothold trap by Idaho Fish and Game wolf researchers in 2012,7 and the likelihood
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`that grizzly bear captures are going unreported.
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`
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`But to show irreparable harm and obtain an injunction, Plaintiffs must show that
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`future ESA violations are likely if Idaho’s existing laws and regulations remain in place.
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`Center for Biological Diversity v. Otter, 2018 WL 539329 at *3. Although Plaintiffs’
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`argument is emotionally appealing, and it is easy to presume that snares harm bears as
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`well as many other animals unintentionally caught by a snare or trap meant for a wolf, the
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`7 But see note 6.
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`
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`MEMORANDUM DECISION AND ORDER - 16
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`

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`Case 1:21-cv-00479-CWD Document 25 Filed 08/22/22 Page 17 of 23
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`Court cannot conclude on the basis of the evidence before it that take of grizzly bears is
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`reasonably likely to occur as a result of Idaho’s laws and regulations permitting the
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`trapping and snaring of gray wolves. Evidence currently in the record indicates other
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`jurisdictions have different regulatory frameworks than Idaho. Decl. of Boudreau ¶¶ 28,
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`29. (Dkt. 19-2.) And, there is always the danger that grizzly bear captures are unreported.
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`Otter, 2018 WL 539329 at *3.8 But injunctions “must be based on evidence not
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`speculation.” Id. Here, Plaintiffs have not established that irreparable harm is likely to
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`occur prior to a court order on the merits absent enjoining of Idaho’s laws and
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`regulations.
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`
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`Plaintiffs’ final argument is that Idaho’s recent changes, effective July 1, 2021, to
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`the wolf trapping and snaring rules which established a permanent, year-round trapping
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`season on private property; the ability to purchase an unlimited number of wolf tags; and
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`the state-sponsored, private-contractor wolf eradication program are reasonably certain to
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`result in the take of grizzly bears. Plaintiffs contend that Idaho’s existing laws and
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`regulations “already caus[e] the unlawful capture and killing of grizzly bears,” and thus
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`these changes are surely likely to do so in the future given that trapping and snaring
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`devises “are by their nature inherently indiscriminate.” Pls.’ Mem. at 14. (Dkt. 6-1.)
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`
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`However, as discussed above, Plaintiffs have not established on this record that
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`8 Defendants described their research efforts regarding grizzly bears, which involves collaring
`and tracking bears through telemetry data so as to study their habits and mortality. Decl. of Boudreau
`¶ 32. (Dkt. 19-2.) Defendants introduced evidence that they have no record of a radio-collared grizzly
`bear being trapped or snared by a private individual in Idaho, with or without trapper reporting, and that it
`actively seeks out and investigates persons who illegally kill grizzly bears for prosecution. Decl. of
`Boudreau ¶ 35-36. (Dkt. 19-2.)
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`MEMORANDUM DECISION AND ORDER - 17
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`

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`Case 1:21-cv-00479-CWD Document 25 Filed 08/22/22 Page 18 of 23
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`Idaho’s laws and regulations are likely to result in irreparable harm absent a court order.
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`See Center for Biological Diversity v. Otter, No. 1:14-CV-258-BLW, 2016 WL 233193
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`(D. Idaho Jan. 8, 2016) (finding injury to Canada lynx fairly traceable to the state’s laws
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`and regulations regarding trapping and snaring of furbearing animals as well as coyotes
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`and wolves, because licensed trappers using legal traps had “taken” four lynx over the
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`last three years).9 Plaintiffs essentially seek to bootstrap their argument regarding past
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`take under the laws and regulations in effect prior to July 1, 2021, in an attempt to enjoin
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`the expanded laws and regulations. But, having failed to establish that irreparable harm is
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`likely under the prior laws and regulations, the same evidence cannot support Plaintiffs’
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`claim that Idaho’s expanded laws and regulations should be preliminarily enjoined.
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`
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`Moreover, Defendants directly refute Plaintiffs’ contention that the changes will
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`result in more traps, and thus more snared bears. Compl. ¶ 62. Defendants explain that
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`actual data reflects no increase in wolf mortality from July 1, 2021, to December 31,
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`2021, after the rule changes went into effect. Oelrich Decl. ¶ 18; Rather, despite the
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`change in the rules Defendants have reported no captures of grizzly bears since July 1,
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`2021. Defs.’ Mem. at 2. (Dk