Flathead-Lolo-Bitterroot Citizen Task Force v. State of Montana

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FLATHEAD-LOLO-BITTERROOT No. 23-3754

CITIZEN TASK

D.C. No.

FORCE; WILDEARTH

9:23-cv-00101-

GUARDIANS,

DWM

Plaintiffs - Appellees,

v. OPINION

STATE OF MONTANA; LESLEY

ROBINSON; GREG GIANFORTE,

Defendants - Appellants.

Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, District Judge, Presiding

Argued and Submitted January 12, 2024

Pasadena, California

Filed April 23, 2024

Before: Richard C. Tallman and Mark J. Bennett, Circuit

Judges, and Robert S. Lasnik, District Judge. *

*

The Honorable Robert S. Lasnik, United States District Judge for the

Western District of Washington, sitting by designation.

2 FLATHEAD-LOLO-BITTERROOT V. STATE OF MT

Opinion by Judge Bennett;

Partial Concurrence and Partial Dissent by Judge Tallman

SUMMARY **

Environmental Law / Preliminary Injunction

In an action brought under the Endangered Species Act,

the panel affirmed in part and vacated in part the district

court’s preliminary injunction limiting wolf trapping and

snaring in certain parts of Montana to January 1, 2024,

through February 15, 2024, and remanded.

Plaintiffs alleged that Montana’s laws authorizing

recreational wolf and coyote trapping and snaring, including

regulations approved by the Montana Fish and Wildlife

Commission, allowed the unlawful “take” of grizzly bears, a

threatened species, in violation of § 9 of the Endangered

Species Act. The district court granted plaintiffs’ motion for

a preliminary injunction as to wolf trapping and snaring

only.

The panel held that the district court did not abuse its

discretion by considering new arguments and new materials,

submitted with plaintiffs’ reply brief in support of their

motion for a preliminary injunction, because the record

showed that defendants had an opportunity to respond to

plaintiffs’ submissions.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

FLATHEAD-LOLO-BITTERROOT V. STATE OF MT 3

The panel held that the district court applied the proper

preliminary injunction standard by requiring plaintiffs to

show only a serious question going to the merits instead of a

likelihood of success on the merits. Because plaintiffs

sought a preliminary injunction under the Endangered

Species Act, the last two factors of the “serious questions”

test—balance of hardships and the public interest—tipped

sharply in favor of the protected species. Plaintiffs were

required to demonstrate that they presented serious questions

as to the merits of their claim and that absent an injunction,

irreparable harm was likely.

The panel held that the district court did not abuse its

discretion in finding that there were serious questions going

to the merits of plaintiffs’ claim that Montana’s 2023

recreational wolf trapping and snaring regulations would

cause the unlawful take of grizzly bears in violation of § 9 of

the Endangered Species Act. Fairly read, the record reflects

a genuine scientific and factual debate over this question.

Reviewing deferentially, the panel also affirmed the

district court’s finding of a reasonably certain threat of

imminent harm to grizzly bears had Montana’s wolf trapping

and snaring season proceeded as planned.

Addressing the scope of the preliminary injunction, the

panel affirmed the temporal scope of the injunction, but held

that the injunction was geographically overbroad, and

remanded for the district court to expeditiously reconsider

the geographic scope. The panel also held that the injunction

was overbroad because it prevents the State of Montana from

trapping and snaring wolves for research, vacated that part

of the injunction, and remanded for the district court to make

proper modifications to the scope of its order.

4 FLATHEAD-LOLO-BITTERROOT V. STATE OF MT

Concurring in part and dissenting in part, Judge Tallman

would vacate the district court’s preliminary injunction in

toto. He concurred in the majority’s decision to remand the

district court’s preliminary injunction as geographically

overbroad and not sufficiently clear in preventing any

takings so as to accommodate the State of Montana’s

necessary scientific research activities. He dissented from

the majority’s conclusion that plaintiffs established a

reasonably certain threat of imminent harm to the increasing

grizzly bear population through scientifically driven wolf

trapping regulations sufficient to warrant a preliminary

injunction.

COUNSEL

Timothy M. Bechtold (argued), Bechtold Law Firm PLLC,

Missoula, Montana, for Plaintiffs-Appellees.

Sarah M. Clerget (argued), Assistant Attorney General;

Alexander R. Scolavino, III, Attorney; Kevin Rechkoff,

Agency Counsel; Montana Department of Fish and Wildlife

Parks, Helena, Montana; for Defendants-Appellants.

Matthew G. Monforton, Monforton Law Offices PLLC,

Bozeman, Montana; Gary R. Leistico, Leistico & Esch

PLLC, Clear Lake, Minnesota; for Amicus Curiae Montana

Trappers Association, National Trappers Association, and

Fur Takers of America, Inc..

FLATHEAD-LOLO-BITTERROOT V. STATE OF MT 5

OPINION

BENNETT, Circuit Judge:

In this case, we review the district court’s order granting

a preliminary injunction. The order limited wolf trapping

and snaring 1 in certain parts of Montana to January 1, 2024

through February 15, 2024—when, as the district court

found, it is reasonably certain that almost all grizzly bears

will be in dens. Thus, under the injunction, Montana cannot

authorize any wolf trapping and snaring (in the specified

areas) anytime outside that period.

The Flathead-Lolo-Bitterroot Citizen Task Force, a

nonprofit public interest organization, together with

WildEarth Guardians (collectively, “Plaintiffs”) sued the

State of Montana (“State”); the Chair of the Montana Fish

and Wildlife Commission (“Commission”) 2 , Lesley

Robinson; and Governor Greg Gianforte (collectively,

“Defendants”). Plaintiffs allege that Montana’s laws

authorizing recreational wolf and coyote trapping and

snaring, including the regulations approved by the

Commission, allow the unlawful taking of grizzly bears in

violation of § 9 of the Endangered Species Act (“ESA”), 16

U.S.C. § 1538.

1

Snares are cable devices that are designed to noose around an animal’s

neck or foot.

2

The Commission establishes the hunting, fishing, and trapping rules for

Montana’s Department of Fish, Wildlife and Parks (“MFWP”). Mont.

Code Ann. § 87-1-301(b). The MFWP’s stated mission is to “[s]teward

the fish, wildlife, parks, and recreational resources for the public, now

and into the future.” Montana Fish, Wildlife & Parks, About FWP,

https://fwp.mt.gov/aboutfwp/at-a-glance.

6 FLATHEAD-LOLO-BITTERROOT V. STATE OF MT

The district court granted Plaintiffs’ motion for a

preliminary injunction as to wolf trapping and snaring only.3

Defendants filed an expedited interlocutory appeal. We

have jurisdiction under 28 U.S.C. § 1292(a)(1). Under our

limited and deferential standard of review, we affirm the

district court’s grant of injunctive relief. But the injunction

is overbroad in two respects. It is geographically overbroad,

and thus we remand for the district court to expeditiously

reconsider the geographic scope. But to prevent harm to

Plaintiffs, the current geographic scope remains in place

until the district court reconsiders the geographic scope. The

injunction is also overbroad as to wolf trapping and snaring

related to the State’s research activities. We therefore vacate

that part of the injunction and remand for the district court to

make proper modifications to the scope of its order

consistent with this opinion.

I.

A.

In 1973, Congress passed the ESA, 16 U.S.C. §§ 1531–

1544. “[T]he ESA sets forth a comprehensive program to

limit harm to endangered species within the United States.”

Or. Nat. Res. Council v. Allen, 476 F.3d 1031, 1033 (9th Cir.

2007). “Section 9 of the ESA establishes a blanket

prohibition on the taking of any member of a listed

endangered species,” id. (footnote omitted) (citing 16 U.S.C.

§ 1538(a)(1)(B)), unless the “take” is authorized by the

relevant federal agency, 16 U.S.C. § 1539. A “take” means

3

Plaintiffs also sought to enjoin Montana’s recreational coyote trapping

and snaring laws. But the district court declined to enjoin such laws

because Plaintiffs did not “identif[y] a remedy appropriately tailored to

the specific harm caused by coyote trapping and snaring in Montana.”

Because Plaintiffs do not challenge that denial, we do not address it.

FLATHEAD-LOLO-BITTERROOT V. STATE OF MT 7

to “harass, harm, pursue, hunt, shoot, wound, kill, trap,

capture, or collect, or to attempt to engage in any such

conduct.” Id. § 1532(19). Species listed as either

“endangered” or “threatened” are protected under the ESA. 4

See 50 C.F.R. § 17.31(a); Crow Indian Tribe v. United

States, 965 F.3d 662, 671 (9th Cir. 2020). The ESA allows

private parties to sue to enjoin ESA violations. 16 U.S.C.

§ 1540(g).

In 1975, the grizzly bear was listed as “threatened” under

the ESA, and it is still listed as “threatened.” See

Amendment Listing the Grizzly Bear of the 48

Conterminous States as a Threatened Species, 40 Fed. Reg.

31734 (July 28, 1975); U.S. Fish & Wildlife Serv., Grizzly

Bear, https://www.fws.gov/species/grizzly-bear-ursus-

arctos-horribilis (last visited Jan. 14, 2024). In 1975, about

700 to 800 grizzlies were in the 48 contiguous states, living

primarily in areas of Wyoming, Washington, Montana, and

Idaho—the same areas where they are found today. U.S.

Fish & Wildlife Serv., Grizzly Bear, supra. Most lived in

Montana or Yellowstone National Park in areas now called

the Northern Continental Divide Ecosystem and the Greater

Yellowstone Ecosystem, respectively. These areas are still

home to most of the grizzlies in the 48 contiguous states. Id.

About 2,000 grizzlies currently live in these two areas and in

the Cabinet Yaak Ecosystem, an area of northwestern

Montana and northern Idaho. Id.

4

“The term ‘endangered species’ means any species which is in danger

of extinction throughout all or a significant portion of its range . . . .” 16

U.S.C. § 1532(6). “The term ‘threatened species’ means any species

which is likely to become an endangered species within the foreseeable

future throughout all or a significant portion of its range.” Id.

§ 1532(20).

8 FLATHEAD-LOLO-BITTERROOT V. STATE OF MT

Montana has allowed recreational wolf trapping since

2012. In 2020, the wolf trapping season opened on

December 15 and closed on February 28, statewide. In 2021,

the Montana Legislature required the Commission to also

authorize snaring of wolves and extended the length of the

wolf trapping and snaring season (“trapping season”) to the

first Monday after Thanksgiving through March 15. Mont.

Code Ann. § 87-1-304(8) (2021); id. § 87-1-901(1) (2021).

But since 2021, in the “estimated occupied grizzly bear

range” (“occupied grizzly range”), 5 also called the

“occupied grizzly bear habitat,” the default start date

“floats,” meaning that instead of a fixed date, the start date

can be any time from the Monday after Thanksgiving until

December 31. See Montana Fish, Wildlife & Parks, 2023

Furbearer Trapping and Hunting Regulations 15,

https://fwp.mt.gov/binaries/content/assets/fwp/hunt/regulati

ons/2023/2023-wolf-and-furbearer-final-for-web.pdf

(“2023 Regulations”); Montana Fish, Wildlife & Parks,

2022 Furbearer Trapping and Hunting Regulations 15,

https://fwp.mt.gov/binaries/content/assets/fwp/hunt/regulati

ons/2022/wolf-and-furbearer-final-for-web.pdf (“2022

Regulations”); Montana Fish, Wildlife & Parks, 2021

Montana FWP Wolf Hunting and Trapping Regulations 6,

https://fwp.mt.gov/binaries/content/assets/fwp/hunt/regulati

ons/2021/2021-wolf-final-for-web.pdf. The floating start

date is determined by the Commission based on its

5

Collaborating biologists, including from the MFWP, the U.S. Fish and

Wildlife Service, and the U.S. Geological Survey Interagency Grizzly

Bear Study Team, have defined this area as “an estimate of the roughly

contiguous, minimum area within which grizzly bears have established

residency or have demonstrated habitat use. It does not include

occasional forays outside the estimated range or low-density peripheral

areas and therefore does not represent the total known extent of

occurrences.”

FLATHEAD-LOLO-BITTERROOT V. STATE OF MT 9

assessment of real-time, on the ground observations of

grizzly bear activities. 2023 Regulations, supra, at 15. So

essentially, in those areas where it is estimated that grizzlies

reside or show habitat use, the default start date is December

31 unless the Commission announces an earlier start date.

The Commission is also permitted under the regulations to

adjust the trapping season end date if there is a “non-target

capture” 6 of a grizzly bear. Id. at 2, 15.

For the 2021 and 2022 trapping seasons, Montana opted

to use easily identifiable landmarks, such as roads or creeks

to delineate the boundaries of the occupied grizzly range.

This adjustment resulted in a larger area than the actual

occupied grizzly range, and so during the 2021 and 2022

seasons, Montana applied floating start dates to areas outside

the actual occupied grizzly range. The floating start dates

for 2021 varied between December 15 and 27, and for 2022,

between December 12 and 24.

In August 2023, the Commission adopted the 2023

Regulations. As in past years, it set the wolf trapping season

from the first Monday after Thanksgiving through March 15,

2024, but with floating start dates for the occupied grizzly

range. However, due to criticism that its prior use of

landmarks to delineate the boundaries of the occupied

grizzly range included areas with no grizzlies, Montana’s

map of the occupied grizzly range for the 2023 trapping

season used the actual occupied grizzly range boundaries. 7

For the 2023 season, Montana also used a new mapping

6

Montana’s regulations define this term as “[c]apture of any animal that

cannot be lawfully trapped, including domestic animals.” 2023

Regulations, supra, at 2.

7

According to Defendants, this was made possible due to the availability

and proliferation of specific GPS technologies.

10 FLATHEAD-LOLO-BITTERROOT V. STATE OF MT

method, which purportedly resulted in a more precise map

of the occupied grizzly range. These changes resulted in a

smaller occupied grizzly range than in prior years, and

consequently, the early default start date—the first Monday

after Thanksgiving—would apply to more areas than before.

B.

On September 11, 2023, Plaintiffs filed this suit in the

United States District Court for the District of Montana. The

operative amended complaint alleges that Montana’s

recreational wolf and coyote trapping and snaring laws are

causing and will cause the unlawful “take” of grizzly bears

in violation of § 9 of the ESA. Plaintiffs seek a declaration

that Montana’s laws violate the ESA and an injunction

barring Defendants from violating the ESA.

On September 22, 2023, Plaintiffs moved for a

preliminary injunction, asking the district court to “enjoin

the State of Montana from authorizing wolf trapping and

snaring in occupied grizzly bear habitat in Montana to avoid

irreparable harm until a ruling on the merits in this matter.”

Plaintiffs’ brief in support of its motion referenced a bulletin

issued by the MFWP, which stated that “Grizzly bears have

the potential to be found anywhere in the western two-thirds

of Montana (west of Billings).” Montana Fish, Wildlife &

Parks, Hunters Must Expect to See Bears (Aug. 30, 2023,

8:41 AM),

https://fwp.mt.gov/homepage/news/2023/aug/0830---

hunters-must-expect-to-see-bears. The bulletin warns the

public about the presence of grizzlies and provides a list of

precautions for hunters. Id.

Defendants requested and received an extension to

respond to the motion and eventually responded on October

23, 2023. On November 3, 2023, Plaintiffs submitted their

FLATHEAD-LOLO-BITTERROOT V. STATE OF MT 11

reply brief, in which they more specifically asked the district

court to “enjoin the 2023 regulations and to require Montana

to establish regulations that are reasonably certain not to lead

to the take of grizzly bears” and “to limit wolf . . . trapping

and snaring in all areas ‘west of Billings’ to the time period

when it is reasonably certain that almost all grizzly bears will

be in dens: January 1 to February 15.” Plaintiffs submitted

six new declarations and four exhibits with their reply. They

also submitted two additional declarations before the hearing

on the motion. Defendants never objected to this additional

evidence.

At the November 20, 2023 hearing, all parties had the

opportunity to offer testimony and arguments. Plaintiffs

reiterated that, based on their evidence, grizzlies would most

likely be in their dens from January 1 to February 15 and so

the court should limit the trapping season to that period.

During Plaintiffs’ opening argument, the court also asked

about the evidence that grizzlies may be found anywhere

west of Billings, signaling that it was considering whether

the “west of Billings” geographical scope would be proper. 8

Defendants did not address this evidence. Nor did they

address Plaintiffs’ argument that the grizzlies would most

likely be in their dens from January 1 to February 15.

On November 21, 2023, the district court granted the

motion for a preliminary injunction as to the wolf trapping

and snaring regulations. It found that Plaintiffs had raised

serious questions going to the merits and had shown a

reasonably certain threat of imminent harm to grizzly bears

8

The court asked Plaintiffs’ counsel: “What do you make of the

announcement by the powers that be to hunters that anybody west of

Billings has got a—there is a likelihood—not likelihood. There is a

potential of encountering a grizzly bear?”

12 FLATHEAD-LOLO-BITTERROOT V. STATE OF MT

should the 2023 wolf trapping season proceed as planned.

The district court’s order limited the wolf trapping season

“in all areas included in wolf regions one through five, plus

Hill, Blaine, and Phillips counties” to January 1 through

February 15, “the time period when it is reasonably certain

that almost all grizzly bears will be in dens.” Although

Plaintiffs sought to enjoin only Montana’s recreational wolf

trapping and snaring regulations, the district court’s order

appears to apply more broadly because it enjoins all

“authoriz[ed] wolf trapping and snaring” in the identified

areas, including the State’s trapping and snaring for research

purposes.

Defendants filed this interlocutory appeal the same day

the district court issued its order. They argue that the district

court erred in granting the preliminary injunction because:

(1) it improperly considered new arguments and new

materials submitted with Plaintiffs’ reply brief; (2) it applied

the wrong preliminary injunction standard; and (3) there is

no reasonable certainty of irreparable harm. For the reasons

discussed below, we reject these arguments and affirm the

issuance of injunctive relief. But Defendants also argue that

the injunction is temporally and geographically overbroad,

and that it is also overbroad with respect to wolf trapping and

snaring related to the State’s research activities. While we

affirm the injunction’s temporal scope, we agree that it is

overbroad geographically and with respect to the State’s

research activities.

II.

Our review of a grant of a preliminary injunction is

“limited and deferential.” Sw. Voter Registration Educ.

Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en

banc). “Appellate review of a decision to grant . . . a

FLATHEAD-LOLO-BITTERROOT V. STATE OF MT 13

preliminary injunction is restricted to determining whether

the district court abused its discretion or based its decision

on an erroneous legal standard or clearly erroneous findings

of fact.” Nat’l Wildlife Fed’n v. Burlington N. R.R. Inc., 23

F.3d 1508, 1510 (9th Cir. 1994). A district court’s finding

of a likelihood of future harm is subject to clear error review.

Id. at 1512; see also Nat’l Wildlife Fed’n v. Nat’l Marine

Fisheries Serv., 422 F.3d 782, 795 (9th Cir. 2005). A finding

of fact is clearly erroneous “if it is implausible in light of the

record, viewed in its entirety, or if the record contains no

evidence to support it.” Nat’l Wildlife Fed’n, 422 F.3d at

794 (citation omitted). “Mere disagreement with the district

court’s conclusions is not sufficient reason for us to reverse

the district court’s decision regarding a preliminary

injunction.” Id. at 793.

We “review the scope of an injunction for abuse of

discretion.” Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries

Serv., 886 F.3d 803, 823 (9th Cir. 2018). It is an abuse of

discretion to issue an overly broad injunction. Id.

We review for abuse of discretion whether it was proper

for the district court to consider new arguments and new

materials submitted with Plaintiffs’ reply brief. See Getz v.

Boeing Co., 654 F.3d 852, 868 (9th Cir. 2011) (reviewing

for abuse of discretion a district court’s decision to consider

evidence submitted for the first time in a reply brief); El

Pollo Loco, Inc. v. Hashim, 316 F.3d 1032, 1040–41 (9th

Cir. 2003) (reviewing for abuse of discretion the district

court’s consideration of an argument raised for the first time

in a reply brief).

14 FLATHEAD-LOLO-BITTERROOT V. STATE OF MT

III.

A.

We first address Defendants’ argument that the district

court abused its discretion by considering new arguments

and new materials submitted with Plaintiffs’ reply brief.

Because the record shows that Defendants had an

opportunity to respond to Plaintiffs’ submissions, we find no

abuse of discretion.

As mentioned above, for the first time in their reply brief,

Plaintiffs asked the district court “to limit wolf . . . trapping

and snaring in all areas ‘west of Billings’ to the time period

when it is reasonably certain that almost all grizzly bears will

be in dens: January 1 to February 15.” They also submitted

six new declarations and four exhibits with their reply brief

and submitted two additional declarations after they filed

their reply brief. All were submitted at least five days before

the hearing on the motion.

A district court does not abuse its discretion in

considering new arguments or evidence if the opposing party

had an opportunity to respond. See El Pollo Loco, 316 F.3d

at 1040–41 (holding that the district court did not abuse its

discretion in considering an argument raised for the first time

in a reply brief because the adverse party had an opportunity

to rebut the argument at the hearing and “the district court

listened to, considered, and rejected” the rebuttal argument);

id. at 1041 (citing Provenz v. Miller, 102 F.3d 1478, 1483

(9th Cir. 1996), for the proposition that “a district court may

consider new evidence presented in a reply brief if the

district court gives the adverse party an opportunity to

respond”).

FLATHEAD-LOLO-BITTERROOT V. STATE OF MT 15

All of Plaintiffs’ documents were submitted at least five

days before the hearing, and nothing in the record suggests

that Defendants were prevented from responding to the

documents. 9 And Defendants had an opportunity to respond

at the hearing, as the district court gave both parties the

chance to offer testimony and arguments. Further, based on

Plaintiffs’ opening argument and the court’s questions to

Plaintiffs’ counsel, Defendants were on notice that the court

was considering whether Plaintiffs’ requested remedy raised

for the first time in its reply brief was proper. During the

hearing, the court also referenced some of Plaintiffs’ new

evidence, signaling that it was considering such evidence.10

Despite being put on notice that the court was considering

Plaintiffs’ new arguments and evidence and having the

opportunity to respond, Defendants failed to do so. Under

these circumstances, the district court did not abuse its

discretion in considering Plaintiffs’ new arguments and new

materials. 11

9

Defendants also do not suggest that they were barred from responding

to Plaintiffs’ new arguments or evidence before the hearing.

10

For example, Plaintiffs submitted as an exhibit to their reply brief a

letter from the Director of the United States Department of the Interior

to the Director of the MFWP. During the hearing, the court questioned

Defendants’ counsel about the letter, and counsel raised no objection to

its submission.

11

Defendants never objected to the submission of Plaintiffs’ new

arguments or evidence. Although Plaintiffs do not argue waiver, we note

that “[i]f a party does not object to or challenge the improper submission

of new evidence before the district court, the party who fails to object

has ‘waived any challenge on the admissibility of [the] evidence.’”

Dutta v. State Farm Mut. Auto. Ins. Co., 895 F.3d 1166, 1172 (9th Cir.

2018) (quoting Getz v. Boeing Co., 654 F.3d 852, 868 (9th Cir. 2011)).

16 FLATHEAD-LOLO-BITTERROOT V. STATE OF MT

Defendants also argue that it was improper for the

district court to consider a news article that “came out the

day of oral argument” and “was never corroborated by any

witness.” The article stated that an adult grizzly bear had

been photographed on a ranch in October 2023 “along the

Missouri and Judith rivers, the farthest east a bear has been

seen in Montana in more than 100 years.” Brett French,

Grizzly Bear Photographed in Upper Missouri River Breaks,

Missoulian (Nov. 20, 2023), https://perma.cc/F2D7-LHGC.

But it appears that during the hearing, Plaintiffs’ counsel

referenced the very same facts, stating that recently “a

grizzly was seen on a ranch at the junction of the Missouri

and . . . Judith,” and that “[i]t’s been a long time since a bear

has been out on the Judith.” Defendants made no

contemporaneous objection to counsel’s statements.

Further, the Federal Rules of Evidence do not strictly

apply in the preliminary injunction context. Given that the

“purpose of a preliminary injunction is merely to preserve

the relative positions of the parties until a trial on the merits

can be held,” and “given the haste that is often necessary if

those positions are to be preserved, a preliminary injunction

is customarily granted on the basis of procedures that are less

formal and evidence that is less complete than in a trial on

the merits.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395

(1981). Indeed, “[t]he trial court may give even inadmissible

evidence some weight, when to do so serves the purpose of

preventing irreparable harm before trial.” Flynt Distrib. Co.

v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984). Under these

principles and based on the record, we see no error in the

district court’s consideration of the news article.

FLATHEAD-LOLO-BITTERROOT V. STATE OF MT 17

B.

Defendants next argue that the district court applied the

wrong preliminary injunction standard. They claim that the

district court erred by requiring Plaintiffs to show only a

serious question going to the merits instead of a likelihood

of success on the merits. Our case law does not support

Defendants’ position, as we have affirmed the viability of

the “serious questions” test. See All. for the Wild Rockies v.

Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011) (“[T]he

‘serious questions’ version of the sliding scale test for

preliminary injunctions remains viable after the Supreme

Court’s decision in Winter [v. Natural Resources Defense

Council, Inc., 555 U.S. 7 (2008)].”). 12

Under the Winter test, a party is entitled to a preliminary

injunction if it demonstrates (1) “that [it] is likely to succeed

12

Our circuit along with the Second and Seventh Circuits have

confirmed the viability of a sliding scale test post-Winter. See Cottrell,

632 F.3d at 1134 (“[W]e join the Seventh and the Second Circuits in

concluding that the ‘serious questions’ version of the sliding scale test

for preliminary injunctions remains viable after the Supreme Court’s

decision in Winter.”). We note, however, that since our decision in

Cottrell, the Tenth Circuit has joined the Fourth Circuit in rejecting such

test as invalid under Winter. See Real Truth About Obama, Inc. v. Fed.

Election Comm’n, 575 F.3d 342, 347 (4th Cir. 2009) (“Because of its

differences with the Winter test, [our] balance-of-hardship test may no

longer be applied in granting or denying preliminary injunctions in the

Fourth Circuit, as the standard articulated in Winter governs the issuance

of preliminary injunctions not only in the Fourth Circuit but in all federal

courts.”), vacated on other grounds, 559 U.S. 1089 (2010), and

reinstated in relevant part sub nom. The Real Truth About Obama, Inc.

v. F.E.C., 607 F.3d 355 (4th Cir. 2010); Diné Citizens Against Ruining

Our Env’t v. Jewell, 839 F.3d 1276, 1282 (10th Cir. 2016) (“Under

Winter’s rationale, any modified test which relaxes one of the prongs for

preliminary relief and thus deviates from the standard test is

impermissible.”).

18 FLATHEAD-LOLO-BITTERROOT V. STATE OF MT

on the merits,” (2) “that [it] is likely to suffer irreparable

harm in the absence of preliminary relief,” (3) “that the

balance of equities tips in [its] favor,” and (4) “that an

injunction is in the public interest.” Cottrell, 632 F.3d at

1131 (quoting Winter, 555 U.S. at 20). But our court has

adopted the “serious questions” test—a “sliding scale”

variant of the Winter test—under which a party is entitled to

a preliminary injunction if it demonstrates (1) “serious

questions going to the merits,” (2) “a likelihood of

irreparable injury,” (3) “a balance of hardships that tips

sharply towards the plaintiff,” and (4) “the injunction is in

the public interest.” Id. at 1135. As to the first factor, the

serious questions standard is “a lesser showing than

likelihood of success on the merits.” All. for the Wild

Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir. 2017).

“In cases involving the ESA, Congress removed from the

courts their traditional equitable discretion in injunction

proceedings of balancing the parties’ competing interests.”

Burlington N. R.R., 23 F.3d at 1511. So when applying the

“serious questions” test to ESA claims, the last two factors—

balance of hardships and the public interest—always “tip[]

heavily in favor of protected species.” Id. In practice, then,

only the first two factors—serious questions on the merits

and likelihood of irreparable injury—are at issue when

analyzing ESA claims under the “serious questions” test.

See Cottrell, 632 F.3d at 1135.

The district court applied the proper preliminary

injunction standard. It correctly determined that our circuit

employs the “serious questions” test; that because Plaintiffs

sought an injunction under the ESA, the last two factors of

the “serious questions” test tip sharply in Plaintiffs’ favor;

and that, therefore, in order to issue an injunction, “Plaintiffs

in this case must demonstrate they have presented serious

FLATHEAD-LOLO-BITTERROOT V. STATE OF MT 19

questions as to the merits of their ESA claim and that absent

an injunction, irreparable harm is not only possible, but

likely.”

Defendants also argue that the district court should have

used “the higher standard for issuance of [a] mandatory

injunction.” See Hernandez v. Sessions, 872 F.3d 976, 997–

98 (9th Cir. 2017) (explaining that our circuit continues to

apply a heightened standard to mandatory injunctions). “A

mandatory injunction ‘orders a responsible party to take

action.’” Marlyn Nutraceuticals, Inc. v. Mucos Pharma

GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (quotation

marks omitted) (quoting Meghrig v. KFC W., Inc., 516 U.S.

479, 484 (1996)). “A prohibitory injunction prohibits a party

from taking action and ‘preserves the status quo pending a

determination of the action on the merits.’” Id. at 878

(brackets omitted) (quoting Chalk v. U.S. Dist. Ct., 840 F.2d

701, 704 (9th Cir. 1988)). Defendants also argue that, even

if the injunction is prohibitory rather than mandatory, the

status quo would be a return to the 2022 Regulations, “not a

complete cessation of all wolf trapping.” We are

unpersuaded.

The injunction prevents the State from authorizing any

wolf trapping and snaring in certain areas outside January 1,

2024 to February 15, 2024. That is a prohibitory injunction

because it prevents the State from enforcing its regulations

that authorize wolf trapping. See, e.g., Bay Area Addiction

Rsch. & Treatment, Inc. v. City of Antioch, 179 F.3d 725,

727–28, 732 n.13 (9th Cir. 1999) (holding that an injunction

preventing enforcement of a local ordinance was prohibitory

rather than mandatory); Hernandez, 872 F.3d at 998 (holding

that an injunction that prohibits the government from

engaging in likely unconstitutional conduct is a “classic form

of prohibitory injunction”).

20 FLATHEAD-LOLO-BITTERROOT V. STATE OF MT

The injunction also maintains the status quo. The “status

quo ante litem” for preliminary injunction purposes “refers

not simply to any situation before the filing of a lawsuit, but

instead to ‘the last uncontested status which preceded the

pending controversy.’” GoTo.com, Inc. v. Walt Disney Co.,

202 F.3d 1199, 1210 (9th Cir. 2000) (quoting Tanner Motor

Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 809 (9th Cir. 1963)).

Plaintiffs filed suit in September 2023. Thus, the last

uncontested status preceding the lawsuit was no authorized

recreational wolf trapping or snaring, as the 2022 wolf

trapping season had ended on March 15, 2023, and wolf

trapping was not scheduled to start again until November 27,

2023. See 2022 Regulations, supra, at 15; 2023 Regulations,

supra, at 15.

For these reasons, the district court applied the proper

preliminary injunction standard, and its injunction, which

was prohibitory, preserved the status quo. We next address

whether the district court abused its discretion in analyzing

the two preliminary injunction factors at issue: serious

questions on the merits and likelihood of irreparable injury.

C.

1.

Defendants do not appear to meaningfully challenge the

district court’s conclusion that there are serious questions

going to the merits of the ESA claim. Instead, their

challenge seems to hinge entirely on their claim (that we

rejected above) that the district court had to find that

Plaintiffs were likely to succeed on the merits before it could

issue a preliminary injunction. But generously construing

Defendants’ argument as one challenging the district court’s

serious questions determination, we reject it.

FLATHEAD-LOLO-BITTERROOT V. STATE OF MT 21

“Serious questions” are ones “that ‘cannot be resolved

one way or the other at the hearing on the injunction’ because

they require ‘more deliberative investigation.’” Manrique v.

Kolc, 65 F.4th 1037, 1041 (9th Cir. 2023) (quoting Republic

of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir.

1988) (en banc)). They “need not promise a certainty of

success, nor even present a probability of success, but must

involve a ‘fair chance of success on the merits.’” Marcos,

862 F.2d at 1362 (quoting Nat’l Wildlife Fed’n v. Coston,

773 F.2d 1513, 1517 (9th Cir. 1985)).

The question is whether Montana’s 2023 recreational

wolf trapping and snaring regulations will cause the

unlawful “take” of grizzly bears in violation of § 9 of the

ESA. Plaintiffs provided the district court with many

declarations from qualified experts 13 as well as research

materials 14 , which show that the regulations permit wolf

trapping and snaring when a substantial number of grizzlies

are active outside their dens, and that the grizzlies will be

attracted to and get caught in wolf traps, resulting in

13

For example, Plaintiffs’ experts included a scientist and retired

wildlife management professional with over forty years of experience in

grizzly bear research and conservation. This expert has a B.S. in Forest

Resource Management, an M.S. in Plant Ecology, and a Ph.D. in

Wildlife Resource Management, has been consulted by grizzly bear

researchers from around the world, and has authored more than 130

scientific articles and reports, many of which address the ecology and

behavior of grizzly bears. Another retired wildlife biologist, with a B.A.

in Environmental Sciences and an M.S. in Fish and Wildlife

Management, has been involved in grizzly and black bear research since

the 1970s and has authored or co-authored dozens of journal articles,

scientific reports, and book chapters on grizzly bears.

14

Plaintiffs’ research materials included articles concluding that

multiple grizzly bears in southeast British Columbia suffered toe

amputations from wolf traps.

22 FLATHEAD-LOLO-BITTERROOT V. STATE OF MT

unlawful “take” under the ESA. Defendants also presented

evidence from qualified experts as well as research materials

relied on by those experts. Defendants’ evidence supports

that the State’s mitigation measures—including the floating

start date based on a comprehensive assessment of grizzly

bear activity, use of trap devices that would allow grizzly

bears to escape unharmed, and trapper education courses—

ensure that the recreational wolf trapping regulations will not

cause the unlawful “take” of grizzlies. Defendants’ position

is also supported by the absence of any verified reports of a

grizzly bear being caught in a public wolf trap during the

wolf trapping season following implementation of the

floating start date. Both sides presented evidence that

unlawful grizzly bear killings are underreported.

Fairly read, the record reflects a genuine scientific and

factual debate over whether Montana’s 2023 recreational

wolf trapping and snaring regulations will cause the

unlawful “take” of grizzly bears. The issue therefore

“cannot be resolved one way or the other” and requires

“more deliberative investigation.” Manrique, 65 F.4th at

1041 (quoting Marcos, 862 F.2d at 1362). Given Plaintiffs’

substantial proffered evidence, which could be credited by a

fact finder even in light of Defendants’ evidence, the district

court did not abuse its discretion in determining that

Plaintiffs have at least a “fair chance of success on the

merits,” Coston, 773 F.2d at 1517, and thus raise a serious

question on the merits.

2.

Defendants challenge the district court’s finding of a

reasonably certain threat of imminent harm to grizzly bears

had Montana’s wolf trapping and snaring season proceeded

as planned. As described above, our review of this finding

FLATHEAD-LOLO-BITTERROOT V. STATE OF MT 23

is limited and “very deferential.” Nat’l Wildlife Fed’n, 422

F.3d at 794; see also Sw. Voter Registration Educ. Project,

344 F.3d at 918. We may only reverse if the finding is

clearly erroneous, meaning it must be “implausible in light

of the record, viewed in its entirety,” or nothing in the record

supports it. Nat’l Wildlife Fed’n, 422 F.3d at 794. There

was no reversible error under this deferential standard.

“A reasonably certain threat of imminent harm to a

protected species is sufficient for issuance of an injunction

under section 9 of the ESA.” Marbled Murrelet v. Babbitt,

83 F.3d 1060, 1066 (9th Cir. 1996), as amended on denial of

reh’g (June 26, 1996). “[W]e do not require that future harm

be shown with certainty before an injunction may issue, [but]

we do require that a future injury be sufficiently likely.”

Burlington N. R.R., 23 F.3d at 1512. This means “we require

. . . a definitive threat of future harm to protected species, not

mere speculation.” Id. at 1512 n.8.

Plaintiffs’ evidence showed that grizzly bears have wide

home ranges, are not limited to geographical borders, are

active in areas frequented by wolves, are highly attracted to

scented and baited wolf traps, and often get caught in those

traps. For example, one of Plaintiffs’ experts stated in his

declaration that the current “spatial and temporal overlap of

trapping for . . . wolves in Montana with places and times

that grizzly bears are also active results in widespread

exposure of bears to risks posed by non-target injuries from

snares and body-hold traps set to capture other species.”

(emphasis added). Another expert stated in her declaration

that “[s]cented and baited traps set for wol[ves] . . . are likely

to attract grizzly bears from long distances,” and that “[i]n

those situations, grizzly bears can be highly vulnerable to

being caught in traps and suffer injuries to extremities or

even be killed.” As the district court pointed out,

24 FLATHEAD-LOLO-BITTERROOT V. STATE OF MT

Defendants’ own evidence showed that, in Montana, grizzly

bears have been caught in traps targeted at other animals—

the MFWP has recorded twenty-one reports of such

instances since 1988. 15 Plaintiffs also presented evidence

that grizzlies have been seen in Montana with injuries—

missing claws and toes and missing lower leg—likely caused

by traps.

Plaintiffs also showed that a large percentage of grizzly

bears would be active outside their dens during Montana’s

proposed wolf trapping season. One of their experts stated

in his declaration that “[d]epending on the ecosystem, nearly

40% of grizzly bears in Montana have historically been

active outside their dens either after November 27th or

before March 15th.” 16 He added that this trend is likely to

continue and increase due to increasing climate

temperatures: “Grizzly bears in the Northern Rockies will

almost certainly enter dens later and exit dens earlier as

15

Defendants argue that not all twenty-one reports are relevant for

various reasons, including because some involved non-recreational

traps. But the evidence is relevant, as it tends to show that grizzly bears

are attracted to and get caught in traps generally, which supports the

conclusion that they will get caught in recreational wolf traps. And this

conclusion was laid out by Plaintiffs’ experts in their declarations.

16

Defendants criticize this evidence, arguing that it is based on data that

is not entirely Montana-specific, that is outdated, and that does not

account for the floating start date. But these criticisms go toward the

weight of the evidence, which is left to the trial court’s discretion. See

11A Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 2949 (3d ed. Apr. 2023 update) (“Once received, the

question of how much weight an affidavit will be given is left to the trial

court’s discretion and the quality of the affidavit will have a significant

effect on this determination.”).

FLATHEAD-LOLO-BITTERROOT V. STATE OF MT 25

annual temperatures continue to warm and vegetal foods

become available earlier and later in the year.”

As a whole, Plaintiffs’ evidence supported that a large

percentage—nearly 40%—of grizzly bears in Montana

would be active during the proposed wolf trapping season in

the same areas as wolves and would be highly attracted to

the wolf traps, which would likely result in grizzlies being

caught in those traps. 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. In other

words, the district court’s finding was not implausible given

Plaintiffs’ evidence and the evidence as a whole. 17

Defendants mainly challenge the district court’s finding

by identifying evidence that conflicts with or could

undermine Plaintiffs’ evidence. For example, Defendants

point to evidence that grizzly bears would not be active

during the wolf trapping season, and that Montana’s

17

Respectfully, we disagree with our dissenting colleague. In arguing

that Plaintiffs’ evidence of harm is too speculative, the dissent fails to

take into consideration and give appropriate weight to the evidence that

supports the district court’s determination. Instead, the dissent focuses

on and gives more weight to the evidence that could undermine the

district court’s determination. Dissent 34–37. Such an analysis conflicts

with our standard of review.

We also disagree with the dissent’s nexus analysis. Plaintiffs’ expert

declared that “nearly 40% of grizzly bears in Montana have historically

been active outside their dens either after November 27th or before

March 15th.” Because Montana’s laws permit wolf trapping during the

same time period when a large percentage of grizzlies will be active

outside their dens, it was reasonable for the district court to find a

sufficient nexus. We believe that the dissent concludes otherwise based

on conflicting evidence. Dissent 42–43, 42 n.4. But again, the standard

of review does not permit us to reweigh the evidence.

26 FLATHEAD-LOLO-BITTERROOT V. STATE OF MT

regulatory structure, including its mandatory trapper

education program, significantly reduces the chance that a

grizzly bear would be recreationally trapped during the wolf

trapping season. But “[c]lear error is not demonstrated by

pointing to conflicting evidence in the record.” United

States v. Frank, 956 F.2d 872, 875 (9th Cir. 1991).

Defendants also make much of the evidence reflecting

the lack of any verified reports of grizzly bears being caught

in recreational wolf traps in Montana since 2013. But the

district court considered that evidence, and the court was not

required to give it controlling weight because other evidence

undercut its persuasiveness. 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.” 18

Even Defendants’ evidence showed that more than 25% of

grizzly bear killings go unreported. Given this evidence, the

district court could appropriately infer that the verified

reports significantly underrepresented the number of

18

Defendants argue that these statements are based on a study of “non-

hunting human-caused mortalities” in “Flathead Valley, British

Columbia” and thus these statements cannot support the underreporting

of grizzlies caught by traps in Montana. See Bruce N. McLellan et al.,

Estimating Unrecorded Human-Caused Mortalities of Grizzly Bears in

the Flathead Valley, British Columbia, Canada, PeerJ (2018),

https://peerj.com/articles/5781/. We disagree. While the study did not

purport to cover the exact geographical regions at issue here, it was

reasonable for the district court to infer that it nevertheless supported

significant underreporting generally, particularly in light of Defendants’

own evidence showing underreporting of grizzly bear killings in

Montana.

FLATHEAD-LOLO-BITTERROOT V. STATE OF MT 27

grizzlies caught in recreational wolf traps and thus the actual

number was likely more.

The outcome here is controlled by the standard of

review. While we might have reached a different conclusion

than the district court, that is not the test. “Mere

disagreement with the district court’s conclusions is not

sufficient reason for us to reverse the district court’s decision

regarding a preliminary injunction.” Nat’l Wildlife Fed’n,

422 F.3d at 793. “[O]ur review in the preliminary injunction

context is very deferential.” Id. at 794 (emphasis added).

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. 19

D.

Finally, we address the scope of the injunction.

Defendants appear to challenge the geographical and

19

We reject Defendants’ argument that this case is controlled by

Burlington Northern Railroad in which we upheld the district court’s

denial of a preliminary injunction. There, the district court found that

there was no reasonable likelihood of future harm to grizzlies, and we

held that such finding was supported by the evidence in that case.

Burlington N. R.R., 23 F.3d at 1511–12. We did not, as Defendants

suggest, hold as a matter of law that evidence of “no incidental takes of

grizzly bears for three years br[eaks] the chain of likelihood” of harm.

We also reject Defendants’ contention that the district court should

have followed Center for Biological Diversity v. Little, 622 F. Supp. 3d

997 (D. Idaho 2022). The district court was not bound by Little. See

Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (“A decision of a

federal district court judge is not binding precedent in either a different

judicial district, the same judicial district, or even upon the same judge

in a different case.” (quoting 18 J. Moore et al., Moore’s Federal Practice

§ 134.02[1][d] (3d ed. 2011))). And regardless, we hold that the district

court’s finding of a reasonably certain threat of imminent harm was not

clearly erroneous based on the record here.

28 FLATHEAD-LOLO-BITTERROOT V. STATE OF MT

temporal scope of the injunction. Although “[a] district

court has considerable discretion in fashioning suitable relief

and defining the terms of an injunction,” injunctive relief

“must be tailored to remedy the specific harm alleged.”

Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970,

974 (9th Cir. 1991). “The scope of the [injunction] must be

no broader and no narrower than necessary to redress the

injury shown by the plaintiff[s].” California v. Azar, 911

F.3d 558, 584 (9th Cir. 2018).

As to the injunction’s temporal scope, Defendants have

failed to persuade us that the district court abused its

discretion. Defendants attack the injunction’s time

limitations based on the premise that the district court erred

by considering the new arguments and new materials

submitted with and after Plaintiffs’ reply brief. But we

rejected that premise above.

Further, evidence in the record supports that the time

limitations were “no broader . . . than necessary to redress

the injury shown by the plaintiff[s].” Id. After presenting

information related to grizzlies’ denning habits, one of

Plaintiffs’ experts declared that “[w]hile it is important to

delay the start of the trapping and snaring season until at least

January 1 to avoid catching grizzly bears, it is equally

important to end the season by early February in low

elevations and mid-February in higher elevations.” In

support of his conclusion, this expert explained that

“[g]rizzly bears in the Northern Rockies will almost

certainly enter dens later and exit dens earlier as annual

temperatures continue to warm and vegetal foods become

available earlier and later in the year.” Defendants’ own

default start date of December 31 in the occupied grizzly

range also supports that it was reasonable for the district

court to conclude that most grizzlies would be denned by

FLATHEAD-LOLO-BITTERROOT V. STATE OF MT 29

January 1. Defendants do not explain how all this evidence,

if considered, could lead to the conclusion that the district

court abused its discretion as to the injunction’s temporal

scope. Thus, we affirm the temporal scope of the injunction,

which limited wolf trapping and snaring to January 1, 2024

through February 15, 2024.

We agree, however, with Defendants 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.” 20 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. See 2023 Regulations, supra, at

14. On the current record, there is insufficient evidence to

reasonably conclude that this expansive geographical scope

is necessary to prevent the unlawful “take” of grizzly bears.

The district court did not give an explanation supporting

the geographic scope. But Plaintiffs identify what appear to

be the strongest pieces of evidence in the record supporting

the injunction’s geographic scope. First, the MFWP’s

bulletin, which states (without any supporting information)

that “[g]rizzly bears have the potential to be found anywhere

in the western two-thirds of Montana (west of Billings), and

their distribution is denser and more widespread than in

previous years.” Montana Fish, Wildlife & Parks, Hunters

Must Expect to See Bears, supra. Second, the news article

that reported a single grizzly bear had been photographed

“along the Missouri and Judith rivers, the farthest east a bear

20

For simplicity, we refer to this geographic scope as “all areas west of

Billings” even though it also includes areas east of Billings.

30 FLATHEAD-LOLO-BITTERROOT V. STATE OF MT

has been seen in Montana in more than 100 years.” French,

supra.

The news article shows that one bear was seen in one

area west of Billings, and that the occurrence was extremely

rare—it hadn’t happened in the last 100 years. Thus, rather

than support that grizzlies are likely to be found in all areas

west of Billings, the article shows the opposite: grizzly bear

presence is very rare in some areas west of Billings. The

bulletin fares no better. It states that grizzlies could

“potential[ly]” be found anywhere west of Billings. But

“potential” means “existing in possibility” or only “capable

of development into actuality.” Potential, Merriam-

Webster, https://www.merriam-

webster.com/dictionary/potential (last visited Feb. 1, 2024).

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 west of Billings such that

the injunction’s geographic scope is necessary to protect the

grizzlies.

On the current record, the injunction is geographically

overbroad. But because Defendants have not presented an

alternative geographic scope, we remand for the district

court to reconsider the geographic scope and instruct that it

do so expeditiously. See Baird v. Bonta, 81 F.4th 1036,

1047–48 (9th Cir. 2023) (instructing the district court to

expeditiously decide the preliminary injunction motion on

remand). To prevent harm to Plaintiffs, the injunction’s

current geographic scope remains in place until the district

court reconsiders the geographic scope. See Nat’l Org. for

Reform of Marijuana L. (NORML) v. Mullen, 796 F.2d 276,

276 (9th Cir. 1986) (ordering that an injunction remain in

place while the district court considers whether the

injunction should be modified).

FLATHEAD-LOLO-BITTERROOT V. STATE OF MT 31

We also agree with Defendants that the injunction is

overbroad for another reason: it prevents the State from

trapping and snaring wolves for research, which usually

occurs during the summer. Oral Arg. at 7:43–8:24.

Plaintiffs’ counsel agreed that, even if we affirmed the

injunction, Plaintiffs would have no objection to clarifying

that the injunction does not apply to government research

activities. Id. at 12:26–12:51. Given that concession, and

because Plaintiffs’ suit does not challenge trapping or

snaring related to government research, we agree that the

injunction is also overbroad as to wolf trapping and snaring

related to government research. We therefore vacate the

injunction to the extent that it prevents the State from

trapping and snaring wolves for research purposes and

remand for the district court to modify the scope of the

injunction. See Galvez v. Jaddou, 52 F.4th 821, 838 (9th Cir.

2022) (vacating an overbroad provision of an injunction and

remanding for proper modification).

IV.

For the reasons stated above, we AFFIRM the district

court’s issuance of injunctive relief. But because the

injunction is geographically overbroad, we REMAND for

the district court to reconsider the geographic scope and

instruct that it do so expeditiously. The current geographic

scope, however, remains in effect until the district court

reconsiders the geographic scope. The injunction is also

overbroad as to wolf trapping and snaring related to the

State’s research activities. We therefore VACATE that part

of the injunction and REMAND for the district court to

make proper modifications to the scope of its order

consistent with this opinion. The district court may conduct

any further proceedings consistent with this opinion. The

mandate shall issue forthwith.

32 FLATHEAD-LOLO-BITTERROOT V. STATE OF MT

AFFIRMED IN PART; VACATED AND

REMANDED IN PART. 21

TALLMAN, Circuit Judge, concurring in part and dissenting

in part.

I concur in the majority’s decision to remand the district

court’s injunction as geographically overbroad and not

sufficiently clear in preventing any takings so as to

accommodate the State of Montana’s necessary scientific

research activities. However, I respectfully dissent from the

majority’s conclusion that Plaintiffs established a reasonably

certain threat of imminent harm to the increasing grizzly

bear population through scientifically driven wolf trapping

regulations sufficient to warrant a preliminary injunction.

The district court erred in granting equitable relief for that

reason as well.

The purpose of a preliminary injunction is to preserve the

status quo and prevent the “irreparable loss of rights” before

a final judgment on the merits. See Sierra On-Line, Inc. v.

Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984);

Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1130–31

(9th Cir. 2006). The remedy is considered extraordinary and

should not be awarded as a matter of right but only “upon a

clear showing that the plaintiff is entitled to such relief.”

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).

In Winter we were reversed for not adhering to these black

letter principles. For that reason, we need to tread cautiously

21

Each party shall bear its own costs on appeal.

FLATHEAD-LOLO-BITTERROOT V. STATE OF MT 33

before blocking a state’s entire regulatory scheme for

wildlife conservation.

To justify a preliminary injunction, Plaintiffs had to not

only establish a likelihood of success on the merits, but also

that irreparable harm is likely, not just possible. Winter, 555

U.S. at 22. The evidence falls woefully short of meeting that

standard. 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. See Nat’l

Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 886 F.3d 803,

819 (9th Cir. 2018). The reason for this is twofold: first, the

evidence of harm presented is too speculative to warrant a

preliminary injunction under Winter; second, the evidence

presented is not sufficiently tied to the challenged revised

Montana regulations.

I

Plaintiffs who seek to enjoin a violation of the

Endangered Species Act (“ESA”) must show a “definitive

threat of future harm to protected species.” Nat’l Wildlife

Fed’n, 886 F.3d at 818–19 (internal quotation marks

omitted). My colleagues correctly recite that this harm

cannot be based on “mere speculation.” Nat’l Wildlife Fed’n

v. Burlington N. R.R., 23 F.3d 1508, 1512 n.8 (9th Cir.

1994); Ctr. for Biological Diversity v. Otter, No. 1:14-CV-

258-BLW, 2018 WL 539329, at *3 (D. Idaho Jan. 24, 2018).

To merit the extraordinary award of a preliminary

injunction, the supporting materials presented to the court

“must be based on evidence not speculation.” Otter, 2018

WL 539329, at *3 (“There is always the danger that lynx

captures are going unreported. But injunctions and

34 FLATHEAD-LOLO-BITTERROOT V. STATE OF MT

declaratory relief must be based on evidence not

speculation.”). A “showing of a mere possibility of

irreparable harm is not sufficient under Winter.” Earth

Island Inst. v. Carlton, 626 F.3d 462, 468 (9th Cir. 2010);

Nat’l Wildlife Fed’n, 886 F.3d at 819 (“A ‘possibility’ of

irreparable harm cannot support an injunction.”).

The record viewed in totality does not support a finding

that irreparable harm is likely, other than just possible. 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.

For example, Plaintiffs in the district court challenged

the new regulations primarily on the grounds that the

floating start date and increase of permitted wolf trapping

will result in greater unreported grizzly bear bycatch.

However, while the State of Montana offers actual data that

no recreational wolf trapper has had accidental grizzly bear

bycatch since 2013, Plaintiffs argue that “[t]he absence of

evidence is not the evidence of absence;” “even if there’s no

verified reports of grizzly bears stepping in [wolf] traps, it

doesn’t lessen the likelihood that future captures are [going

to] harm affected bears;” and that “conversations with

various members of the trapper community” lead them to

believe that “trappers will not report incidental capture.” D.

Mont. Case No. 9:23-cv-00101-DWM, ECF No. 6-3, at 17

(hereinafter “D. Mont.”). This is speculation, not sufficient

to overcome the data presented by the State that no bycatch

is known to have occurred in more than a decade.

FLATHEAD-LOLO-BITTERROOT V. STATE OF MT 35

Moreover, Plaintiffs in the district court challenged the

new regulations reducing the grizzly bear “occupied range,”

stating it could result in more takes as grizzly bears “may be

present” outside of the calculated and monitored territory.

But, while the State of Montana offers a specific map based

on enhanced technology showing where grizzly bears are

known to be from GPS tracking data and scientific

monitoring, 1 Plaintiffs advance only varying, inconsistent,

and speculative theories of where grizzlies may be. They

include a purported territory map noting all possible bear

sightings from the previous decade, and multiple

declarations which state that with current weather patterns

grizzly bears could be “anywhere west of Billings.” D.

Mont. ECF No. 6-2, at 3; ECF No. 6-5, at 3. Neither of these

theories are persuasive. In fact, my colleagues agree that the

declaration that grizzly bears could be anywhere west of

Billings is nothing but unsupported speculation, clarifying in

the opinion that “[o]n the current record, there is insufficient

evidence to reasonably conclude that this expansive

geographical scope is necessary.”

Plaintiffs also assert that the permitted 9-inch foothold

wolf traps specifically harm grizzly bears as they are “large

enough to capture grizzly bears and all furbearers” and “can

cause toe fractures and toe amputations in grizzly bears,”

speculating that “[s]maller bears may not be able to break a

neck snare set for wolves.” But Defendants directly refute

Plaintiffs’ contention that the changes will result in more

takes. Defendants explain that actual data reflects no

1

Notably, every declaration and affidavit which challenges the

effectiveness of the floating start date uses the same one-paragraph text,

arguing that the sample size of GPS tagged and tracked bears is not big

enough. D. Mont. ECF No. 21, at 2; ECF No. 22, at 2; ECF No. 24, at

3.

36 FLATHEAD-LOLO-BITTERROOT V. STATE OF MT

increase in bear mortality from July 1, 2021, to December

31, 2021, after the floating start date rule changes went into

effect. Moreover, “[n]o known grizzly bears have been

caught in a public, legally set wolf trap of any kind

(including snare or foot traps) since 2013, and none since

implementing the floating start date in the ‘estimated

occupied range of grizzly bears’ in 2021.”

Instead of providing actual data or concrete examples of

harm, Plaintiffs submit declarations with “anecdotal

eyewitness reports of grizzly bears with traps on their feet,”

D. Mont. ECF No. 6-7, at 3, and an instance where the

declarant “doe[sn’t] know with certainty what caused the

injury to her leg, but it . . . could have been caught in a trap.”

D. Mont. ECF No. 6-6, at 2. Even more surprising, Plaintiffs

offered two exhibits to the district court that directly support

the State’s current floating start date regulation as the cure

to avoid trapping bycatch, stating that the solution is

“[r]educing the overlap between the bear active season and

trapping season,” and waiting until “bears were denning in

the fall.” 2 D. Mont. ECF No. 27-3, at 8; ECF 27-4, at 8.

Viewing the record in its entirety, the evidence presented

strongly supports the State’s contention that there has not

been any recorded grizzly bear bycatch during the recently

implemented seasons under the revised regulations.

2

This peer reviewed article submitted by Plaintiffs as an exhibit “found

that the median den entry date . . . was November 06, and the 95th quartile

of den entry was November 22.” This supports the State’s floating start

date which can only begin, at the earliest, on the Monday after

Thanksgiving (November 27, 2023). This same article concludes that

researchers “found no overlap between den emergence and the end of the

trapping season.” D. Mont. ECF No. 27-3, at 8; ECF 27-4, at 8. See also

D. Mont. ECF No. 6-3, at 22 (declaring that “[t]raps and snares should

only be allowed during the non-denning season for grizzly bears”).

FLATHEAD-LOLO-BITTERROOT V. STATE OF MT 37

Plaintiffs’ speculative arguments, anecdotal statements, and

inconsistent criticism of the wildlife regulations without

tangible evidence falls well short of the bar to warrant a

preliminary injunction preventing its implementation.

Speculative harm is simply not enough to show a

possibility that grizzly bears will be taken as a consequence

of compliance with Montana’s revised laws and new

regulations pertaining to the lawful trapping and snaring of

wolves. See Friends of the Clearwater v. Higgins, 472 F.

Supp. 3d 859, 876 (D. Idaho 2020), aff’d, Friends of

Clearwater, 847 F. App’x at 394 (2021) (finding the

plaintiffs’ claims of harm speculative when no bears or lynx

were identified in the project area). It is true that courts have

found a preliminary injunction appropriate based on pure

scientific evidence when that evidence is “uncontroverted”

in its showing of future harm. See Loggerhead Turtle v.

Cnty. Council of Volusia Cnty., Fla., 896 F. Supp. 1170,

1180 (M.D. Fla. 1995) (finding the evidence uncontroverted

that driving a vehicle over sea turtle hatching grounds would

result in the take of endangered species eggs). Such

evidence of a direct threat to the species is not the case here.

Instead, Plaintiffs supporting documents look, taste, and

smell of the “mere speculation” directly prohibited by

Winter. Plaintiffs’ statements of harm are generalized

allegations tied to their theory that snares and traps are

inherently harmful to grizzly bears, who may or may not

wander outside of their previous known territory, and who

may or may not get stuck in traps specifically baited and

regulated to avoid their take.

My colleagues justify the lack of definitive evidence by

declaring they are simply relying on our standard of review,

invoking the general rule that we may only overturn the

granting of a preliminary injunction if the district court

38 FLATHEAD-LOLO-BITTERROOT V. STATE OF MT

abused its discretion and committed clear error in weighing

the evidence of future harm. But as the opinion

acknowledges, a “finding of fact is clearly erroneous ‘if it is

implausible in light of the record, viewed in its entirety, or if

the record contains no evidence to support it.’” Nat’l

Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d 782,

794 (9th Cir. 2005) (quoting Serv. Employees Int’l Union v.

Fair Political Practices Comm’n, 955 F.2d 1312, 1317 n.7

(9th Cir. 1992)); see also Or. Nat. Res. Council v. Marsh, 52

F.3d 1485, 1492 (9th Cir. 1995). With the greatest respect

for the district judge here, the trial court’s finding is

implausible in light of the record viewed in its entirety.

While the State provides concrete proof of no past harm by

recreational wolf trappers—as well as a plan to negate any

future harm—Plaintiffs instead offer the court 19

declarations and affidavits that speculate and theorize that

harm could occur. This does not meet their burden of proof.

Based on this record, a “reasonably certain” threat of future

harm is simply implausible.

Federal judges are not wildlife biologists. And while our

review may be “limited and deferential” to the district court,

Earth Island Inst., 626 F.3d at 468, both appellate and

district courts must “grant considerable discretion to

agencies on matters ‘requir[ing] a high level of technical

expertise.’” Ecology Ctr. v. Castaneda, 574 F.3d 652, 658–

59 (9th Cir. 2009) (quoting Marsh v. Or. Nat. Res. Council,

490 U.S. 360, 377 (1989)); see also Selkirk Conservation

Alliance v. Forsgren, 336 F.3d 944, 954 (9th Cir. 2003). We

are to be “most deferential” when the agency is “making

predictions, within its special expertise, at the frontiers of

science.” Forest Guardians v. U.S. Forest Serv., 329 F.3d

1089, 1099 (9th Cir. 2003). As we emphasized in the

landmark environmental case of Lands Council v. McNair—

FLATHEAD-LOLO-BITTERROOT V. STATE OF MT 39

en banc with all judges concurring—it is not our job to

instruct the agency on “how to validate its hypotheses

regarding wildlife viability” or order “the agency to explain

every possible scientific uncertainty.” 537 F.3d 981, 988

(9th Cir. 2008) (en banc). Moreover, courts “are not free to

‘impose on the agency [our] own notion of which procedures

are ‘best’ or most likely to further some vague, undefined

public good.’” Churchill Cnty. v. Norton, 276 F.3d 1060,

1072 (9th Cir. 2001) (quoting Vt. Yankee Nuclear Power

Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 549

(1978)). Instead, “[t]o determine whether deference is

warranted, we look to the sufficiency of the evidence.”

Lands Council, 537 F.3d at 995.

It is legal error to grant a preliminary injunction

invalidating Montana’s updated wolf trapping regulations

based on largely speculative evidence that is contradicted by

the evidence in the administrative record compiled by the

wildlife agency. That runs counter to the goals of Winter,

and casts a blind eye to “the deference we owe to agencies

and their methodological choices.” See Lands Council, 537

F.3d at 991. Simply put, courts can not, and should not, grant

the extraordinary award of a preliminary injunction to

plaintiffs who are crying wolf.

II

Second, the evidence presented here was not sufficiently

related to the challenged regulation to warrant the issuance

of a preliminary injunction. To support a preliminary

injunction, the moving party must show that future ESA

violations are likely if Montana’s existing laws and new

regulations remain in place. See, e.g., Winter, 207 U.S. at

564 (finding the scientific theory that sonar could hurt sea

mammals insufficient for an injunction); see Otter, 2018 WL

40 FLATHEAD-LOLO-BITTERROOT V. STATE OF MT

539329 at *3 (holding that a single violation of the ESA did

not sufficiently “show that future ESA violations are likely

in Idaho if the existing regulations remain in place”); Nat’l

Wildlife Fed’n v. Burlington N. R.R., 23 F.3d 1508, 1511

(9th Cir. 1994) (finding past ESA violations instructive but

not an indicator of future violations as the risks had been

“substantially minimized” by changed policy).

As the District of Idaho emphasized in a remarkably

similar case, Ctr. for Biological Diversity v. Little, 622 F.

Supp. 3d 997, 1009 (D. Idaho 2022), there must be a causal

link between the evidence presented and the actual

challenged regulation. In Little, the court found that

evidence of two instances of wolf trapping accidentally

resulting in grizzly bear bycatch was insufficient for an

injunction, as they both happened outside of the scope of

Idaho’s permitted hunting regulations—“Plaintiffs have no

evidence that either bear was snared by a lawful wolf snare

or trap set in compliance with Idaho’s regulatory scheme.”

Id. 3

Proof of harm to bears elsewhere does not automatically

guarantee protection for bears in Montana, as Canada and

other states have different regulatory and monitoring

3

Here, the district court attempts to distinguish Little by stating it is

“non-precedential,” and contained less record evidence than this case.

Opinion 27. Not so. Plaintiffs in Little offered concrete evidence of two

recreational wolf trappers taking grizzly bears at an unpermitted time,

both outside the scope of the regulation. Plaintiffs here, as discussed

above, offer evidence of only one accidental recreational bycatch,

occurring over a decade ago under less protective regulations. Excluding

speculative evidence of future harm, a direct comparison of the cases

shows Little to be more persuasive than the record relied upon by the

district court to support the relief it ordered here. See Little, 622 F. Supp.

3d at 1008–10.

FLATHEAD-LOLO-BITTERROOT V. STATE OF MT 41

schemes in place. Theoretical or general fear of harm to

grizzly bears is insufficient to impose an injunction on the

State’s wolf trapping regulations when there is little to no

proof that the State’s activities are causing that harm. Nat’l

Wildlife Fed’n, 23 F.3d at 1511. The evidence here simply

does not show Montana’s current wolf trapping regulations

will result in grizzly bear take—just that grizzly bear takes

have generally happened under different regulatory

schemes. Plaintiffs argue, for example, that there have been

twenty-one documented grizzly bear takes since 1988, and

both the district court and my colleagues heavily rely on

these past takes to show future harm. On superficial review

past grizzly bear takings may “plausibly show that it is likely

that additional takings may occur unless further regulations

are implemented.” Ctr. for Biological Diversity v.

Strommen, No. 20-CV-2554 (ECT/JFD), 2023 WL

2136650, at *2 (D. Minn. Feb. 21, 2023).

However, the evidence presented here of the twenty-one

bear injuries is categorically not related to the current

Montana regulations. Out of the twenty-one listed grizzly

bears from 1988 to present, two were unverified, and sixteen

were trapped outside of wolf trapping season under old

regulations. The majority of these documented catches were

caught by researchers, not recreational trappers. Only a

single bear on the provided list was caught by a recreational

wolf trapper in 2013 during what is now wolf hunting

season—a capture that predated Montana’s introduction of

the “floating start date,” designed specifically to guarantee

that incidental bycatch such as this take does not occur. The

district court and my colleagues have applied this evidence

to “show that grizzly bears are attracted to and get caught in

traps generally.” Yet, if we look below the surface at this

evidence through the required lens comparing Montana’s

42 FLATHEAD-LOLO-BITTERROOT V. STATE OF MT

past and current regulations, instead of taking a generalist

approach, it specifically shows that the regulations are

working to avoid accidental bycatch by recreational wolf

trappers during wolf trapping season. Not a single known

catch has occurred by recreational trappers after the floating

start date took effect in 2021.

This same analysis applies to Plaintiff’s assertion, relied

on by the Majority, that “[n]early 40% of grizzly bears in

Montana have historically been active outside their dens

either after November 27th or before March 15th and this

trend is likely to increase.” 4 As discussed above, the State’s

regulation is designed to avoid bycatch by monitoring

grizzly bear activity outside of their dens during the hunting

and trapping dates. If—as Plaintiffs ask us to speculate—

40% of grizzly bears did not den during this season, the

regulation as designed would not allow trapping to occur in

occupied grizzly bear range; the floating start date would be

adjusted to accommodate such facts. This assertion does not

actually challenge the regulation in place, as the regulation

is designed to accommodate this exact hypothetical.

This absence of a nexus between the evidence and the

challenged Montana regulation is consistent throughout

Plaintiffs’ materials. One declaration before the district

court, for example, discusses how “baited traps set for wolf,

coyote, and furbearers are likely to attract grizzly bears.” D.

Mont. ECF No. 6-2, at 3. But this is directly redressed by

4

As discussed above, Plaintiff’s own researchers “found no overlap

between den emergence and the end of the trapping season.” D. Mont.

ECF No. 27-3, at 8. I point this out not to “reweigh the evidence,” as my

colleagues suggest, but show that the evidence presented by the Plaintiffs

here is inherently speculative in nature and therefore inconsistent, failing

to both meet their burden of proof and establish a clear nexus between

their evidence and Montana’s regulations.

FLATHEAD-LOLO-BITTERROOT V. STATE OF MT 43

the current challenged regulations, which require traps to be

baited at least 10 feet away and breakable by a grizzly-size

pull.

The Ninth Circuit has explicitly stated that to succeed on

a motion for a preliminary injunction, the Plaintiff must

establish a relationship between the injury claimed in the

motion and the conduct asserted in the complaint. See

generally, Pac. Radiation Oncology, LLC v. Queen's Med.

Ctr., 810 F.3d 631, 637–38 (9th Cir. 2015). As discussed in

Winter, we need to “have before us at least some estimate of

the harm likely avoided by [the preliminary injunction].

Without such evidence, it is difficult to assess the relevant

harm—that is, the environmental harm likely caused by the

. . . measures[] in place.” 555 U.S. at 34 (J. Breyer,

concurring in part).

While my colleagues recite that “[c]lear error is not

demonstrated by pointing to conflicting evidence in the

record,” the error here is not one of conflicting evidence; it

is the improper reliance on insufficient, speculative, and

non-causational evidence in the first place. While Plaintiffs

offer some direct challenges to the new regulations,

including a challenge to the slight reduction in size of the

known grizzly bear zone through improved data collection,

the evidence presented is simply too generalized. A

preliminary injunction cannot, at its core, cure harm that is

not causally connected to the challenged regulations.

Enjoining Montana’s regulatory scheme is not only

inherently speculative, but it violates long held principles of

redressability. Plaintiffs have not established that

irreparable harm is likely to occur prior to a decision on the

merits. Thus, the granting of this preliminary injunction

relying on generalized harm and speculation not tied to

Montana’s conduct was error.

44 FLATHEAD-LOLO-BITTERROOT V. STATE OF MT

III

Accordingly, I would hold that the district court erred by

not viewing the evidence in its totality, focusing instead on

insufficient evidence that in context amounts to mere

speculation and conjecture. Nor did Plaintiffs establish that

the lawful placement of wolf traps and snares under

Montana’s prior and current laws and regulations is

reasonably likely to result in future take of grizzly bears.

Because Plaintiffs did not establish a likelihood of future

harm, the preliminary injunction should be vacated in toto.

I also agree that the district court’s unilateral line drawing

covering virtually the entire State geographic area west of

Billings, Montana, was overly broad and too generalized to

stand.