A state judge said she does not have the legal authority to order the release of more than 200 dogs seized from a Ballantine dog breeder charged with aggravated animal cruelty while the criminal case is still pending.

In an order issued late Tuesday, Judge Susan Watters denied a request by attorneys for Yellowstone County, which wants to find permanent homes for the English shepherds seized from Linda Kapsa in December.

At a hearing last week, Deputy County Attorney Kevin Gillen suggested that the county could post a bond for each dog and begin finding them new homes. The bond could be used to compensate Kapsa if she prevails in the criminal case.

Gillen argued that the dogs are no longer needed as evidence in the criminal case, and that the cost to county taxpayers of caring for the dogs has exceeded $100,000 and is expected to climb higher. Gillen also said it was in the best interest of the dogs to be placed in more permanent care.

The dogs from Kapsa's Shady Lanes Kennels have been housed at the MetraPark grounds and at a Billings veterinary facility since they were seized.

"This court appreciates that Yellowstone County is hemorrhaging money caring for Kapsa's dogs and Yellowstone County taxpayers are footing the bill," the judge wrote in the eight-page order.

Despite those growing costs, state law does not allow a judge to order property seized as part of a criminal case to be sold or disposed of prior to a conviction, the judge said.

Watters noted that state law does provide a civil remedy in such cases where animals have been seized. That process, called an animal welfare hearing, was initiated by the county in February but was dropped by its attorneys before the issue could be decided, Watters said.

"Instead, because current law prohibits the course of action the state seeks, the state asks this court to legislate from the bench and create new law to enable the state to sell an accused's property, and 'substitute' the same with money, without due process of law," Watters concluded. "This court has no authority to do so."

At the hearing last week, Watters also denied a request from a prosecutor who asked for a revision in Kapsa's pretrial release order. Deputy County Attorney Ingrid Rosenquist said Kapsa still has as many as 20 dogs on her property. The dogs eluded authorities in December when the other animals were seized.

Kapsa should not be allowed to care for the dogs until the criminal case is resolved, Rosenquist argued.

The judge said prosecutors failed to give Kapsa's public defender adequate notice of the legal basis for their request, but said they could refile the motion if they choose.

Rosenquist said Thursday that she is likely to refile the request after further investigation is completed.

Kapsa's criminal trial is scheduled to begin July 13.