November 26, 2010
Readers learned the other day that in the ruling by Judge Alan Johnson, it was clearly spelled out the historic timetable of how Wyoming reached its approval of a viable wolf management plan and how the USFWS yanked it out from under their noses, resulting in Wyoming being left out of a gray wolf delisting process that has since become reversed once again.
In State of Wyoming/Wyoming Wolf Coalition v. U.S. Department of Interior/USFWS, Wyoming District Court Judge Alan Johnson ruled that the USFWS acted arbitrarily and capriciously when it suddenly disqualified Wyoming’s Wolf Management Plan, due to what the USFWS stated as the result of “new scientific or commercial data”. Judge Johnson did not agree with that. He also did not necessarily agree with the Montana Court ruling about genetic exchange as handed down by Judge Donald Molloy.
Judge Johnson took the USFWS to task in his court in that the government agency failed to provide anything new as it pertains to science or commercial data when it decided that Wyoming was no longer going to be included in any wolf delisting because it didn’t like its wolf plan……all of a sudden.
The first real evidence we see of Judge Johnson’s determination that USFWS provides nothing new, can be found on Pg. 92 of the Judge Johnson’s ruling.
There is no evidence that the state’s proposed dual classification of gray wolves precludes maintenance of genetic connectivity (natural or managed) in a significant portion of the wolf’s range in northwestern Wyoming and the GYA. There is no meaningful scientific explanation provided as to why Wyoming’s commitment to manage for 15 breeding pairs and 150 wolves in a trophy game area in the state of Wyoming should be regard as insufficient to manage above recovery levels, even recognizing that the state has indeed relied on 8 breeding pairs in the National Parks to meet its portion of the recovery goals. Notwithstanding the language of the Final Rule to the contrary, there is no reasoned explanation, supported by the best scientific and commercial data available to the agency, that would lead to the ineluctable conclusion that a trophy game area of a sufficient size and permanence, providing potential migration routes allowing dispersal among the NRM subpopulation and managed within a defined trophy game area constituting less the entire state of Wyoming, would not allow the state to maintain a recovered wolf population as defined in the 1987 recovery plan and 1994 FEIS, in the foreseeable future.
The lack of any new science in this regards pertains to Judge Johnson’s assessment that the USFWS used as an excuse for changing their minds, the notion that Wyoming’s zoned wolf management plan would screw up genetic connectivity, something that Judge Molloy defined and injected into his rulings to place gray wolves back on the Endangered Species Act List. More on this in a moment.
Judge Johnson continues on Pg. 93 stating that in addition to no new scientific or commercial data to justify a reversal on genetic connectivity, there also lacks this data or information in explaining why a dual classification of wolves would hinder wolf recovery and to maintain a wolf population above recovery goals. The USFWS tries to explain that they need “more flexibility”, just in case something happens that is unforeseen. It is this kind of repeated garbage that should anger citizens as well as members of the scientific community.
If the USFWS honestly believed and had scientific evidence to prove that bumper cushions, if you will, were needed, “just in case”, they certainly failed to mention this in any plans for wolf recovery (1987 Act) and/or the 1994 FEIS (Final Environmental Impact Statement). This is only one small incident that frustrates state governments, wildlife managers and citizens in dealing with wolf issues. It has often been referred to as “moving the goal posts”. These arbitrary and capricious acts, in what appear to be appeasements toward the environmentalists and animal rights groups, results in never any solutions to a very serious problem. Makes you wonder if it is intentional doesn’t it?
On Pg 94 of the ruling, Judge Johnson tells that the USFWS failed to consider in its 2009 Final Rule, this was the one that excluded Wyoming from consideration for wolf delisting, the economic impact the state of Wyoming would face to essentially begin from scratch in hashing out a brand new wolf management plan in hopes that this time the USFWS would approve it.
The 2009 Final Rule, by requiring state-wide management of wolves in the wolf management plan, imposes additional costs of management and monitoring responsibilities upon the Wyoming Game and Fish without adequate explanation.
Once again Judge Johnson chastises the USFWS for making assumptions not based on any scientific evidence, only on perceived speculation.
The Court also believes that the agency has employed a cramped interpretation of the Wyoming regulatory framework when it asserts the trophy game area will automatically be reduced in size and subject to further diminution if the commission determines it does not impede delisting gray wolves and will facilitate management of wolves in Wyoming.
The Judge points out that, once again, without evidence to support such an interpretation, to draw such a conclusion when Wyoming has repeatedly stated it’s commitment to manage wolves according to the recovery plan and in accordance with goals to remove federal protection from wolves.
Judge Alan Johnson does take up two instances in which he first offers criticism of the Courts (pg 82) in working to resolve this complex and emotional problem.
The courts have done little to facilitate resolution of the issues and an understanding as to what is necessary to satisfy the requirements of the ESA’s delisting provisions in the unique facts of this case.
Judge Johnson points out that the Courts are required under Section 706 of the APA to review the USFWS’s decisions to determine if they are, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” There is only one reason for Johnson to point this out. We can easily assume that it is his opinion that some of the courts are not doing their legal obligations in upholding the laws as they are written. Oh, where to begin in formulating that list.
The second criticism that Judge Johnson offers is a direct slap at the Montana District Court and Judge Donald Molloy. Page 89 states:
The Montana District Court determined that the Service had rejected genetic exchange as a necessary component of recovery criteria. This Court respectfully disagrees and believes that the agency’s discussions regarding genetic connectivity has indeed been considered as one of the components of the recovery goals, the contours of which are outlined earlier in the 1987 recovery plan and 1994 FEIS, albeit reaching different conclusions with respect to the various rules relying on substantially the same studies and data.
There are two things to point out here. The first being that Judge Johnson disagrees with Judge Molloy and says that the USFWS did consider if genetic connectivity was an important component for wolf recovery. The USFWS clearly points out in previous rules and rulings that it does not consider genetic connectivity to be a necessary component simply because recovery has taken place without it. It has yet to be scientifically determined as to what degree this genetic connectivity will be necessary some 50-100 years down the road.
The second point to make is that Johnson points out one of the obvious things that many of us involved in wolf issues have been pointing out for some time. The USFWS draws completely different conclusions pertaining to genetic connectivity depending upon what argument they are trying to make. Is this not another act of moving the goal posts?
Judge Johnson orders two things through his court ruling. He orders that the idea from USFWS that Wyoming cannot have a zoned management plan and thus removed from consideration of a federal plan to delist, be “set aside”, and that USFWS’s actions in regard to abandoning Wyoming’s wolf management plan was arbitrary and capricious.
The second order is that the issue of Wyoming’s trophy game area be remanded back to the USFWS in order that they can have the opportunity to scientifically determine if the size of this trophy game area is large enough to accomplish the goals of wolf recovery and delisting.
It should be noted that in Johnson’s court, he refused to tolerate the “moving of the goal posts”. I believe he could see right through the charades being presented in the past with court cases and the claims that there is always something more that is needed, something not quite good enough to allow for wolf delisting. His no nonsense approach to this issue brings a bit of fresh air. We can only hope that future court battles will be handled in courts of law in a similar fashion.
As an aside –
Beginning on page 30 of Judge Johnson’s ruling in State of Wyoming v. Department of Interior, there is a short story written by Aldo Leopold, “Thinking Like a Mountain”, dating to 1949. Why is this at all relevant to this case other than the fact that Leopold mentions wolves in his brief account?
While this is not intended to be an attack on Aldo Leopold, a man whose writings should be considered carefully and placed in the correct context, I question the necessity to place this in a court document being that it is biased, outdated and irrelevant to the court case. Does one man’s 60-plus year old outdoor, philosophical ramblings and perceptions of how life should be belong in a court of law?
Tom Remington
No comments:
Post a Comment