What Should Be Perceived As Obvious Bias In The Wolf Hearings

June 16, 2010

Admittedly it is difficult to know exactly what transpired in the Russell Smith Courthouse in Missoula, Montana when U.S. District Judge Donald Molloy heard testimony from both sides in order to render a ruling as to the fate of gray wolves in Idaho, Montana, Wyoming and parts of Oregon, Washington and Utah.
Last September, Judge Molloy refused to allow for an emergency injunction to place the gray wolf back under Federal protection in order to stop the wolf hunts planned for Idaho and Montana. During this hearing, Molloy indicated that he was inclined to think that excluding Wyoming from the delisting process was a political move and in violation of the Endangered Species Act.
I suppose one could look at it that way but just as easily could look at it in the opposite way. To me, this shows bias from a judge who has already made up his mind and is looking for the defense in this case to prove to him that his theory is wrong. I’m not a lawyer or a judge but this isn’t exactly how I see the judicial system is supposed to work.
After yesterday’s hearing in Missoula, the Associated Press reported that Molloy expressed confusion in that he couldn’t see how legally the U.S. Fish and Wildlife Service could section out the state of Wyoming from the delisting process.
But Molloy told Eitel [Justice Department attorney Mike Eitel] he was having trouble accepting that the Endangered Species Act allows wolves in Wyoming to be separated from the rest of its distinct population segment.
“I understand the practical argument, I understand the political argument. Those two things are very, very clear. But what I don’t understand is the legal argument. That’s not very clear,” the judge said.
Perhaps the legal argument could come more easily for Molloy if he asked himself the question of how the USFWS has the legal authority to create a Distinct Population Segment in the first place. If Molloy insists that USFWS has no authority to separate Wyoming out of the mix, then he must also accept that USFWS has no authority to create any Distinct Population Segment for any reason, at any time.
If the Endangered Species Act allows by law, which it would seem Molloy believes it does, to list a species as endangered, then according to Molloy’s own thinking process, this can only be done to include all of the 48 contiguous states. As an example, if the Federal Government decides Atlantic salmon are an endangered species, according to Molloy, there is not legal authority to separate the state of Maine from all the rest of the states for protection. The stupidity in this logic is that either a species is endangered everywhere or nowhere. The same applies to Wyoming.
Molloy and others may perceive the move to exclude Wyoming from delisting the gray wolf as political or practical but can’t that be said for every case of endangered or threatened species? Are we now supposed to disregard what is taking place on the ground in favor of political persuasions?
As was the case in the Western Great Lakes Distinct Population Segment, Judge Paul Friedman made much the same ridiculous reasoning. He ordered the gray wolf there returned to Federal protection ordering the USFWS to return with a case when they could prove they had authority to create a Distinct Population Segment for the purpose of delisting the wolf in some areas and not in others. To my knowledge the Feds have not provided that evidence to Friedman’s court and yet efforts are underway once again to delist the wolves.
It appears to me that it is just as much the judges bringing politics into the fray of court hearings from their own preconceived ideas as anyone. After the USFWS failed in their cases with Judge Molloy and failed with their case with Judge Friedman, the USFWS went back to the Federal Register and essentially turned the clock back to where gray wolves were listed as a endangered species in all 48 states, with the exception of Minnesota, whose wolves were listed as “threatened”. They did however retain the three Distinct Population Segments, i.e. the Northern Rocky Mountains, Western Great Lakes and the Southwest (maps provided at the above link). For whatever the reasons the Feds and the Courts seem to be comfortable with that as a starting point but according to both Molloy and Friedman, one has to question whether the Feds have legal authority in the ESA to have been able to create those DPSs at all.
Molloy can and probably will rule that Wyoming can’t be separated from the delisting process, only because he can and wants to. It is his contention that the only reason Wyoming was excluded was because of political reasons. From that perspective is it then feasible for a judge to reinterpret the Endangered Species Act because politics are involved and it’s politics that he doesn’t like or sit an agenda?
The ESA is a garbage Act now that has overstayed its welcome. The intent behind the Act was left behind many years ago and is now nothing more than a weapon to use and abuse by environmental groups. As a result we see ridiculous rulings from the courts that fail to take into consideration wildlife and the very species the Act was intended to save. Who is playing the politics?
Should Molloy opt to return gray wolves to Federal protection will not be because of his legal obligation to do so but because to me it appears he fails to carry his own thinking to logical conclusions. Such a statement also would further clarify the ineffectiveness of the ESA by allowing for the destruction of one species, or the rights and safety of the people, in order to save another species. This is NOT what the ESA was intended to accomplish.
Molloy needs to allow the delisting of the wolf to continue and let Wyoming work out its problems with the USFWS. Neither action is a threat of any kind to a species that was never threatened to begin with and would be the first step forward in proper wildlife management. Citing Wyoming’s exclusion is nothing more than excuse dujour.

Tom Remington