“Om Mamni Pudme Hum”. Often used in magical mantras, this phrase could probably be found somewhere in Judge Donald Molloy’s recent incantation about what his world of living with wolves should be like. his most recent ruling shows us no fewer than two things. One, the courts are a useless instrument when abused by those believing they are bigger than the court and attempt to rewrite laws or perhaps find in them things that don’t exist. Two, the Endangered Species Act has become a useless instrument for the purpose of protecting species. It is so antiquated and abused, mashed and manipulated, it has become a weapon of mass wildlife destruction.
In Defenders of Wildlife v. Rowan Gould, USFWS, Judge Donald Molloy, from his throne high atop Never Never Land, sends the plaintiffs and defendants on a scavenger hunt to find “cause why this case should not be dismissed as moot due to the absence of a population meeting the statutory requirements for 10(j) status.”
(*Note:* In fairness, it should be mentioned that Molloy’s ruling was promulgated by cross motions by both the Plaintiffs and Defendants seeking summary judgment.)
Because of this Molloy is basing his ruling on his own interpretation of the Endangered Species Act as it pertains to Section 10 and Nonessential Experimental populations of animals. He claims that in order for the wolf population in what is now a Nonessential Experimental Distinct Population Segment, often referred to as the Northern Rocky Mountain Distinct Population Segment (NRM DPS), to maintain the designation as experimental, it must meet the statutory definition.
An experimental population is defined as “any population (including any offspring arising solely therefrom) authorized by the Secretary for release under paragraph (2), but only when, and at such times as, the population is wholly separate geographically from nonexperimental populations of the same species.”
16 U.S.C. § 1539(j). In order to retain its status as an experimental species, the species must meet the statutory definition.
I fail to see in the Endangered Species Act (ESA), Section 10, where it clarifies Molloy’s claim about meeting the definition. And, Molloy perhaps conveniently forgot to mention this:
EXCEPTIONS
SEC. 10. ø16 U.S.C. 1539¿ (a) PERMITS.—(1) The Secretary may permit, under such terms and conditions as he shall prescribe—
Activist judges love to grant deference when it fits nicely into their mold. In so many cases we are always told that an entity such as the U.S. Fish and Wildlife Service (USFWS) would be granted deference – courtesy and/or respect – such as the ESA states at the beginning of Section 10. In crafting the ESA there was certain discretion Congress granted to the Secretary of Interior.
I think that it has become quite clear through the many years and court cases that it has been the intention of the USFWS to erase the Nonessential Experimental designation of the gray wolf at the same time they deemed the species recovered to a point where federal protection was no longer needed.
One clear example of that came about on December 11, 2008. The USFWS recorded in the Federal Register that in compliance with court rules, which involved placing wolves back on the ESA, gray wolves in the Northern Rocky Mountains Distinct Population Segment, would be listed again as Nonessential Experimental.
This rule also reinstates…….special rules in 50 CFR 17.84 designating the gray wolf in the remainder of Montana and Idaho and all of Wyoming as nonessential experimental populations. This action revises the CFR to comply with three court orders.
One of these court rulings was that of Judge Molloy. In denying the USFWS to delist the gray wolf, the USFWS complied with court rulings. In reading the Federal Register entry, it is clear that when wolves were delisted, along with it went the Nonessential Experimental designation, otherwise, why would they bother to formally reestablish it?
In addition, Molloy is looking at Section 10 of the ESA as one dimensional, i.e. as it pertains to the relationship with other wolf populations. Because of the introduction of gray wolves and the classification of Nonessential Experimental, along with it came some flexibility in order to “experiment”, if you will, with the wolf population and be able to attempt to rebuild one without destroying the lives and property of the people living adjacent to the introduction areas.
Molloy and others may consider the population of wolves at the present stage in the Nonessential Experimental area no longer in need of the experimental classification but this is demanding to have everything and getting it both ways.
If the gray wolves don’t need experimental classification, then the wolves are recovered and therefore should be immediately classified as such. But Molloy will not do that. Taking away the 10(j) Nonessential Experimental classification of gray wolves in the NRM DPS would strip the Feds ability to control livestock depredations and/or protect other wildlife. Such a move would be disastrous. Is this what Molloy is really after?
It is half-witted to apply a law so superficially that it unleashes thoughts of activism and elitism. In addition this ruling is nonsensical, straying from the written law while forcing a long and emotional debate to a higher extreme and for what point?
Judge Molloy should never have put the Plaintiffs and Defendants in this case in a position to prove anything as it pertains to the need or not of experimental classification. It’s drivel at its best and a waste of the Court’s time and taxpayers’ money.
Tom Remington
