The Best Montana Minds

By Beacon Staff

Last week, Missoula Federal Judge Donald W. Molloy ordered Yellowstone grizzly bears back to “threatened” on the endangered species list.

Others will have all the dirty details of his 46-page ruling. The Feds won on two counts, and Molloy’s discussion has me waiting with bated breath for whatever bombshell drops when he rules on delisting wolves.

But Molloy spiked the conservation plan’s “adaptive management” framework, mandating any new plan be regulatory and strictly enforceable. Any new plan must be stuffed with details, over which Greens would have the ability to sue.

Second, and the killer, the Feds could not prove that the end impact of “climate change” on whitebark pine would not threaten bears – in essence, the Feds failed in the impossible, proving a negative.

So, after 35 years, an administrative record at least 44,535 pages thick, a doubling of the Yellowstone grizzly population, which is approaching carrying capacity of the habitat, it’s gonna be another long dang time before “climate change” kills, or doesn’t, the whitebark pines, maybe, and only then will anyone know if bears will or will not adapt. Don’t expect a delisting until then … if ever.

Don’t you wonder how Donald Molloy became Montana’s Chief Biologist, Forester, and overall Grand Plenipoteniary Poobah of Everything for Life? I still do …

Born in Montana, Judge Molloy played football for the Grizzlies, then had a stint as a back-seater in Navy Phantom jets, back to UM for law school, a clerkship with U.S. Judge (and former Montana GOP Congressman) James F. Battin, and then private practice in Billings. Nominated by President Clinton, he was unanimously confirmed by the Senate on July 18, 1996, to replace the dying Battin.

The Congressional Record has a fascinating transcript of when Sen. Max Baucus pleaded with Sen. Trent Lott to allow a vote on Molloy. Some snips:

“I saw this as an opportunity to find the best person in the State of Montana for this position. This is one power, one thing that a U.S. Senator” has, to recommend federal judicial candidates to the president.

Baucus “personally” selected a commission of the “best Montana minds,” who recommended three. Baucus “interviewed each of the three for hours” and asserted “Don Molloy is the top choice in the State of Montana for this position – by Republicans and by Democrats. There is just no denying that.”

Nor is there any denying that, in private practice, Molloy was law partner with Cliff Edwards beginning in 1979. Edwards, of course, is Montana’s most successful and wealthiest malpractice attorney.

When nominated, Molloy was lead counsel in a lawsuit in which a mine safety manager sought to sue for job-related emotional injuries. Molloy did so on not only the manager’s behalf, but for an outfit called “Trial Lawyers for Public Justice” (TPLJ).

What is TPLJ? According to leftist writer David Bollier, “a group conceived by Ralph Nader and formed by members of the plaintiffs’ bar.” Its purpose: To “undertake novel, precedent-setting tort litigation against government and corporate wrongdoing.”

Did Sen. Baucus know all this? If he denies such, then he wasn’t paying enough attention, nor was then-Sen. Conrad Burns. One thing nobody can deny: They both blew it. The last 13 years have seen plenty of the sort of novel, precedent-setting rulings one should expect from a Naderite activist with a lifetime gig, and Montana has suffered for it.

I’m not really that upset with Judge Molloy. He’s doing what his first-rate legal mind is hard-wired to do. His latest ruling is admirably solid, not only in terms of other applicable precedents, but in law.

I’m more upset with Congress. It writes the laws, but so sloppily and incomprehensibly that clever judges (not only Molloy) can interpret those laws in ways that defy all logic, yet be legal masterpieces.

But I am most upset with the realization that the people who nominate, advise and consent in selection of our judiciary (our esteemed Senate and senators) are nowhere near as smart as the judges they pick.

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