In January, U.S. District Judge Donald W. Molloy issued an “Order to Show Cause” to parties in a lawsuit (CV-08-14-M-DWM, filed January 2008) by Defenders of Wildlife. Defenders sued, claiming that wolf-management regulations the government issued under Endangered Species Act Section 10(j) authority allow too many wolves to be killed via management actions.
Case 14 was stayed in April 2009 while the larger wolf delisting issue was fought out in another lawsuit from Defenders (CV-09-77-M-DWM). Case 77 in turn was a second go-around from another Defenders lawsuit before Molloy (CV-08-56-M-DWM).
The parties in case 14 have orders to document “why this case should not be dismissed as moot,” in 2,500 words or less, as of Feb. 22.
After Judge Molloy vacated case 77 in August 2010, the feds in October issued new rules that 1.) reinstated 10(j) nonessential, experimental (NSE) status for the Yellowstone/Central Idaho wolves that grew out of the reintroduction, and 2.) re-established the stringent protections of full endangered status for all other “nonexperimental” Northern Rockies wolves – the “real” wolves that either spread from Canada naturally or are now spreading away from the introduced populations.
While case 14 is supposedly about the 10(j) regulations, Molloy is asking instead: “Does a 10(j) nonessential experimental population exist?”
Under ESA Section 10(j), an “experimental population” is “authorized by the Secretary for release […] only when, and at such times as, the population is wholly separate geographically from nonexperimental populations of the same species.”
The hook here is “such times as,” not just when introduced, but all times. Back in 1998, Chad McKittrick was busted for poaching a wolf. His case went to the Ninth Circuit Court (he lost), who ruled “when [NSE and “real”] populations overlap [even seasonally] section 10(j) populations lose their experimental status.”
Further, in case 77, in a statement of “Undisputed Facts” between the parties, “management has resulted in documented genetic exchange between dispersing and resident wolves” in all zones. In short, the Hatfields and McCoys are now one big clan, the McFields.
So what, and how, is Judge Molloy thinking? Before becoming a judge in 1996, Molloy was working a case for Trial Lawyers for Public Justice, or TLPJ. TLPJ’s website brags it was “founded in 1982 at Ralph Nader’s urging [no kidding]” to pursue litigation that would, as Nader biographer David Boller wrote, “forge new public policy in the process.” To translate, TLPJ’s lawyers don’t practice law, they re-write it in court.
Bluntly put, Sen. Max Baucus’s nomination of a smart activist lawyer working for a Naderite activist group stuck Montana with a smart activist judge. Molloy is smart enough to realize that public outrage over his relisting decree in case 77 finally woke Congress from its coma.
However, legislation exempting wolves completely from the howling madness of the ESA won’t be passed into law any sooner than 2013. Molloy therefore has a chance to defuse the issue enough that Congress returns to sloth without changing the law – and therefore rendering Judge Molloy, and all his hard work, moot.
I fully expect Molloy to dismiss case 14. First, dismissal clears his docket. Second, a dismissal would clear away not only the central point of case 77, that the ESA “does not allow a distinct population segment to be subdivided,” but also clean up the genetics problem that partly foiled the first delisting effort in case 56.
With our wolves all one, big, beautiful, breeding blob, the way will then be open for USFWS to immediately propose a new delisting. The inevitable lawsuit will present Molloy with two challenges he must meet quickly and correctly.
Quickly, because with case 14 dismissed, all Northwest wolves will be officially “endangered” under the law, with the minimal “flexibility” allowed under 10(j) gone. This Green “win” leaves an irate public with 1,500-plus reasons to prod Congress.
Correctly, because still hanging is the “Wyoming question:” Do states, or anyone, have the right to set limits on the spread of ESA-listed dangerous predators, including their impacts on not just other wildlife, but society? Molloy ruled in case 56 that limits cannot be set while a species remains listed. Now he must rule about after delisting.
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