Molloy Tosses Science
An excellent examination of Judge Molloy’s “scientific” decision to re-list Rocky Mountain wolves can be found at Black Bear Blog [here]. Hunter, fisherman, outdoor enthusiast, and blogger extraordinaire Tom Remington went searching for the source of Judge Molloy’s “genetic exchange” theory.
He found it, too, in a single spot in a trivial paragraph in Appendix IX of the 1994 EIS. A throw-away line, undefined, not central to the document, an afterthought, the “genetic exchange” statement was immediately countered in the next paragraph. From Appendix IX of the 1994 EIS:
Thirty or more breeding pairs comprising some 300+ wolves in a meta-population with genetic exchange between sub-populations should have a high probability of long-term persistence. …
My conclusion is that the 1987 wolf recovery plan’s population goal of ten breeding pairs of wolves in three separate recovery areas for three consecutive years is reasonably sound and would maintain a viable wolf population in the foreseeable future.
And this bit of self-contradictory science fluff was the nexus upon which Judge Molloy based his entire decision!
From Remington’s essay [here]:
Activist Judge Molloy Tosses Science, Defines “Genetic Exchange”
Posted by Tom Remington on August 12, 2008
In what can only be taken as an outright thumbing of one’s nose at the Ninth District Court of appeals, Judge Donald Molloy, exhibits total disregard for any science he doesn’t like while going one step further and pretending to be a scientist to define a scientific term he hangs his judgment on - Genetic Exchange.
Back in July, I reported that a panel of 11 judges from the U.S. Ninth District Court of Appeals stated that judges should not act as scientists in rendering decisions, yet this is clearly what Judge Molloy has done. He has hand picked only the portions of the case he seems to favor and not only disregards the rest but creates his own science as well. I find this extremely disturbing as an American while tearing down my confidence in our judicial system.
Molloy’s 40-page ruling to grant a temporary injunction to place the wolf back under protection of the Endangered Species Act is a laughable document. The judge manipulates the science and goes so far as to make up definitions.
Molloy bases his entire decision on two aspects. One, is that the agreement the U.S. Fish and Wildlife Service had with the state of Wyoming on managing the wolf after delisting was “arbitrary and capricious”. The second is that “genetic exchange” must occur before delisting can be considered and further goes on to claim that the USFWS cannot prove that this “exchange” took place. …
What is interesting as well as disturbing, is that in Molloy’s 40-page ruling, he uses the term “genetic exchange” 49 times and actually creates his own term, “genetic connectivity” and uses it 2 times. In the 1994 Environmental Impact Statement, the term genetic exchange is used once and that came in an appendix to the original document and the EIS never once used “genetic connectivity” to describe anything.
Molloy insists over and over again that the USFWS’ EIS demands this genetic exchange, all the while the USFWS claims it never said that. Judge Molloy claims the 1994 EIS requires genetic exchange and that now the feds have changed their mind with no scientific reason to do so.
While the USFWS also claims that the 1994 EIS never defines genetic exchange, Molloy takes it upon himself to make that definition. …
This is how Molloy continuously refers to the EIS’ use of genetic exchange.
“The 1994 EIS clearly requires “a metapopulation . . . with genetic exchange between subpopulations.” 1994 EIS, App. 9, at 42.”
The very limited discussion of genetic exchange, and in this case an afterthought in the 1994 EIS as part of Appendix 9, has to do with the USFWS making an attempt to define “viable wolf population”. This actually begins in Appendix 8 of the 1994 EIS. In looking ahead, it was believed that it might be necessary to create a definition of “viable population”, being that the original EIS used that term.
A broader look at the text involved in the discussion of genetic exchange, reveals something different than what Judge Molloy is offering.
These two paragraphs [in Appendix IX] that contain the one-time use of genetic exchange, paints a different picture than what Judge Molloy claims the USFWS demands for recovery of an endangered wolf species. Nowhere in this statement or throughout the entire document, does it demand or require that genetic exchange has to take place before a species or subspecies can survive. On the contrary. The statement is made that 30 breeding pairs, comprising 300+ wolves would produce a “viable” wolf population. When speaking of added protection, it only references adding a few more wolves and says nothing about ensuring it with genetic exchange. …
If the statements I alluded to earlier from the U.S. Ninth District Court of Appeals are accurate, then it would seem irresponsible for the USFWS not to appeal this ruling to the higher court. For anyone to not see Molloy’s actions as “activism” and “act(ing) as scientists in rendering decisions”, it would be because they didn’t want to.
There is no evidence that this so-called genetic exchange is necessary to sustain a “viable” wolf population. Arguments can be made to the contrary, i.e. Isle Royale’s wolf population - isolated on an island and surviving for years.
There is also no evidence that this genetic exchange isn’t already happening and yet Judge Molloy relies on one study, a study in which the USFWS tossed out because it was no good, that couldn’t prove genetic exchange was occurring nor did it disprove it. This is hand picking the science to render a ruling.
This kind of legal manipulation is destructive and has to end. The USFWS should move quickly to appeal this ruling for a temporary injunction and challenge the panel of 11 U.S. District Court of Appeals judges to put their money where their mouths are.
Kudos to Tom Remington for flushing the rabbit of junk science out of the brush of bureaucratic and legalistic mumbo-jumbo. Molloy hung his judicial hat on a twig, and it snapped.
