Wildlife and People

Wolfish Judicial Games

by Mike Dubrasich, Exec Dir W.I.S.E.

The latest twist in the judicial wolf saga [here] is complicated and merits some discussion of the history vis the courts and wolves. We offer a partial history as follows:

On Aug. 7, 2008 US District Court Judge Donald W. Molloy issued a wolf decision [here] that began with his usual flowery though unintelligible verbosity:

This case, like a cloud larger than a man’s hand, will hang over the northwest states of Montana, Idaho, and Wyoming until there has been a final determination of the complex issues presented.

In that case (CV 08-56-M-DWM) the Defenders of Wildlife et al. challenged the February 27, 2008 US Fish and Wildlife Service delisting of the northern Rocky Mountain gray wolf distinct population segment (DPS). The USFWS RM wolf DPS included all of Idaho, Montana, Wyoming, eastern Washington, eastern Oregon, and northern Utah.

Molloy reinstated (relisted) wolves as endangered because, as he reasoned, the USFWS had made “no plausible showing of genetic exchange” between wolves in Yellowstone and wolves in Montana and Idaho.

This was a strange finding, since the Canadian gray wolves in Montana and Idaho were direct descendants of the Canadian gray wolves the USFWS dumped in Yellowstone in 1995. They were the exact genetic strain. Was Molloy saying that brother and sister wolves were failing to mate, or first cousins, or what? It was difficult to decipher his irrational rationale, but he did mention “genetic exchange” no less than 67 times in that decision and concluded:

Absent genetic exchange, the wolf will not likely be able to withstand future environmental variability and stochastic events. 1994 EIS, App. 9. Plaintiffs therefore have demonstrated a possibility of irreparable harm.

The reaction to this nonsense was swift and loud, and more than a little bit derisive [here, here]. Obviously there was genetic exchange. The wolves were one big happy family. They not only interbred, they mongrelized with dogs, coyotes, and attempted to do so with whatever they came across that looked half way mate-worthy, successfully or not.

The Aug 7, 2008 decision was preliminary, but the final decision in that case was delayed by two things. First, the following September Federal Judge Paul L. Friedman ordered Western Great Lakes gray wolves relisted [here, here] on a technicality of the ESA (as he saw it): the DPS verbiage in the Endangered Species Act is “ambiguous”

The DPS Policy does not qualify as a construction to which this Court can defer because the DPS Policy does not directly address the interpretive issue before the Court. The purpose of the DPS Policy is to clarify the meaning of the term “distinct population segment” and to set forth criteria for deciding whether a sub-population should be designated as a DPS. It does not address the propriety of simultaneously designating and delisting a DPS within a broader listing, and the Court finds both parties’ arguments to the contrary strained and unpersuasive. Nor may the Court look to the ESA’s implementing regulations for a Chevron-worthy interpretation. Those regulations largely track the statutory provisions discussed in part III.B and, like those statutory provisions, do not directly address the interpretive issue before the Court.

What Friedman decided was that the DPS Policy cannot be used to simultaneously designate and delist, but that implied it also cannot be used to simultaneously designate and list, the latter being the established practice of the USFWS since inception of the ESA. So that was a new wrinkle.

Then in November of 2008 the USFWS decided to rescind their earlier delisting (of February 2008) and issue a new delisting of Rocky Mountain wolves that excluded Wyoming [here]. In scoping comments to the USFWS everybody and their brother made a big deal about “genetic exchange” [here] because Molloy had based his earlier ruling on that absurdity.

As it turned out, the genetic exchange malarkey was more or less a dead red herring. The new issue to surface was the “inadequacy” of Wyoming’s wolf management plan.

In December of 2008 the USFWS relisted Rocky Mountain wolves as endangered based largely on the DPS ruling as garbled by Friedman. They couldn’t create a DPS and delist at the same time. So they put all the wolves from Oregon to Wisconsin back on the ESA list, except for wolves in southern Montana, Idaho south of Interstate 90, and all of Wyoming which were listed as a nonessential experimental population under section 10(j) of the ESA [here].

The USFWS had used the 10(j) clause when they dumped exotic wolves in Yellowstone in 1995. They reasoned (if you could call it that) in December 2008 that all the other wolves outside the Greater Yellowstone box, which had descended from the original dumped group, were endangered, but the wolves remaining in the original dumping location were still “nonessential” to survival of the species. Friedman hadn’t said they couldn’t do a 10(j) designation and delist at the same time. The DPS problem was “solved” (not really).

Included in their thinking was the likelihood that some new wolves had illegally immigrated from Canada where the gray wolf population was burgeoning, due to the nuttiness of our northern neighbors (pro-wolf frenzy is contagious, evidently). That factoid was strong evidence that gray wolves were not endangered but rather booming, but facts have never been important vis the ESA.

The USFWS actually designated two NEP’s (nonessential experimental populations) in their December 2008 rule, one in the southern 4/5ths of Montana and all of Wyoming, and another in the southern 4/5ths of Idaho [here].

The NEP areas are adjacent to each other and to the “endangered” wolves north of the NEP areas, which is a direct violation of Sec 10(j)(1). NEP areas are supposed to be “wholly separate geographically”; obviously the NEP areas selected are not separate geographically; they are adjacent!

There was a method to the USFWS madness. They had a reason for going the NEP route. They wanted to give the appearance of delisting wolves. The courts (Molloy and Friedman) had pulled that rug out from under them. So then the USFWS did the next best thing. They engineered the worst relisting imaginable.

The relisting of wolves as nonessential was programmed failure. The design carried fatal flaws. The inherent contradiction could not stand up; if the animals are nonessential, they should not be listed.

The only reason Section 10 exists is to protect candidate species while the USFWS determines the actual threat. We’re past that. The threat has been determined, and it is nil. By admission and declaration, the USFWS said that the listed NEP wolves are not essential to conserving the species, which by the way is not actually endangered in the first place.

And sure enough, in January of 2009 the USFWS announced that they were going to delist [here] and in April 2009 they did so, this time removing the western Great Lakes population and portions of the northern Rocky Mountain population of gray wolves from protection under the ESA. The only wolves they left on the endangered list were gray wolves found within the borders of Wyoming, which includes Yellowstone, the very same wolves that had been declared “nonessential” a month before.

The “logic” used in the April 2009 delisting was that Wyoming did not have an “approved” wolf management plan.

The genetic exchange folly sank into the mire of history. As an added nail in that coffin, in February 2009 a study revealed that Yellowstone wolves have dog genes [here]! The promiscuous wolves had been fooling around with dogs. Genetic exchange was rife.

The April 2009 delisting was destined for litigation and in June 2009 the usual deep-pocketed enviro-litigious groups sued, in Judge Molloy’s court naturally [here].

Montana Fish, Wildlife and Parks intervened on behalf of the USFWS in August 2009 [here]. The Rocky Mountain Elk Foundation entered an amicus curiae brief in September 2009 [here]. Eventually the Intervenors included the State of Idaho, Safari Club International, Sportsmen for Fish And Wildlife, Montana Farm Bureau Federation, Idaho Farm Bureau Federation, Mountain States Legal Foundation, the State of Montana, Montana Department of Fish, Wildlife and Parks, Idaho Governor C.L. “Butch” Otter, and the National Rifle Association of America in case number CV 09-77-M-DWM, aka “77-consolidated”.

At the same time the State of Wyoming and the Park County (WY) Commissioners sued the USFWS in Federal District 10, Judge Alan B. Johnson presiding. The Wyoming Wolf Coalition joined as an intervenor on behalf of the Petitioners, whose cases were also consolidated. They argued that the USFWS had acted arbitrarily and capriciously in in disapproving Wyoming’s wolf management plan.

Wyoming had designated the wolf as a “predator” in 88% of the state. That meant wolves were a nuisance animal that could be removed without special permit. In the remaining 12%, over 12,000 square miles that includes Yellowstone, wolves were designated a “trophy animal” subject to restrictions on takings. Those restrictions, established by state law, sought to protect 6 breeding pairs outside of Yellowstone, which is equivalent to 15 breeding pairs or 150 animals statewide. That number, by the way, is what the USFWS agreed to in 1995 when they dumped Canadian wolves in Yellowstone.

Ironically enough, the US Dept of Justice, arguing on behalf of the USFWS, again brought up the genetic exchange/connectivity issue. They argued that Wyoming’s plan would hamper genetic exchange and wolves would go extinct. This was exactly the opposite of what the USFWS had argued in Judge Molloy’s court two years earlier.

All this genetic foofraw was absolute absurdity considering the sexual proclivities of wolves and the ample DNA and population growth evidence. But maybe all the sex talk made for titillating court hearings. One can only imagine the degree of innuendo.

The DOJ, arguing on behalf of the USFWS, also had to explain why they considered Wyoming’s wolves to be nonessential in 2008, and suddenly critically essential in 2009. Flip-flopping is a natural thing for politicians but a less comfortable exercise for government scientists. Why did the scientific findings suddenly change? It couldn’t have been politically motivated, could it? One can only imagine that the science flip-flopping was even more embarrassing than the sex palaver.

Whether intentional or not, I found Judge Johnson’s final decision [here] to be very amusing. He even included Aldo Leopold’s essay “Thinking Like a Mountain” which has been satirized by some very fine authors. I chuckled all the way through it. Judge Johnson nailed the USFWS again and again, using their own words against them. He also threw a few choice innuendos at other courts (i.e. Molloy and Friedman).

In conclusion, in his November 2010 decision Judge Johnson found that the USFWS had indeed acted in an arbitrary and capricious manner when it required (in the April 2009 delisting) that Wyoming wolves should remain endangered and that Wyoming should be singled out for an inadequate wolf management plan [here]. He then remanded the issue back to the USFWS for further study. Where, as hunter-blogger-pundit Tom Remington put it, they will eat crow [here].

Meanwhile, back in the Ninth District (Montana, Judge Molloy’s court), arguments were made in 77-consolidated. In August 2010, Molloy ordered the entire Rocky Mountain wolf population back onto the endangered species list [here]. His decision echoed Friedman’s in that Molloy based his ruling on the DPS language of the ESA.

That is, he found that the ESA “does not allow the U.S. Fish & Wildlife Service to list only part of a ’species’ as endangered, or to protect a listed distinct population segment only.”

That was a curious decision, because the USFWS routinely lists sub-populations and DPS’s of species as endangered while not listing the entire species. A prime example is salmon, where some runs are endangered DPS’s and some are not. Ditto snowy plovers and marbled murrelets, where in a portion of the species range they are listed and in others they are not.

The ESA mentions “distinct population segments” only once, in the Definitions:

(16) The term “species” includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.

That ambiguous language has been used by the USFWS to list subsets of species again and again. But Molloy tossed it. That has significant import, if his ruling stands.

Molloy concluded:

The northern Rocky Mountain DPS [which includes Wyoming wolves] must be listed, or delisted, as a distinct population and protected accordingly. The issues of the adequacy of the regulatory mechanisms of Montana and Idaho, population size, connectivity and genetic exchange are subsumed by the determination that the Final Rule is contrary to the law and as such are not decided here.

Rocky Mountain wolves are all one population sayeth Molloy. He dodged the issue of “genetic connectivity,” although by now he must realize what a crock that was. Not only are the wolves one population, but they are so genetically as well as territorially.

The ball is now back with the USFWS. They can delist the entire population, but they can’t delist part of it. Why they have not delisted the entire population years ago is a political (not scientific) question. Scientifically Rocky Mountain wolves are manifestly NOT endangered. It is possible that they might be someday, if the states involved extirpate wolves down to some very small number, and if Canada extirpates their wolves, too. But that will be then, not now, and the future is uncertain and murky (you can quote me on that!).

There is at least one epilogue, the twist we began this essay with [here]. Last month (January 2010) Molloy revisited a case from 2008 (CV-08-14-M-DWM, aka “14″) wherein the usual Plaintiff, Defenders of Wildlife, challenged the 10(j) non-essential population designation, as modified by the USFWS in 2008. That case had been stayed while Molloy considered 77-consolidated.

In his Order to Show Cause [here] of January, 2011 in “14″, Molloy finally acknowledged that genetic exchange in Rocky Mountain wolves is an “Undisputed Fact”. He stated:

The plaintiffs’ claims in this case presupposes the existence of a population meeting the requirements of section 10(j). If there is no such population due to the genetic and geographical connectivity cited by the United States of America in Defenders of Wildlife v. Salazar, CV-09-77-M-DWM, the court’s resolution of the issues raised in the plaintiffs’ complaint would be nothing more than an advisory opinion. If the population at issue does not meet the statutory requirements for 10(j) status, there would be serious questions about whether this case presents a live controversy.

The implication is that Molloy wants to discard the arbitrary and unscientific 10(j) sub-population designation the way he discarded the arbitrary DPS. Molloy is retiring and wants to clean house before he checks out.

It is interesting to note that Molloy did NOT revisit CV 08-56-M-DWM, in which he relisted wolves (in August, 2008) because they allegedly lacked genetic connectivity. If Molloy now accepts the Undisputed Fact that wolves mess around, then his relisting decision of 2008 is also “moot” if not bizarrely bad judging. If Molloy wants to clean house before he books, then he ought to stay that atrocious decision and DELIST the wolves he relisted in 2008.

Another development is that Rodger Schlickeisen, President since 1991 of Defenders of Wildlife (the main protagonist of USFWS in numerous lawsuits), is retiring and will be replaced by Jamie Rappaport Clark, former Director of The U.S. Fish And Wildlife Service. If you are curious as to why the USFWS has buggered up wolf delisting for 10 years or more, and why they dumped the exotic wolves in Yellowstone in the first place, the revolving door between that agency and deep-pocket enviro-litigious groups ought to give you a clue.

Another item of interest is that a Bill has been introduced in Congress to delist “gray” wolves nationally [here]. That might solve some problems if it passes both the House and Senate and is signed into law by Obama, all of which is doubtful. If the unlikely happens, the enviro-litigious pro-wolf lobby will sue anyway, and the Federal Judiciary will be busy with wolves as per usual.

I cannot conclude without mentioning that while wolfish judicial games have been played for nearly two decades, wolves have multiplied and devastated game herds and livestock, crippled hunting and recreation businesses, spread diseases, threatened people in their back yards, and rent the social fabric across a dozen or more states. It may be fun and games to the judges and litigants, and even a profitable enterprise for those few players, but wolves have been a nightmare for the rest of us.