Wolf Injunction Ruling Could Have Just As Easily Gone Other Way

A United States District Court judge in Missoula, Montana ruled to reinstate protection of wolves in the Northern Rocky Mountains region using the same ridiculous data he claimed the feds used in support of delisting. District Judge Donald Molloy ruled for the plaintiffs, Defenders of Wildlife, et. al., and granted a temporary injunction that will return the gray wolf in Idaho, Montana and Wyoming back to protection under the Endangered Species Act. The entire event is so ridiculous it leaves all of us with a lot of unanswered questions and a few theories.

In Judge Molloy’s 40-page Injunction Order (pdf), he claims that the U.S. Fish and Wildlife Service’s decision to delist the wolf was “arbitrary and capricious”. Molloy contends that the USFWS disregarded its own research and claims and went ahead with the delisting anyway.

the Fish & Wildlife Service acted arbitrarily in delisting the wolf despite a lack of
evidence of genetic exchange between subpopulations;

Judge Molloy claims that the USFWS disregarded its own information it used in 1994 when it drafted the Environmental Impact Statement prior to the reintroduction of wolves. In that EIS the USFWS claimed two things. One, that in order for full recovery of the wolf to take place, at least 30 breeding pairs and 300 wolves should be present for at least 3 years and two, that genetic exchange between breeding subpopulations had to occur.

“[t]hirty or more breeding pairs comprising some 300+ wolves in a metapopulation (a
population that exists as partially isolated sets of subpopulations) with genetic exchange between subpopulations should have a high probability of long-term persistence.”

Molloy further contends that the USFWS has no evidence to show that genetic exchange, or interbreeding between subpopulations of wolves, exists. The Service countered that it now believes, some 20 years later, that this kind of genetic exchange is not necessary to sustain populations of wolf packs and gives examples of isolated packs that have survived quite well for decades.

Molloy’s constant referral to information and evidence presented as “not convincing” becomes almost humorous as he also fails to provide any substantial evidence to the contrary. He uses only one study, the VonHoldt Study, as proof that genetic exchange does not exist. In this study, VonHoldt tested 30% of the Yellowstone National Park subpopulation of wolves only and determined there was no exchange. USFWS says, even though they sponsored the study, that the sampling was too small to make the determination that no genetic exchange exists.

Molloy further claims that the USFWS disregarded its own information because its goal was to rush through the delisting. In short, Judge Molloy rejects any new findings of wolf management and readily falls back on the criteria set forth in the 1994 EIS, with much of that information derived from a wolf management plan created in 1987. He says that the USFWS has the right to change criteria in wolf management but they need a viable reason to do that. He says none is provided.

In actuality to lay claim in 1987 that 100 breeding pairs of wolves and 300 wolves total, along with the claim that genetic exchange was necessary seems quite ridiculous now. Over 20 years ago, how much was actually known about wolves and especially about genetic exchange and the need for such in order for a population of wolves to survive? As a matter of fact, how much is really known now?

Judge Molloy’s insistence on clinging to claims of wolf recovery objectives 20 years ago is as ridiculous as he claims the USFWS’s ideas for wolf management are today. Personally, I don’t think that it would have mattered what was presented at this hearing, the outcome would have been the same.

Despite a recent statement from the U.S. Ninth District Court of Appeals that judges shouldn’t become scientists and need to rely on science given in rendering decisions, perhaps the Ninth should have said best available science and not necessarily 20 year old science.

But we can’t lay all the blame on Judge Molloy. The Endangered Species Act needs work because it leaves nothing that resembles any kind of flexibility in rendering such decisions. We must remember that the ESA was written by politicians, not scientists. Even though their goals were admirable, the results have been less than overwhelming and now billions of dollars have been spent in the courts haggling over some very ridiculous cases.

If we were to take all the information that Judge Molloy offers in the rendering of his decision, I have to wonder if the USFWS is broken or corrupt. Are they that stupid that they would go into court so ill prepared? They knew the basis of the plaintiff’s complaint and that was that genetic exchange couldn’t be proven.

Sometimes I wonder when witnessing such ineptitude if this isn’t all just part of the overall plan the USFWS has in attempting to appease the anti-wolf crowds while achieving the goals they set out to do from reintroduction of the wolf. After all, many believe the reintroduction was an illegal act.

It appears to me that reintroduction of the wolf is finally coming to a point warned about long before the first wolf was released into the woods. It has become a political nightmare without the necessary resources to deal with proper management. Not enough money is available for the data demanded of the courts in these lawsuits. Of course, the USFWS can’t “prove” genetic exchange because they don’t have the means to achieve that. Even if there was an adequate supply of money, is it reasonable to assume that then genetic exchange could be proven?

One study prior to delisting indicated that in the Idaho, Wyoming and Montana area, there existed 106 breeding pairs of wolves with a total population of 1,513. The reality is this is an educated guess. Nobody knows how many wolves there are in these areas, just as nobody knows if there has been and exists genetic exchange. The courts demand proof as they say it is demanded by law yet providing that proof is virtually impossible.

As much as I despise environmentalism, animal rights groups and anti-hunting groups, they have been smart enough to recognize how the courts have ruled and have taken advantage of it. I wonder if the feds understand this or even care enough to do anything about it if they did?

Because of the lack of “proof” in much of our wildlife management, we have to rely on what is called the best available science. It is important to have the right people working in our wildlife management departments but the work they do all too often gets tossed aside in favor of court rulings and special interest. Courts demand hard evidence and much all of our wildlife management is based on scientific models and estimations, driven by budget constraints.

Judge Molloy is not a scientist. He could have just as easily relied on what the scientists at the USFWS are saying about wolf management and ruled the other way. To issue an injunction, it has to be shown that the wolf population will be put in jeopardy. Once again information used by all of the states involved about wolf management was essentially disregarded.

An example of this is Idaho’s Wolf Management Plan. Using the data they have on wolves and the plans they have for wolf hunts or more accurately total wolf harvests, the number of wolves they will allow to be killed in a year would at worse maintain the wolf population at its present level. Most believe it will continue to grow. This information obviously was disregarded.

There is little hope that a permanent ruling will not be issued based on the Injunction Order written by Judge Molloy. He is the judge who will rule on the permanent injunction and from what he has written, unless the USFWS can miraculously pull off some studies proving genetic exchange and get Wyoming to rework a new wolf management plan, the wolf will remain protected for years to come.

The only other option would be an appeal, which would end up in the U.S. Ninth District Court of Appeals, who have said that judges shouldn’t be scientists.

In conclusion, I believe that until the Endangered Species Act is reworked, the USFWS is revamped to accomplish what it was intended to do and judges are prevented from being scientists, there is little hope that much will change in managing our wildlife with science and not emotion and special interest.

Tom Remington