Text of Judge Molloy’s latest wolf decision

Molloy says an “experimental” (10)j wolf population most likely does not exist-

Here is the actual text of the judge’s latest wolf decision.  I think he is also saying a valid 10j population has not existed for some time, although he did not resurrect the argument that the original 10j reintroduction was not proper.  Molloy’s order on experimental wolves

I think he may have cut the Gordian Knot. It is unclear still to me what the effects of this will be — who actually won. Strictly speaking, the government won (I mean on paper).

20 Responses to “Text of Judge Molloy’s latest wolf decision”

  1. Brian Ertz Says:

    it seems to me that the order does not benefit nor can it be described as a “win” or “loss” by any of the parties at this point – judges order things all the time. a judge may order that parties attempt to mediate a resolution, or for more briefing.

    my read suggests that in previous testimony, the government demonstrated that genetic exchange has occurred between ‘experimental’ designated wolves and non-experimental – the statute requires that to have the 10(j) status, they must be the original reintroduced wolves or their direct offspring — genetic exchange between reintroduced wolves and wolves that interchanged from other populations removes the 10(j) status of the offspring populations.

    if this is correct – the question becomes, is the population that remains still listed via the ESA ? if so, would offspring wolf populations which are mixed enjoy the full protections of the ESA – the same as those populations residing outside the DPS and which are technically endangered throughout their range – rather than 10(j) which allows for “control” – ? …

    of course – it might be found that an alternative recovery plan providing for a fully protected recovery rule *rather than 10(j)* after successional generations remove their experimental status has never taken place in the area described as the NRM DPS.

    • David J Says:

      The removal of 10(j) status can only add to the protections of the gray wolf. 10(j) is the loophole that removes ESA protections that were intended under the original language of the act. Granted, if not for 10(j) concessions perhaps these reintroductions may not ever have occurred. In the best of worlds 10(j) should never been introduced.
      Red wolves and mexican wolves have no natural path off the experimental/non-essential status as no wild populations exist (canis lycaon perhaps?). So the catch 22 exists and 10(j) is helping to limit the mexican wolf population from any real growth.
      Admitting that genetic connectivity is occurring between 10(j) populations and wild populations will add to the argument for delisting, but in my opinion that does not outweigh the benefit of protection from state sponsored wolf control hunts allowed under 10(j).

    • Salle Says:

      Actually, my take is that when the arguments in previous visitation to the court, the plaintiffs claimed that the 10(j) population had little to no connectivity and genetic exchange due to a number of reasons, like lethal control actions and then – with that as a factor – a hunting plan was inappropriate. But the gov’t argued that they had substantial evidence that here has been genetic exchange with outside populations and, therefore, a hunt could commence without harm to the 10(j) DPS.

      So, here, Molloy is asking how they could have 10(j) status when most requirements for such a designation are not being met at this point in time since the original reintroduced wolves are dead and their offspring are reproducing with a variety of outside populations, as per the gov’t’s testimony on several occasions.?

      Well, if they are still listed everywhere else outside the DPS of the past and 10(j) is not applicable, I would imagine, and I’m speculating of course, that all wolves would now be protected under the ESA and until there are delistings, this will be the case. I hope that the requirements for ESA protection of the species’ with consideration to their overall range potential remains. After all, one has to examine how much area of their over all range on this continent is considered significant. That is the terminology used in the Act and, therefore, should be the determining factor.

      Time will tell. It will be interesting to see what the defendants and plaintiffs have to say about it and Molloy’s decision based on that will be. It won’t be long.

      I do feel that social attitudes towards a species’ ability to thrive should be taken into account when deciding to delist, regardless of which species that is. Nature still rules us all, think weather for instance, and it isn’t so much about what we humans want as much as what the natural environment will allow us to have. If we upset it too much, it will squash us and we will have only ourselves to blame for it.

  2. JEFF E Says:

    so because we know that some of the original introduced wolves bred with existing wolves from the very beginning in Bear Valley that would mean the 10j rule has been invalid for about 15 years?(ya we can argue if dispersers or original population. makes little diff here).
    I’ve waited a long time to see when this one was going to percolate to the top.

    • Ken Cole Says:

      The wolves in Bear Valley and other places (3 males and possibly others) did not constitute a population. Essentially McKittric argued the opposite and their argument didn’t make the cut.

      • JEFF E Says:

        Does not consisting of a population also make them non-endangered?

      • JEFF E Says:

        from this ruling
        “But to what extent is the experimental status
        threatened if multiple dispersing wolves breed with the experimental population?”

  3. JimT Says:

    I agree, Ralph. Unclear as to meaning and import. Waiting for the various sides to put out statements on what this means in their eyes….

  4. WM Says:

    And yet, we have the 1994 EIS on the reintroduction touting the “flexibility” of management so as not to impact ungulates and livestock, and special treatment of 10(j) reintroduced wolves. Yet one more defect in the EIS – crucial issue, for the states, that was not addressed.

    What happens to legal status of all these wolves when 10(j) wolves breed with naturally occuring (Canadian) in-migrating wolves in and outside the NRM DPS, and founder population progeny intermingle wherever they range?

    My take on this is that Judge Molloy is, of necessity, emphasizing one of the absurdities of the ESA as currently written, including the FWS (defects?) 10(j) regulations AND long range management of a “non-essential experimental population.”

    It seems nonsensical to me that the character of the 10(j) wolves would change to a higher protection status (which it appears is one outcome) as their numbers and range increase dramatically, as they have over the last 16 years.

    It will indeed be interesting to see how the issue is briefed by both sides, and how Molloy rules in this next step. Prove genetic connectivity, and progress toward “recovery” sufficient to make the case for NRM delisting and get boxed into a corner with one more unanticipated legal “technicality” that might impede state management of a growing wolf population that remains ESA listed because of yet one more “technicality” (can’t split up a DPS when one state won’t play).

    ++According to the statutory definition, the experimental designation is not permanent. For example, “[w]hen experimental and nonexperimental populations overlap even if the overlap occurs seasonally—section 10(j) populations lose their experimental status.” U.S. v. McKittrick, 142 F.3d 1170, 1175 (9th Cir. 1998) (citing 50 C.F.R. § 17.80(a)).++

    Looks like this is setting up for yet another absurd outcome under the ESA and making one more argument for changes to it.

    • JB Says:

      Actually, if free federal wolf management ended and wolves were given the full protection of the Act, this might be enough to motivate Wyoming to “play ball”.

      • JEFF E Says:

        there ya go.
        think judge johnson and judge molloy and salazar have had a conference call
        ooops, did i say that

      • wolf moderate Says:

        “Actually, if free federal wolf management ended and wolves were given the full protection of the Act, this might be enough to motivate Wyoming to “play ball”.”

        That, or make it exponentially more likely that Congress will change the ESA. Could you imagine the pressure that would be put on them if wolves receive full protections after all this time? Especially after 16 years of growth.

    • Brian Ertz Says:

      if the FWS has been mis-administering the law granting 10(j) status to wolves that ought lawfully be fully protected, rather than “managed” aggressively this whole time, then that would indicate the absurdity of FWS’s management (or delegation of management), not the ESA.

      • WM Says:

        Brian,

        If I understand your comment, it is highly unlikely any source wolves from Canada would EVER have been translocated/reintroduced to the NRM without 10(j) and the “nonessential experimental population” status, and the very strong and consistent representations by FWS that they would be managed with “flexibility” as stated so many times following the 1987 plan and EIS in 1994 to the actual delivery of the wolves on the ground, and subsequent “(mis-) management” of them.

        So, in a practical sense, would you rather have 10(j) wolves with questionable management status or NONE AT ALL (except those that very slowly migrated in from Canada)? Something to think about.

        Why don’t you ask former FWS Director Jamie Rappaport Clark (now #2 in charge Defenders making a couple hundred grand a year)? She has the history on this and was VERY involved, as the head of the ESA section, in the decisions when it all began.

      • Brian Ertz Says:

        if the FWS made those promises, and those promises were unlawful given the plain language of the 10(j) statute i.e.:

        “any population (including any offspring arising solely therefrom) authorized by the Secretary for release under paragraph (2), but only when, and at such times as, the population is wholly separate geographically from nonexperimental populations of the same species.”

        then it is absurd that FWS made those unlawful promises – the law itself is not absurd.

        p.s. i am not politically or emotionally invested either way in whether wolves were re-introduced or whether they recolonized on their own – though at this point i think it a mess promulgated by the same fear of speculative political consequences that you now prescribe given delisting bills in congress. 10(j) was itself a political “tinkering” <— as i believe you once described recent amendments to the ESA, and so to claim fallacy with the full ESA itself, rather than with the politicized "tinkering" that created this mess, and prescribe more political "tinkering" to facilitate speculative accomodationism of violent radical sentiment is the true absurdity.

      • WM Says:

        Brian,

        Please do not characterize my distain for parts of the law as an indictment of the entire ESA. It is a valuable law and for the most part needs no change. I challenge you to find very many federal laws that are not changed over time as needs for a fix are pointed out.

        I did not say the law was “absurd.” I said the outcome from applying the law in this instance was absurd. It was an unintended consequence that likely no one thought of, or did think of but chose a strategy (apparently) inconsistent with the law, anyway.

        It is similar to the absurd outcome of the institutional flaw apparent in the inability to delist within parts of a DPS (curiously where the portion where wolves were to remain listed – only WY- did not have an approved plan, and would have remained at a higher protected status than the remainder of the NRM DPS. Biological wolf recovery issues aside, it makes no sense whatsoever to unilaterally have one state hold up a delisting decision. As I have said before other federal environmental laws like the CWA, CAA, SWMA and others have provisions to backfill if an agency/state or subdivision of a state will not step up to planning and management responsibilities. The ESA does not. This is a huge and easily fixable flaw.

        Not sure what to do about the 10(j) co-mingling issue that just cropped up with Molloy’s questioning. But it seems in this instance a fix as proposed in the Tester bill (sorry to keep bringing it up, but I see no other equally as appealing or apalling fixes on the horizon).

      • Brian Ertz Says:

        It is similar to the absurd outcome of the institutional flaw apparent in the inability to delist within parts of a DPS (curiously where the portion where wolves were to remain listed – only WY- did not have an approved plan, and would have remained at a higher protected status than the remainder of the NRM DPS.

        We’ve discussed before why the decision which precluded incremental delisting within a DPS, or more technically – precluding USFWS to use the DPS as a tool to delist – is in fact biologically significant.

        In the case of NRM wolves, it is even more biologically significant in that the recovery plan prescribes the importance of interchange among and between the ID & MT populations and the Wyoming population – i.e. Wyoming population of wolves is dependent upon the genetic contribution of wolves from Idaho and Montana, delisting wolves in ID & MT could potentially unlawfully impact WY wolves in depriving them of that contribution in the absence of ID & MT state mechanisms of management ensuring interchange — those state mechanisms were not present in ID & MT management plans that promulgated the previous vacated delisting rule.

        although this biological rationale may not have been explicitly articulated in that decision, often decisions that are made on procedural grounds (on summary judgement) do indeed have biological significance – ex: most NEPA cases that vacate agency action don’t preclude a particular action, they just stall it until adequate review takes place. That being the case, why do so many enviros pursue such claims ? Because adequate review is a desireable end in its own right, but also because stalled agency action often has the net benefit of biologically desirable outcomes (i.e. a project is abandoned, or upon further review renders an proposed action indefensible, arbitrary & capricious).

        in fact, that’s why those “technicalities” exist – to establish procedural mechanisms to protect identified values. that’s important – it’s not merely a technicality – delisting wolves in ID & MT without delisting them in WY would likely have a negative/unlawful biological impact on listed wolf recovery in WY. winning on “technicality” that extends effectual protection is a biologically desirable outcome that emboldens the ESA in favor of wildlife. Of course that’s going to piss off people who don’t want wolves (and other wildlife that will be subject to that particular judicial clarification in the future).

        i.e. the inability to establish a biologically arbitrary DPS to delist in ID & MT is not an institutional flaw, it is a mechanism that provides appreciable/biologically significant benefit to a population of federally listed wolves.

        just as such a “procedural” “technicality” serves as a mechanism effectually extending biologically meaningful protection to wildlife – on the flip-side, supporting the revocation of that procedural “technicality” has the effect of depriving/diluting said protections to wildlife.

        i certainly agree that legislation is changed/amended all the time. the question here is ‘what effect will that have ?’ your contention that it will “improve” certain aspects of the ESA is, in my mind, bogus – when your desired outcome is an ability to use the DPS tool to remove federal protection – because that will, in almost all circumstance – have the effect of diluting extended protections to wildlife. i come from a position of advocating for more protection, particularly given the direct hostility toward wolves & their recovery that is endemic to each of the political institutions that will inherit their management, particularly given that such hostility is directly identified in their recovery plan as a chief threat to their recovery.

        if the ESA’s ability to protect imperiled wildlife is contingent on its economical/political palatability – then the integrity of the ESA is already gone – particularly in this case, where political hostility was identified by biologists as a chief threat. the strength of the ESA, its effectiveness and purpose, is in its mandate and ability to resist political/economic threats to wildlife. whether those threats impede the ESA’s mandate before – because agencies, administrations or enviro-advocate public are unwilling to enforce it for fear of political retribution – or whether those threats impede the ESA’s mandate after – because an disgruntled adversarial politician passes legislation usurping the proper application of the law – is largely a wash.

        your want to “amend” the act is a want to abandon the very thing that makes it effective at protecting wildlife – wolves …

      • WM Says:

        Brian,

        I am sorry I don’t have the time to address your comment at present, with the detail it deserves. Unfortunately I have to concentrate on putting together a funeral service for my father who passed away a few days ago.

        Clearly we disagree on a number of issues on this topic. First, let me say as a lawyer, I disagree with the way you use the term “procedural.” The things we are speaking of – all of them- are “substantive” issues of law. May I suggest to you some reading on the distinctions between the two.

        Second, the break up of a DPS, were it permissible under Molloy’s reading of the law, would require that both ID and MT still meet the biological requirements and all other elements for ESA delisting (having a sufficient number of wolves, genetic diversity/connectivity and the approved management plan/structure etc., but the judge did not address the remaining substantive portion of the claims in the suit) for their respective portions of the DPS (that will ALWAYS be a requirement under the law, or wolves would go back on the list).

        The FWS delisting rule (Molloy rejected) would leave the WY portion, presently, and for the near future, under protection of FWS to also work toward/meet its biological requirement for delisting, OR as was proposed in the last delisting rule remaining as ESA protected in a listed status under the protection of FWS (WY would have no hunting, no predator zone, etc.)

        In matter of fact the genetic exchange would go both ways into and out of the respective NRM areas regardless of their listing/delisting status, just like wolves move into and out of Canada and the US (eg. MN, or MN to/from WI). It would be affected by numbers of wolves and range, but those would have been controlled at acceptable numbers in the short term, under the respective approved plans and management goals. It would have been a very good institutional solution, likely better than having WY the wolf manager with its own approved management plan (truth be told).

        My read on that is that WY (including Yellowstone) serves as a source area for assurance of genetic diversity to other parts of the NRM, for now because FWS management in WY would not include hunting, and maybe a little less “control” of problem wolves in listed status protection, as now. Frankly, I think you have the cart before the horse in your scenario, above.

        As I said, I am sorry but don’t have time to address the remainder of your issues, but clearly there is an institutional deficiency that allows a state – recall the ESA requires cooperation with the states- to hold any other state hostage to a delisting decision if it decides for any reason NOT TO PARTICIPATE. How you could not see this as a SUBSTANTIVE technical flaw of the law, is a completely irrational viewpoint.

        The Tester bill gets around all this, with a temporary statutory fix, dealing with these substantive deficiencies. And, do recall again, the Tester bill has a sunset provision after 5 years AND it has safety valves if the states don’t honor the requirements of the law.

        We will get the opportunity to discuss this some more on another day. Regards.

        _________

        Just a nit, but it sure would be nice if you found the CAP/Shift button on your computer. It makes your comments alot easier for others to read.

  5. JEFF E Says:

    “Additionally, whether the offspring of the wolves of the northern Rocky Mountains have arisen solely from the original released wolves has not been addressed.” (from this ruling)

    We know that the wolf killed south of Yellowstone in 1992 was genetically linked with the nine-mile pack in Montana which would be a naturally occurring population under the ESA.
    We also know that wolves will disperse in all directions of the compass.
    So the rhetorical question: Did any dispersing wolves from the naturally occurring populations in Montana, inter-grade with the re-introduced wolves.
    how about from north of the border?
    (no rocholm that is not a separate species)


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