Arguments Filed Asking Judge Molloy to Consider Wolf Settlement

Earlier we learned why Western Watersheds Project stands firm. Does not join wolf settlement. Now initial briefs have been filed before the Court, with the Settling Parties filing a motion for an indicative ruling, essentially asking the judge whether he would partially stay the August 2010 order vacating and setting aside the U.S. Fish and Wildlife Service’s 2009 Delisting Rule in the states of Idaho and Montana only.

I have attached links to several of the briefs, including Western Watersheds Project’s brief opposing the settlement, below the fold:

Introduction

Pursuant to the Court’s March 21, 2011 Order, Dkt. 193, Western Watersheds Project hereby objects to and opposes the Motion for Indicative Ruling filed jointly by several plaintiffs and defendants (collectively the “Settling Parties”) who attempt to settle the present case and a related case (No. cv-08-14-M-DWM). Dkt. 187.

The Settling Parties seek to strip Western Watersheds Project (“WWP”) and other non-settling plaintiffs of the legal ruling already rendered in their favor by this Court, without intervening or overriding legal authority, without all parties agreeing to the proposed settlement, and without ensuring adequate protection for wolves. The Court already held it improper for the United States Fish and Wildlife Service (“Service”) to base its Northern Rocky Mountain (“NRM”) wolves delisting decision on politics. Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207, 1228 (D. Mont. 2010)(“Even if the Service’s solution is pragmatic, or even practical, it is at its heart a political solution that does not comply with the ESA.”) Yet the Settling Parties now seek the Court’s blessing for the politically motivated decision to be reinstated, and they provide no basis for the ruling they seek and settlement they propose, other than altered political postures.

WWP’s Response Opposing Motion

*Added: Alliance for the Wild Rockies & Friends of the Clearwater Response Opposing Motion

*Added: Humane Society of the U.S. Response Opposing Motion

###

Settling Parties’ Filings:

Settling Parties’ Joint Motion for an Indicative Ruling

Memo in Support of Joint Motion for an Indicative Ruling On a Joint Motion to Partially Stay the Court’s August 5, 2010 Judgement

Settlement Agreement

*Added: State of Montana & MT Dept. of Fish, Wildlife & Parks Response Supporting the Settlement Motion

*Added: Safari Club & NRA Response to Settlement Motion

###

Court Order Scheduling Consideration of Motion to Settle:

*Added: Order

65 Responses to “Arguments Filed Asking Judge Molloy to Consider Wolf Settlement”

  1. Ron Kearns Says:

    The following statement quoted from the non-settling plaintiffs’ opposing motion concisely sums up the extralegal nature of the Settling Parties’ position.

    (“Even if the Service’s solution is pragmatic, or even practical, it is at its heart a political solution that does not comply with the ESA.”)

  2. Wyo Native Says:

    I can’t find anything about when this will be placed on Molloy’s docket. Does anyone have in information on when this will actually be taken under consideration?

  3. jon Says:

    I’m not surprised dow backed out. They are losing members from what I understand. Dow only seems to care about getting donations rather than actually helping wildlife, but this is my own personal opinion. Dow didn’t support the anti-trapping iniative in Montana. Maybe with their help and support, public land trapping in Montana would be banned today like it should be, but it’s not. The salary that the president of dow makes is outrageous.

    • U-NAH-WI (Christie Leigh) Says:

      I called Defenders yesterday and told them that they definately lost me. I also told them that if you’re gonna fight for something, don’t give in, fight. I told them that was the most stupid decision as these people didn’t want to manage the wolves, they wanted to kill them off.

    • Jimt Says:

      Jon, I can tell you that this decision is causing and has caused great anguish inside DOW, and much debate. So, if anyone here is assuming this was done casually, or for self interest, they are incorrect. I have my own opinions on this dynamic, but find them influenced by my bias as a lawyer and a believer..perhaps too much at times, in the effectiveness of litigation, and by my tremendous lack of faith in Congress and its institutional integrity. In particular, John Tester has shown that he is a realpolitik politician with the endgame of re-election worth most any gambit. To rely on him..or Baucus, ,or Hatch..in the Senate to not pursue a legislative endrun if the settlement agreement if it is their own best interest in retaining office is risky at best.

      As for your comment about Rodger S., you don’t know Rodger, obviously, or what he has done for Defenders, endangered species generally and wolves specifically over the past two decades plus. I do, and am honored and proud to call him a friend.

  4. Ken Cole Says:

    The hearing is at 1:30 on Thursday at the federal court in Missoula.

    • Wyo Native Says:

      Thanks Ken.

      Should we expect a ruling from the bench, or should we expect a ruling that may take several months?

      • Ken Cole Says:

        I have no idea.

      • Ron Kearns Says:

        Although I am neither an attorney nor am I particularly fond of reading legal motions, after reading the exceptionally well-written motion by Counselor Nelson, I expect that Judge Molloy could very likely “deny the pending Motion for an Indicative Ruling” from the bench this Thursday.

  5. jon Says:

    Ken, I hope some wolf supporters show up this time.

  6. Greta Says:

    I’m so proud of WWP! Summer Nelson did an awesome job on the brief. Hopefully all the people who are pissed at DoW and CBD will send their membership dollars to the small orgs who are still fighting the Goliaths.

    • Virginia Says:

      I sent my donation to WWP on Monday after I read they had not gone along with the idiotic plan of the other groups to back out on the wolves. Will do the same with Wildlife Guardians.

  7. Hilljack Says:

    I really hope they settle this and delist in Idaho and Montana so we can focus on other issues. As long as those states don’t go crazy trying to kill them all the wolves will be fine and all the money being spent on them can be shifted to WA, OR, UT and until it comes to its senses WY.

  8. WM Says:

    Given all the hot tempers on this forum recently I am reluctant to post this, but will anyway. On another thread Ron Kearns made an observation that is at the heart of this. This is my response, but on this updated thread with all the legal papers that sort of lay things out.

    Ron Kearns,

    ++I think the paramount aspect that the 9 groups who commandeered the political and extralegal settlement choose to ignore is the ESA legal issue-++

    You are right. They did choose to ignore the issue. They believe it is a winner – but only in the short term.

    The litigation in Molloy’s courtroom could have gone forward solely on the science of wolf recovery. Instead the plaintiffs picked this technical flaw of the ESA (the judges’ conclusion you cannot delist some and not all of a DPS, especially along political boundaries) as one of their key claims against FWS.

    The judge rightfully saw an easy way to get the case out of his courtroom and into hands of the 9th Circuit Court of Appeals for a possible affirmation that the ESA says what Judge Molloy thinks it says about breaking up a DPS. It still does not deal with the science of recovery. It only delays the issue.

    However, there seems to be a growing body of evidence that the NRM wolves at present (and I underline this term “present”) population levels, with genetic diversity and connectivity would seem to have a high probability of being recovered under the law. I am going to bet the judge would have agreed with that after full hearing from the parties had the case gone forward last fall on the science of recovery claims alone.

    He could have kept the case presiding over the “scientific recovery” for years and years, making sure the states did nothing stupid in MT and ID, and letting USFWS manage in WY, keeping them from implementing the predator death zone over 90 percent of the state, with FWS as direct overseer, and WY wouldn’t get to hunt wolves until they had an approved plan and accepted management responsibility in good faith.

    The problem is that the apparent sure win on the technical DPS argument (which as stated before, has no nothing whatsoever to do the science of recovery) got a bunch of states really ticked off about this cute legal maneuvering, and talking about the bare minimum recovery goals of 300 for the three state region, instead of what constituted science based recovery. That is what all this legislative stuff is about. This gave the states the very platform they needed to say the ESA is not working with wolves in the NRM – an institutional flaw that kept ID and MT from exercising their right to manage because WY didn’t want to participate, which ultimately meant wolves everywhere in larger numbers that no one agreed to, for what was represented as a “non-essential experimental population,” at the time of reintroduction. This population was to have “flexibility” in managing for conflicts with livestock and “impacts” on ungulate populations (according to the 1994 EIS).

    Call me a cynic, but I think the “settlement” is an effort on the part of these settling plaintiffs to distance themselves from the genie they released from the bottle (Molloy’s ruling on the DPS) and cannot put back into it.

    The non-settling defendants, WWP et al., believe they can use the genie to continue the cause for more and more wolves in more places, possibly going beyond the recovery plan reviewed in the 1994 EIS. However, I am not sure what they believe will be the end game under this technical flaw.

    The bigger problem is if the radical legislative proposals stay alive, there is higher risk of removing most protections from NRM wolves.

    And before we get ahead of ourselves, there is no assurance Judge Molloy will accept the settlement proposal and stay his ruling (thereby stopping the appeal). Equally as important, Defenders and the other “asi – nine,” can claim they sought the high road for a negotiated settlement, which will give them bragging rights in two of three possible outcomes at this juncture.

    Defenders, Center for Biological Diversity and the others need to own the legal issue that brought this matter to the very flashpoint that THEY created. I think they are just running for cover if this thing blows up and scatters fecal material everywhere. These guys with the Washington DC connections know how the game is played, and will live to fight another day.

    I am not sure what inside scoop WWP and the other three regional NGO’s have that leads them to believe a more optimistic outcome is possible.

    Who knows. There is even a possibility that among the 14 plaintiffs, they may have planned it out this way, running a two-prong attack to see how either plays out.

    • Ken Cole Says:

      WM said: “The litigation in Molloy’s courtroom could have gone forward solely on the science of wolf recovery. Instead the plaintiffs picked this technical flaw of the ESA (the judges’ conclusion you cannot delist some and not all of a DPS, especially along political boundaries) as one of their key claims against FWS.”

      I think you are mischaracterizing here. As someone who works for one of the litigating groups I will say that I wanted the scientific claims to be ruled on and I still do. It’s not our fault that the USFWS made such a blatantly illegal rule to delist wolves in an arbitrary manner.

      • timz Says:

        I don’t see why people still refer to the piece of the ESA that protects species without using political boundaries as a “technical flaw”. I’m guessing it was put into the act with a lot of thought and rational behind it. It doesn’t meet the criteria to be considered a “flaw” it’s simply part of the law.

      • JEFF E Says:

        What has become standard operating procedure when a “group”, whatever that may consist of, decides that a law should be modified, changed, rewritten, deleted, ad nauseum, is to characterize with buzz words such as loophole,flaw, technicality, oversight…… so as to give the ((impression)) that SOMETHING has to be done before it is TOO LATE

    • JB Says:

      “The problem is that the apparent sure win on the technical DPS argument…got a bunch of states really ticked off about this cute legal maneuvering, and talking about the bare minimum recovery goals of 300 for the three state region, instead of what constituted science based recovery…This gave the states the very platform they needed to say the ESA is not working with wolves in the NRM”

      The problem with your argument is that it rests on the assumption that opposing groups would have reacted differently to a ruling about the science of recovery (as opposed to the so-called “technical” DPS flaw) that did not go in their favor. I find this to be a dubious notion, at best. Opposition to wolves among most of the players was entrenched even before reintroduction, and the ESA has never been popular among the anti-regulatory, states-rights, property-rights, righty-righty-ding-dong politicians in the inter-mountain West.

    • Jon Way Says:

      WM,
      I believe the minimum number of 300 in the total 3 states is a major issue and given the current rhetoric from these states that JB discusses is a major barrier. If these numbers were revised upwards (say 500 in each state, esp ID and MT) and officially put on paper as opposed to something that they can back out of, then I think you might get folks more willing to talk, and come to a middle ground. Without that, I think there will always be issues.

      • william huard Says:

        And to add to that Jon- people that continue to use these arbitrary numbers instead of the science involved with “healthy stable populations to ensure sustainability of wolves” continue to show that they are not concerned with wolf survival

      • rtobasco Says:

        One of the issues with the numbers is that the target has continued to move. Early on the number agreed to was in that 300 range, then it was continually revised upwards to the point where one would believe that there were never going to be enough wolves to satisfy folks. The unwillingness of wolf advocates to stick with any agreement on what is enough has been a major factor in driving the frustrations of those seeking to resolve these issues and arrive at a management plan that is workable.

      • WM Says:

        jon way,

        I agree. One would hope common sense might prevail with some middle ground. Most could live with 500+/- per state.

        Not that this is not murky enough with the possibility of a “settlement,” whatever that really means, there is more.

        I do not know if it is true, but someone sent me an email last night (actual a legal memo for distribution from a Cheyenne, WY law firm, noting that FWS had dropped its appeal to the 10th Circuit, on Judge Johnson’s ruling that FWS had “arbitrarily and capriciously” disapproved the WY wolf management plan. I have not read his ruling, but their interpretation was that Judge Johnson’s opinion was in effect an Approval of the Plan (it can meet its 100 or whatever the number is in just 10 percent of the state including YNP wolves). Thus that makes their plan viable for purposes of NRM DPS delisting.

        The email finishes off with an admonition that FWS failure to go forward with the 10th Circuit appeal, combined with the Tester/Baucus/Simpson Congressional proposals leaves WY to fend for itself outside the legislative wolf delisting proposals that are in the hopper. Yet another interesting aspect of this continuing saga.

        No doubt Judge Johnson’s ruling – now the law of the land at least in the 10th Circuit since the appeal has been dropped- is that the WY wolf management plan is good to go (their interpretation, not mine).

        So, what does that do to the NRM DPS total delisting. Could Molloy’s ruling on breaking up a DPS be moot now, if FWS agrees the WY plan it rejected is acceptable according to Judge Johnson?

        So, if this “settlement” falls thru there is yet another path to be pursued, going for a full NRM DPS delisting again.

        WOW!

        ___________

        Note: Again, I haven’t been able to confirm the authenticity of the paperwork I received on Judge Johnson’s ruling, drop of the appeal and effect of his ruling. Maybe someone else has better information.

      • timz Says:

        “One of the issues with the numbers is that the target has continued to move. Early on the number agreed to was in that 300 range, then it was continually revised”

        When is going to sink in to you people (after upteen posts debunking that idea) that there was no “agreed” to number.

      • WM Says:

        william huard/timz,

        Just out of curiousity, and to keep the facts in the conversation honest, have either of you ever actually read the 1994 EIS? And, have you specifically read Appendix 9, which sets forth the reasoning for those lower numbers, which are recognized by the courts and the states as the “minimums” against which they are to plan and manage?

        As I have said above and elsewhere, I presonally think it is not enough, but the fact remains those are the numbers against which the legal standard is measured (by the way you won’t find anywhere in the EIS “best available scientific data” on recovery (in fact the entire EIS sucks on this issue) and maybe Jamie Rappaport Clark (number 2 at Defenders and former Endangered Species section chief at FWS) should be quized on that defect in the EIS.

        I commend it to your reading:

        http://www.fws.gov/mountain-prairie/species/mammals/wolf/EIS_1994.pdf

        The memo begins at PDF page 386/414

      • JB Says:

        rtobasco:

        One of the major misconceptions among wolf opponents is that there was some sort of “agreement” limiting wolf populations to 300. In fact, there is no such agreement. Rather, there is the 1994 EIS that sets 10 BPs/100 wolves for three straight years as one of three criteria to be satisfied before wolves could be delisted. The EIS is not a legally-binding agreement, it is simply an analysis of alternatives that the FWS could have pursued.

        Flash forward 15 years. As recently as 2009 there was considerably ambiguity regarding whether one of the other criteria–genetic connectivity between sub-populations–was satisfied. While this controversy has since been resolved, the DPS issue still looms.

        Meanwhile, all of the rhetoric from state politicians has been about how wolves were unfairly forced upon states and how they intend to minimize wolf populations as soon as they have control. I have yet to hear any state politician (or agency professional) discuss their government’s obligation to sustain wolf populations in perpetuity. Such an obligation is (a the very least) implied by states’ trustee role with respect to wildlife, and it suggests that EACH state at minimum, should retain a minimum viable population of wolves. Of course, estimates of what constitutes a minimum viable population of wolves range from 100 to many thousands; thus, we have another scientific question to answer as the wolf drama continues to unfold.

      • timz Says:

        Yes I’ve read it, what does that have to do with the fact there was no agreement?

      • jon Says:

        rtobasco, even Ed Bangs said 300 wolves was not enough. No matter how many times people like you are told, you still continue to believe that there was some sorta of deal made that only have 100 wolves in each state only. That is a myth that refuses to die just like the non native canadian wolf myth. As Bangs has said in the past, the recovery goal is a pretty complex thing and it’s based on the current science. And 100 wolves in each state is not a sustainable wolf population at all.

      • Immer Treue Says:

        jon,
        Read what he said.

        rtobasco:

        One of the major misconceptions among wolf opponents is that there was some sort of “agreement” limiting wolf populations to 300. In fact, there is no such agreement.

      • jon Says:

        immer, JB said that, not rtobasco.

      • Immer Treue Says:

        jon,

        My apologies. Crow is better not eaten in this fashion.

        Immer

      • WM Says:

        timz,

        Glad you asked the question. I used to be confused on that too, believing the “management” goals were the higher numbers in at least the ID 2008 wolf population management plan.

        Ralph was the one who corrected me (maybe with some help from Ken).

        That is because you kind of have to look between the lines to figure it in the later plan. I then went back and reviewed the documents, and sure enough those floors are still there – 100 wolves and 10 breeding pairs from the EIS, managed with a buffer to roughly 150/15, which is the AGREED MANAGEMENT GOAL. Take a look at the first 2002 plan, executive summary:

        http://www.fws.gov/mountain-prairie/species/mammals/wolf/ID_wolf_plan_2002.pdf

        The later 2008 population management plan with the higher management number included a floor of roughly 500, with the surplus above that, if you will, being those available for hunter harvest as was done in the 2009 wolf season. Then of course Governor Butch and the Legislature went rogue when everything started getting squirrelly with the litigation, and it was back down to the minimum of the minimums, and ultimately Butch saying you can take back your program.

        Similar language on the miniumums, with identical process is documented in the MT and WY plans, if I recall.

        Next thing to consider in the process is the agreement with each state. As the designated agency for Endangered Species, FWS approved those plans, so there are those agreements, along with the 2006 cooperative management MOU and the 2008 genetics MOU (referencing 300 wolves and 30 pairs) with all three states signing on to do their respective parts.

        Somebody please explain why those are not agreements between the states and the Secretary of Interior to the lower numbers going back to 1994?

        Even if you disagree, the courts seem to think there were agreements to these numbers and have said so numerous times.

        That aside, there is still the scientific recovery standard of the ESA over and above the EIS and the interagency agreements, which the court could consider, especially regarding the connectivity and genetic diversity issues. That is the substance of the suit outside this technical DPS matter that has bogged things down the last 7 months and looks to do the same in the future unless one of the radical legislative proposals becomes law.

      • WM Says:

        jon,

        Pay attention to my last post. I get tired of your uninformed bullshit!

      • WM Says:

        And before somebody gets wrapped around the axle, “miniumum” does not mean “limiting to 100 per state.” That is a foolish statement. The plans call for management at a higher level with sufficient buffer, and again the other “scientific recovery” factors come into play in order to meet the requirements of the Act.

      • timz Says:

        WM we are all impressed (not really) by your lengthy posts but the fact of the matter is you know damn well when people start talking about an agreement of 300 wolves they actually think there was some sort of formal deal between environmentalist groups and the government which we all know never happened. So save your bullshit for someone who cares about you lame attempt to dance around the subject.

      • wolf moderate Says:

        Too bad you guys won’t just refute WM’s point. It is nice to read actual posts w/ links to backup points…

      • timz Says:

        Too bad you too stupid to see his point has nothing to do with the supposed agreement.

      • wolf moderate Says:

        Nice. Have a good day…🙂

        Keep attacking w/ no substance.

      • timz Says:

        You mean full of substance like you posts. I thought you said a week or so you were going to quit posting for a couple months. It’s really disappointing you didn’t keep your word.

      • wolf moderate Says:

        I still read though, but when I see complete bullshit it’s hard to stay quiet. Anywho, back to my self imposed banishment. Thanks for the laugh🙂 bye.

      • jon Says:

        Wolf mod, what exactly is complete bs and please, be specific. I think you just come here pretending to be a moderate when you’re clearly not just to start trouble with the pro wolf advocates on here and to purposely start an argument with them because you’re an internet troll.

      • timz Says:

        Based on your posts here it seems to me you wouldn’t know truth from bullshit on this subject if it slapped you in the face. Now please keep your word and go away.

      • timz Says:

        Jon, I got an e-mail from someone who seems to know who wolf m is and according to that person your assessment is spot-on.

      • timz Says:

        And since he’s posting after saying he wasn’t going to you already know he’s a liar.

      • wolf moderate Says:

        I told you guys who I was lol. No need for emails. Ok, going now. Good day and have fun doing what you do!🙂

      • JB Says:

        WM: You may want to re-read rtobasco’s original post.

        “Early on the number agreed to was in that 300 range…”

        He was clearly referencing the 1994 EIS, not subsequent MOUs. Whether these MOUs constitute “agreements” is not, in my opinion, really worth debating. More importantly, it isn’t really relevant to the claim that an “agreement” was made and then minimums were revised upward. There was no agreement, and the revisions upward were the states’ own doing.

        Still, what strikes me as a more interesting question is: what is each states’ obligation after wolves are removed from ESA protections? I submit that in order to manage wolves independent from other states, each state would need to maintain an MVP. So the question is, what constitutes an MVP of wolves in the NRMs?

        – – –

        P.S. I found the following statement interesting, given what has transpired since wolf reintroduction.

        “Clearly, finding an area to support Ne = 500 of
        wolves in the lower 48 states is very unlikely, as this would equate to a total population in the low
        thousands.” (1994 EIS, APPENDIX 9, p. 38).

        We now arguably have two populations of Ne = 500 wolves in the lower 48.

      • WM Says:

        timz,

        ++the fact of the matter is you know damn well when people start talking about an agreement of 300 wolves they actually think there was some sort of formal deal between environmentalist groups and the government which we all know never happened.++

        Forgive my candor here, but when did a formal deal with “environmental groups” (some of whom cannot agree among themselves exactly what they want, for example HSUS would have as many wolves as could fill the landscape) become a substitute for states dealing with a duly elected federal government and an administrative agency in the Department of Interior (including Jamie Rappaport who was at the time head of the ESA endangered species section) And do not forget. Let me repeat, do not forget the reintroduction was begun under Secretary of Interior Bruce Babbit, whose staff bought into the numbers.

        So, do we substitute whatever particular fringe environmental group that wants to be in charge as the spokesperson in place of a duly elected government?

        Hell, the next skirmish may well be Defenders/NRDC/CBD et al. vs. WWP/HSUS et al, which is exactly the topic of this very thread!

        If I am wrong on the facts, timz, call me out. Otherwise yours is just an opinion without facts, but motivated a desire to twist them beyond the truth.

      • timz Says:

        WM for someone who thinks there so smart you sure are having a difficult time dealing with the simple point. If I went on on the streets of Boise right now and randomly polled folks about the 300 number 99.999% of those that responded would say it was an agreement reached between the government and some environmental entity. Were talking about perception and what people have been led to believe not your analysis of the EIS.

      • WM Says:

        JB,

        ++ Whether these MOUs constitute “agreements” is not, in my opinion, really worth debating. ++

        Well, actually it is. In fact, the documents themselves, whether called MOU’s or MOA’s use the terms “agreement” or “agree” in headings and in the text, as appropriate to the respective documents. They are not contracts in a legal sense though, but statements of harmony of opinion regarding a course of action in complaince (reluctant as it is for the states) under the ESA. You know well ESA, Section 6 Cooperation with States lays out all this stuff.

        I am not sure what rtobasco was saying, so I guess he needs to clarify if it is important. I was responding to timz and jon and the folks here who continue to say there were no “agreements” to the 300 range number. That was clearly the baseline and again the courts reference it. So, if that is not the case, I guess they need to tell Judges Molloy and Johnson. Yeah, I wanna be there for that.

        And yes, the states kept revising the management numbers upward. Those of us who speculate on such things could probably conclude why, including the genetic connectivity and diversity issues that could come up, and the desire of the wildlife agencies to provide hunting opportunities at least in ID and MT.

        As for the Appendix 9 memo and the brief analysis of the effective population N= 500 (which requires an actual supporting population of up to 3X the effective population), I am going to guess the context of the writer’s statement you reference includes a social carrying capacity element as well as ecosystem carrying capacity, when figuring in the number of elk it would take to sustain larger wolf population numbers.

        An MVP for each state? Interesting concept, but would it be necessary? Why would each state need to do so if they have an “agreement” to cooperate with each other with FWS oversight, to meet one MVP with the minimum population that is sufficiently large and genetically diverse/connected.

        Also did you catch at the end of the memo narrative, this statement? ” The addition of a few extra pairs would add security to the population and could be considered…. That could always be done as a periodic infusion if deemed necessary.” [PDF p. 391/414].

        And before I get beat up again, I am fine with 1,500 in 3 states (where they get to manage how many are where)and an infusion/translocation if the genetics need a boost. I just wish the states and some envirnmental groups were. We know HSUS won’t be, and recently I don’t know about WWP.

      • JB Says:

        Re: Agreements

        The point that you seem to be missing is that those who bring up this argument use it to claim that environmentalist reneged on the alleged agreement–in effect, that they have been trying to shift a goal that they had previously agreed to. In fact, environmentalists were never party to any agreement. Subsequent MOU/As may represent agreements between the states and the federal governments (though they are not binding in the contractual sense, as you note), but these MOUs establish population baselines not recovery objectives.

        Re: MVP

        “An MVP for each state? Interesting concept, but would it be necessary? Why would each state need to do so if they have an “agreement” to cooperate with each other with FWS oversight, to meet one MVP with the minimum population that is sufficiently large and genetically diverse/connected.”

        This is the interesting legal question. States manage wildlife as a trust for their citizens. (I’ve been doing some research, and found that some legal scholars actually refer to a separate “wildlife trust doctrine” which is essentially analogous to the PTD you are more familiar with). Anyway, the interesting legal question is: What obligation do states have with respect to maintaining wildlife populations? For a state to manage a wildlife population independently from other states, one would expect that, at a minimum, they would need to maintain a MVP of the species in question. No less would ensure that the resource entrusted to the state would be available for the enjoyment of future generations of the state’s citizens.

        Re: The addition of extra pairs

        This seems like a moot point to me? If states have an obligation to manage wildlife resources for both current and future generations, they should not be allowed to reduce wildlife populations to the point where such genetic material is needed.

      • WM Says:

        JB,

        ++ In fact, environmentalists were never party to any agreement. ++

        That is exactly right.

        Not sure why you believe I don’t get the point. I understand that completely.

        Those who objected to higher numbers (ID legis/governor Otter for example) are challenging the federal government to keep its word from the earlier time, whether it is the 1987 recovery plan, 1994 EIS, or some later document as the “minimum” numbers got repeated.

        Environmental groups or any other interest are not parties to intergovernmental agreements between states and the federal government to this point (excluding the current settlement proposal).

        These groups can only challenge sufficiency of what those governmental parties agree or don’t agree to under the law, by litigating the matter. Here, it appears those parties (the governments) agreed to numbers at one level, then by virtue of changing science, challenge by outside parties, etc. the claim is that the goals have changed upward, as has the need for all three states to participate. At least that is how I understand the discontent, and its potential resolution.

        The comment that started off this sub-thread and the 300 number was that Jon Way posted to me, and with which I wholeheartedly agreed in my follow-up post to his comment:

        ++WM,
        I believe the minimum number of 300 in the total 3 states is a major issue and given the current rhetoric from these states that JB discusses is a major barrier. If these numbers were revised upwards (say 500 in each state, esp ID and MT) and officially put on paper as opposed to something that they can back out of, then I think you might get folks more willing to talk, and come to a middle ground. Without that, I think there will always be issues.++

      • Brian Ertz Says:

        WM says:

        And before I get beat up again, I am fine with 1,500 in 3 states (where they get to manage how many are where)and an infusion/translocation if the genetics need a boost. I just wish the states and some envirnmental groups were. We know HSUS won’t be, and recently I don’t know about WWP.

        The 1,500 number here is a straw-man … sounds reasonable … right ? Not quite – the issue has always been whether the states would significantly decrease the population of wolves in their respective states once delisting occurred … Nobody is debating that they would, in fact their management plans prescribe it — the question is whether it is legal to unleash the hounds (states) onto wolves without any actionable/enforceable assurances that an MVP would exist into the future.

        Anyone suggesting that the states are capable of restraint a year … two years on the other side of delisting are living in denial.

        The question becomes whether it is prudent and wise to do recovery right the first time … or whether we should act on some sense of political expediency and hope that we don’t have to engage in an even steeper climb on the other side of delisting trying to get force a ‘do-over’ and either pass stand-alone legislation extending protections to wolves or re-list.

        i say let’s make sure it gets done right the first time … that means enforceable assurances from the states that “science-based management” from their perspective doesn’t mean “science-based extermination” depressing wolf populations to politically established numbers having less to do with an ecologically relevant number of wolves across a broad landscape.

      • WM Says:

        Bryan,

        What constitutes “an enforceable assurance,” and what are the sanctions for violating the assurance? JB and I have been batting that one around and pressing for a practical mechanism for over two years now, so your insight on the concept would be helpful.

        That is also what makes the all or nothing delisting of a DPS so unworkable. Let’s say one state goes rogue, while the other two tow the line meeting their recovery plan obigations. Everybody gets penalized since the entire DPS would be relisted under the current ruling of Judge Molloy.

        That is what is so incredibly stupid about this “techical flaw” of the ESA.

  9. WM Says:

    And, there is a very important aspect to the WWP position (in fact the major issue of their opposition papers), which the judge may find compelling. That is that what the settling parties are really asking for is that Judge Molloy vacate (not stay) his ruling on the law. He already made his decision; sufficient time has passed; there have been no changes in law or facts of the case which would compell him to do so.

    So, opening question from Judge Molloy on Thursday to the settlement folks will be something like the following:

    “I have already ruled on this matter and you have my reasoning. Tell me again exactly why I should vacate this ruling on the law I made 7 months ago, which is now before the 9th Circuit for review?

    I predict a thanks but no thanks, and WWP will prevail. Again, where that takes us is anyone’s guess.

    • Ken Cole Says:

      In most respects you are right there but I would say that there have been changes made since the ruling. IDFG ditched its plan.

      While it didn’t have the force of law, I believe the government argued that it showed that Idaho was willing to show some restraint. That needs to be put to the judge here if that truly is what the government argued.

  10. Cody Coyote Says:

    I,too, doubt Judge Molloy will backpeddle on his previous ruling. He put a lot of time and thought into that , and it holds water well.

    He has no reason to do anything at all while it’s on appeal upstairs of him. When the turncoat ‘ Settling Parties’ succeeded in a plan to start squeaming to obtain a quasi-political compromise to avoid a legislative fiat , that is an affront to the Judge. Judges do not like to be told they erred or otherwise ruled with iron fisted capriciousness when in fact they wisely interpreted exisiting law. Molloy is far from being the compliant judge the anti-wolfers paint him as. He will (likely) demonstrate his solid judicial ethics at least one more time before he retires in August.

    Go WWP!

  11. Ron Kearns Says:

    WM,

    I appreciate your two foregoing posts, which very well summarize the issue and possible outcomes from a somewhat different perspective. I would add that overall, I am concerned at the general assault on the rule of law by the past Bush Administration, the now Obama Administration, their concurrent Congresses, and the states’ governorships and legislatures. Without the judiciary, the other two branches of government will continue to break treaties and U.S. law. Likewise, I simply view this proposed settlement as an attempt by the Asinine Nine—in complicity with the increasingly schizophrenic USFWS—to circumvent settled law under the guise of compromise.

    Most of us prefer to avoid costly and protracted litigation. However, as in this case (and countless others), the non-settling plaintiffs and other interested parties simply have no other alternative. There must remain a means of checks and balances to secure fair remedies against the ‘rule of men’, which is increasingly subject to change and instability depending on which ideologues happen to occupy the Executive and Legislative branches of government at all levels—federal, state, and local—to include their associated governmental workforces. Idealistically, the ‘rule of law’ must always prevail over the ‘rule of men’—the latter of which is often lawless, unjust, and utterly unstable.

    As with life, there is no assured perpetuity of any governmental body or law; however, a civilized nation must have some standard of certainty with settled law such as with the Endangered Species Act. This ill-conceived settlement is but one example of an undermining of the legalistic stability that citizens must know exists for them to trust and abide by their governments’ established laws, rules, and policies.

    Ron Kearns

  12. Brian Ertz Says:

    I have added several parties’ filings to the list, including AWR & FoC, State of Montana, Humane Society (Opposing the Motion !!!), Safari Club/NRA, etc …

    • Ron Kearns Says:

      Brian Ertz,

      Thank you for a very informative, timely, and updated article. I have yet to start reading the other filings, although I expect none will approach the excellence of WWP’s brief.

  13. timz Says:

    This “deal” means nothing to these guys, they still want to gut the ESA.
    “http://www.idahostatesman.com/2011/03/23/1577900/attorney-otter-wont-take-stance.html”

  14. Phil Says:

    WM: What “enviromental” groups are you speaking of? I am not quite sure (could be wrong though) if Defenders of Wildlife were in negotiating with the FWS of a population goal of 300? I believe it was Fish and Wildlife Services on their own that came up with these numbers. Also, the 300 population should be revised because it is almost 25 years old, as is now part of the agreement set by the two sides. If the settling side agreed to this 300 population more then two decades ago, then why would they be inclined to “agree” to the settlement if one of the stipulations was for the FWS, not themselves, to change the current population goal?

  15. Kayla Says:

    Now it is just my thoughts as of late, just how much these wolves are splittering the Environmentsl – Conservationist Community in more ways then one it seems. I remember years ago when different hunters I know personally could be counted on to be a member of this community. But no longer! Now different Environmental Groups are splittering. This is interesting and has really made me begin to wonder seriously if something is going on behind the scenes that I am not aware of. There are certain ones in the world with power who would love to see the Environmental – Conservationist Community splitter into a thousand pieces. This is just me and some thoughts I have had as of late in what am seeing for whatever it might be worth.

    Wishing Everyone the Best!

    • skyrim Says:

      There were fractures and differences in the same/similar groups going back to the early/mid 90s before the animals were even here. I think it’s normal to have differences by the big guns (as they were). “Experimental” was a hot button issue back in those days.
      The way I look at it is those who still have a dog (pun) in the fight will come away stronger for support. Those who cave will be back looking for other ways to raise money.
      “No surrender in defense of Mother Earth”

    • Phil Says:

      Kayla: I do see what you are talking about, but this settlement has also splittered hunters and hunting groups (as it seems to be). Some are in favor of it, while some are not. Although I side with the environmental groups, I have always believed that enviromental groups and hunting groups should be put aside on this issue and let scientists, zoologists, biologists, etc determine the outcome, or even be allowed in the court and have their say. If they believe the population is at a high level and management should occur, then they should be the ones to implicate what form of management should be done.


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