Judge Molloy Seeking Strong Arm Of The Government To Enforce Complicance Of States To ESA
September 23, 2009
Recently federal Judge Donald Molloy ruled that grizzly bears in the Yellowstone area Distinct Population Segment should be returned to federal protection under the Endangered Species Act. Summary judgment was given to the Plaintiffs in the case on three of the four counts. Here are those three counts.
1. “there are inadequate regulatory mechanisms to protect the grizzly near once it is delisted”
2. “the Service did not adequately consider the impacts of global warming and other factors on whitebark pine nuts, a grizzly food source”
3. “the population is unacceptably small and dependent on translocation of outside animals for genetic diversity.”
Let’s look at number one for a moment. Essentially what this is saying is that Molloy doesn’t think there are sufficient “mechanisms” or rules, regulations and guidelines, to protect the grizzly bear once it is delisted. Molloy contends that because the U.S. Fish and Wildlife Service does not have in place stiff laws to ensure protection of the grizzly, it gives him reason to declare the bear threatened with its survival.
Granted Molloy cites cases of precedence that show a “sufficient mechanism” cannot be considered as such if it is only a promise of future actions, even if those promises are in writing and signed by the appropriate parties. He says this kind of “mechanism” is unenforceable. In reading through his ruling, it appears to me anyway that he seems to be looking for perhaps the stiff arm of the federal government in order to enforce regulations that will ensure the recovery of the bear. I’m not sure that is what the intent of the Endangered Species Act is. When the strong arm of government takes over, I fear we end up with situations like in California where people are going hungry, are out of work, crops are dying and businesses are going under all for the purpose of abiding by ridiculous federal and state laws that offer no flexibility. Is this what Molloy is seeking?
In citing Or. Natural Resources Council v. Daley, Molloy refers to this ruling.
“for the same reason that the Secretary may not rely on future actions, he should not be able to rely on unenforceable efforts. Absent some method of enforcing compliance, protection of a species can never be assured.(emphasis added)
The Defense claimed that it analyzed 73 different rules and regulations that they said would provide “sufficient mechanisms” to ensure the continued recovery of the grizzly bear. This evidently was not good enough for Molloy as he contends they are not enforceable and the USFWS didn’t bother to list them all out in their Final Rule proving how they would all enforce the protection of the bear.
I’m really not at all sure what it is that Molloy expects of the U.S. Fish and Wildlife Service. Granted it appears that at times they go into court ill prepared but Molloy seems to want enforceable laws to ensure protection of the bear even when the Service contends it doesn’t have that authority. This was stated in the Final Rule at the time the grizzly bear was removed from federal protection.
We [the Service] have no authority to compel the States to enact laws, nor do we believe it is necessary. . . . While the Strategy cannot legally compel any of the signatories to implement management policies or obligate funding, the various Federal agencies and State governments’ signatures on the Strategy clearly indicate their intention to manage grizzly bears according to the Strategy.
What this all seems to be leading up to is that nothing is going to satisfy a judge that has no intention of delisting a grizzly bear. Judge Molloy offers no confidence in the “sufficient mechanisms” of the USFWS, the same “sufficient mechanisms” it has used in the past. From my perspective I have to ask if Judge Molloy is elevating himself to a position of scientific authority over those scientists and professionals that make up the USFWS? Pretty scary stuff if that be the case.
The irony of this is that Molloy cites federal law about the use of science in determining listing or delisting of any species.
Agencies must make decisions about listing or delisting a species “solely on the basis of the best scientific and commercial data available.”
From the time this was written to the present, it really no longer has meaning. We have scientists in this country now who believe the earth is going to be destroyed because of global warming. Is that in all seriousness our “best scientific and commercial data available”? It’s conjecture at best, all based on someone’s computer models and is invoked in this ruling.
The USFWS will use what they believe to be their best science, as will lawyers on the other side of the lawsuits. Neither of these sides use the same science book. A judge not interested in using proven science (also could be referred to as “best”) to render decisions, allows for a total remake of the Endangered Species Act and the intent of that law.
It was just over 17 years ago when Dr. Valerius Geist, professor emeritus of the University of Calgary, wrote an article printed in Nature entitled, “Endangered Species and the Law“: “It is not the image of scientists squirming in witness chairs that merits attention, rather the fact that courts and solicitors offices are allowed to rule on taxonomy. Judges may now decide on matters such as the definition of species or subspecies, the criteria for establishing taxa, which taxa are valid, and which populations can be legally protected. The implications for conservation, but also for biology in general are profound and worrying”.
I challenge the notion that in 1973 when the Endangered Species Act was passed we would be mired in the myriad of lawsuits, disbursing money to lawyers, tying up valuable time and resource of the U.S. Fish and Wildlife Service that could be better utilized, all the while little is being done to actually conserve wildlife and protect the rights of human beings, is the vision we all had.
Dr. Geist’s 17-year old worries certainly have come to fruition.
Tom Remington
Related Articles
If you enjoyed this post, make sure you subscribe to my RSS feed!
We feature the latest news, events and politics effecting the sports of hunting, fishing, and all outdoor activities in North America.
[...] last September’s ruling by Judge Donald Molloy to return the grizzly bear to ESA protection, the feds asked Judge Molloy to reconsider his [...]