Is It Time For USFWS To Appeal ESA Cases?
October 1, 2009
It becomes apparent to any onlooker that when it comes to Endangered Species Act cases in the Greater Yellowstone Area, that Judge Donald Molloy is chief cook and bottle washer. He is the envy of any environmental group seeking to further their special interests. It matters not whether they want to protect a particular species they have found tugs at the emotional strings of those with deep pockets or simply to further hamper the heritage of hunters who take to the field during their favorite season. Judge Donald Molloy is their go-to guy.
Yet through all the lawsuits filed against the U.S. Fish and Wildlife Service, a division of the Department of Interior, the feds seem lacking in willpower to seek the ruling of a higher court. Maybe it’s time.
With each passing lawsuit Molloy hands victory to the environmentalists, the feds seem eager to run and hide, only to appear again in a few months walking down the same street and falling into the same hole. Maybe they know something about the higher court (Ninth Federal Court) that we don’t. Maybe they figure if they can’t get one over on Molloy, an appeal to the Ninth would be wasted. Then again maybe not.
The Department of Interior’s lack of confidence? to appeal leaves us with several questions, the biggest one making me wonder who they are working for? But we’ll save that discussion for another time.
We know that back in July of 2008, an 11-member panel of judges at the U.S. Ninth Circuit Court of Appeals unanimously voted that judges needed to use science in rendering these kinds of decisions. Their words were to “give discretion to expert scientists”.
We also remember that shortly after Barack Obama was elected President he made the statement that he was eager to “return science to it’s proper place” in making decisions about endangered species and the environment. Let’s call them on it!
But let’s not be naive. It’s easy to declare that science will be used but whose science? We can’t really control the rulings of an activist judge who is going to rule based on his personal preferences rather than the strength of the arguments made for and against an issue, if he is allowed to do so. So, maybe it’s time to go find another judge or judges who might see things a bit differently.
I say that it is time to find out. I say, the U.S. Fish and Wildlife Service needs to appeal the recent grizzly bear decision Molloy made that returns the bear back to the control of the feds. If, as Molloy alluded to in his ruling, the “science” the feds presented wasn’t convincing enough, then the USFWS needs to decide two things.
First, they need to decide if the science exists to convince any court that grizzly bears in the Yellowstone area should be delisted and would be better off if they were. The second thing the feds need to decide is whether or not they and their lawyers actually believe in that science and honestly desire to have the bear put under state management. If they can’t muster up both of those elements in this case, those of us hoping for better state management have little hope it will ever happen. As a matter of fact, if this case is not appealed and stricken, it sets a precedence that could have sweeping negative consequences.
So, what’s it going to be? Is the Department of Interior going to cower and run and hide as they have in the past? Will they do as they have with the gray wolf of late, staying out of sight for awhile and then reappearing with a new proposal, hoping against hope that somehow it will satisfy the courts? Or will they do what they should do and get their act together and appeal this case? They need a strong effort at convincing the court that it is the accurate and proven science the wildlife management people have used for decades that rules the day. How difficult is it if you have a proven track record? Either the feds lawyers have yet to present their cases in a convincing way or Judge Molloy is never going to be convinced.
It appears to me that being that these cases have all involved the same judge, all with the same results, that it is time to walk down a different street and avoid the same hole they have fallen into before.
Tom Remington
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