Grizzly Bears Back On ESA List. Molloy’s Science Trumps USFWS’ Science

Major press sources got Molloy’s ruling all wrong!

Once again we are witness to everything that is wrong with the Endangered Species Act. Judge Donald Molloy, the one judge all the environmentalists seem to run to when they need a court to support their agendas, has decided that grizzly bears in the Yellowstone area, should be put back on the Endangered Species Act list of protected species.

It is a waste of my time and energy to attempt to explain why Molloy’s science is in disagreement with that of the U.S. Fish and Wildlife Science. None of it really matters. It is incredible that the science used by the USFWS is regularly disregarded by Molloy in favor of either his own interpretation or that of the environmentalists. It really blows my mind. The out for the judges becomes whose science fits the case.

The short of this ruling is that there leaves little hope of ever recovering any species from endangerment. When one judge gets to make all the decisions, it all becomes very predictable and to be honest, quite boring.

I would however like to take a few moments to point out some interesting aspects of Judge Molloy’s ruling and other issues. First, let’s look at the press, also so affectionately known as the mainstream media. Nearly every headline about this ruling states that grizzly bears in the Yellowstone are were put back under federal protection because of global warming. This really is not the truth at all.

In his ruling, Molloy mentions that the USFWS did not adequately consider what effect the reduction of the whitebark pine nut would have on the survival of the grizzly. In that assessment, Molloy stated, along with other aspects, what was having a negative effect on the pine nut.

Plaintiff next asserts the Service did not adequately consider the impacts on whitebark pine from global warming and other causes…………

The identifiable best available science indicates that whitebark pines are expected to decline due to a variety of causes, including climate change, increased forest fires, the mountain pine beetle epidemic, and infection by white pine blister rust.

I would suppose presenting this information doesn’t make for as good a headline as claiming bears are endangered because of global warming, a la the polar bear.

Nowhere in Molloy’s ruling do I see whether his reference to global warming is natural or anthropogenic. The idea of global warming, whether natural or man made, being the root cause of endangering the grizzly is absurd, yet it never stops a good headline does it.

A second point to discuss is Molloy readily accepting of the USFWS designating a Distinct Population Segment in the Yellowstone area for the purpose of delisting the grizzly bear. Molloy acknowledges that the USFWS designated a DPS for the grizzly.

…….the United States Fish and Wildlife Service (“Service”) designated a Distinct Population Segment (“DPS”) for the Greater Yellowstone Area grizzly bear population and removed the population from the threatened species list under the ESA.

The plaintiffs lawsuit claims the USFWS violated the ESA on four counts, none of which mentions anything about the legality of creating a DPS for the purpose of delisting a species. This of course is interesting and should bear some fruit in the upcoming lawsuit that Molloy will hear in attempts by environmentalists to put the gray wolf back on the Endangered List. In that lawsuit, plaintiffs contend that the USFWS violated the ESA when it excluded Wyoming from the delisting process – in other words carving out another DPS for the purpose of delisting. We also know that in a separate case, Judge Paul Friedman, ruled in regards to delisting wolves in the Western Great Lakes area, that the ESA does not provide the legal authority for the USFWS to designate a Distinct Population Segment in order to delist a species. It appears that we have before our eyes a clear example, readily acceptable by Judge Molloy, of designating a Distinct Population Segment of grizzly bears for the purpose of delisting them.

I might also point out that in Molloy’s ruling that he spends quite a bit of time explaining that there are several grizzly bear populations that are outside this Yellowstone DPS that remain protected under federal law. This tells us that Molloy is willing to accept a DPS for bears for the purpose of delisting, carved out from the greater population of bears. It will be interesting to see if he carries that same feeling over when he rules on wolves.

A third item to take note of in Molloy’s ruling is that of a “significant portion of its range”. The fourth part of the Greater Yellowstone Coalition’s lawsuit contends that the USFWS:

did not properly consider whether the grizzlies are recovered across a significant portion of their range.

In this part of the lawsuit, summary judgment fell to the side of the Defendants as Judge Molloy deemed that the USFWS provided a “reasonable” explanation of what it called “a significant portion of its range”.

Many an argument has been waged in regards to that ambiguous phrase used within the Endangered Species Act and many a man has asked that as part of any change that might ever be considered in the ESA, a better definition of what a significant portion of its range means.

The plaintiffs argue that the grizzly bear is absent from 98%-99% of its “historic” range and therefore removing grizzlies in Yellowstone defies the notion that bears are recovered across a significant portion of its range. However, Molloy, citing previous cases, says this notion has been rejected before and he rejected it here.

The USFWS’ explanation was as Molloy put it, reasonable, and gives us some hope of carving out a better definition of the term. The USFWS contends that when they got done excluding from the “range” uninhabitable areas for grizzlies, that the amount of habitable range for grizzlies is 86% occupied.

While this may give us some hope in that area, it does not address the fact that grizzly bears as a species, much like polar bears, Canada lynx, gray wolves and several other species, are not in danger of going extinct.

While it seems that judges these days are pretty much given free reign over wildlife management, I hold out little hope that gray wolves will remain delisted. In reading Molloy’s decision on the grizzly bear, it becomes quite clear that he could have just as easily accepted the USFWS’ science in rendering his decision. For the USFWS to regroup in an attempt to remove the bear again, is basically a crap shoot. Perhaps it’s time to appeal to another court.

Whether we will ever get clear definitions in administering the Endangered Species Act remains doubtful. In the meantime, the environmentalists pour their money into continued lawsuits, knowing the odds are very much in favor of them winning. Not because they have science on their side but because they have progressive judges eager to pitch in to the “cause”.

Tom Remington