How green is Judge Molloy?
by Ray Ring
One of the West's most controversial federal judges -- Don Molloy in Missoula, Mont. -- was at it again Aug. 5. Ruling on two lawsuits filed by 14 environmental groups, Molloy ordered the U.S. Fish and Wildlife Service to restore full Endangered Species Act protections for the 1,300-plus gray wolves in Idaho and Montana. By doing so, the judge fueled the perception in some camps that he's a green activist.
"Environmental extremists ... own the Courts," fumed Tom Remington, a prominent anti-environmentalist blogger based in Maine and Florida. On the opposite coast, dozens of Pacific Northwest hunters posted similar reactions on the Hunting-Washington.com Web site; one created an animation depicting Molloy as a yellow smiley-face that repeatedly extends an arm around a green-leafed treetrunk. (Viewers have to figure it out: tree-hugger.)
Molloy's ruling killed a popular deal that the Fish and Wildlife Service made last year with Idaho and Montana wildlife agencies. Both the Bush and the Obama administrations crafted that deal to let those states take over management of their wolves, empowering them to hand out wolf-hunting licenses and more easily execute troublesome animals, as long as viable populations were maintained. Many saw it as a reasonable compromise because, unlike a previous deal that Molloy rejected in 2008, it preserved Endangered Species Act protections for Wyoming's 300-plus wolves. (Wyoming's government is staunchly anti-wolf and would have encouraged the shooting of any that strayed from the Yellowstone-Teton ecosystem.)
This time, Molloy didn't delve into arguments about wolf science or whether any particular state can be trusted. Instead, he focused on the basic wording of the Endangered Species Act. The feds "tried to find a pragmatic solution," Molloy said, but the law "does not allow the Service to list only part of a 'species' as endangered."
The groups that sued want the Rockies' total wolf population, which was tiny when the federal restoration effort began in 1995, to continue increasing to ensure genetic variability for healthy reproduction. They also don't want endangered species to be managed along state lines. "This is a victory for all wildlife," Kierán Suckling, head of the Center for Biological Diversity, one of the plaintiffs, told the Missoulian.
Molloy also ruled for environmentalists in an important case last year, ordering the feds to restore protections for Yellowstone's grizzly bears because of the decline of whitebark pines, a primary food source. Four months ago, Molloy ordered the U.S. Forest Service not to use helicopters to spray weeds in grizzly habitat in northwest Montana because the noise might cause the bears to flee. A right-wing Oregon blogger condemned Molloy as a "nutzoid" greenie after those rulings.
It's a refrain that began shortly after Democratic President Clinton appointed Molloy in 1995. Over the years, Molloy has blocked dozens of timber sales, reined in backcountry snowmobilers, protected wilderness-study areas, upheld Montana's ban on game farms that might spread wildlife diseases -- you get the drift.
Many plaintiffs engage in "venue shopping." Environmentalists take their cases whenever possible to Molloy and a few other notable federal judges, including B. Lynn Winmill in Boise (the primary watchdog on livestock grazing) and James Redden in Portland (the salmon champion), who were also appointed by Democratic presidents.
But picking your judge doesn't guarantee victory. Molloy -- who gets a lot of environmental cases simply because of his location -- still rules against environmentalists more than half the time, says one lawyer who's often in his court. Another frequent lawsuit-filer quickly names five timber sales that Molloy approved over his objections; all five were ultimately blocked by an appeals court.
Environmentalists don't even agree on what they want from the judge. In last year's grizzly case, for instance, the National Wildlife Federation agreed with the government, saying that the endangered species law didn't need to be reapplied. That group, along with other pro-hunting groups such as the Rocky Mountain Elk Foundation, also backed the feds' latest deal on wolves.
Molloy actually paddles his legal canoe more or less in the middle of the river. And despite complaints from some environmentalists, they still have better odds in his courtroom than in many others in the West.
More than anything, Molloy's wolf ruling shows how environmental laws can sometimes block pragmatic and political solutions. And it underscores our basic psychology about judges: When they rule against you, they're biased, but when they rule for you, they're going on the facts.
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