KEA member and sometimes volunteer Rich Hurry emailed this account from the federal court hearing yesterday in Missoula regarding the de-listing of wolves under the Endangered Species Act. In his account, Rich, who is very much a wolf advocate, suggests some important lessons for both sides of the debate.
I attended Judge Molloy’s hearing in Missoula, MT yesterday about whether the gray wolf was improperly de-listed from the Endangered Species List by the U.S. Fish and Wildlife Services. (For a accurate summary of some of the proceedings, see this article in the Missoulan.)
First, let me say that listening to the oral arguments presented by both sides of this litigation was very informative and interesting. Judge Molloy instructed each side to restrict their comments to five aspects of the legality of Fish and Wildlife Services’ de-listing wolves in Montana and Idaho, while keeping them listed in Wyoming. For the most part, each side stuck to this theme. Most interestingly, the Judge frequently interrupted both sides’ attorneys during their orations to ask questions. His questions were probing and displayed a deep knowledge of the minute facets of the legal framework surrounding this case. My take is that he questioned the defendants (US F&WS, Montana, and Idaho) far more aggressively than the plaintiffs, environmental groups represented by Earthjustice.
Several things struck me from sitting in the very first row behind the plaintiff’s attorneys:
1. The plaintiffs’ attorneys were extremely knowledgeable about all the subtle nuances and characteristics of this case. It was apparent that they had spent literally weeks poring over every possible source of information about this case. Listening to the secondary attorneys kibitzing among themselves and were seated directly in front of me, they had rehearsed every phrase and legal construction to their satisfaction before EarthJustice’s lead attorney, Doug Honnald, used them in his remarks. Honnold performed a careful analysis of the exact language of the Endangered Species Act and teased out those words and phrases which supported his case. He responded positively to the Judge’s inquiries and never was stumped for an answer.
2. The defendants appeared less well prepared. Their lead attorney, US Dept of Justice attorney Mike Eitel, who had argued this case at the last hearing in front of Judge Molloy, appeared inarticulate, stumbled on questions, mumbled, and gave a less than inspiring or informative defense of the US F&WS’s actions. He wilted under questioning by the judge and it appeared the judge gave up on pursuing further questions. His co-counsel from Montana, Bob Lane, similarly gave a rambling and barely audible oration, which basically said Montana loves wolves and would never allow their numbers to drop below the federal baseline of 15 breeding pairs and 150 wolves. Idaho’s solicitor, Steven Strack, was much more polished and gave a much better defense of Idaho’s record regarding wolves. He was smooth, perhaps because the judge did not ask him any questions.
3. My biggest take away from this experience is how important it is to me (and perhaps other wolf advocates) to become much more knowledgeable in the facts and nuances of all aspects regarding wolves. I was astonished at how much I, a presumably well-informed consumer of news about wolves, did not know but learned from listening to the oral arguments yesterday. I think anyone who endeavors to advocate for wolves must go beyond “wolves are nice and good for the environment” to educating themselves on fundamental issues such as:
a. Genetic Connectivity between wolf packs in a “distinct population segment“–itself a term with powerful legal ramifications from the ESA. Become familiar with the various peer studies and research on the rocky mountain gray wolf in particular. Delve into them to see what’s been demonstrated and what was not said or proved. Tie this into the listing/de-listing criteria written into the ESA.
b. The history of listing gray wolves, going back to the 1974, when wolves were listed in all states, except for Alaska and Hawaii. Trace the legal history of congressional actions that amended the ESA. Trace the house and senate analyses of these bills. Trace executive office rules and implementations of these listing decisions. Actually become an expert in the legal history to date of the ESA so that you can argue persuasively for wolves inclusion on it. Learn why there was disparate treatment between the listing of the great lakes gray wolf versus northern rocky mountain gray wolf.
c. Study what appears to be the only legal precedent germane to yesterday’s hearing: Defenders v. Norton in the 9th Circuit , concerning de-listing toads in a “distinct population segment” which crossed state boundaries of California and Arizona. The issue was that US F&WS delisted the toad in one state because their habitat was no longer degraded to the point of threatening their survival, while allowing listing to continue in another state, because this state’s habitat had not recovered. Defendants claimed this provided precedent for delisting wolves in Montana and Idaho, while keeping them listed in Wyoming. Plaintiffs claimed it did no such thing. So, one has to “dig into the stacks”, figuratively speaking, and call up that decision and study it for him/her self. Have a study session among colleagues after all have read and studied it. Come to our own conclusions.
To avoid a potential swarm of protesters, I arrived early and was just the second person on-line in front of the courthouse. Accordingly, I was able to take a seat once I got inside the courtroom in the first row right behind plaintiffs’ counsel. It was a great place from which to sit and watch the proceedings.