Alaska Sues Kempthorne Over Polar Bear Listing
On Aug. 4 the State of Alaska filed a Complaint of Declaratory Judgment and Injunctive Relief with the US District Court, District of Columbia, requesting an immediate injunction against the listing of the polar bear as a Threatened Species by the US Dept. of the Interior, Dirk Kempthorne, Secretary, and H. Dale Hall, Director of the US Fish and Wildlife Service.
The Complaint cited violations of the Endangered Species Act, the Marine Mammal Protection Act, and the Administrative Procedures Act.
The full text of the Complaint is [here]. Some excerpts:
32. Polar bears now number 20,000-25,000 worldwide (see 73 Fed. Reg. at 28215) as compared to 8,000-10,000 in 1965-1973. … The current worldwide population has not significantly declined in recent years. …
33. Polar bears existed during and survived through prior Arctic warming periods including the Last Interglacial (115,000-140,000 years before present), and the Holocene Thermal Maximum (4,000-12,000 years before present). There was also a warming period during the Medieval Period (950-1300 A.D.). …
36. The Final Rule recognizes nineteen subpopulations of polar bears for management and research purposes. See 73 Fed. Reg. at 28215.
37. Neither the nineteen subpopulations of polar bears worldwide described by the IUCN, nor the four ecoregions populations described by USGS, could reasonably be considered to represent distinct population segments. Because of ranging behavior, particularly of male polar bears, and resulting gene flow, subpopulations are neither distinct nor significant. Similarly, the ranging behavior of polar bears may prevent the loss of summer habitat from the Southern extreme of its range from representing loss of a significant portion of the range of the polar bear even if the modeling was accepted as a reasonable projection of likely future conditions. …
Molloy Tosses Science
An excellent examination of Judge Molloy’s “scientific” decision to re-list Rocky Mountain wolves can be found at Black Bear Blog [here]. Hunter, fisherman, outdoor enthusiast, and blogger extraordinaire Tom Remington went searching for the source of Judge Molloy’s “genetic exchange” theory.
He found it, too, in a single spot in a trivial paragraph in Appendix IX of the 1994 EIS. A throw-away line, undefined, not central to the document, an afterthought, the “genetic exchange” statement was immediately countered in the next paragraph. From Appendix IX of the 1994 EIS:
Thirty or more breeding pairs comprising some 300+ wolves in a meta-population with genetic exchange between sub-populations should have a high probability of long-term persistence. …
My conclusion is that the 1987 wolf recovery plan’s population goal of ten breeding pairs of wolves in three separate recovery areas for three consecutive years is reasonably sound and would maintain a viable wolf population in the foreseeable future.
And this bit of self-contradictory science fluff was the nexus upon which Judge Molloy based his entire decision!
From Remington’s essay [here]:
Activist Judge Molloy Tosses Science, Defines “Genetic Exchange”
Posted by Tom Remington on August 12, 2008
In what can only be taken as an outright thumbing of one’s nose at the Ninth District Court of appeals, Judge Donald Molloy, exhibits total disregard for any science he doesn’t like while going one step further and pretending to be a scientist to define a scientific term he hangs his judgment on - Genetic Exchange.
Back in July, I reported that a panel of 11 judges from the U.S. Ninth District Court of Appeals stated that judges should not act as scientists in rendering decisions, yet this is clearly what Judge Molloy has done. He has hand picked only the portions of the case he seems to favor and not only disregards the rest but creates his own science as well. I find this extremely disturbing as an American while tearing down my confidence in our judicial system.
Molloy’s 40-page ruling to grant a temporary injunction to place the wolf back under protection of the Endangered Species Act is a laughable document. The judge manipulates the science and goes so far as to make up definitions.
Molloy bases his entire decision on two aspects. One, is that the agreement the U.S. Fish and Wildlife Service had with the state of Wyoming on managing the wolf after delisting was “arbitrary and capricious”. The second is that “genetic exchange” must occur before delisting can be considered and further goes on to claim that the USFWS cannot prove that this “exchange” took place. …
What is interesting as well as disturbing, is that in Molloy’s 40-page ruling, he uses the term “genetic exchange” 49 times and actually creates his own term, “genetic connectivity” and uses it 2 times. In the 1994 Environmental Impact Statement, the term genetic exchange is used once and that came in an appendix to the original document and the EIS never once used “genetic connectivity” to describe anything.
Junk Wolf Science/Politics Sets Bad Legal Precedent
by Dr. Charles Kay, Utah State Univ.
To Mike:
I finally had a chance to read through the judge’s granting of a preliminary injunction in the wolf delisting case, and it is just as I predicted. The feds set the lawsuit up to lose, and the 30 breeding packs/300 wolf figures upon which the entire EIS was based and upon which wolf recovery was sold to the public are MEANINGLESS , if not an outright scientific fraud!
Why anyone believes the feds is beyond my comprehension. Please see the Wolf Recovery:Is Delisting Rigged? by Dr. Charles Kay [here].
According to the judge, the more wolves you have, the greater the probability of genetic interchange. So if 1,500 wolves have not provided the necessary genetic connectivity, perhaps 3,000 or 6,000 will?
The bottom line is that the judge thinks that more wolves are better and that killing even a few wolves constitutes irreparable harm to the species. I KID YOU NOT, read the judge’s opinion. Whatever it is, it is not science.
The judge really disliked WY’s state wolf management plan, and get this, the state is going to be mandated to keeping at least 15 wolf packs outside Yellowstone NP, while according to the law, there is no mandate for the feds to keep any wolves in YNP at all! Basically, the judge has said that the state cannot count the wolves in YNP as being in Wyoming!
Not only is the judge’s ruling bad enough in itself, but if not overturned, it will establish EXTREMELY BAD legal precedent through out the country. Based on the Judge’s insistent on “genetic connectivity” — whatever the hell that is, something that is not even mentioned in the ESA — it will be a simple matter for a judge to rule likewise in the Yellowstone grizzly delisting lawsuit, since those bears are not connected to any other population, as well as every other ESA lawsuit in the entire country.
This is surely a huge gift to the Wildlands Project!
As to “Genetic Connectivity,” that term has never been defined. How much is enough? One wolf every 10 years? Ten wolves every year? And who is to decide? Another federal judge who has no scientific training either in genetics or statistics?
Undoubtedly, this will provide fertile ground for more lawsuits. In addition, you need to consider the level of sampling that would be required to document “genetic connectivity.” Even if 1% of the wolves in YNP contained ID genes, you would have to geneticly test 95% of the wolves in the park to have a high probability of picking up the ID genes. The study cited by the Greens, and on which the judge hung his hat, only tested around 30% of the wolves. Thus, even if ID genes have made it into YNP, the cited study was NOT properly designed to determine that fact. This was pointed out to the judge by the federal defendants, but the judge ignored the declarations of the federal experts and instead relied on his “Expert Opinion”. Then too, I assume “genetic connectivity” is a two way street, and no one has tested the ID wolves to see if they carry any YNP genes. If the latter in fact has been done, it was not mentioned by the judge nor cited in any of the federal declarations.
Also be advised that there is one way and only one way to get the “genetic connectivity” mandated by the judge’s ruling. Wolves that kill livestock MUST NO LONGER BE KILLED OR OTHERWISE REMOVED.
Why do you think the wolves in ID have never hooked up with the wolves from YNP? It is because once the wolves leave the ID wilderness and head east, they move on to ranchlands where they INVARIABLY turn to killing livestock and have, to date, been controlled, i.e.,killed. The same is true of wolves going west from YNP. Then too there is that thing called the Continental Divide between the two areas. When wolves disperse in late winter or early spring, what does the area along the CD look like? Try 8 to 10 feet of snow!
That is to say, east-west dispersal and “genetic exchange” as mandated by the judge, is highly unlikely. Then too if a wolf from one of the areas would make it to one of the other areas, what would happen to that dispersing wolf? Why in all probability it would be killed by the wolves whose territory it has entered! Recall that wolves in established packs in AK kill each other at a rate of 36% per year! Also note that NPS has reported increased killing of wolves by wolves in YNP, as ungulate numbers have fallen. Of course, the judge touched on none of this.
Similar problems exist in providing “genetic connectivity” with the wolves in northwest Montana, which I assume is also required under the judge’s ruling.
And this is only the tip of the iceberg in what will be a never ending string of wolf delisting lawsuits. Recall, that there are also pending pro-wolf lawsuits in NM-AZ and CO. THIS IS NOT JUST MT’s,ID’s, and WY’S PROBLEM!
So, who is going to appeal the judge’s ruling? And more importantly, on what grounds? I CERTAINLY would not trust this to the feds.
The bottom line, however, is that unless the ESA is changed, this type of litigation will only multiply. So how do you reform the ESA? Simple. It can be done in as little as three paragraphs WITH SCIENCE.
First,the scope of the ESA should be limited ONLY to SPECIES. Subspecies and distinct population segments, or ESU’s, should be left to the states as outlined in the U.S. Constitution.
Second, taking a page from the Greens and Conservation Biology — recall the Y to Y, Yukon to Yucatan. In deciding whether or not to list a species, the ENTIRE RANGE of the species must be considered irrespective of state or national boundaries.
Third, again taking a page from Conservation Biology regarding population viability analysis and minimum viable population size, if there are more than 7,000 of a particular species, that species can not be listed under the ESA as that species is not in imminent danger of extinction. Species with more than 3,000 individuals but less than 7,000 can be listed as threatened, and only those species with less than 3,000 individuals should be listed as endangered.
All this is in keeping with the best available science. Moreover, limited federal funds should be spent on species that are truly biologically endangered, such as whooping cranes, instead of common species, like wolves, that are not even remotely biologically endangered.
The focus should be on saving truly endangered SPECIES, not on social engineering by activist federal judges or those who want to depopulate large portions of the United States.
Sincerely, Charles
