Author: Damien M. Schiff
Earlier this week, Judge Donald Molloy of the District of Montana heard oral argument in Greater Yellowstone Coalition v. United States Fish & Wildlife Service, an environmentalist challenge to the Service's attempted delisting, under the Endangered Species Act, of the Northern Rockies distinct population segment of Grey Wolf. Last fall, Judge Molloy denied a motion for preliminary injunction to stop wolf hunts that had begun in Idaho and Montana as a result of the delisting. In that ruling, the court indicated that the environmentalists would likely succeed on the merits, but that they had failed to show that the wolf population would be irreparably harmed by the planned wolf hunts. At the conclusion of this week's hearing, the court did not issue a ruling from the bench, instead noting that a decision would be handed down soon.
As an aside—before the hearing, one of the environmentalist groups' attorneys was quoted in the press as stating:
"We think the law is crystal clear that what they did was illegal," said Earthjustice attorney Doug Honnold, who is leading the conservation coalition's case. "If the Endangered Species Act allows the government to pick and choose which individual members of a species get protection and which don't, you have a very crabbed and we think illegal interpretation of the law."
I find Mr. Honnold's observation to be peculiar. The essence of the distinct population segment listing power is to select among individuals within an existing species and to protect those individuals based in part on their signficance to the species as a whole. In other words, the ESA expressly countenances the "pick and choose" mentality that Mr. Honnold criticizes—a mentality, I might add, that has frequently redounded to the benefit of environmental groups.