Activist Judge Molloy Tosses Science, Defines “Genetic Exchange”

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.

Did USFWS state in their 1994 Environmental Impact Statement, as Judge Molloy refers, that genetic exchange has to take place? First, let me simply explain genetic exchange. Some scientists believe that in order for a species, such as the wolf, to survive in the long term, wolves from one subspecies should move to another subspecies and mate. In this case, there are three subspecies. One in Central Idaho, one in Northwestern Montana and one in the Greater Yellowstone area. If you read some of the information contained in the 1994 EIS you’ll see references to studies and conclusions that don’t really tell us a lot. One study declared that 1% of the entire population needed to have subspecies crossovers.

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.

Molloy insists over and over again that the USFWS’ EIS demands this genetic exchange, all the while the USFWS claims it never said that. Judge Molloy claims the 1994 EIS requires genetic exchange and that now the feds have changed their mind with no scientific reason to do so.

While the USFWS also claims that the 1994 EIS never defines genetic exchange, Molloy takes it upon himself to make that definition.

The 1994 EIS does not define the term “genetic exchange” because the term can only mean one thing: exchange of genetic material between subpopulations.

The 1994 EIS uses the term once and Molloy 49 times. And of those 49 times, he’s really only referring to that one time it appears in the EIS but makes it seems as though the document is laced with demands for genetic exchange. He even hand picks bits and pieces and takes it’s use out of context.

This is how Molloy continuously refers to the EIS’ use of genetic exchange.

The 1994 EIS clearly requires “a metapopulation . . . with genetic exchange between
subpopulations.” 1994 EIS, App. 9, at 42.

The very limited discussion of genetic exchange, and in this case an afterthought in the 1994 EIS as part of Appendix 9, has to do with the USFWS making an attempt to define “viable wolf population”. This actually begins in Appendix 8 of the 1994 EIS. In looking ahead, it was believed that it might be necessary to create a definition of “viable population”, being that the original EIS used that term.

A broader look at the text involved in the discussion of genetic exchange, reveals something different than what Judge Molloy is offering.

It is fairly clear that ten breeding pairs in isolation will not comprise a “viable” population (i.e., have a high probability of survival for a long period without human intervention). 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. However, if a range or scale of different population sizes could be displayed representing the entire “viability” spectrum (from “minimally viable” to “unquestionably viable”). I believe the definition in the current recovery plan would be on the lower half of the scale.

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. The goal is somewhat conservative, however, and
should be considered minimal. The addition of a few extra pairs would add security to the population
and should be considered in the post-EIS management planning. That could always be done as a
periodic infusion if deemed necessary.

These two paragraphs that contain the one-time use of genetic exchange, paints a different picture than what Judge Molloy claims the USFWS demands for recovery of an endangered wolf species. Nowhere in this statement or throughout the entire document, does it demand or require that genetic exchange has to take place before a species or subspecies can survive. On the contrary. The statement is made that 30 breeding pairs, comprising 300+ wolves would produce a “viable” wolf population. When speaking of added protection, it only references adding a few more wolves and says nothing about ensuring it with genetic exchange.

Putting the entire document in context, what it says is that most scientists at that time believed that the 30 breeding pairs and 300+ wolves making up three subspecies would work quite nicely in recovering the wolf. Genetic exchange then would become perhaps a bonus, although clearly never stated as such.

But upon further review, we discover that scientists have determined that laying claim to what makes up a “viable” wolf population and what will keep it going is extremely complex and next to impossible to predict.

In recent years it has been widely recognized that larger populations are much more likely to persist for longer periods. Small populations are susceptible to several types of problems (e.g., genetic, demographic, environmental) that can lead to extinction. A minimum viable population (MVP) is a population large enough to overcome those problems and allow “long-term” persistence. Discussions
of MVPs are predicted on the availability of a minimum secure area, sometimes referred to as minimum area requirement (MAR) where a population has a selected probability of survival for an arbitrarily chosen period (Soule and Simberloff 1986, USFWS 1989). Population viability analysis (PVA) is the process of estimating MVPs within a range of genetic and demographic conditions. Time periods selected for population survival are often 50, 100, 200, or more years and the probability of survival is often set at 95%.
The estimation of MVP is difficult and imprecise (Soule 1987; Boyce 1992, 1993). MVP theory is an
apparently sound but untested concept (Peek et al. 1991). A complex of considerations are involved
including genetic diversity, demographic stochasticity, environmental stochasticity, natural catastrophes, social dysfunction, and spatial distribution of the population.

Aside from the fact that it is my belief the USFWS did a lousy job of arguing this case, I’m not sure there was much they could do that would have changed the mind of Judge Molloy. (Some respected scientists even believe the feds set it all up for failure.) Defenders of Wildlife, et. al., selected Judge Molloy for a reason and it appears their reasons were accurate and paid off.

If the statements I alluded to earlier from the U.S. Ninth District Court of Appeals are accurate, then it would seem irresponsible for the USFWS not to appeal this ruling to the higher court. For anyone to not see Molloy’s actions as “activism” and “act(ing) as scientists in rendering decisions”, it would be because they didn’t want to.

There is no evidence that this so-called genetic exchange is necessary to sustain a “viable” wolf population. Arguments can be made to the contrary, i.e. Isle Royale’s wolf population - isolated on an island and surviving for years.

There is also no evidence that this genetic exchange isn’t already happening and yet Judge Molloy relies on one study, a study in which the USFWS tossed out because it was no good, that couldn’t prove genetic exchange was occurring nor did it disprove it. This is hand picking the science to render a ruling.

This kind of legal manipulation is destructive and has to end. The USFWS should move quickly to appeal this ruling for a temporary injunction and challenge the panel of 11 U.S. District Court of Appeals judges to put their money where their mouths are.

Tom Remington