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Judge Molloy holds Court today in Missoula, MT

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 Judge Donald Molloy entered his courtroom and greeted everyone with a humorous greeting, “Welcome Back!”

Thereafter, it transitioned to a more serious mood. He explained that the Plaintiff (pro-wolf, environmental organizations) would get one hour to argue as would the defendant (Department of Justice or DOJ). Judge Molloy would not be accepting rebuttals from either side in today’s hearing.

For the plaintiff side, attorney Jay Tutchton represented Alliance of the Wild Rockies, Friends of the Clearwater and WildEarth Guardians. Amy Atwood represented Center for Biological Diversity. Ms Atwood would get thirty minutes; Mr. Tutchton was assigned the remainder.

Ms. Atwood explained that Congress had the opportunity to amend the ESA via regular legislative process. But instead, it chose to attach its wolf delisting rider to an Appropriations bill and included the words “no judicial review.” According to her argument, this action was arbitrary and capacious. It was also explained that there are cases currently sitting before the 9th Circuit that hinge on the outcome of this case. Ms. Atwood also noted for the record that earlier anti wolf bills had been circulated in Congress, but they could not get any traction and died as a result of the appropriate legislative process.

Although initially it appeared that Ms. Atwood was nervous, she quickly hit her stride and came across well in her representation of the plaintiff’s case. Judge Molloy engaged her several times with questions, and her confidence remained steadfast. It was Ms. Atwood’s position that Congress should have worded this rider differently; it should have included a mechanism if the objective had been met. It seemed that Ms. Atwood’s overall mission was to convince Judge Molloy that the wolf-delisting rider was not clear in its intent. It was her opinion that the Courts should not have to interpret the intent of Congress’s action via this rider since its provisions are unclear and incomplete.

Ms. Atwood referred several times to Senator Tester’s comments in an article in a NY Times article, although she asserted that this was not her primary source of news and information. Ms. Atwood’s argument progressed for approximately 15 minutes.

Immediately thereafter, Mr. Tutchton  spoke on behalf of wolves, ESA and the U.S. Constitution. He opened his remarks by thanking Judge Molloy for expediting this hearing. (Summary Judgment Case). He then explained that separation of powers was fundamental to the U.S. Constitution and how it applied to this case. He established precedent for his conclusion by citing President Madison’s assertions about the dangers of consolidating powers among the three branches of the federal government.

At this point, Judge Molloy explored the concept of separation of powers by asking Mr. Tutchton to clarify the constitutional principles of separation of powers and the circumstances by which Congress can change the law via checks and balances. Mr. Tutchton replied with there has to be a substantial change in an existing law and sufficient review must be provided. He asserted that the ESA is written in plain language, and if the states in question change their management plan, wolves can be relisted!

He continued his argument with several conclusions. Fish and Wildlife Service was frustrated with wolves and could not get wolves delisted. So, the agency went to Congress and applied influence which helped bring about this delisting rider. Mr. Tutchson said he was not sure why Congress did not directly amend the ESA. He surmised that doing so could not rally the support it needed in Congress to pass. Consequently, they choose to take a short cut; when they did not want to comply with or amend the ESA, they attached the rider to the Appropriation bill and bypassed appropriate legislative process and review.

Tutchton asserted that it was up to Molloy’s court to challenge Congress to explain their actions and the intent behind the rider. It was apparent that it wanted to change the structure of a law, but it did not specify the rationale behind it nor the mechanism to do so. Tutchton concluded that it should not be the role of the Court to guess the intent of Congress’ rider.

Ms. Andrea Gillet  represented the Dept. of Justice. She started out by stating that that many in the courtroom are concerned for wolves. However, Congress used the rider (Sec. 1713) as an “Exception Rule.”. (Not sure about this and will do some research) Molloy intervened and asked if the government can delist below a species, sub species or DPS (Distinct population segment). Congress decided to sub divide below the DPS via the rider.

Thereafter, Judge Molloy asked the DOJ attorney several strategic questions relevant to precedent setting cases and “good law” ( a reference to Molloy’s previously rendered decisions.) Shortly after this, Judge Molloy closed the hearing. He explained that he would work very quickly to render a decision.


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