Mitchell: Judges find in the folds of the law a right to watch predators

(Thomas Mitchell) – You never know what new, previously unheard of rights some federal judges can find tucked in the folds of the law.

Earlier this month a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco, of course, rejected a decision by Nevada U.S. District Court Judge Miranda Du that let stand an 80-year-old predator control system run by the U.S. Department of Agriculture’s Wildlife Services and the Nevada Department of Wildlife. The circuit court panel remanded the case for further review.

The 21-page opinion written by Judge Michelle T. Friedland basically said a member of the Colorado-based WildEarth Guardians, Don Molde, has a right to expect to go walking in the wild and see coyotes and ravens. Pay no heed to the fact that without adequate control such predators prey on both livestock and other wildlife, such as sage grouse, which are soon to be listed under the Endangered Species Act.

Judge Du had ruled the self-styled Guardians’ suit was not redressable because even if the federal government ended its $100 million a year subsidy for predator control the state could easily step in and take over the program, which bags about 6,000 coyotes a year. The 9th Circuit panel called this “hypothetical rather than actual.”

The damages to Guardians member Molde described in the opinion are at best ludicrous.

“For example, Molde stated that he has curtailed his walks with his dog for fear that the dog would be caught in NWSP’s (Nevada Wildlife Services Program) predator traps,” the opinion states. “Molde further described how NWSP’s activities reduce the number of ravens that he is able to observe during his birdwatching, and how NWSP’s aerial hunting practices reduce his chances of seeing coyotes.”

The circuit court judges deemed this deprivation of seeing predators in the wild rises to the level of constituting damages under their criteria: “To establish standing, a plaintiff must show that ‘(1) he or she has suffered an injury in fact that is concrete and particularized, and actual or imminent; (2) the injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be redressed by a favorable court decision.’”

No mention was made of reduced profitability to ranchers due to a reduced number of surviving calves and lambs.

After the ruling, The Associated Press quoted Bethany Cotton, wildlife director for WildEarth Guardians, as saying, “For example, peer-reviewed science shows that indiscriminate killing of coyotes triggers a biological response that actually leads to an increase in the coyote population,” adding that a better way to protect sage grouse from coyotes — and their eggs from ravens — is to enforce livestock grazing standards that prevent overgrazing that eliminates grass and sage brush the birds need for cover.

Which, of course, is ridiculous and entirely a fantasy on both arguments.

We hope Judge Du can find some way to uphold her original dismissal of the case on grounds that can skirt this new-found right to walk in the wild and watch coyotes attack. Sounds like fodder for a reality TV show.

Mr. Mitchell publishes the 4TH ST8 Blog at www.4thst8.wordpress.com.

The column was originally published on Mr. Mitchell’s blog.