Judge Orders Fish and Wildlife Service to Make New Finding on Arctic Grayling Protections

This article was originally published by Montana Free Press at dailymontanan.org.

---

A federal judge in Montana last week ordered the U.S. Fish and Wildlife Service to take yet another look during the next year at Arctic grayling populations in the Ruby River and at the future of a conservation agreement in the Big Hole River valley to see whether the fish needs Endangered Species Act protections in the Upper Missouri River Basin.

Last Tuesday, U.S. District Court Judge Dana Christensen vacated a 2020 finding from the Fish and Wildlife Service and ordered it to determine a new finding on the status of a distinct population segment for the grayling in the particular basin – the latest movement in a saga involving grayling and Endangered Species Act protections that dates back more than 40 years.

Two conservation groups and Butte resident Pat Munday sued the Fish and Wildlife Service last year, saying the agency’s back-and-forth decisions during the years as to whether the Arctic grayling needed protections due to dwindling and distinct populations, warming waters and invasive species needed to be settled after years in court.

The group argued that the agency had not accounted for the most up-to-date scientific research that they say show the grayling needs added protections, nor thought about what would happen if previously signed restoration and conservation plans were not met or extended.

The judge handed the plaintiffs a victory in finding the agency’s determination that there was a viable population of grayling in the Ruby River, and its reliance on the benefits of the Big Hole River Candidate Conservation Agreement with Assurances (Big Hole CCAA), to be arbitrary and capricious.

The CCAA could expire in 2026 if Montana Fish, Wildlife, and Parks does not renew it, and the judge wrote the agency did not fully account for the future of the fish in the basin.

The conservation program began in 2006 and includes 32 private landowners who own nearly 150,000 acres of land, as well as more than 6,000 acres leased by the Montana Department of Natural Resources and Conservation, whose owners agreed to manage their lands and water to remove threats to Arctic grayling, in this case.

“Promises to restore grayling to more rivers than the Big Hole, where they’re on the brink of extinction, haven’t panned out, so this ruling is an important win,” said Noah Greenwald, the endangered species director for the Center of Biological Diversity. “It’s long past time for the Fish and Wildlife Service to protect these beautiful, precious fish under the Endangered Species Act.”

However, the judge sided with the Fish and Wildlife Services on most of the other claims the groups levied in their complaint about why they believe the agency’s 2020 finding not to give grayling protections was incorrect.

After being petitioned to protect Arctic grayling in 1991, nine years after its first review for Arctic grayling in Montana, the Fish and Wildlife Service published a finding in 1994 saying listing grayling in the Upper Missouri basin was warranted but not at the top of the priority list.

Conservation groups challenged that finding in 2003, which led to the agency elevating the priority for the fish, saying threats were imminent. In 2007, partially because of a settlement, the Fish and Wildlife Service published another finding in which it concluded grayling in the basin was not listable as a species, subspecies or distinct population segment, then removed it from the candidate list.

That decision was also challenged in court, leading to another revised finding in 2010 that said grayling in the Upper Missouri basin were a distinct population segment. In another settlement, the agency agreed to make a proposed listing or a finding that listing was not warranted by 2014.

In 2014, the agency again found listing was not warranted for Upper Missouri Arctic grayling, which was also challenged, leading to a U.S. Ninth Circuit Court of Appeals ruling in 2018 that found errors in the 2014 finding. Those errors included that the agency did not explain why climate change was not a broader factor in its decision and had arbitrarily determined that the population of the fish in the Ruby River was viable.

That led to the agency’s 2020 finding which the conservation groups sued over last year.

Sean Helle, an attorney with Earthjustice who argued the case in front of Christensen, said last week’s decision is similar to the Ninth Circuit’s in 2018 that found some errors in the agency’s review.

While Christensen found the Fish and Wildlife Service did not err in finding the Big Hole’s grayling population was relatively stable and that populations in the Madison River and Centennial Valley provided redundancy for the population, he said the agency only used a measure for “recruitment” of how much grayling were reproducing and did not adequately measure the number of fish that were surviving until they were old enough to reproduce.

“This argument appears to rest on the presumption that natural reproduction is synonymous with successful stock recruitment, which is unsupported by the record,” Christensen wrote. “…Accordingly, the 2020 Finding’s determination that the Ruby River population was viable and could therefore provide redundancy was arbitrary and capricious.”

Christensen also found that in the 2020 finding, the Fish and Wildlife Service failed to consider whether the Big Hole CCAA might fall apart if landowners do not renew their conservation plans or if FWP allows the program to expire.

“Although the Court considers the efforts made under the Big Hole CCAA commendable, and by many measures effective, it was arbitrary and capricious for FWS to rely on the benefits of the CCAA without considering the very real possibility that the CCAA, and at least some of its existing benefits, may cease to exist in the foreseeable future or that site-specific plans may not be renewed,” Christensen wrote in the opinion.

If the Fish and Wildlife Service makes a finding that grayling in the basin should be a threatened species under the Endangered Species Act, it would trigger more protections for the fish and watershed, which has been experiencing fish declines during the past decade.

The conservation groups called the order a win, with Munday saying it was “incredibly sad” they had to go to court to get the agency to follow the law, and the Montana director of the Western Watersheds Project adding that the Arctic grayling population in Montana is the last native pool of the species in the lower 48.

“After decades of baffling resistance to listing the Arctic grayling – including multiple legal settlements and prior court losses – the U.S. Fish and Wildlife Service must now adhere to the law and base their determination on the best available science, free from economic and political pressures,” said the Western Watersheds Project’s Patrick Kelly. “As climate change continues to wreak havoc on Montana’s rivers and streams, Arctic grayling cannot afford further delays.”

Graying-Victory-Opinion-08-06-2024 (2)

---