MISSOULA, Mont. (CN) — A judge must decide whether the U.S. Fish and Wildlife Service can build a pipeline into a wilderness to possibly save a population of fish that it refuses to protect under the Endangered Species Act.
On Thursday, U.S. District Judge Donald Molloy heard arguments on whether he should place a hold on a U.S. Fish and Wildlife project to build a water pipeline into a Montana wilderness lake in a bid to preserve a population of arctic grayling.
The project pits the Wilderness Act against species preservation, but the Endangered Species Act doesn’t factor in because Fish and Wildlife has refused to list the arctic grayling, even though it has considered doing so several times over the past 30 years.
That appeared to raise one main question in Molloy’s mind: what is the necessity?
“Isn’t assuming that you need to protect the fish the necessity that everybody on the government side is relying on and that is a presumption? I don’t understand how it is necessity that restoring the arctic grayling overcomes everything else,” Molloy said.
Fish and Wildlife worked with other government agencies in 2011 to develop the Centennial Valley Artic Grayling Adaptive Management Plan, which set a target population of 1,000 spawning grayling in Upper Red Rock Lake in the Red Rock Wilderness on Montana’s southwestern border. The service finally adopted the plan in 2017 and identified three main threats: limited spawning habitat, limited winter habitat and competition with non-native fish.
The agency's attorney Davene Walker said the service identified winter habitat as the factor that it could mitigate with the least impact on other human activities.
Red Rock Lake is a high-elevation lake that is large but shallow. Drought has caused the lake level to drop which in turn lowered oxygen levels in the water, especially when the lake ices over in winter. So agency came up with a plan to install a mile-long pipeline from a manmade pond to the center of Red Rocks Lake to provide oxygenated water.
Upon learning of the plan, four organizations sued Fish and Wildlife at the end of June to stop the project claiming it violates the Wilderness Act, which doesn’t allow the use of mechanized equipment or manmade improvements. The plaintiffs include Wilderness Watch, Alliance for the Wild Rockies, Gallatin Wildlife Association, and Yellowstone to Uintas Connection.
On Wednesday, the groups' attorney Andrew Hursh questioned why Fish and Wildlife felt preserving the grayling in one lake was so important that they would violate the Wilderness Act but not important enough to give the grayling Endangered Species Act protections. Red Rocks Lake is one of a number of lakes in western Montana that contain grayling.
“It’s not that we don’t think it’s laudable to conserve this specific population of grayling. But the Fish and Wildlife Service has to do that as Congress has directed by statute,” Hursh said. “If they want to present some sort of conflict between preserving a species and the Wilderness Act, they could list the species under the Endangered Species Act and we could be addressing the conflict between the two. But they haven’t done that.”
Walker said the agency chose to do the project to try to save the population and avoid having to list the species. Montana Fish, Wildlife & Parks attorney Alex Neill said the project area is not exactly pristine, pointing out that there is human activity including a road and campground near Red Rocks Lake and a small airport farther away. She said once the pipeline was underground, visitors wouldn’t know it was there.
But Hursh argued that the size or other aspects of the project don’t matter. The Wilderness Act doesn’t make allowances unless Congress creates specific exceptions. Hursh pointed to a Fish and Wildlife analysis that found the project would degrade wilderness character.
Previous attempts to oxygenate the lake water have failed. But Neill said the other projects didn’t pump oxygen deep enough in the lake to reach the grayling.
When Molloy asked if the pipeline would work, Walker couldn’t say yes. But she insisted that the project be completed this year because only 73 grayling were counted in the lake last winter. The agency planned to start digging during the week of Aug. 17.
“This is the best chance that the grayling have that does not cause significant impacts to wilderness,” Walker said. “If nothing is done, grayling face extirpation.”
Molloy said he would issue a decision by the middle of next week.
Arctic grayling are a remnant of the glacial age, an iridescent cold-water trout with a distinctive sail-like dorsal fin. Montana is now near the southern edge of its range. While they still live in Arctic Ocean tributaries of Alaska and northern Canada, few populations remain in the lower 48 states, and fewer still are “fluvial” or adapted to living in rivers. Most are “adfluvial,”residing in lakes — including stocked populations in the lakes of several Western states — and those individuals tend to do poorly if transplanted into rivers.
About 30 years ago, the Center for Biological Diversity petitioned to list the arctic grayling in Montana, where the Big Hole River is home to the one remaining fluvial population. Studies demonstrate that Montana grayling are genetically distinct from populations in Canada and Alaska.
In 1994, the Fish and Wildlife Service decided the grayling warranted endangered species protection, but the agency was already behind in trying to list 250 other species. Two decades later, the service determined that, in the meantime, landowners along Big Hole River had done enough work under the 1999 Agreement with Assurances program that listing wasn’t necessary.
In July 2020, the feds again said listing wasn’t warranted because of landowners’ improvements. So six months ago, the Center for Biological Diversity and Western Watersheds Project sued Fish and Wildlife over its 2020 decision, saying the agency ignored the best-available science and made too many assumptions about the outcome of voluntary conservation efforts.
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
