Conservationists claim Fish and Wildlife will illegally manipulate arctic grayling habitat in Montana

(CN) — Four environmental groups claim in a federal lawsuit filed in Montana Monday that the U.S. Fish and Wildlife Service violated the Wilderness Act by approving a permanent water-diverting pipeline in the Red Rock Lakes Wilderness that's set for installation this winter.

The pipeline approved by the service last month aims to improve native arctic grayling habitat within the Red Rock Lake Wilderness — a vast wildlife refuge spanning 32,350 acres in southwestern Montana. The pipeline itself would divert water from an artificial pond to Upper Red Rock Lake, where the adfluvial or lake-dwelling fish have struggled to rebound in population since 2016.

But plaintiff nonprofits Wilderness Watch, Alliance for the Wild Rockies, Gallatin Wildlife Association and Yellowstone to Uintas Connection say in their lawsuit that the water-diverting pipeline relies on an assumption that the main factor affecting the fish population is a lack of oxygen and ignores all other human-caused factors that could have led to the species' decline over the last seven years.

"Artificially bolstering the Upper Red Rock Lake grayling population in this way accommodates FWS’s logic for rejecting the long-requested regulatory approach of Endangered Species Act listing, which would encompass a host of other conservation requirements more targeted at anthropogenic sources of harm," the lawsuit states. "If the agency can point to the stability of the Centennial Valley grayling population, as it has previously when rejecting Endangered Species Act petitions, then it can stave off the more substantive and challenging requested action of mitigating human impacts that damage grayling habitat on and off the refuge and enforcing rules to that effect."

Endangered Species Act protections for fluvial arctic grayling would guarantee substantial changes to current private and governmental activities around the fish’s habitat. But instead of approving federal protections for the fish species in the upper Missouri River basin, the service has so far opted to rely on voluntary, non-regulatory efforts to conserve grayling habitat.

In 2020, the service determined that protecting the fluvial population within the Big Hole River and its tributaries was unwarranted, reasoning that a population buffer exists through the adfluvial grayling population in the Red Rock Lakes. However, lake winter conditions are known to adversely affect the population — namely through hypoxic conditions caused by ice, snow and the decomposition of organic matter — contributing to steep population declines since 2016.

The plaintiffs explain that, since 2011, the service has worked with other government agencies to conserve grayling habitat in the upper Missouri River basin through the Centennial Valley Artic Grayling Adaptive Management Plan, defining a desired abundance threshold at a population of 1,000 spawning grayling in Upper Red Rock Lake. It wouldn’t be until 2017, however, that the service adopted the plan, opting to consider three main barriers to the fish populations: spawning habitat, winter habitat and the effects of non-native fish.

Proposed barriers did not include the detrimental effects of fishing and livestock activities, the plaintiffs note, despite public comments urging the agency to consider such things. Instead, the service stuck to the three proposed theories, running 15-year simulations from previous data to see which factor had the greatest hypothetical constraint on the fish population. Based on this model, the service proposed six alternatives for modifying the natural winter habitat to achieve its desired grayling population, each involving some form of introducing supplemental oxygen through man-made infrastructures.

The problem with the plan, the plaintiffs argue, is that such alternatives violate the Wilderness Act, which forbids temporary roads, motor vehicles, motorized equipment, aircrafts, structures or installation in areas that are otherwise “untrammeled by man” and retain their “primeval character and influence.”

Ultimately, the service chose to install a mile-long pipeline from Shambow Pond outside of the wilderness area into Upper Red Rock Lake.

The plaintiffs say neither the pipeline nor any of the service’s other alternatives would benefit wilderness character.

“Instead, all of them, to varying degrees, were rated as degrading wilderness character,” the lawsuit states.

While Wilderness Watch supports the preservation of adfluvial arctic grayling in the Centennial Valley, the group explained in a press release it does not believe the Red Rock Lakes Wilderness area should be violated to test the theory that oxygen levels in the lake are to blame for grayling decline.

“This unique protected wilderness and natural wetland complex in the Greater Yellowstone Ecosystem is not the appropriate place for managers to be cycling through a series of manipulative experiments and installing permanent infrastructure and constantly altering the environment in pursuit of arbitrarily chosen conditions for one species," Wilderness Watch Executive Director George Nickas said in a statement.

The groups’ lawsuit urges the court to vacate the service’s approval of the pipeline and declare its previous and ongoing actions as unlawful while granting a temporary, preliminary and permanent injunction that enjoins agency action.

A representative for Fish and Wildlife declined to comment during active litigation.

Follow @alannamayhampdx

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.

Email *

Submit