Federal court orders Fish and Wildlife to rethink protections for Montana fish

(CN) — The Arctic grayling fish will have another chance to be protected, a federal court in Montana ruled Tuesday.

The U.S. District Court in Montana ordered the U.S. Fish and Wildlife service to return in one year with a revised finding as to whether the state's population of Arctic grayling should be listed as an endangered species, in a challenge brought by environmental advocacy groups.

The Fish and Wildlife Service’s reliance on the benefits of an opt-in conservation program set to expire in two years, and its flawed analysis of the stability of the species in the Ruby River, were enough for U.S. District Court Judge Dana Christensen to send the agency back to the drawing board.

Montana’s Arctic grayling population has been a hotly contested topic among conservationists since the Fish and Wildlife Service issued its first status review on the species in 1982 and indicated it may be appropriate to list the fish as endangered or threatened under the Endangered Species Act.

Arctic grayling, freshwater salmonid with large iridescent dorsal fins, historically roamed throughout the Upper Missouri River watershed, though the species' range has been reduced significantly.  The fish are now found primarily in the Big Hole River, Centennial Valley, the Madison River and the Ruby River, in addition to the state’s high-elevation mountain reservoirs and lakes.

In 1991, the service was petitioned to include the fish on the list, starting a series of legal disputes over protections for the Montana population of the species.

A challenge to the service’s 2014 finding that yet again declined to list Artic grayling as endangered landed in the Ninth Circuit after the Montana federal court sided with the government. In 2018, the federal appeals court ordered the Fish and Wildlife Service to reconsider the listing with a more complete account of science on the species.

The service released its revised findings in 2020 and once more concluded that endangered species protections for the Upper Missouri River distinct population segment of Arctic grayling were not warranted.

The Center for Biological Diversity, Western Watersheds Project and Butte resident Pat Munday sued Interior Secretary Deb Haaland and the Fish and Wildlife Service in January 2023 over the revised findings.

The conservation groups argued that the service had cherry-picked data to support its determination that the grayling population in the Ruby River was stable and viable. Christensen agreed.

“The 2020 finding’s determination that the Ruby River population was viable and could therefore provide redundancy was arbitrary and capricious,” the Obama appointee wrote in his ruling.

The conservation groups also argued that the service relied too heavily on a voluntary conservation agreement between private landowners in Big Hole to mitigate threats to the species in exchange for receiving assurances against additional regulatory requirements if the species later is listed under the Endangered Species Act.

The Candidate Conservation Agreement with Assurance was issued in 2006 to improve streamflow, protect the function of riparian habitats, reduce entrainment threats and remove barriers to Arctic grayling migration. Those efforts proved successful enough for the service to use the agreement as an example of the Arctic grayling’s threat being reduced.

The agreement is set to expire in 2026, something the environmental groups argued the service overlooked when relying on the benefits of the agreement to support its decision not to list the species.

Christensen agreed and wrote that the service had “failed to consider the impacts of the agreement ceasing to exist in the foreseeable future.”

The judge did not agree with the environmental groups' other arguments, namely that the service had dismissed threats posed by climate change and those by high stream temperatures and low flows.

The Fish and Wildlife Service has a year to make a new finding on the status of the Upper Missouri River basin Arctic grayling.

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