Court Overturns Denial of Endangered Species Protection for Montana Grayling

The 9th Circuit Court of Appeals ruled today that the U.S. Fish and Wildlife Service’s denial of endangered species protection for Montana Arctic grayling was unlawful and ordered the agency to reconsider protection for the rare fish.

The decision came in response to a lawsuit brought by the Center for Biological Diversity, Western Watersheds Project, Butte resident Pat Munday and former Montana fishing guide George Wuerthner. The groups were represented by Earthjustice.

“Montana’s dwindling Arctic grayling populations will need all of the help we can give them to survive in the face of a warming climate,” said Earthjustice attorney Jenny Harbine, who argued the case. “The court’s decision offers hope for these magnificent fish, and now it’s up to the Fish and Wildlife Service to translate that hope into action to protect the grayling under the Endangered Species Act.”

The Fish and Wildlife Service first determined the grayling warranted endangered status in 1994, but continuously delayed protections. In 2014 the agency denied protection outright, claiming sufficient state management, improvement in population numbers, and the fish’s supposed adaptability to warming stream temperatures.

The court today found that the agency failed to consider the impacts of climate change and its effect on stream temperatures and flows. The ruling also determined that claims of an increased population were not supported by evidence. Even after the Fish and Wildlife Service made the decision not to protect the species in 2014, population monitoring showed continued population declines in the Big Hole River, the last place the fluvial or river-dwelling form of the grayling occur in any numbers in the lower 48 states.

“The court made clear today that the Fish and Wildlife Service’s head-in-the-sand approach to climate change will not stand,” said Noah Greenwald, endangered species director at the Center. “We appreciate the efforts of landowners and the state to improve habitat along the Big Hole, but irrigators need to leave more water in the river if these fish are going to have any chance at surviving our warming world.”

In denying the grayling protection, the agency argued that voluntary efforts by private landowners and the state of Montana have alleviated threats to the fish’s survival. Although many individual projects to improve habitat have been completed under a conservation agreement in place since 2006, grayling continue to face many threats. These fish survive in very small numbers in just 4 percent of their historic range.

“The Fish and Wildlife Service turned a blind eye to ongoing declines of this rare and beautiful fish, and the court ruling specifically calls out the agency for ignoring scientific evidence that the Big Hole River grayling populations are in trouble,” said Erik Molvar, executive director of Western Watersheds Project. “This year, the grayling population in the Centennial Valley took a nosedive as well, so it’s high time for the Fish and Wildlife Service to stop playing politics with extinction and make Arctic grayling conservation and recovery the top priority on all of the Montana streams where they occur.”

Native populations of Montana grayling were once found throughout the upper Missouri River drainage above Great Falls, but have been reduced to a short stretch of the Big Hole River and a few small lakes in the area. There is also a small population that was reintroduced in the Ruby River. Primary factors in the decline of the species’ range have been the ongoing diversion of water from the grayling’s stream habitat for agricultural uses and the degradation of riparian areas by livestock grazing.

Extensive water withdrawals from the Big Hole River draw down the river to a mere trickle every summer and continue to threaten the Big Hole grayling population. Listing under the Endangered Species Act would require the creation of a federal recovery plan to address low flows in the Big Hole, among other threats.

“I fish the Big Hole River often and, like many anglers, I treasure our grayling as a beautiful native fish,” said Pat Munday, a college professor who authored a popular book about the Big Hole River. “It is incredibly sad that we must sue the Fish and Wildlife Service to follow the law and protect grayling. I sincerely hope this time the agency will live up to its mission to put politics aside and finally protect the grayling.”

“I regularly visit the Big Hole River drainage and find where cattle have trampled stream sides adding sediment to water that is important grayling habitat, not to mention that the Big Hole River is often reduced to trickles by irrigation withdrawals in low water years. All of this harms grayling,” said ecologist and former Montana fishing guide George Wuerthner.

Background

A member of the salmon family, the Arctic grayling is a beautiful fish with a prominent dorsal fin. The species thrives in cold freshwater streams and rivers across Canada and Alaska. Historically, fluvial populations of Arctic grayling existed in only two places in the lower 48 states: Michigan and the upper Missouri River of Montana. Populations in Michigan went extinct by the 1930s and populations in Montana were restricted to the Big Hole River and a few lakes by the end of the 1970s. Studies demonstrate that Montana grayling are genetically distinct from populations in Canada and Alaska.

The grayling was first petitioned for listing by the Biodiversity Conservation Alliance, now part of the Center for Biological Diversity, and George Wuerthner in 1991, leading to the Fish and Wildlife Service’s first finding that the grayling warranted endangered status in 1994. Rather than providing that protection, however, the agency put the fish on a candidate list, where it received no protection. The grayling subsequently experienced severe declines in response to the near drying-up of the Big Hole River on an annual basis caused by increased irrigation use and drought.

Fearing the extinction of the fish, the Center, Western Watersheds Project, and Wuerthner sued for protection in 2003. In 2005 the Fish and Wildlife Service agreed to issue a new decision on listing, but rather than list the species, the agency reversed course and denied it protection, arguing that extinction of the Montana population would be insignificant.

The groups again sued and in 2010, the Fish and Wildlife Service once again reversed course, concluding that the grayling warranted protection, but again only added it to a candidate list. In 2011 the Center reached a settlement agreement requiring the agency to either move forward with protection or withdraw such protection by the end of fiscal year 2014, resulting in the most recent reversal and denial.