Groups to sue USFWS for arctic grayling protection in the Big Hole River
Laura Lundquist
(Missoula Current) Some environmental groups are once again trying to spur the U.S. Fish and Wildlife Service into listing the arctic grayling under the Endangered Species Act, but their efforts ultimately may not help the fish.
On Monday, the Center for Biological Diversity, Western Watersheds Project and Butte resident Pat Munday gave the U.S. Fish and Wildlife Service 60 days' notice that they would sue to get the arctic grayling in Montana listed under the Endangered Species Act. Specifically, they are challenging a July 2020 USFWS finding that arctic grayling in the Upper Missouri River Basin doesn’t require ESA protection to survive.
The Upper Missouri River Basin includes the Gallatin, Madison and Jefferson rivers and their tributaries, including the Big Hole and Beaverhead rivers.
“I fish the Big Hole River often. Grayling are truly the jewel of the river,” Munday said in a release. “It is incredibly sad that we must sue the Fish and Wildlife Service to follow the law and protect our natural heritage.”
In the Big Hole Valley, the natural heritage of the arctic grayling has clashed with the cultural heritage of Montana agriculture. Now, some Montanans say agricultural producers are doing all they can to help the grayling, but a federal listing could destroy that.
Former Trout Unlimited executive director Bruce Farling worked on the arctic grayling issue for years, and he knows the players involved and the work that’s been done.
“The grayling population in the Big Hole is, by all technical applications of the ESA, definitely eligible to be listed. There’s just not that many of them,” Farling said. “The problem is I’m not sure the ESA listing buys anything except for a lot of heartburn and a bunch of pissed off people.”
About 30 years ago, the Center for Biological Diversity petitioned for the listing of the arctic grayling in Montana. Studies demonstrate that Montana grayling are genetically distinct from populations in Canada and Alaska.
In 1994, the USFWS decided the grayling warranted ESA protection because the population had dwindled greatly. Where once the grayling was abundant in the streams of the Upper Missouri River basin, its habitat had slowly degraded due to the construction of dams and irrigation diversions, and eventually, the Big Hole was one of the few undammed rivers left.
Now, although several lakes contain grayling populations, the only stream population that survives is in the Big Hole River. But as climate change has reduced winter snowpack, dewatering in the Big Hole worsened to the point that less than a few hundred fish remained after 2000.
Even so, the Fish and Wildlife Service didn’t list the grayling because the agency was overwhelmed with 250 other species awaiting protection. After the Center for Biological Diversity and other groups sued in 2003 and again in 2004, the USFWS agreed to make a decision by 2007.
Big Hole area ranchers, led by Wisdom rancher Cal Erb, tried to stave off the restrictions that would accompany an ESA listing by agreeing in 2004 to make fish-friendly improvements using a new voluntary option called Candidate Conservation Agreement with Assurances.
The Fish and Wildlife Service created the Agreement with Assurances option in 1999 to provide incentives for landowners to engage in active conservation of sensitive species.
Pedro Marques, Big Hole Watershed Committee executive director, said more than 80% of the landowners in the upper Big Hole basin signed an agreement with assurances and voluntarily give up water when needed.
The Big Hole Watershed Committee developed a drought management plan and researched ways to improve water efficiency. Landowners started working together to cut back on water use to keep more water in the river.
“That threat of litigation back then was the catalyzing force. Since then, we’ve had a long track record of partnerships and consensus building, and the watershed committee has been held up as a model for how to do conservation in the rural West,” Marques said.
With the help of Montana Fish, Wildlife & Parks, the Montana Department of Natural Resources and Conservation, and the federal Natural Resources Conservation Service, landowners completed 250 projects between 2004 and 2014, such as installing fish ladders and fencing around riparian areas, restoring stream habitat, and improving irrigation efficiency and stock water systems so less water was diverted from streams.
By the time it finally made its decision in 2014, the USFWS determined that landowners had done enough work that the agency didn’t have to list the grayling and claimed that the grayling population had grown.
Center for Biological Diversity spokesman Noah Greenwald said in 2014 that the ranchers' efforts were laudable, but they weren't sufficient justification not to list the grayling. So, the environmental groups sued over the 2014 ruling. Eventually, the 9th Circuit Court of Appeals found no evidence that the population had grown and told the Fish and Wildlife Service to assess the situation again. But this time, the agency should factor in the effects of climate change.
In July 2020, the Fish and Wildlife Service again said listing wasn’t warranted because of all the improvements that landowners had made under the Agreements with Assurances. The groups filed Monday’s intent to sue as a challenge to the 2020 decision.
“There’s really no question that the only population of grayling in the lower 48 states is imperiled,” said Emily Qiu, associate attorney with Earthjustice’s Northern Rockies Office. “Too much water is already taken out of the Big Hole River, one of the last places the fish survive, and climate change will only make the situation worse.”
Climate change is definitely affecting the Big Hole Valley. The past two summers have been hot and dry as much of Montana continues to suffer from drought. The summer of 2021 was particularly bad as evidenced by the meager 3 cubic feet per second that trickled past Wisdom for much of the summer, when the river should at least 40 cfs.
This September, the flow was low, hovering around 7 cfs. FWP closed most of the river to fishing until the end of October. The river is low, but little can change that, Marques said.
“When the tributaries dry up and there’s no precipitation from July to October, there’s nothing you can do,” Marques said. “The 7 cfs that were in the river were there because a cooperating irrigator put it there to help the fish move. We don’t have a dam, we don’t have a lever we can just turn on. That’s why our whole approach is trying to keep more water on the landscape longer.”
So, if the Fish and Wildlife Service gives the arctic grayling federal protection, would that make much difference? Marques said it would make a difference but not what the environmental groups intend. The Fish and Wildlife Service would develop a recovery plan for the grayling, but it wouldn’t look much different than what’s already in place, Marques said.
“The (Agreements with Assurances) is not only a plan, it’s in motion right now and has all the cooperation you can imagine. If the federal government takes over, you will lose all the voluntary conservation that we have,” Marques said. “In 2021, there were ranchers that gave up about 25 to 50% of their water right for the benefit of the survival of the resource. If we have another drought like that and there’s no more incentive to cooperate, it’s everybody for themselves. Some might still cooperate, but it’ll be disconnected from any sort of partnership-based work and that would be a loss. Then you’re asking the federal government to pick winners and losers.”
Farling agreed that it’s unlikely that a federal recovery plan could do much more to save the Big Hole grayling than what is already in place. Having enough water is key but other perplexing threats still exist such as predation from brown trout. Farling pointed to the fact that an ESA listing hasn’t been able to do much to help the bull trout, pallid sturgeon or Kootenai white sturgeon.
“It’s a lot harder to recover fish than it is terrestrial species. So, you gotta be a little more open-minded about the tools you lose. If it’s fish first, that’s how you gotta look at it,” Farling said.
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.