Conservation groups convince feds to better protect bull trout … without lawsuits

Bull trout are struggling to survive in Montana’s headwaters, and sometimes, federal agencies neglect to do things that could help the fish. But getting them to carry through doesn’t always require a lawsuit.

Over the past week or so, environmental groups have dealt with what they see as federal inaction related to bull trout in two ways: filing lawsuits and learning that they don’t need to.

In the case of the first, Friends of the Wild Swan, Save the Bull Trout and Alliance for the Wild Rockies sued the U.S. Fish and Wildlife Service in Missoula federal court early last week, insisting the Recovery Plan was inadequate. 

The USFWS published the Recovery Plan in October 2015, 15 years after finally listing the bull trout as threatened under the Endangered Species Act.

The environmental groups tried to sue in 2016 soon after the recovery plan came out. The case ended up in Oregon where the judge said the courts couldn’t weigh in on recovery plans because they weren’t a final action. 

The groups appealed, supported by ESA experts from across the nation who said the courts should be able to weigh in on recovery plans.

“Recovery Plans are the blueprints that determine whether endangered species survive and recover, or languish and perish,” the attorneys wrote. “It is essential that judicial review be available to ensure that Congress’ directives are followed to the letter of the law and that the prescriptions for recovery are based on the best available scientific evidence.”

The 9th Circuit Court of Appeals upheld the district court but noted that the environmental groups weren’t barred from trying again with a different argument.

So now the environmental groups are back, arguing that the bull trout Recovery Plan doesn’t have any measureable criteria. For example, the USFWS set a minimum recovery number of 150 gray wolves and 15 breeding pairs. The bull trout plan has no numbers to demonstrate recovery.

The ESA also requires recovery plans to look at five main threats that can cause a species to decline – habitat loss, predation or disease, over-exploitation, inadequate safeguards - and assess those same threats prior to delisting the species. The bull trout plan doesn’t really do that because it doesn’t include methods to measure the threats or the fish, the groups said.

“This plan allows bull trout populations to decline even further and doesn’t address the looming threat of climate change,” said Arlene Montgomery, Program Director for Friends of the Wild Swan in a statement. "Instead of ramping up protections for bull trout, we are seeing standards being gutted from Forest Plans because of this weak recovery plan.”

By now, most western Montanans know bull trout are in trouble. The fish need cold, clean water, but with climate change causing drought and warmer temperatures and more permits being issued for resource extraction, fewer streams meet the mark.

Biologists continue to document population declines. Other groups - including the Montana Environmental Information Center, the Rock Creek Alliance, Earthworks and the Clark Fork Coalition - sue to stop proposed mines from dewatering some of the bull trout’s last strongholds in the Cabinet Mountains.

But, lawsuits aren’t always required. 

The ESA requires citizens to file a 60-day notice of intent to sue that outlines their concerns to the federal agencies. The purpose is to give the agencies a chance to address the problem without the issue reaching the courts. And that’s what happened twice last week.

Southwest of Georgetown Lake, the East Fork Rock Creek dam has hindered bull trout migration since 1938. Below the dam, trout would regularly wind up stranded in irrigation canals until 2014, when the Montana Department of Natural Resources and Conservation worked with the U.S. Forest Service to install a fish screen.

As part of its 2013 environmental assessment and decision, the Forest Service said it would track the success of the fish screen and control the release of water from the dam to improve conditions for bull trout downstream. But it hasn’t.

So, on Sept. 16, Save the Bull Trout and the Alliance for the Wild Rockies filed a 60-notice of intent to sue unless the Forest Service consulted the Fish and Wildlife Service on the current condition of bull trout in Rock Creek.

Almost 60 days later, on Nov. 15, Beaverhead Deerlodge Forest Supervisor Cheri Ford said she was reinitiating the ESA consultation with the Fish and Wildlife Service, noting that a technical committee has been working on the issue.

Satisfied, the groups didn’t sue.

Similarly, on Sept. 26, the Alliance for the Wild Rockies filed a different 60-day notice to warn the Bureau of Reclamation and the Fish and Wildlife Service that they’re supposed to analyze how the St. Mary Canal and diversion dam on the east side of Glacier National Park affected bull trout. 

The Bureau of Reclamation has operateed the diversion dam, a documented source of bull trout mortality, since the bull trout was listed 20 years ago and still hasn’t consulted with the Fish and Wildlife Service as required by law. 

The Bureau was supposed to submit a biological opinion in 2015 but never did. In 2016, the Fish and Wildlife Service issued a statement saying, “BOR remains unwilling to enter into any type of consultation agreement with the Service.”

Now, that will change. On Nov. 18, within the 60-day limit, the Bureau of Reclamation sent a letter to the Fish and Wildlife Service initiating consultation on bull trout in the St. Mary River basin.

Michael Garrity, Alliance for the Wild Rockies executive director, said he prefers it when agencies agree to carry out their responsibility rather than having to file a lawsuit to force them to follow the law.

“Every once in a while, the law works as intended,” Garrity said. “Congress didn’t want everybody just rushing to the courthouse. So, the 60-day notice actually gives the government 60 days to fix the problem. And sometimes, they do.”

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.