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Judge: No more detail needed in Bull Trout Plan; plaintiffs file appeal

The U.S. Fish and Wildlife Service doesn’t have to rewrite its 2015 plan for bull trout recovery based on a recent court ruling.

On Monday, federal Magistrate Judge Kathleen DeSoto issued her ruling that the Endangered Species Act doesn’t require the U.S. Fish and Wildlife Service to base its bull trout recovery plan on the best available science.

She also aligned with other court rulings saying that population objectives required for delisting a species do not have to be spelled out in recovery plan criteria.

“Just as this Court has found it may not review claims arguing the Service should be required to incorporate the best available science into recovery plans, a claim alleging the Service must incorporate the five statutory listing factors into a recovery plan “at most . . . amounts to a mere disagreement over the ongoing validity of the objective and measurable criteria as listed in the (recovery plan),” DeSoto wrote.

Last week, DeSoto heard oral arguments in the case that Save the Bull Trout, Friends of the Wild Swan and Alliance for the Wild Rockies filed against the U.S. Fish and Wildlife Service in November 2019.

The environmental groups argued that the 2015 Bull Trout Recovery Plan needed to specify how large bull trout populations should get before the species could be considered for delisting. Under the recovery plan, the U.S. Fish and Wildlife Service would use a decision matrix to evaluate environmental threats and if the threats were sufficiently reduced, the species would be considered for delisting.

Plaintiff’s attorney Rebecca Smith said that was too subjective and questioned why earlier drafts of the recovery plan had included population targets if they weren’t useful.

U.S. Fish and Wildlife Service attorney Anthony Ortiz argued that bull trout move along streams and lakes, making them hard to count in specific locations. He said demographic data might give an idea of the present population but under-represent the threats.

Smith said that Congress had amended the Endangered Species Act in 1988 to tighten the requirements for recovery plans. Since then, a few court cases have disagreed somewhat in their interpretation of what is required of a recovery plan.

However, federal judges must give federal agencies the benefit of the doubt in court cases that could go one way or the other. In this case, DeSoto came down on the side of the U.S. Fish and Wildlife Service having a fair amount of discretion in what is included in a recovery plan.

Even though a D.C. district judge concluded in a 1995 grizzly bear case that recovery plans must include “objective, measurable criteria,” DeSoto said the D.C. appeals court appears to have negated that in a ruling on a separate case. She also agreed with the 9th Circuit appeals court in its ruling on a related case the plaintiffs filed in Oregon, when it essentially said that recovery plans don’t have to include enough information for citizens to challenge in a lawsuit.

“ESA recovery plan case law explicitly gives the Service broad discretion to determine the appropriate substance of recovery plans. The Ninth Circuit has deemed recovery plans guidance documents rather than binding authorities, and ‘all that is required in a recovery plan is the identification of management actions necessary to achieve the Plan’s goals for the conservation and survival of the species,’” DeSoto wrote.

This is also why plans don’t have to include the best available science, DeSoto said. The groups may disagree with the U.S. Fish and Wildlife’s methods, but “the agency is the proper party to determine which conservation methods are necessary to protect bull trout,” DeSoto said.

Michael Garrity, Alliance for the Wild Rockies executive director, said Wednesday that the plaintiffs’ attorneys have already filed an appeal. So now, it’s back to the 9th Circuit Court of Appeals to present part of the argument that wasn’t presented in the Oregon case.

“If the recovery plan is allowed to stand, they can delist bull trout, even though there are fewer bull trout now than when they were first listed under the Endangered Species Act,” Garrity said. “It’s an extinction plan, it’s not a recovery plan.”

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.