Judge blocks plan to build pipeline into Montana wilderness lake
Laura Lundquist
(CN) A federal judge on Wednesday stopped the installation of a mile-long oxygenated water pipeline into a Montana wilderness area, saying the U.S. Fish and Wildlife Service didn’t prove it was necessary to protect a dwindling population of Arctic grayling, a freshwater fish in the salmon family.
U.S. District Judge Donald Molloy granted the permanent injunction against Fish and Wildlife's project to pipe oxygen-rich water into Upper Red Rock Lake, part of the Red Rock Lakes National Wildlife Refuge on Montana’s southwestern border.
The judge made good on his promise to issue his decision within a week of oral arguments, held on July 27, where federal attorney Davene Walker said the U.S. Fish and Wildlife Service wanted to start the project in mid-August.
Mollloy's main finding in blocking the pipeline was a lack of proven necessity for the project.
“Ultimately, in light of the Wilderness Act’s strict requirements, the mere possibility that the proposed action may aid in Arctic grayling conservation is not enough to create necessity,” Molloy wrote in the 36-page order. “That is especially so where the proposed action will have a negative impact on the area’s wilderness character and involve most of the activities prohibited by the act.”
The project was an attempt to preserve a population of arctic grayling that has been steadily declining in Upper Red Rock Lake due to a number of factors, including a harder-to-weather winter habitat, loss of spawning habitat and competition with other trout species.
In 2015, the Upper Red Rock Lake arctic grayling population numbered 1,131. In 2022, just 73 fish remained. The lake, only about 6 to 7 feet deep to begin with, suffered along with the rest of southwestern Montana from at least four years of drought worsened by climate change.
To tackle the challenges facing the fish population the federal fish and wildlife agency and Montana Fish, Wildlife & Parks had chosen to focus on winter habitat. Oxygenated water piped in from a distant pond was intended preserve water quality in winter when the lake was frozen over. However, the agency admitted it wasn’t sure the project would work, since other attempts to oxygenate the water hadn’t helped the grayling population.
In late June four organizations — Wilderness Watch, Alliance for the Wild Rockies, Gallatin Wildlife Association, and Yellowstone to Uintas Connection — sued to stop the project, saying the installation of a pipeline violated the Wilderness Act because it would require heavy machinery, temporary roads and disturbance of the land, and asked for the injunction.
Fish and Wildlife countered, saying the Wilderness Act allows for exceptions of the use of machinery and human processes if they are necessary for conservation.
In his ruling, Molloy acknowledged that such exceptions were allowed but said that Fish and Wildlife failed to show the pipeline was truly necessary. The federal agency hadn’t explored other alternatives to help the grayling that wouldn’t affect wilderness character, such as reducing fishing in tributaries like Red Rock Creek, where grayling spawn before spending most of the year in Upper Red Rock Lake.
The judge compared Red Rock Lake situation to that of another case brought in 2010, Wilderness Watch Inc. v. U.S. Fish and Wildlife Service, concerning Kofa National Wildlife Refuge.
There, Fish and Wildlife had proposed to install water tanks to benefit bighorn sheep in a protected area. The Ninth Circuit Court of Appeals found that, although the water would likely improve conditions for the sheep, other strategies existed to help the sheep that didn’t require violating the Wilderness Act, so the water tanks weren’t necessary to their survival.
Molloy pointed out that the agency’s analysis of its various alternatives for Red Rocks Lake — including a no-action alternative — showed little difference in benefit for the grayling, even though Montana biologist Matt Jaeger argued that improving the fish's winter habitat would probably reduce the risk of extinction.
“But to say that an action may achieve a conservation purpose in a wilderness area," Molloy wrote, "is not the same as saying it is necessary to that goal.”
The plaintiffs called Molloy’s injunction a signal of the strength of their claims.
“Judge Molloy’s ruling shows the U.S. Fish and Wildlife Service chose a course of action it knew would violate the Wilderness Act, rather than address the root causes of grayling decline,” said George Nickas, Wilderness Watch’s executive director.
“The agency decided it would rather try to change the effects of winter on the refuge than deal with the impacts of human use to the grayling and its habitat. As the court clearly stated, the Wilderness Act demands more of them than that. The agency needs to pursue a wilderness-compatible approach to grayling conservation at Red Rock Lakes Wilderness.”
About 30 years ago, the Center for Biological Diversity organized a petition to protect the arctic grayling in Montana lakes and the Big Hole River, home to the one remaining river population. Studies show that Montana grayling are genetically distinct from populations in Canada and Alaska.
In 1994, Fish and Wildlife decided the grayling warranted endangered species protection, but the agency was already behind in trying to list 250 other species. Two decades later the service determined that, in the meantime, landowners along Big Hole River had done enough work under the 1999 Agreement with Assurances program that listing wasn’t necessary.
In July 2020, the feds again said listing wasn’t warranted because of landowners’ improvements. So six months ago, the Center for Biological Diversity and Western Watersheds Project sued Fish and Wildlife over its 2020 decision, saying the agency ignored the best-available science and made too many assumptions about the outcome of voluntary conservation efforts.