Groups Threaten to Sue U.S. Fish and Wildlife for Failing to Protect Arctic Grayling

A group of conservation organizations filed a formal notice of their intent to sue the U.S. Fish and Wildlife Service for not listing the Arctic grayling as part of the Endangered Species Act. The action comes after decades of lawsuits and decisions by the federal agency which has changed directions repeatedly about whether to list the rare fish.

The action, brought by the Center for Biological Diversity, Earthjustice, the Western Watersheds Project and Butte resident Pat Munday, is to force the agency to make a decision about the imperiled fish.

The fight to protect the fish is part of a controversy that stretches back nearly 30 years. The U.S. Forest Service determined in 1994 that the fish warranted listing and protection. In 2014, after years of study and promises to list the species, the Forest Service reversed its position and denied protection, arguing that the fish could adapt to increasingly warm temperatures.

In 2014, a case involving the Arctic grayling even made its way to the U.S. Ninth Circuit Court of Appeals where the federal court ruled that not listing the fish was arbitrary and sent the decision back to the Wildlife Service. The Wildlife Service had argued the grayling population was increasing, however the appeals court said the decision was “not supported by evidence and that the agency had failed to consider the impacts of climate change.”

Instead, the Wildlife Service claims that it has taken appropriate actions by adopting a voluntary conservation coalition among landowners and other stakeholders which have helped the struggling grayling population that is limited to areas around the Big Hole River and its tributaries in southwestern Montana. It is the only population in the contiguous 48 states.

The U.S. Fish and Wildlife Service has a policy of not commenting on pending litigation and so declined to comment for this story.

The conservation groups noted that the 2021 Big Hole annual report showed a decrease in the number of breeding Arctic grayling.

“The present number of breeding Arctic grayling is lower than the effective population size of 208 that the Service examined in its 2010 finding that determined listing was warranted,” the letter to the Forest Service said.

As part of the letter of intent to sue, the organizations trace five different occasions in which groups petitioned to have the Arctic grayling listed. It chronicled the back-and-forth responses from U.S. Fish and Wildlife throughout the years.

In the 1990s, the service determined listing the fish as endangered was “warranted but precluded,” because it had other more urgent priorities. The Fish and Wildlife Service then said the Arctic grayling were not a distinct population, noting the species existed elsewhere in the world.

In 2014, the service reversed a decision it made in 2010 that Arctic grayling needed protection, this time arguing that habitat threats it had previously identified, like thermal stress, dewatering and dams built on rivers had been mitigated because the grayling populations were “either stable or increasing.” However, after six years of legal fighting at the district court and appeals court level, the Ninth Circuit sided with the conservation organization, saying the service had violated the Endangered Species Act by stating the Arctic grayling population was increasing when the biological information “showed that the population was declining.”

Rising water temperature

The conservation groups point out the myriad ways rising water temperatures are likely impacting the Arctic grayling which need cooler water than other nonnative species. Other nonnative species have been introduced into the Big Hole River, which have increased competition for food and survival.

“Thermal fish kills in the Big Hole River have been documented as the clear result of high water temperature,” the letter said. “At water temperatures below the level for fish kills, individual fish can still be affected. These temperatures can cause chronic stress that impairs feeding and growth and ultimately reduces survival and reproduction.”

However, the Wildlife Service also argued that despite the warmer temperatures, that grayling are seeking out and likely finding cooler habitat, something the conservation groups argue is contrary to the science.

“The Service failed to explain how (it) supports its conclusion that listing Arctic grayling is unwarranted when average temperatures in these waterbodies exceeded the level the service previously deemed a threat,” it said.

And even if warmer water was forcing grayling into areas where they had previously not been found, the conservation groups argue there’s simply not enough new habitat to sustain the species.

The Wildlife Service instead turns to its Candidate Conservation Agreement with Assurances – a voluntary program set up by federal officials for landowners in lieu of using the provisions of the Endangered Species Act. The program is meant to encourage surrounding landowners and other stakeholders to take action to protect the grayling habitat without resorting to harsher standards of the Endangered Species Act.

However, the conservation groups said that these plans have not been as successful as previously reported, and because the program is voluntary, there is no enforcement mechanism.

“For this reason, courts have repeatedly held that ‘the service cannot rely on promised and unenforceable conservation agreements,’” the letter said.

The groups remain critical of those agreements which they say lack measurable, objective data.

“The plan provides no quantitative metrics for assessing whether conservation measure that are implemented suffice to mitigate critical threats to grayling,” the letter said. “The (agreements) thus tout the effectiveness of planning mitigation without providing any quantitative benchmarks necessary to objectively evaluate the success of such mitigation.”

This story originally appeared in the The Daily Montanan, which can be found online at dailymontanan.com.