BUTTE — Legal battles began in 1991 about whether the small populations of fluvial Arctic grayling in the Big Hole River and upper Madison River Basin deserve protections under the federal Endangered Species Act. A boxed set of related court filings, appeals and rulings, of biological studies and findings, of op-ed laments and more would give Atlas a run for his muscles. Now, a 53-page ruling from a federal district court judge in Missoula has sent the weighty decision back to the U.
S. Fish and Wildlife Service for yet another look. Judge Dana Christensen's order, dated Aug.
6, vacated a 2020 finding by the Fish and Wildlife Service that the fluvial, or river-dwelling, Arctic grayling in the upper Missouri River Basin did not warrant listing under the Endangered Species Act. His ruling directed the service "to make a new finding as to the status of the upper Missouri River Basin distinct population segment of Arctic grayling within 12 months of the date of this order." Under the Endangered Species Act, a "distinct population segment" is a population or group of populations discrete from other populations of the species and significant in relation to the entire species.
Christensen's order does not mean, of course, that the Fish and Wildlife Service will return within 12 months with a finding that the grayling warrants listing. Joe Szuszwalak, a spokesman for the service, said the agency "is reviewing the decision and declines to comment on litigation." Native populations of Arctic grayling can be found in a short stretch of the Big Hole River, the Ennis Reservoir, the Ruby River and lakes in the Centennial Valley.
Patrick Kelly is a director for the Idaho-based Western Watersheds Project, one of three plaintiffs in the case. He responded Wednesday to Christensen's order. "This decision is welcome news for Montana's Arctic grayling, a uniquely beautiful fish whose last native population in the Lower 48 states barely hangs on in a small part of our state," Kelly said.
"After decades of baffling resistance to listing the Arctic grayling — including multiple legal settlements and prior court losses — the U.S. Fish and Wildlife Service must now adhere to the law and base their determination on the best available science, free from economic and political pressures.
" Yet the judge's rulings on specific merits of a lawsuit — filed in January 2023 by the Center for Biological Diversity, the Western Watersheds Project and Pat Munday of Butte — was not a slam dunk for the plaintiffs. Lawyers for Earthjustice, an organization based in San Francisco, argued the plaintiffs' case. The judge often ruled in favor of the defendants, which included the Fish and Wildlife Service and Montana Fish, Wildlife and Parks, among others.
Christensen's order differed with plaintiffs' allegations that the 2020 finding by Fish and Wildlife did not adequately consider data about the size of the fluvial Arctic grayling population and the effects of low flows, potentially lethal warm temperatures and climate change. The fluvial grayling's historic range has shrunk dramatically due to habitat loss, fragmentation, over-harvest, competition with nonnative species and climate change. Yet Christensen agreed with the plaintiffs that the Fish and Wildlife Service's 2020 decision failed to adequately consider what might happen if the Big Hole River Candidate Conservation Agreement with Assurances expired in 2026.
The judge found that it was arbitrary and capricious for the Fish and Wildlife Service "to rely on the benefits of the CCAA without considering the very real possibility that the CCAA, and at least some of its existing benefits, may cease to exist in the foreseeable future or that site-specific plans may not be renewed." Christensen also ruled that the Fish and Wildlife Service's 2020 determination that the population of Arctic grayling in the Ruby River was viable and a potential source of species redundancy was arbitrary and capricious. Noah Greenwald, endangered species director at the Arizona-based Center for Biological Diversity, said Montana has failed to establish five stable, viable populations of grayling in other rivers.
"Promises to restore grayling to more rivers than the Big Hole, where they're on the brink of extinction, haven't panned out, so this ruling is an important win," Greenwald said. "It's long past time for the Fish and Wildlife Service to protect these beautiful, precious fish under the Endangered Species Act." Under the CCAAs cited by Christensen, non-federal property owners who voluntarily agree to manage their lands or water to remove threats to species at risk of becoming threatened or endangered receive assurances against additional regulatory requirements should that species be subsequently listed under the Endangered Species Act.
The Big Hole Watershed Committee emerged in 1995, following a 1994 notice by the Fish and Wildlife Service that listing the fluvial Arctic grayling was warranted but precluded by other, higher-priority listings. The agricultural community, among others, feared a listing would cast the long shadow of government agencies over their operations. The Big Hole Watershed Committee has shepherded a host of voluntary actions among ranchers and other property owners to improve riparian habitat and flows.
Pedro Marques is the executive director for the committee, which provides support for the CCAA. He said Wednesday he fully believes the CCAA will be renewed in 2026 based on discussions with the Fish and Wildlife Service, FWP, the Department of Natural Resources and Conservation, the Natural Resources Conservation Service and Trout Unlimited. "I continue to believe that with all the buy-in from the state and the feds and the successes of the CCAA program that it would be silly not to renew," Marques said.
He said participants "have shifted their processes and how they operate" to benefit the grayling in the Big Hole. Marques said Christensen's ruling confirmed that the Fish and Wildlife Service is relying on the best science available when assessing the impacts on grayling of low flows, access to cooler waters, known as "thermal refugia," water temperatures and climate change. "Data show clearly that the work being done by the CCAA is making a difference," he said.
"If the plaintiffs attempt to describe [Christensen's ruling] as a victory, I think they'd be spinning," Marques said. Nearly everyone agrees that low flows in the river and related increases in water temperature are threats to the fluvial Arctic grayling and other cold-water fish species during the irrigation season – realities compounded by drought and climate change. Ranchers in the Big Hole Valley withdraw water in summer to grow the hay their livestock needs during the high-elevation valley's long, harsh winters.
Marques said CCAA participants agreed months ago, facing the near certainty of a low water summer, to adjust irrigation practices. Jim Magee, a biologist with the Fish and Wildlife Service, has long worked with landowners in the Big Hole Valley to improve conditions for grayling. Magee has stressed the importance of keeping intact ranches on the landscape, an outcome he says benefits numerous species of wildlife and helps inhibit development's habitat fragmentation.
Meanwhile, plaintiff Munday, a longtime watchdog of conditions on the Big Hole River, has said he believes listing for the Arctic grayling under the Endangered Species Act will yield additional resources to help the fluvial grayling survive..
