Groups threaten to sue US Fish and Wildlife for failing to protect Arctic grayling – Daily Montanan

A conservation group has filed a formal notice of intent to sue the US Fish and Wildlife Service for failing to list the Arctic grayling as part of the Endangered Species Act. The move follows decades of lawsuits and rulings by the federal agency, which has repeatedly reversed course on whether to list rare fish.

The action, led by the Center for Biological Diversity, Earth Justice, the Western Watersheds Project and Butte resident Pat Mundey, is to force the agency to make a decision on the endangered fish. Artic gray is only available in Montana, and a notice of intent to sue is the first step toward a larger lawsuit.

The fight to protect the fish is part of a debate that goes back nearly 30 years. The US Forest Service determined in 1994 that the fish warranted listing and protection. In 2014, after years of research and promises to list the species, the Forest Service reversed course and denied protection, arguing that the fish could adapt to increasingly warmer temperatures.

In 2014, the Arctic grayling case even went all the way to the U.S. Court of Appeals for the Ninth Circuit, where a federal court ruled that not listing the fish was arbitrary and sent the decision back to the Wildlife Service. The Wildlife Service argued that the grizzly population was increasing, but an appeals court said the decision was “not supported by the evidence and the agency failed to consider the effects of climate change.”

Instead, the Wildlife Service claims it has adopted a voluntary conservation coalition of landowners and other stakeholders to help a struggling grizzly population confined 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. Department of Fish and Wildlife has a policy of not commenting on pending litigation and therefore declined to comment for this story.

Conservation groups have noted that the 2021 Great Depression annual report shows a decline in breeding numbers of Arctic grayling.

“The current number of breeding Arctic graylings is below the effective population number of 208 that the Service surveyed in 2010 to warrant some listing,” the letter to the Forest Service said.

As part of the letter of intent to claim, the organizations are tracking five different cases where groups have applied to list the Arctic grayling. It noted back-and-forth responses from U.S. Fish and Wildlife over the years.

In the 1990s, the service determined that listing the fish as endangered was “warranted but prohibited” because it had other, more pressing priorities. The Fish and Wildlife Service later said Arctic graylings are not a distinct population, noting that the species exists elsewhere in the world.

In 2014, the service reversed a 2010 decision that Arctic grayling needed protection, this time arguing that habitat threats it had previously identified, such as thermal stress, dehydration and dams on rivers, had been mitigated because gray populations were “either stable.” did or increases”. However, after a six-year legal battle at the district court and appellate levels, the Ninth Circuit sided with the conservation agency, saying the service violated the Endangered Species Act by stating that the Arctic grayling population was increasing when biological data “showed . the population was decreasing.”

Increase in water temperature

Conservation groups point to a myriad of ways that rising water temperatures are affecting the Arctic grayling, which needs colder water than other non-native species. Other non-native species have been introduced into the Big Hole River, increasing competition for food and survival.

“Thermal fish kills in the Great Hole River have been documented as a clear result of high water temperatures,” the letter states. “When water temperatures are below fish kill levels, individual fish can still be affected. These temperatures can cause chronic stress that impairs nutrition and growth and ultimately reduces survival and reproduction.”

However, the Wildlife Service has argued that despite the warmer temperatures, grayling are seeking cooler habitat, something that conservation groups argue is likely unscientific.

“The Service has failed to explain how it supports its conclusion that the listing of Arctic grayling is unwarranted when the average temperature in these water bodies exceeds the level the Service previously considered a threat,” it said.

Even as warmer water forces grayling into areas where they weren’t previously found, conservation groups argue that there isn’t enough new habitat to sustain the species.

The Wildlife Service is instead applying for a Nominee Conservation Agreement with Assurances — a voluntary program set up by federal officials for landowners instead of using provisions of the Endangered Species Act. The program aims to encourage surrounding landowners and other stakeholders to take action to protect grizzly habitat without resorting to the stricter standards of the Endangered Species Act.

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

“For this reason, courts have repeatedly ruled that ‘a service cannot rely on conservation agreements that are promised and not enforceable,'” the letter says.

The groups criticize these agreements for what they say is a lack of measurable, objective data.

“The plan does not provide any quantitative indicators to assess whether the conservation measures implemented are sufficient to reduce critical threats to the grayling,” the letter states. “Thus, (the agreements) emphasize the effectiveness of mitigation planning without providing any quantitative indicators necessary to objectively assess the success of such mitigation.”

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