MISSOULA — Conservation groups want a new bull trout management plan to ensure that biologists measure the size of a threatened species’ population before deciding to take it off the Endangered Species list.
On Monday afternoon, federal Magistrate Judge Kathleen DeSoto heard arguments on whether the U.S. Fish and Wildlife Service violated portions of the Endangered Species Act in its 2015 Bull Trout Recovery Plan.
The plaintiffs – Save the Bull Trout, Save the Wild Swan and Alliance for the Wild Rockies – argued that the U.S. Fish and Wildlife outlined methods to try to protect the bull trout but didn’t give clear direction on how biologists would decide the populations had recovered enough to delist the species.
Plaintiff’s attorney Rebecca Smith argued the 2015 Recovery Plan was too subjective because it leaves it to the U.S. Fish and Wild Service to make the call based upon a decision matrix that looks at the amount of threat to various populations. The plan has no population targets, even though the 2002 draft plan included such numbers.
DeSoto asked if numbers were really needed. Smith said many scientists have argued that population numbers are necessary.
“As far as I’m aware, there are no recovery plans that do not have population numbers,” Smith said. “The 2002 draft plan had numbers. So the agency actually has done the work to come up with the numbers. It was a sort of [an] inexplicable change in position when they threw those numbers out for the 2015 plan. This is really a complete outlier.”
U.S. Fish and Wildlife Service (USFWS) attorney Anthony Ortiz argued that population numbers can be subjective too. Bull trout are complex: Some live in streams, some live in lakes. Ideally, they would migrate more between the two. But the reality is they are isolated in some of the 109 core areas identified by the agency, Ortiz said. If one population crashes, other trout can’t move in to keep the population going.
“Addressing the threats by core area rather than relying on demographics as a surrogate ensures representation, resiliency and redundancy throughout the range of the population,” Ortiz said. “Merely using demographics would likely under-represent the threats.”
Bull trout were listed as threatened in November 1999, and while some populations are stable, others have continued to decline. For example, populations of the Blackfoot River have decreased in all but a few tributaries in spite of the removal of the Milltown Dam near Bonner in 2009. The dam had isolated many of the trout populations upstream.
Climate change could become a significant factor because bull trout need cold, clean water and pebbly streambeds not covered with sediment where they can spawn. As the climate warms, cold streams become harder to find. Large wildfires and human activities such as logging or road building are also problematic since they can pollute mountain streams and mining projects, such as the proposed mine under the Cabinet Mountains, could decrease streamflow.
The plaintiffs challenged the bull trout recovery plan in 2016 in an Oregon court. The judge ruled the courts couldn’t weigh in on recovery plans because they weren’t a final action. But the 9th Circuit Court of Appeals left the door open for the plaintiffs to try again. They filed in Montana in November 2019, three months after DeSoto started as magistrate in Missoula.
“This plan allows bull trout populations to decline even further and doesn’t address the looming threat of climate change,” said Arlene Montgomery, Program Director for Friends of the Wild Swan in a 2019 statement. “Instead of ramping up protections for bull trout, we are seeing standards being gutted from Forest Plans because of this weak recovery plan.”
On Monday, Smith argued that the law says that demographic data needs to be part of the recovery criteria. Congress amended the recovery requirements of the Endangered Species Act in 1988 partly to include specific demographic criteria, Smith said. Prior to that, the U.S. Fish and Wildlife Service had more leeway on what to include in a species recovery plan.
This case could be pivotal by cementing what agencies must include in recovery plans. Prior to this, the courts have looked at different sections of the Endangered Species Act.
Smith argued recovery plans are required to use the best available science, based upon a 1995 ruling on the original grizzly bear recovery plan. But Ortiz said Smith was citing rulings from a D.C. appeals court, not the 9th Circuit, which DeSoto needs to consider. Ortiz countered that a 2019 Arizona court ruled there was no mandate for best available science in a recovery plan.
A potential stumbling block could be that four previous court cases – including one heard by Missoula federal judge Dana Christensen – differed on the question of best available science and the creation of objective recovery measurements as opposed to subjective.
Smith argued the flaw began with a 2006 case dealing with the humpback chub of the Colorado River, where the court looked only at a section of the law that dealt with threats to a species but didn’t apply a section that dealt with recovery plans. Smith said that section requires a recovery plan to comply with delisting provisions, which require objective criteria based on the best available science. The flaw was carried forward as subsequent rulings cited the same case, Smith said.
“There is starting to be law that is not consistent with the statute. There is this building number of cases that were all making a statement but none of them undertook the statutory language analysis,” Smith said. “We’re requesting (that) sort of analysis.
We realize it’s a difficult situation to say these four cases were wrong, but I can’t see how they’re consistent with the statute.”
Ortiz said the plaintiffs just didn’t like the process outlined in the recovery plan but that wasn’t something the court could rule on. He emphasized that reliance on demographic data wouldn’t be available everywhere across the bull trout range, so it could be harmful to rely on.
“The (Oregon) case was dismissed for failure to plausibly allege the elements under 16-33 were missing but did not specifically state ‘objectable and measureable criteria,’” Otriz said. “As your honor has stated, these (claims) seem to be repackaged from the original case. Again, we would emphasize that it should have the same result as the original case.”
DeSoto said she would issue a ruling as soon as she could.
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.
