A federal judge in Montana last week ordered the U.S. Fish and Wildlife Service to re-examine Arctic grayling populations in the Ruby River and the future of a conservation agreement in the Big Hole River Valley over the next year to determine whether the fish species in the Upper Missouri River basin needs to be protected under the Endangered Species Act.

Last Tuesday, U.S. District Judge Dana Christensen overturned a 2020 Fish and Wildlife Service ruling and ordered a new ruling on the status of a specific grayling population segment in the basin in question — the latest development in a more than 40-year-old saga surrounding grayling and protection under the Endangered Species Act.

Two conservation groups and Butte resident Pat Munday sued the Fish and Wildlife Service last year, saying the agency’s years of decisions about whether Arctic grayling needs protection because of declining and diverse populations, warming waters and invasive species need to be resolved in court after years of litigation.

The group argues that the agency failed to take into account the most recent scientific research, which they believe shows that the grayling needs additional protection, nor did it consider what would happen if previously signed recovery and conservation plans were not followed or extended.

The judge awarded the plaintiffs a victory, finding the agency’s determination that a viable grayling population existed in the Ruby River and its reliance on the benefits of the Big Hole River Candidate Conservation Agreement with Assurances (Big Hole CCAA) to be arbitrary and capricious.

If the CCAA agreement is not renewed, it could expire in 2026. The judge also wrote that the agency had not adequately provided for the future of the fish in the basin.

The conservation program began in 2006 and involves 32 private landowners who own a total of nearly 150,000 acres of land, as well as over 6,000 acres leased from the Montana Department of Natural Resources and Conservation. The owners agreed to manage their land and waters in a way that eliminates the threat to the Arctic grayling (in this case).

“Promises to restore grayling to more rivers than the Big Hole, where they are threatened with extinction, have not been fulfilled, so this ruling is an important victory,” said Noah Greenwald, director of threatened species at the Center of Biological Diversity. “It is long past time for the Fish and Wildlife Service to protect these beautiful, precious fish under the Endangered Species Act.”

However, on most of the other arguments the groups raised in their appeal, the judge sided with the Fish and Wildlife Service (FSA), which argued that the agency’s 2020 decision not to protect the grayling was incorrect.

After a petition for protection of the Arctic grayling was submitted in 1991, nine years after the first review of the Arctic grayling in Montana, the Fish and Wildlife Service issued a statement in 1994 stating that listing of the Upper Missouri Basin grayling was warranted but not a high priority.

Conservation groups challenged that ruling in 2003, and the agency raised the fish’s priority because it faced an imminent threat. In 2007, partly as a result of a settlement, the Fish and Wildlife Service issued another ruling concluding that the grayling in the basin could not be listed as a species, subspecies, or distinct population segment, and subsequently removed it from the Candidate List.

That decision was also challenged in court, resulting in another revised decision in 2010 that found grayling in the Upper Missouri Basin to be a distinct population segment. In another settlement, the agency agreed to make a proposed listing by 2014 or determine that listing was not warranted.

In 2014, the agency again found that listing of the Arctic grayling in the Upper Missouri was not warranted. That decision was also appealed, resulting in a 2018 ruling by the U.S. 9th Circuit Court of Appeals, which found errors in the 2014 decision. Those errors included the agency failing to explain why climate change was not a broader factor in its decision and arbitrarily determining that the population of the fish in the Ruby River was viable.

This led to the agency’s 2020 ruling, which conservation groups challenged last year.

Sean Helle, an Earthjustice attorney who argued the case before Christensen, said last week’s decision was similar to the Ninth Circuit’s ruling in 2018, which found some errors in the agency’s review.

While Christensen concluded that the agency was correct in its assessment that the grayling population in the Big Hole was relatively stable and that populations in the Madison River and Centennial Valley were providing replacement, he said the agency had used a measure of “recruitment” that referred to how many grayling were reproducing and had not adequately measured the number of fish that survived until they were old enough to reproduce.

“This argument appears to be based on the assumption that natural reproduction equates to successful population recruitment, which is not supported by the record,” Christensen wrote. “…Accordingly, the 2020 finding that the Ruby River population was viable and therefore capable of providing redundancy was arbitrary and capricious.”

Christensen also noted that the Fish and Wildlife Service did not consider in its 2020 opinion whether the Big Hole CCAA could fall apart if landowners do not renew their conservation plans or if the FWP allows the program to expire.

“Although the Court finds the efforts undertaken under the Big Hole CCAA to be commendable and in many respects effective, it was arbitrary and capricious for the FWS 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 might cease to exist in the foreseeable future or that site-specific plans might not be able to be renewed,” Christensen wrote in his opinion.

If the Fish and Wildlife Service determines that the grayling in the basin should be listed as a threatened species under the Endangered Species Act, it would lead to stronger protections for the fish and the watershed, which has seen fish populations decline over the past decade.

Environmental groups called the order a success. Munday said it was “incredibly sad” that they had to go to court to get the agency to comply with the law. The Montana director of the Western Watersheds Project added that Montana’s Arctic grayling population is the last native population of the species in the lower 48 states.

“After decades of puzzling resistance to listing the Arctic grayling – including multiple legal settlements and previous court defeats – the U.S. Fish and Wildlife Service must now follow the law and make its decision based on the best available science, free from economic and political pressure,” said Patrick Kelly of the Western Watersheds Project. “As climate change continues to wreak havoc on Montana’s rivers and streams, the Arctic grayling cannot afford any further delays.”

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