contacts
Arlene Montgomery, Friends of the Wild Swan, (406) 886-2011
Michael Garrity, Executive Director, Alliance for the Wild Rockies, (406) 459-5936
The District Court in Portland, Oregon ordered the Fish and Wildlife Service (FWS) to re-analyze the critical habitat designation for bull trout throughout its five-state range in the continental United States.
An Inspector General Report found tampering with the critical habitat final rule by Julie MacDonald, former Deputy Assistant Secretary of the Interior. The agency admitted that the critical habitat designation was not based on science and asked the court to allow them to re-analyze the rule over the next two years.
Environmental groups Friends of the Wild Swan and Alliance for the Wild Rockies, represented by attorneys Jack Tuholske and Sarah McMillan, had challenged the designation alleging similar flaws. The groups objected to the two-year delay and asked for a shorter timeframe for completing critical habitat because the agency had current data available. Since the 2002 draft critical habitat was released the agency had updated its knowledge and the status of bull trout with core area assessments in 2005, the five-year status review in 2008 and core area assessment updates in 2009.
The court agreed stating, “…I agree with Plaintiffs that Defendants proposed schedule on remand builds too much delay into a process that should have been, and absent MacDonald’s interference, could have been completed successfully in a timely manner, to the benefit of bull trout populations.”
Judge Jones ordered the agency to complete a draft critical habitat designation by December 31, 2009 and a final rule before September 30, 2010. He also agreed with the groups that the agency should submit a progress report by August 31st and every 60 days until completion of the designation.
“The delay in securing science-based habitat protection for bull trout is untenable,” said Arlene Montgomery, Program Director of Friends of the Wild Swan. “This is the third time the agency has been ordered to complete a critical habitat designation, hopefully they will get it right and we can work towards recovery of this imperiled fish.”
The court also stated, “without question, the merits of the 2005 final rule will be difficult for FWS to justify or sustain on remand, due in part to MacDonald’s extensive interference in the process and over reaching and illogical policy choices.”
Michael Garrity, Executive Director of the Alliance for the Wild Rockies said, “We are glad that this brings an end to the corruption of the bull trout critical habitat protection process under Julie MacDonald and hope the Obama administration will do a better job based on science rather than politics.”
Sarah McMillan, attorney with the Western Environmental Law Center said, “While the court’s opinion and order to remand is not a decision on the merits, it validates our clients position. We are eager to see FWS get down to the business of protecting habitat critical to the recovery of bull trout, a species that Friends of the Wild Swan and Alliance for the Wild Rockies have been working to protect for more than 15 years.”
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Background
Bull trout require cold, clean water for spawning and rearing making them an excellent indicator of water quality. They are a wide-ranging fish that spawn in mountain streams then migrate to rivers, lakes or the ocean to mature and grow. At around age five they return to the stream where they were born to spawn. Unlike salmon bull trout survive spawning and make this journey several times during their life. This migratory life form is essential to the long-term survival of the species because it ensures that in the case of a catastrophic event, such as fire, in their natal stream there are always more fish to repopulate it.
Critical Habitat Timeline
January 26, 2001 – AWR and FOWS file suit against the U.S. Fish and Wildlife Service for failing to designate critical habitat for bull trout as required under the Endangered Species Act.
April, 2001 – USFWS admit they should have designated critical habitat.
December, 2001 – AWR, FOWS, and USFWS reach settlement agreement setting out timeline for critical habitat designation. The critical habitat proposed rule for Columbia and Klamath Basins is to be completed by October 1, 2002 with the final rule published by October 1, 2003. For the Coastal-Puget Sound, Jarbidge and St. Mary/Belly River the proposed rule is to be completed by October 2003 with the final rule published by October 1, 2004.
November 29, 2002 – USFWS proposes critical habitat for 18,450 miles of streams and 532,700 acres of lakes in four states. In Idaho 8,958 miles of streams and 205, 639 acres of lakes/reservoirs; 3,319 miles of streams and 217,577 acres of lakes/reservoirs in Montana; 3,687 miles of streams and 78,609 acres of lakes/reservoirs in Oregon and 2,507 miles of streams and 30,896 acres of lakes and reservoirs in Washington.
USFWS also releases for public comment the draft Recovery Plans for the Columbia, Klamath and St. Mary-Belly River bull trout populations.
May 30, 2003 – USFWS announces that due to funding shortfalls it will not complete the bull trout critical habitat designations in the stipulated time frames.
April 5, 2004 – USFWS releases draft analysis of potential economic impacts of the critical habitat proposal. Deleted from the economic analysis were over 50 pages of benefits, the draft released for public review only contained costs.
February 19, 2004 – At the request of Idaho Governor Kempthorne and the Idaho Congressional Delegation USFWS suspends work on Recovery Plan chapters for the Columbia, Klamath and St. Mary basins while it conducts a five year status review to determine whether listing is still valid.
June 25, 2004 – USFWS proposes critical habitat for the Coastal-Puget Sound, St. Mary-Belly River and Jarbidge bull trout populations. Proposed are: 131 miles of streams in the Jarbidge drainage of Nevada and Idaho, 2,290 miles of streams, 52,540 acres of lakes and 985 miles of marine shoreline for the Coastal-Puget Sound area of Washington and 88 miles of streams and 6,295 acres of lakes for the St. Mary-Belly River population in Montana.
July 1, 2004 – USFWS releases for public comment the draft Recovery Plans for the Jarbidge and Coastal-Puget Sound bull trout populations.
October 15, 2004 – USFWS publishes the final bull trout critical habitat rule designating only 1,748 miles of streams and 61,235 acres of lakes in the Columbia and Klamath river basins. No critical habitat was designated in Montana. The USFWS relied on unfinished Habitat Conservation Plans to remove private and state lands and on INFISH, PACFISH and the Northwest Forest Plan to remove federal lands from designation.
December 14, 2004 – AWR and FOWS file suit against USFWS for designating an inadequate amount of critical habitat in the Columbia and Klamath Basins. The final rule fails to ensure the survival and recovery of the species.
April 28, 2005 – FWS asks the court to remand the critical habitat designation back to them for revision. The court allows the remand.
September 23, 2005 – FWS issues a new critical habitat designation for all five subpopulations: Columbia, Klamath, Coastal-Puget Sound, Jarbidge and St. Mary Belly River. The designation totals approximately 3,828 miles of stream, 143,218 acres of lakes in Idaho, Montana, Oregon and Washington and 985 miles of shoreline paralleling marine habitat in Washington.
January 5, 2006 – Alliance for the Wild Rockies and Friends of the Wild Swan file suit against the critical habitat final rule.
March 23, 2007 – Dept. of the Interior Inspector General releases report alleging possible interference by Deputy Assistant Secretary of the Interior Julie MacDonald with the bull trout critical habitat designation.
June 28, 2007 – Fish and Wildlife Service decides not to re-analyze the bull trout critical habitat designation due to Julie MacDonald’s political interference.
December 15, 2008 – Dept. of Interior Inspector General releases a new investigative report concluding that Julie MacDonald interfered with the designation of critical habitat for bull trout in several instances. She instructed agency biologists to abandon the best available science, to exclude all federal lands and exclude all lands that had any “plan” governing land use whether that plan was adequate or specific to bull trout.
December 22, 2008 – Fish and Wildlife Service gave the Court notice of the Inspector General Report and would determine whether to continue with the litigation, amend their position or pursue further administrative action.
March 23, 2009 – Fish and Wildlife Service gave notice to the Court that they would seek a remand of the bull trout critical habitat designation.
July 1, 2009 – Court orders the Fish and Wildlife Service to re-analyze the bull trout critical habitat designation with certain conditions. The draft rule is to be completed by December 31, 2009, the final rule is to be completed by September 30, 2010 and progress reports are to be completed every 60 days until the designation process is completed.
