Environmentalists announce intent to sue over Big Hole grayling
The only home in the 48 contiguous states to find fluvial, or stream-dwelling, grayling is in a stretch of the upper Big Hole River, a stream beset by drought and conflicting demands for its water.
If successful, the promised suit might result in leaving more water in that famous fishery for trout, as well.
But it could also set up a conflict between two complicated sets of law, one federal and one state. And some fear it could widen the gulf between landowners and sportsmen.
On one hand would be the federal Endangered Species Act, which mandates strong protections for listed species.
On the other would be the voluminous code of Montana water rights law, which is complicated enough that the state has special judges that work only on water issues.
"It's going to be an interesting question," said Chuck Davis, endangered species listing coordinator for the U.S. Fish and Wildlife Service in Denver. "We've talked about this for years."
At the core of the debate would be how much water will flow between the Big Hole's banks, how much will be pumped out to irrigate fields and who decides where the water goes.
The goal of the proposed suit is "to put some additional pressure on those folks (ranchers) to stop withdrawing water when there's a drought," said Noah Greenwald, of the Center for Biological Diversity.
That group, along with the Western Watersheds Project and George Wuerthner on Monday filed, as required by federal law, a 60-day notice of intent to sue the government.
"We're going to file the suit," Greenwald said this week.
Both those groups and Wuerthner have a long history of sharply criticizing the ranching industry, especially for its grazing practices on public land.
The fluvial arctic grayling - as opposed to lake-dwelling grayling - is in trouble. Few people disagree about that.
FWS ruled in 1994 that the fish deserved ESA protection but had to wait because other species were in worse peril.
Since then, numbers have fallen further, especially young fish.
The Montana Department of Fish, Wildlife and Parks tried in the late 1990s to plant grayling in the Madison, Jefferson, Gallatin, Ruby and Sun rivers, but none of the efforts succeeded.
Part of that was due to drought, said Bruce Rich, fisheries manager in Bozeman for FWP.
"The timing wasn't good, but regardless, they haven't done well," Rich said Tuesday.
Ranchers, anglers and others have been working together for years as the Big Hole Working Group, trying with some success to keep more water in the stream, but the ongoing drought has made that a tough job.
"We've kept the river from going dry, but it apparently isn't enough," Rich said.
Steve Pilcher, executive director of the Montana Stockgrowers Association, said pitting the ESA against treasured water rights in a court battle could be bad for the river, for the ranchers and for the anglers and floaters who use it.
Many Big Hole ranchers decided to use less water during the drought, Pilcher said, and the grayling likely would be in even worse condition without those efforts.
Stretches of the Big Hole have been closed to angling during much of the summer for the past several years because of drought.
But without more water in the river, the grayling is doomed, Greenwald said.
"Without protection under the ESA," he said, "Montana fluvial arctic grayling will go extinct."
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