Battle for bull trout 

How environmental advocates beat political perfidy

Many years ago, while snorkeling the North Fork of the Flathead River, I slipped into a large eddy behind a fallen tree to rest and watch the incredibly clear and cold water rush by. Moments later, an enormous fish, easily more than 2 feet long, appeared on the edge of the eddy. It was shaped like a torpedo, flame-orange belly glowing, bright red spots covering its sides and long jaws ready to snap up any hapless fish passing in the current. Although increasingly rare, it is perhaps the most beautiful of Montana's native fish—a mature bull trout. Now, thanks to the relentless work of two Montana environmental groups and an investigation of corrupt officials from the Bush administration, the battle for the bull trout's future has taken a turn for the better.

The story starts in 1973 with the passage of the Endangered Species Act, the purpose of which is to conserve or recover the ecosystems upon which endangered and threatened species depend. The secretary of the Interior determines which species should be listed as threatened or endangered based upon "the best scientific and commercial data available...after conducting a review of the status of the species."

Bull trout populations, which require clean, cold and connected water to survive, began to diminish throughout their range as commercial activities such as logging and road-building impacted the rivers, streams and lakes in which the once-plentiful fish are born, mature and spawn.

Pursuant to their legal mandates, the U.S. Fish and Wildlife Service conducted investigations and determined that bull trout should be listed as "threatened" under the Endangered Species Act. The next step was to identify which areas contained "critical habitat" and take steps to preserve and restore those ecosystems.

The initial determinations of critical habitat were the subject of contentious debate, lawsuits and court rulings, with development and resource extraction industries taking steps to limit the designations as environmental advocates and scientists fought to preserve enough habitat to save the fish from extinction.

Jump forward now to the Bush administration, where infamous Interior Secretary Gale Norton throws the West wide open to drilling, mining, logging and resource extraction of all types. In 2004, she appoints Julie MacDonald as deputy assistant secretary for fish, wildlife and parks, giving her control over the future of species listed under the Endangered Species Act. MacDonald wastes no time in wading into the fray and, in 2005, severely curtailed critical habitat designations for bull trout.

In 2006, the inspector general of the Department of the Interior launches an investigation of MacDonald's activities pursuant to a complaint alleging she had "bullied, insulted, and harassed the professional staff of the Fish and Wildlife Service to change documents and alter biological reporting regarding the Endangered Species program."

In 2007, the inspector general issues a report that finds MacDonald has violated the Code of Federal Regulations in a number of ways. Specifically, investigators "confirmed that MacDonald has been heavily involved with editing, commenting on, and reshaping Endangered Species Program's scientific reports from the field," while noting "MacDonald admitted that her degree is in civil engineering and that she has no formal educational background in natural sciences such as biology."

While the report finds "no illegal activity on her part," it determines she has "disclosed nonpublic information to private sector sources, including the California Farm Bureau Federation and the Pacific Legal Foundation. In fact, MacDonald admitted that she has released nonpublic information to public sources on several occasions during her tenure as Deputy Assistant Secretary for FWS."

To make a long story short, MacDonald's actions affected critical habitat designations for a number of threatened or endangered species, including bull trout. While MacDonald resigned in disgrace, the Alliance for the Wild Rockies and Friends of the Wild Swan filed a lawsuit in federal court to force the Fish and Wildlife Service to review and re-issue the critical habitat designations.

In his Opinion and Order, issued in July 2009, U.S. District Judge Robert E. Jones rips MacDonald's interference, including this summary from the inspector general's report: "We determined that MacDonald was heavily involved with excluding large amounts of areas from the bull trout CHD (critical habitat designation)...Many FWS staff whom we interviewed believed MacDonald's ad hoc policy decisions resulted in a final CHD rule that was not based upon the best available science and was harmful to the recovery of the species. In fact, one FWS manager who supervised the development of the CHD rule stated that the final rule—after MacDonald's exclusions—defied logic, and he stated that he would be unable to defend the final rule in a court of law if asked to do so by a judge."

The 2005 rule contained 3,828 occupied stream miles, 143,218 acres of lakes and 995 miles of marine shoreline in Washington. The new rule, released last month and open for public comment until March 15, lists 21,694 stream miles, 533,426 acres of lakes and reservoirs and 985 miles of marine shoreline in Washington. Based on real science instead of industry favoritism, the streams and lakes deemed critical to bull trout survival have been increased more than five-fold. Meanwhile, maintaining and restoring clean, cold, silt-free water benefits all species, not just bull trout.

All too often we hear that environmental advocates are "obstructionists" because they use the judicial system. But when political perfidy trumps science in federal agencies, the courts provide the checks and balances upon which our social order depends.

Thanks to the Alliance for the Wild Rockies and Friends of the Wild Swan, these magnificent Montana natives have a far greater chance of avoiding extinction than they had just five years ago. And maybe, just maybe, future generations can one day find themselves in a North Fork eddy, eye-to-eye with a huge, beautiful, mature bull trout.

More information on the new critical habitat rule and how to comment can be found at www.wildrockiesalliance.org.

Helena's George Ochenski rattles the cage of the political establishment as a political analyst for the Independent. Contact Ochenski at opinion@missoulanews.com.

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