Can Conservation and Collaboration Save the Big Hole Grayling?
Ranchers and environmentalists are joining together to save an imperiled fish in the Big Hole River Valley. Will their work keep the grayling alive?By Jonathan Stumpf, 9-23-09
Last Best Fish: The Story of the Big Hole Grayling from New West on Vimeo.
To the casual observer, the upper Big Hole River valley is just another classic Western landscape with postcard-worthy vistas and comforting desolation. But in this high-altitude river, the struggle of an imperiled fish is playing out.
In this valley, time has stood relatively still, with the terrain intact just as it was 50 years ago. The river, however, is changing. It is home to the last native population of fluvial (river-dwelling) Arctic grayling in the Lower 48, and the fish has been in steady decline since it was described more than 25 years ago by nature writer David Quammen as “under certain specific conditions, the most exquisitely colorful bit of living matter to be found in the state of Montana.”
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| Photo by Mark Emery. All other photos by Jonathan Stumpf. | |
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As an age-old fight for water continues, the Big Hole grayling population—estimated at around 1,000—is trying to hang on. “We’ve got Arctic grayling swimming through sagebrush in Montana,” says Peter Lamothe, fisheries biologist with Montana Fish, Wildlife and Parks (FWP). “That’s kind of a unique thing.”
The GuardiansCulturally and biologically, things run much slower up here—possibly one reason why the grayling, a glacial relic from the Pleistocene era hanging on at the southern extent of its range, have persisted in four percent of its original range. In the valley, a broad mix of scientists, ranchers and environmentalists have been working for years to save the grayling, all in their own ways. Their stories are below.
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Over the years, the fight for the grayling has included common tactics: Federal litigation, activism, educational studies and habitat restoration. But so far, no action has given much hope. Until now. A collaborative conservation process involving government, ranchers and non-governmental agencies is emerging as the possible salvation of the fish.
It's called the Candidate Conservation Agreement with Assurances program and you might call it a form of conservation insurance. It's somewhere between voluntary conservation and federal mandate, a middle-ground that might just save one of Montana's native species.
Opinions have always differed about what should be done for the Big Hole grayling, often radically. But the problem and the solution always come down to one thing: water. In this harsh climate where ranching rules the land and growing seasons are short, water is at the heart of survival for both the fish and the rancher. The ranchers depend on the water for economic survival; without it the agricultural landscape would perish. For the grayling to thrive, the water should be cool, clean and abundant. However, these days, adequate water in the Big Hole River is lacking for everyone.
Similar struggles are happening across the West, where ecology and economy converge. A high-profile case took place in 2001, in the Klamath River basin in eastern Oregon. The river was determined to provide critical habitat to both the endangered sucker fish and threatened Coho salmon. That year, the federal government denied water to 1,300 users in the basin, saying that under the Endangered Species Act (ESA), the fish trump the farmers. In the Blackfoot River basin in western Montana, Wasson Creek was dewatered every summer because of the agricultural demands put on it by those with the water rights. In this instance, Montana’s Trout Unlimited leased these private rights and now the creek flows continually throughout summer, providing the necessary habitat for the pure-strain westslope cutthroats that inhabit the stream. Both of these cases mimic what's playing out in the Big Hole valley.
Historically, fluvial Arctic grayling were found in Michigan and Montana, a glacial relic from the Pleistocene era hanging on at the southern extent of its range. The Michigan population went extinct in the 1930s, leaving the Big Hole River grayling as the last native population in the Lower 48. They once thrived in all rivers in the Missouri River watershed above Great Falls, but then the nation’s thirst brought a need for water storage. This practice is not conducive to grayling survival since they require long connectivity in rivers for spawning. With dams being built on the Missouri, Madison, Sun, Ruby, Jefferson and Beaverhead, the Big Hole was left as the longest stretch—156 miles—of un-dammed river in the watershed. Add the introduction of non-native trout, climate change, habitat degradation, and over-harvest from early anglers, and now the grayling are barely holding on in four percent of their original range. Attempts are being made at restoring other populations in the Ruby and Sun Rivers, but with hatchery fish. Those native populations are already extinct.
Go north to Canada or Alaska and you’ll find ubiquitous populations of the Arctic grayling. They grow much larger and are regarded as a sport fish much like salmon or trout, where these rivers are still very wild, flow much larger and cooler, and provide longer free-flowing stretches required for spawning. Even in other states across the West, adfluvial (lake-dwelling) populations thrive. Until recently, they were viewed by the U.S. Fish and Wildlife Service (USFWS) as a disparate species based on behavior and genetics. People and agencies have been aware of the diminishing numbers of grayling in the Big Hole for the latter part of the last century, giving the Big Hole grayling quite an active legal history.
The Legal Wrangling
Although this population of grayling has been recognized as a sensitive species for more than a quarter-century, the attempts by organizations to gain ESA protection for the grayling has not been easy. In 1982, the USFWS recognized the Upper Missouri River basin grayling as a sensitive species. Nine years later, with no mandated protection from the USFWS, in 1991, the Center for Biological Diversity, based in Tuscon, Ariz., petitioned the USFWS to list the Big Hole grayling under the ESA. Three years later, the USFWS determined it was warranted and put it on a candidate list for ESA protection. Again, in 2003, the Center for Biological Diversity along with the Hailey, Idaho-based Western Watersheds Project sued the USFWS for its refusal to list the grayling. The USFWS responded in March of 2004, still recognizing it as a distinct population segment but this time elevating its status to the highest priority level for a candidate species without making the ESA list. That same year, the previous plaintiffs sued again in May to list the Big Hole grayling under the ESA’s emergency provision. The litigation was settled out of court in August 2005, determining that the USFWS would make a final judgment for ESA protection of the fluvial grayling by April 15, 2007. Eight days past the 2007 deadline, the USFWS service announced the findings of its 12-month study, stating that the fluvial Arctic grayling of the Big Hole River did not constitute a species, subspecies or distinct population segment and therefore did not warrant protection. The fish was removed from the candidate list for the ESA. Seven months later, the Center for Biological Diversity, along with the Western Watersheds Project, the Federation of Fly Fishers, and individuals George Wuerthner and Pat Munday, filed a lawsuit against the USFWS to overturn the April 2007 decision. The outcome is still pending and could take upward of three years for a decision.
Should the grayling receive listing under the ESA, it could potentially modify the way ranching operations run, forcing the landowners and ranchers to return water to the river. If the fish were listed, each landowner would be assessed on an individual basis by the USFWS as to whether practices are in violation of the Act. Private property rights do limit a complete takeover, but since water is central to grayling survival and is the foundation of their habitat, most ranches’ removal of water from the river would be restricted. Any farmers who receive federal funds, for instance a farm subsidy, would be held to even tighter federal interference should grayling get listed. Most ranchers, therefore, oppose listing the grayling under the ESA, but that is not to say they want to sit back and watch it to go extinct. Michelle Anderson, a professor at Montana Tech in Butte and board member of the Big Hole River Foundation, recently conducted a survey of 300 watershed residents and agency individuals about grayling management. Although preliminary, the results indicate that of the 90 people who replied, most do believe grayling numbers have stayed about the same or decreased over the last decade. Notably, all but a few respondents wished to see grayling numbers maintain or increase above current levels.
Collaboration
Thus, what's emerging as a solution for the grayling comes from many of those people Anderson surveyed – the people on the ground in the Big Hole, working on their own solutions, regardless of the possibility of federal intrusion. Back in 2004, all ranchers knew a decision was pending, so Cal Erb, a rancher near Wisdom in the upper Big Hole valley, began investigating the different types of agreements that would offer his ranching operation protection from a grayling listing. He discovered the Candidate Conservation Agreement with Assurances, Lamothe says. The CCAA program was developed in 1999 by the USFWS and provides regulatory incentives to landowners with sensitive species on their properties, as long as they engage in active conservation. In return for habitat conservation work, the landowners sign a legally binding agreement that states they will be protected from being charged with the “taking” of an ESA species should the grayling get listed. Under the ESA, a “taking” of a listed species in this situation would be “modifying the habitat of a listed species in such a way that interferes with essential behavioral patterns including breeding, feeding or sheltering.” De-watering the river or destroying the riparian habitat would be two infractions that under ESA regulations, and could lead to $50,000 in fines or one year in jail or both. So the CCAA essentially states this: Help conserve the grayling now and, should they get listed, you’ll be exempt from further violations and government interference. “They fully understood they would have to implement positive action,” Lamothe says.In 2005, work began on drafting the CCAA for fluvial Arctic grayling in the upper Big Hole River, a collaborative planning effort of various state and federal agencies, including the USFWS, Montana FWP, Montana Department of Natural Resources and Conservation and the USDA Natural Resources Conservation Service. Each agency contributed to the document with roles being administered based on the specialties of each agency, but also based on the previous working relationships the various agencies had with landowners in the valley. While the CCAA is a program based on the implementation of conservation knowledge and skills from the various agencies, it also deeply rooted in the relationships that agency individuals have built up over the years with landowners. Lamothe adds that the success of the program “is based on the personalities of the agency folks that are involved.”
Because of the mobility of the grayling—they sometimes travel up to 70 miles during spawning—the project area encompasses roughly 320,000 acres of private land, from the Dickie Bridge river access—the midway point on the river—up to the headwaters. The overall project area is then broken down into five smaller parcels. The document became official on August 1, 2006, and enrollment was open to any landowners within the program area for 30 months. To date, the CCAA has enrolled 33 landowners with almost 157,000 private acres and 8,000 acres of state land. In comparison to the other 17 active CCAA programs that have been developed since the program’s inception in 1999, the Big Hole CCAA has the largest number of enrollees.
The structure of the CCAA authorizes the USFWS to grant authority to the Montana FWP and their partners to enter into agreements with the 33 landowners and work together to create site-specific restoration projects to enhance the grayling habitat. The four conservation targets in the CCAA are restore in-stream flows, riparian habitat restoration, eliminate entrainment (fish lost in irrigation ditches) and removal of passage barriers for fish.As of October 2008, there were 47 active projects. These include grazing plans to reduce the impact of livestock on the river banks and digging stock water wells to remove them from the river altogether. Over 70 miles of riparian fencing has gone up along the river and tributaries, and outdated headgates are being replaced to more efficiently manage diversions. Stream-side vegetation is being replaced; during a two-day volunteer effort in 2007, over 20,000 willows were planted along the river and tributaries. Fish barriers have been installed on irrigation ditches. Dilapidated culverts have been replaced and streams relocated out of livestock feedlots.
All of these projects are funded by the various state and federal agencies, and by NGOs, including grants obtained by the Big Hole Watershed Committee and Big Hole River Foundation. Roughly half of the $4 million spent on the project to date has come from taxpayers and the other half from grants. Lamothe, the manager of the CCAA at the state level says they are limited by staff, not funds. “We haven’t identified a project and not be able to fund it,” he says. Ranchers also commit resources to the projects and to date have contributed time, labor, on-site materials like willows, gravel and sod mats, and continuing maintenance of habitat projects.
The Missing Ingredient: Water
However, critics of the CCAA say the essential factor to saving grayling—putting water back into the river—is missing from the agreement. They say consensus doesn’t help because there is no requirement in the CCAA that requires landowners to legally put water back in the river. “Without dealing with the problem of minimum in-stream flows,” says Pat Munday, author and plaintiff in the current USFWS lawsuit, “grayling recovery under the CCAA is doomed to failure. The Rock Creek reconnection project is an example of this: great riparian and stream restoration project, but utter failure last summer [2007] because of de-watering.”The Rock Creek project overhauled the riparian habitat of the tributary and restored its connection to the Big Hole River (previously, it flowed into an irrigation ditch). Willows were planted and a new stream channel was created in the spring of 2007. That summer, record temperatures and low precipitation throughout the West put a strain on irrigation, and Rock Creek went dry.
Water is at the crux of this issue -- but without healthy habitat, the water is essentially useless. Jim Magee, a grayling biologist with Montana FWP, says just water in the river will not recover the grayling. “Without having functioning channel and riparian systems, habitat conditions are severely degraded regardless of flows,” Magee says. “If we have 20 cubic-feet per-second (cfs) in a healthy channel with intact riparian systems, the stream can support much higher biomass, invertebrate, fish and wildlife species. Having a degraded channel that is shallow and over-widened will result in decreased biomass. The message is while in-stream flows are extremely important, there is no magic number.”
While the CCAA does not state a specific amount of water that each landowner must return to the river, it does provide minimum flow targets under a 10-year plan based on the cumulative effect of various actions. This makes the negotiation for reductions in irrigation diversion by the landowners critical. It is a voluntary plan, but all landowner participants are making a concerted effort to strive for the minimum flows. Last year, landowners enrolled in the CCAA released 140 cfs of water to the river that could have been legally used for irrigation, Lamothe says. He understands the landowners' water rights, which is why collaboration with the landowners to reduce irrigation is so crucial. “There is a legal right to divert water,” Lamothe says. “If your goal is to end that, then your fight from my perspective is in Helena. You have to change the law. If you want to save grayling, then your fight is in the Big Hole.”
“It is hard to put a specific number [on minimum stream flows] because hydrology and climate is extremely variable, and is changing all the time,” say Mike Roberts, the hydrologist from the state’s Department of Natural Resources and Conservation who is working with the CCAA. He says that variables, like the timing of runoff and snowpack, change every year. “We haven’t got resolve on the water issue because it is something that can’t happen overnight. It has taken a lot of years to gain trust to work with these folks.”
Add to the other variables climate change, non-enrolled landowners who have rights to the water and a river basin with more water rights than it has water in the river, and the in-stream flow issue gets sticky. In addition, a water rights adjudication process is underway for the entire Big Hole River basin and a final decree won’t be made for at least two years, at which time many of the water rights could change, adding one more level of complexity.
Another potential option to help manage in-stream flows is the use of water leasing, which suggests two things: a change of part or all of the water right from irrigation to in-stream flow and financial compensation for this change from various agencies. But because the basin is un-adjudicated, the ranchers don’t yet know the amount of their water right or its value. In 2004, the BHWC secured $1 million from the USDA-NRCS to pay ranchers for lost production associated with reduced irrigation diversions. “It was an emergency action with very good intentions from all involved,” Lamothe says, “but as with most things related to water rights it is very difficult to make it perfect. Again, the primary issue was the inability to recognize the value associated with senior water rights because the final decree for the basin has not been issued.”The motivations to sign up with the CCAA vary. The primary reason is the possible ESA listing, but for Max Lapham, a fourth-generation rancher near Jackson, he says the CCAA has given him the opportunity to complete projects that would normally restrict him financially, with his motivation being that it helps the land, not because of the imminent threat of a grayling listing. “It is going to help the watershed and the creek,” Lapham says. “You understand that much. But it is just whether you want to put that money into that well when there are some other priorities that will come first. But with the CCAA, it puts those things up in the front and we have had the financial help to do it.” He says the process has been educational and the overall effect is helping. “I feel like I am helping what my great granddad started. I feel like I am doing some things that are really good for the land,” Lapham says.
Jim Hagenbarth, a rancher of the lower Big Hole and active member in the Big Hole Watershed Committee, understands the importance of a healthy watershed, but doesn’t believe an area should be managed just for the critical habitat of a specific species. “You lose sight of the big picture and all the other species that are dependent upon the habitat,” Hagenbarth says. “I am more interested in the habitat than the grayling, because it is the base from which life comes.” Hagenbarth clearly appreciates the flow of life within his ranch, but is intolerant of outsiders trying to change his way of life. “The liberal courts and the extreme environmental obstructionists have turned the ESA into a weapon to change land use,” Hagenbarth says. “The groups that support the grayling in court have hardly participated in the grayling recovery efforts. They are only interested in stopping diversion of water and the livestock industry in the Big Hole.”
One of these groups, a plaintiff in the current lawsuit, is the Western Watersheds Project (WWP), an organization that is outspoken about the detrimental effects that ranching can have, and about land and water use in the West. Many of their campaigns involve restoring the landscape of the West to the wild state it once was before the advent of livestock production through either litigation or competitive bidding for grazing leases, a program they pioneered in 1993. Executive director Jon Marvel believes that most ranchers involved with the CCAA have signed up out of fear of an ESA listing for the grayling. “What kind of program is that,” Marvel asks “where you are acting out of fear, instead of because you actually care about saving these fish?”
In this multi-sided controversy, even the various environmental organizations have differing views. Regardless of reasons for signing onto the CCAA, Bruce Farling, executive director of Montana Trout Unlimited, sees that work is immediately being done to improve the habitat. “I think we are getting these guys to do more under a CCAA than they would if they were just straight listed with a top down recovery plan,” Farling says, citing the federal action that supplants local involvement with an ESA listing. “I’m convinced of it, which is why people from Western Watersheds Project and the Center for Biological Diversity, the guys that are suing over this stuff, they don’t get any of it. To them, the fish is almost an abstraction. They forget about people. [To them] it is all about reforming western water law—forcing people to put water back in the river and thumping agencies for not doing their jobs. The fish become secondary.”Marvel says a pre-conception of people who litigate for endangered species is that they hate people, don’t want them around and that they are waging a war on the West. “None of that is true,” he says. But his views differ about the many ranches in the Big Hole valley. “[The ranches] are not important economically to the state of Montana,” Marvel says. “They are not important ecologically. Sure, they are important to individual landowners there, but that is true everywhere. If we are going to save the grayling, the way people are going to live there is not as livestock producers. We really don’t need any more cattle; it is bad for your health anyway.”
He does admit that some ranchers are more actively involved with conservation efforts than others, but not enough so that the net result of all the ranching will save the fish. “They need to put water back in the streams or not take it out in the first place,” Marvel says. “If they are unwilling to do that, then it seems to me that they really don’t want to save the fish.”
Some environmentalists think that current Montana water law gives too much priority to existing water rights and makes it difficult to free up water for environmental purposes, especially since the law regards surface water as a public resource. While other Western states like Wyoming, Colorado and New Mexico have minimum in-stream flow laws in place, Montana does not. Marvel says that water is critical for the fish to survive, thus their motivation for challenging the decision. “A lot of people have said to me ‘You can’t change private water rights or water diverted from streams on private land,’” Marvel says. “I think they’re severely mistaken if that is what they believe. I think that the law is powerful enough to force water back in the stream. I don’t know a better way to put it. The law is designed to save species.”
If the Big Hole grayling has any chance of recovery and survival, the CCAA program could be their immediate salvation. With over 157,000 acres of habitat, roughly $4 million in funds and countless man hours on the ground and behind the scenes contributed to this species, it at least gives the grayling a fighting chance.
Kendra Womack, a fish biologist with the USFWS in Boise, Idaho, studied the CCAA program extensively while completing her master’s at Utah State University. She says that the Big Hole CCAA, compared to other CCAAs, really addresses what is being done for the fish. “There are places where the CCAA is being used more to protect the landowners and not the species,” Womack says. “With the grayling, you can identify very specific things to do that have very measurable impact on the species. I don’t know that in the grayling case a listing would really be beneficial, especially because of how much has gone into building relationships and building trust.”
Jeff Everett, the USFWS CCAA representative, says the entire program is based on building relationships with the landowners and that takes an investment of time and energy. “It takes time to build up the credibility that you have their best interest in mind,” Everett says “and that the goals and objective that you have from a resource point of view, and fixing the habitat have everything in common with the ranch, and their goals and objectives from a livestock operation point of view.”
The CCAA does offer a less confrontational way to save grayling, but many ranchers aren’t convinced the document will provide full protection from the law should the grayling get listed. Harold Peterson, a rancher in the upper Big Hole valley along Big Swamp Creek is aware of this and while the CCAA is offering him protection from a possible ESA listing, it has yet to be legally tested once a species is listed. “Who is to say they list the grayling,” Peterson asks, “and then those environmental groups come back in with some high-powered lawyers after you have already done what was asked? This is scary stuff. You get a big group with a lot of money come in here and file a lawsuit, and you have to spend $100,000 to defend yourself. That is not too good. We’re dealing with dynamite really.”While grayling numbers in the Big Hole have decreased from the time people first noticed, no one involved with recovering the fish has completely given up yet, from the ranchers to the agency individuals to the litigants. They are each implementing what they believe is the best method to restore the grayling, from planting willows to drafting conservation plans to fighting legal battles. The efforts continue and whether it is enough to elicit a positive response from the population is yet to be determined. The Big Hole hasn’t changed too much from the time Quammen traveled to the river to write about these fish and while there may be fewer grayling in the river today, overall his words still hold true: “They are there, the Big Hole grayling,” he wrote in 1982 for Audubon magazine. “At least for now.”
Correction: This story has been altered to correct a reference to fluvial grayling that should have been adfluvial (lake-dwelling) and to correct which agency reimbursed ranchers in 2004 for water not used for irrigation.
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Collaboration? Probably not. These folks with financial interests in the water have had many chances to give some back to the grayling. Did they? No, not a drop. Of course, they are taking more federal subsidies in the CCAA program to do riparian restoration work, but not one is willing to turn off the diversions. Given that people have been collaborating for quite some time without any positive changes, it appears that collaboration alone cannot save the grayling.
There needs to be a minimum in-stream flow in the river. When that minimum is reached, ditches must be turned off. No exceptions. This is what happens in other states. Unfortunately, Montana refuses to ensure minimum in-stream flows. The state's failure to provide for the grayling's basic water needs is a clear indication that federal jurisdiction under the ESA must be invoked.
Good intentions on the part if water users are simply not enough. Actions are what really count, and no one is offering to leave the water in the river. Case closed.
While the participants of the CCAAs and other efforts celebrate miniscule flows that are "voluntarily" returned to the Big Hole River instream flows, the miss the bigger picture - Highway robbery or water piracy, including by some of the same CCAA participants, who are banking on the Federal guarantees of no future legal and enforcement problems, when the Montana fluvial grayling and its critical habitats receive their just protection, restoration, and recovery under the Federal Endangered Species Act ("ESA").
Dr. Pat Munday of Butte, MT has it right - you can spend Federal and state restoration dollars trying to keep the Montana fluvial grayling from being listed under the ESA as was done for Rock Creek, but as a Federal judge once remarked about the Klamath River Basin, "Fish Need Water!"
Montana fluvial grayling not only need flowing water, but also it needs to be cold, clear, and clean. Not like the irrigation and stockwater return flows, if any.
Out of the lime light of the CCAAs and the glad-handing among participants as portrayed by award-winning documentaries such as The Nature Conservancy's "Fish and Cow: Restoring the Upper Big Hole River," is the ongoing fight for the Big Hole River watershed's vitality and only real chance for the Montana fluvial grayling's continued existence and potential recovery; its water!
The Big Hole Basin (41-D) Adjudication is creeping along under the watchful eyes of the Montana Department of Natural Resources & Conservation and the Montana Water Court. MT DNRC did its homework, carefully examining aerial and satellite photographs of the Big Hole River watershed as well as county records and pertinent county legal cases involving water rights.
Out of the 3,708 water rights filed in the Big Hole River Basin, and which are being considered in the ongoing adjudication by the Montana Water Court and MT DNRC, 1,828 are for agricultural irrigation (largely growing hay and pastureland for domestic livestock) and another 1,464 water claims are for watering the cattle and other stock. The livestock watering claims are grossly underestimated in the adjudication and have never been quantified since the MT Legislature built stock water into the adjudication process statewide, with the rancher's option of filing for an individual water right and no limit on the number or size of cows, horses, sheep, and goats in the basins. Without valid stockwater estimates and limits, the adjudications including the Big Hole Basin are questionable since the MT DNRC and Montana Water Court have no idea if an adjudication over-appropriates the available water sources or not… and where does this leave the Montana fluvial grayling, that teeters on the edge of global extinction?
Keep in mind, most of those irrigation rights support the cattle industry, which also enjoys other Federal and state subsidies such as ridiculously cheap public grazing permits ($1.35 per Animal Unit Month (“AUM”) vs. $20-30 per month for the same cow-calf pair grazing on private lands), USDA Natural Resources Conservation Service handouts and other forms of Federal “welfare” for private ranchers, and of course, the infamous USDA Wildlife Services, paid government wildlife killers of natural predators such as mountain lions, grizzly and black bears, coyotes, bobcats, and grey wolves. All of this, and while feeding at the government trough, the ranchers and irrigators still don’t pay for our most valuable public natural resource in the American West, the consumption of life-giving water.
And what did they find? The MT DNRC has performed well and published more than 325 pages of "Issue Remarks" that are available on their web site for anyone to examine. Issue Remarks are differences between water claimants and what the State of Montana can clearly document as legal and reasonable water claims and that after years of negotiations cannot be resolved, except perhaps in the Montana Water Court.
Now for the Issue Remarks in the Big Hole Basin Adjudication. Out of the total of 3,708 water claims filed, an unbelievable 1,705 have Issue Remarks by the MT DNRC. For irrigators, 1,113 out of the 1,828 claims (or 61%!!) and for those ranchers that voluntarily filed for stockwater rights, another 280 claims with Issue Remarks.
Most of the Issue Remarks for irrigators' and ranchers' water claims examined by Western Watersheds Project showed that the water claims were expansive. That is, the ranchers and irrigators were legally grabbing for water that they have no right to. If this was a horse or a steer, instead of publicly owned water and its dependent public trust natural resources, in the Old West, this type of rustling would be considered an hanging offense.
Some irrigators claimed more water (cubic feet per second) than they were documented to have used historically, while others magically seized the opportunity to grab public water and claimed significantly more acres than they were entitled to irrigate or that the State can clearly identify from historical aerial photographs from the 1950s and 1960s. Still, others expanded their season of water use in the near-Arctic winters of the Big Hole Basin and claimed irrigation rights for the entire year! WWP also is challenging some water claims with Issue Remarks where the amount of water claimed applied to the hay or other crop field acreage greatly exceeds what the state water experts consider normal irrigation practices, without breaking the Western Water Law tradition and wasting precious water, while denying the endangered Montana fluvial grayling.
At the same time, what little instream flows that MT FWP holds in the public trust on the Big Hole River are hardly met. When the Montana Legislature years ago initiated its program to purchase or lease water from water users for conservation purposes including instream flows, they wooed the Big Hole Basin water users, but quickly turned away because of the greed demonstrated by outrageously high prices that Big Hole ranchers and farmers wanted to extort from the people of Montana.
In the topsy-turvy world of Montana Water Law, brought to you by the Montana State Legislature, a water claim in an adjudication, like the Big Hole Basin, may stand as it is, even if the state can clearly prove it wrong. That is, unless someone objects, as has Western Watersheds Project (“WWP”), Montana Trout Unlimited, and in some cases, even the Montana Fish, Wildlife & Parks, USDI Bureau of Reclamation, USDI National Park Service, USDI Bureau of Land Management, and USDA National Forest Service.
WWP objected to 96 expansive and defective water claims in the Big Hole Basin Adjudication and filed Notices of Intent to Appear for objection hearings for an additional 53 objection hearings as opponents of water grabs in the Big Hole River watershed. Lots of work in the name of public trust natural resources like the imperiled Montana fluvial grayling, but a mere drop in the bucket when weighed against all the water grabs. We will wait to see how these objections to help protect the stream flows of the Big Hole River watershed and its totally dependent populations of Montana fluvial grayling, Westslope cutthroat trout, and other wildlife species play out. Stay tuned!
Drive into the Big Hole River Watershed and see how well the CCAAs and other voluntary and Federally subsidized efforts to thwart its eventual ESA listing are doing. What you will see is an Upper Big Hole River that is largely dewatered, overgrazed with miles of denuded, trampled banks, and waters too warm to sustain and recover this living gem of Montana.
The cautionary tale for New West readers and rooters for the underdog, like the imperiled Montana fluvial grayling, is the necessity to carefully evaluate the information that you are presented... and in this case, take it with several grains of salt.
Are not the lake-dwellers called adfluvial?
Adfluvial Montana grayling live a good bit of their lives in lakes (natural or in some cases human-made), but then spawn and rear their young in tributary streams of the lakes. These two life history strategies are quite similar to native bull trout, which also sport fluvial and adfluvial populations, but occur west of the Continental Divide in Montana, Idaho, Oregon, Washington, etc.
The management challenges are great in the fight for getting the Montana fluvial grayling populations Federal protection for continued conservation, recovery, and restoration of their critical habitats. Unlike adfluvial Montana grayling, which have had some success in culture in hatcheries and also some success in introductions into other lakes systems, including many that were not in their native range, Montana fluvial grayling require instream flows, which may not be available in the overappropriated Upper Missouri River basin of Montana, and the few attempts of re-establishing populations outside of the Upper Big Hole River watershed have been largely dismal failures.
Western Watersheds Project and others concerned for the Montana fluvial grayling's future and recovery were worried that the U.S. Fish and Wildlife Service might combine the fluvial and adfluvial populations of the Montana grayling into one "species" (known as a Distinct Population Segment or "DPS") and then declare the fish recovered, delist it, and quit conservation efforts on its part based on past and potential future successes with Montana adfluvial grayling.
Don't get me wrong, the native populations of Montana adfluvial grayling are also imperiled and most likely deserve ESA-listing status, designated critical habitat, and a fully-funded recovery plan, but they at least have much more management hope than the status quo with Montana water rights and current land uses for their riverine cousins.
If you get a chance, check with the U.S. Fish and Wildlife Service out of Bozeman. Their fishery biologist has just completed a very thorough population genetics study of Montana grayling. In the peer-reviewed scientific study that is to be published very soon, Doug Peterson and his colleague clearly demonstrate using the most modern genetics techniques that Montana fluvial grayling are not only genetically unique from other Arctic grayling, they remain genetically distinct from Montana adfluvial grayling (even where the lake-dwellers have been introduced on top of Big Hole River watershed populations) and most importantly, genetically distinct from other fluvial Arctic grayling populations from Canada and Alaska.
In case you don't recall, Julie MacDonald, the political hack hiding out within the U.S. Fish and Wildlife Service under the Bush Administrations that was responsible for politicizing much of the science of the sound and largely sincere fishery and wildlife biologists of the FWS, claimed after more than 30 years of waiting to list and watching the Big Hole River populations further decline as the flows diminished and their range became more restricted, that Montana fluvial grayling did not deserve ESA listing because there were loads of riverine Arctic grayling in Canada.
Well, times have changed, Julie MacDonald has departed in disgrace and left the Obama Administration holding the bag for cleaning up her messes, and the FWS own expert Doug Peterson has clearly demonstrated with sound science that the Montana fluvial grayling is genetically distinct from other grayling in Montana and throughout North America.
To answer another concern, there is no doubt that exotic brown trout, particularly some that are tipping the scales at more than 20 lbs!!, and other introduced but beloved fish like rainbow trout, are having a major effect on the range and survival of imperiled Montana fluvial grayling. We know the historic range as viewed by Lewis and Clark was the entire Upper Missouri River Basin in Montana, upstream of Great Falls. Also, we are realistic to know that these historic fluvial grayling waters are the flyfishing Meccas for America's anglers including the legendary Madison River, Jefferson River, lower Big Hole River, Gallatin River, the Upper Missouri River, and Beaverhead River... and there is little or no political, social, economic, and ecological hope of the imperiled Montana fluvial grayling swimming all of its historic waters like they did in Lewis and Clark's day. This being said, there is no reason to stand aside as the last foothold for the Montana fluvial grayling is dried up under a flawed Basin Adjudication and bet its entire future on voluntary participants depending on mercurial Federal funding.
We hope the ESA protection is granted soon so that the American public and this beautiful fish that teeters on the brink of extinction, in part because of some people's greed for more water and money, don't depend on the voluntary largesse of ranchers, irrigators, and Federal and state agencies; many of us would rather depend on the U.S. laws and its supporting regulations.
You must have missed 2003 when the ranchers tried to kill them off by draining the river at Wisdom to 6cfs during the spawn in April when the ground was frozen solid and they had no use for the water. Good stewards, yah right.
I'm glad to see the head biologist Magee worrying about keeping ranches viable and Lamothe trying to keep them from going extinct at the rate they are now. Fingers in a dike. After watching the video and reading the story I'm more worried than ever.
The fish need water, the ranchers want it all. It's really very, very simple. Buy the valley from under the rapers and make it a park. It would be good for everyone and everything involved and would be a huge draw for Beaverhead County rivaling Yellowstone or Africa in wildlife.
Eat Beef and YOU ARE killing these fish.
Sad, now I need to shoot a cow.
So true, but hey we've spent millions for Fluvial Grayling restoration on the Ruby without results as the USFWS is killing a perfect Brook Char pond in the area for adfluvial Grayling when the Ruby is an ideal place for such an undertaking. Fluvial Grayling + reservior = failure. Duh. Long term this project has zero chance of success unless you want adfluvial fish.
Hey what do I know though.
Remove the perceived threat of an ESA listing and the possibility of third-party suits for illegal section 9 Takes, and watch not only the Big Hole River at Wisdom, MT dry up, but also the much touted and beloved CCAA projects and their collaborators.
You seem to put a lot of faith in the ESA and it's ability to actually recover populations of imperiled critters. If the process is so successful, as you elude, why haven't we experienced more success with the program? There are currently over 1,200 species listed under ESA and of those, only 14 have actually been recovered in the last 36 years (since passage in 1973). That success rate is less than a whopping 1%. I do not have the same faith in the system as you possess. Simply putting critters on a list and DEMANDING that certain actions are taken has not worked in the past and will not work today. The bottom line to recovering species is actually improving conditions that imperil them on the landscape (not on paper in a courtroom). I totally agree with INSIDE SCOOP that true change comes about with education and incentives. Look at the "voluntary" grayling situation and the massive success that have actually been "installed" on the landscape in just a few short years. Several hundred fish barriers have "voluntarily" been removed, improving fish passage greatly in the river system. Many "miles" of streams have been restored to provide optimum fishery habitat and watershed sustainability. Several "sizable" conservation easements now perpetually protect the habitats, and will never house a Walmart or subdivision. This is all done by educating the local community as to the needs of the fish and watershed and simutaneously LISTENING to the communities needs and developing workable soluations that work for both. The community that lives in the Big Hole Valley is an intergral part of the Valley and the winning of their hearts and minds is the key to sustaining this unique fish. Before being so critical, I suggest you take a hard look at the amount of positive things for grayling this partnership has actually accomplished and continue to accomplish.
Lawyers, judges, and extremely radical groups (like yours) do nothing but delay the actual (on the ground) restoration process and turn people away from restoring imperiled critters.
Furthermore, I firmly believe that groups like the one you represent, have ZERO interest in actually recovering any species, because at the end of the day in decreases your bottom line. You get no $$ if common people take actions into their own hands and restore imperilled critters.You thrive on ongoing court battles and litigation, because that is your vested interest ($$$) in the situation. You are right about one thing, with ESA listing comes guarenteed ($$) sources, too bad all the funds go to lawyers for groups like yours and not the actual species recovery where it is needed. Shame on you.
I think you are overly critical of the ESA. The problem with the ESA is that it doesn't actually go into effect until species are on the brink of extinction. Any listed species is already close to being wiped out. Recovering them is not something that happens over night--especially since in most cases there are a myriad of factors responsible for the species decline.
However, I can say with strong evidence that listing has preempted the extinction of many species that-- had they not gotten attention--would have likely be gone forever at this point.
Although it varies from species to species, often the reason the species is in decline is due to special economic interests. These economic interests are not likely to change their behavior without some prompting--whether we are talking about challenging the logging of old growth forest over the spotted owl or putting an end to commercial whaling. When there's a strong economic incentive to continue killing the species or altering its habitat, reversing those activities is not easily accomplished, and there is abundant evidence that it does not happen voluntarily.
I am quite certain that in the absence of the threat of ESA listing many of the actions you so admire from the Big Hole would never have occurred. The ranching community had decades of prior notification that the grayling was in decline and did little to change the practices that were harmful to the fish. Only the real threat of listing has altered behavior.
I am convinced that in the absence of the proposed listing, very few of those positive changes you noted would have come about voluntarily. And judging by a recent trip to the Big Hole drainage where i found plenty of trampled meadows and riparian areas, dewatered streams, and so forth, what has been done is still not nearly enough to ensure the survival, much less the flourishing of the grayling.
Whether listing under the ESA will do enough to save the fish at this point, I can't say. The grayling is perilously low in numbers--and much, much lower in numbers than it would have had as a starting point had the fish been listed back in 1991 when I first petitioned for it. All the stalling tactics by both the state of Montana, as well as the local ranching communities has almost ensured that the grayling will have a very steep climb if it is going to be saved at all. If it is not in the 1% of species recovered that you cite, one can only say that doing too little for too many years is certainly one reason and is not a fault of the ESA.
The proof is in the pudding: 15 years of "voluntary" efforts have failed to help Big Hole grayling. In fact, the population continues to decline. While I appreciate your call for patience in the slow process to "win hearts and minds" (that was the LBJ euphemism for the US strategy in Vietnam!), the biological data indicates that grayling might not be able to wait that long. Once gone, they're gone forever. And the Axolotl/Turner broodstocks are no savior: the broodstocks have experienced genetic selection & drift that could well make them nonviable.
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