Wilderness Watch v. United States Fish & Wildlife Serv.

• Docket Number: CV 23-77-M-DWM
• Decision Date: 02 August 2023
• Parties: WILDERNESS WATCH, ALLIANCE FOR THE WILD ROCKIES, GALLATIN WILDLIFE ASSOCIATION, and YELLOWSTONE TO UINTAS CONNECTION, Plaintiffs, v. UNITED STATES FISH & WILDLIFE SERVICE, an agency of the U.S. Department of Interior, Defendant, and MONTANA DEPARTMENT OF FISH, WILDLIFE AND PARKS, Defendant-Intervenor.
• Court: U.S. District Court — District of Montana

1

WILDERNESS WATCH, ALLIANCE FOR THE WILD ROCKIES, GALLATIN WILDLIFE ASSOCIATION, and YELLOWSTONE TO UINTAS CONNECTION, Plaintiffs,
v.
UNITED STATES FISH & WILDLIFE SERVICE, an agency of the U.S. Department of Interior, Defendant,

and MONTANA DEPARTMENT OF FISH, WILDLIFE AND PARKS, Defendant-Intervenor.

No. CV 23-77-M-DWM

United States District Court, D. Montana, Missoula Division

August 2, 2023

OPINION AND ORDER

DONALD W. MOLLOY, DISTRICT JUDGE

Plaintiffs challenge the United States Fish and Wildlife Service's (the “Service”) decision to install a permanent pipeline for Arctic grayling in the Red Rock Lakes Wilderness of southwestern Montana. Plaintiffs are environmental organizations that claim the decision violates the Wilderness Act, 16 U.S.C. §§ 1131-36. The Service has indicated that construction activity could begin as

2

soon as August 15, 2023, (see Doc. 19-5 at ¶ 3), and Plaintiffs seek a preliminary injunction, (Doc. 6). A motion hearing was held on July 27, 2023. Because Plaintiffs have shown that preservation of the status quo is appropriate to allow complete judicial review of agency action before a permanent alteration is made to a wilderness area, the motion is granted.

Background

In 1935, President Franklin D. Roosevelt designated the Red Rock Lakes National Wildlife Refuge in the Centennial Valley in southwestern Montana as a “refuge and breeding ground for wild birds and animals.” (Doc. 7-5 at 5.) In 1976, Congress designated a portion of this area-32,350 acres of wetlands and large, shallow lakes-as the Red Rock Lakes Wilderness. See PL-557, 90 Stat. 2633 (Oct. 19, 1976) (codified at 16 U.S.C. § 1132). Under the Wilderness Act of 1964, federal land management agencies are statutorily obligated to “preserv[e] the wilderness character of the area.” 16 U.S.C. § 1133(b). The Act defines “wilderness” as “an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.” Id. § 1131(c). Consistently, while recreational and conservation-related activities can be appropriate in such areas, see id. § 1133(b), certain activities are generally prohibited: “there shall be no temporary road, no use of motor vehicles, motorized equipment or motorboats, no landing of aircraft, no other form of mechanical

3

transport, and no structure or installation,” id. § 1133(c). The only exception to this provision being activities that are “necessary to meet minimum requirements for the administration of the area for the purpose of [the Wilderness Act].” Id. It is within this framework that Plaintiffs' challenge arises.

I. Montana Arctic Grayling (Thymallus arcticus)

The Arctic grayling is a freshwater fish in the salmon family that resides in the Upper Missouri River drainage in southwestern Montana. (Doc. 7-5 at 4.) The Centennial Valley, located in the Upper Missouri River drainage, contains one of four remaining populations of Arctic grayling in the contiguous United States “still exhibiting the full spectrum of life history behaviors present in historical grayling population.” (Id.) According to the Service, this specific population is a discrete genetic group “considered vital to long-term conservation of Arctic grayling genetic diversity in Montana.” (Id. at 7.) Currently, most of the Centennial Valley grayling population spawns in Red Rock Creek and spends nonbreeding portions of the year in Upper Red Rock Lake, which measures approximately 2,900 acres with a maximum depth of about six and a half feet. (Doc. 7-3 at 5-6.) After recently peaking at 1131 fish in 2015, the estimated grayling spawning population in Red Rock Creek has declined to 88 fish in 2021 and 73 fish in 2022. (Doc. 19-4 at 1; Doc. 7-3 at 2.)

4

In 2011, the Service began to coordinate with other federal and state agencies to pursue habitat conservation and restoration efforts for Arctic grayling in the Centennial Valley. (See Doc. 7-7 at 5.) One of the early goals was to elect a target grayling population for Upper Red Rock Lake. (Id.) In 2017, these groups adopted the “Centennial Valley Arctic Grayling Adaptive Management Plan,” which defined a desired abundance threshold at a population of 1,000 spawning grayling in Upper Red Rock Lake. (Id. at 6.) This population goal was believed to ensure the “long-term self-sustaining persistence” of the Centennial Valley population going forward. (Id. at 6-7.) The Adaptive Management Plan identified a number of factors that negatively bear on the abundance of Arctic grayling, including a decline in spawning habitat, competition or predation by other native and nonnative fish, and limited winter habitat. (See id. at 9-10.)

The primary winter habitat for Arctic grayling within this drainage is Upper Red Rock Lake, (Doc. 7-5 at 4), and the population “has undergone significant declines in abundance in recent years,” (id. at 7). The agency has identified “[h]igh winter mortality of grayling within Upper [Red Rock] Lake during periods of hypoxia (low dissolved oxygen)... as the primary limiting factor for grayling in the Centennial Valley.” (Id. at 4.) Low-oxygen conditions during the winter occur when deep snow covers the ice on the shallow lake, blocking the “sunlight that is used by aquatic plants to photosynthesize.” (Doc. 7-4 at 115.) This causes

5

aquatic plants to die, which both prevents those plants from creating more oxygen and consumes oxygen through the decomposition process. (Id.) The Service has therefore pursued action to “improve the amount of deep, well oxygenated underice habitat in Upper [Red Rock] Lake for wintering grayling.” (Doc. 7-5 at 7.) Suitable overwinter habitat for grayling in Upper Red Rock Lake is greater than 4 parts per million (“PPM”) of dissolved oxygen” and water “greater than 1 meter deep.” (See Doc. 23-1 at ¶ 16.)

Notably, despite consistently low population numbers, the Arctic grayling is not listed as threatened or endangered under the Endangered Species Act (“ESA”). Indeed, in its most recent 2020 “12-Month Finding,” the Service concluded that “it is not warranted at this time to list the Upper Missouri River [distinct population segment] of [A]rctic grayling.” (Doc. 7-4 at 1, 187; see also id. at 2-8 (discussing history of ESA review and related litigation).)

II. Agency Action

Between 2017 and the present, the Service pursued a number of different management strategies to address winter oxygenation levels in Upper Red Rock Lake. For example, during the winters of 2020-21 and 2021-22, the Service implemented water releases from Widgeon Pond. (Doc. 7-5 at 11; Doc. 7-10 at 2.) The Service also engaged in the “notching” of beaver dams each spring prior to spawning, which “removes a portion of existing beaver dams to ensure grayling

6

have access to upstream spawning areas.” (Doc. 7-5 at 12.) And, during the 2023 winter season, the Service installed an electric-powered diffuser aerator on the lake surface as a pilot test for the potential efficacy of a larger-scale diffuser installation. (See Doc. 7-1 at 3.)

In February 2023, the Service issued a draft Environmental Assessment (“EA”), identifying the following six alternative actions:

Alternative	Description
A - No Action	“[C]urrent management strategies, including water releases from Widgeon Pond into [Upper Red Rock Lake], beaver dam notching, and seasonal fishing closures, would continue.”
B - Electric Powered Splashers or Diffusers	“[W]ould implement the use of electric powered splashers or diffusers to increase oxygen levels in [Upper Red Rock Lake] and improve winter habitat for grayling.”
C - Electric Generators with Pumped Aeration	“[W]ould use an electrical pump connected to high-density polyethylene (HDPE) pipeline to extract deoxygenated water from [Upper Red Rock Lake] and transfer that water to a land-based aerator ..., which is then pumped back into [the Lake] at a separate location.”
D - Shambow Pond Diversion Pipeline	“[W]ould use a buried, gravity flow diversion pipeline to deliver oxygenated water to [Upper Red Rock Lake] during winter months to improve conditions for grayling.”
E - Permanent Barrier from Elk Springs creek to the Lake Center	“[T]he Refuge would construct a permanent wall of sheet piling or similar material... to direct the dominant flow of oxygenated water from Elk Springs Creek into the center of the lake.”
F - Dredge and Berm Elk Springs Creek	“[W]ould use a shallow floating dredge to remove sediments near the mouth of Elk Springs Creek.”

7

(See Draft EA^[1] at 10-14; Doc. 7-5 at 11-15.) In May 2023, the Service issued a Final EA, (See Doc. 7-5), and on June 1, 2023, published a “Finding of No Significant Impact and Decision to Implement Conservation Efforts for Arctic Grayling” or “FONSI” selecting Alternative D, (See Doc. 7-1). Under this alternative, a gravity diversion pipeline would deliver approximately 2 cubic feet/second of oxygenated water during winter months from East Shambow Creek and Shambow Pond to the center of Upper Red Rock Lake. (Id. at 1.) “The pipeline would be 5,300 ft in total length, with 3,300 ft on land and the remaining 2,000 ft in [Upper Red Rock Lake].” (Id.) The pipeline would be installed in a 4,700 feet long trench that is approximately 2 feet wide by 6 feet deep. (Id. at 4.) “Visible infrastructure will include a vault (20in x 6in x 16in) on the north side of the lake to control flow, some minor infrastructure (below 8in in height) near Shambow Pond, and multiple cleanouts along the pipeline. All would be at ground level and placed in such a way that natural topography would reduce the visibility of any structures.” (Id. at 1-2.) Additionally, the existing Widgeon Pond releases, beaver dam notching, and fishing closures would continue. (Id. at 2.)

8

Although the Service's wilderness review...