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IN THE UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
CENTER FOR BIOLOGICAL DIVERSITY
213 North Second Ave
Tuscon, AZ 85705
and
WESTERN WATERSHEDS PROJECT
P.O. Box 1770
Hailey, ID 83333
Plaintiffs,
vs.
U.S. FISH AND WILDLIFE SERVICE
1849 C Street, N.W.
Washington, D.C. 20240,
GAIL NORTON, Secretary of the Interior
1849 C Street, N.W.
Washington, D.C. 20240
and
STEVEN A. WILLIAMS, Director
U.S. Fish and Wildlife Service
1849 C Street N.W., Room 3012
Washington, D.C. 20240-0001
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Defendants.
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF
INTRODUCTION
1.
The fluvial Arctic grayling (Thymallus arcticus) in the Big Hole River in
Montana represents the last native fluvial grayling population in the continental United
States. Once widely distributed throughout the upper Missouri River drainage above Great
COMPLAINT -- 1
Falls, Montana, today this remnant population exists in only one river, representing about 4%
of its historic range. Because of the dire condition of this isolated grayling population, in
1982 the U.S. Fish and Wildlife Service (“FWS”) placed the Montana fluvial Arctic grayling
on its list of candidate species for Endangered Species Act (“ESA”) protection, and gave the
Montana fluvial Arctic grayling a listing priority number of Category 1, the highest priority
for ESA listing.
2.
A decade later FWS had taken no further action to protect the grayling under
the ESA. Therefore, in 1991, a citizen petition prepared by Plaintiffs’ representatives was
submitted to FWS seeking “endangered” listing of the Montana fluvial Arctic grayling under
the ESA. When FWS finally acted on that petition in 1994, it again determined that listing of
the Montana fluvial Arctic grayling was “warranted” under the ESA, but “precluded” by
other listing priorities. At the same time, FWS downgraded the listing priority status to 9.
3.
Since then, FWS has still taken no further action to protect this distinct
grayling population under the ESA, despite the lack of successful or enforceable state
restoration measures. Instead, the Montana fluvial Arctic grayling has continued to languish
in the black hole of the FWS’ petitioned species candidate list, while its numbers and genetic
integrity are in further decline.
4.
Over two decades of purely voluntary state restoration and reintroduction
efforts have failed to restore or expand the Montana fluvial Arctic grayling, and recent
drought conditions exacerbated the threats to this grayling population. In fact, conditions
were so dire in 2000 and 2001 that no monitoring of the grayling population could be
conducted in the Big Hole River, and in 2002 surveys captured the lowest number of
Montana fluvial Arctic grayling in the past 14 years of sampling.
COMPLAINT -- 2
5.
This action seeks judicial relief to end this two decade-long pattern of inaction
and neglect by FWS that has pushed this remnant fluvial grayling population further towards
extinction. Specifically, Plaintiffs ask the Court to compel FWS to abide by its mandatory
duty under the ESA to provide protection for the Montana fluvial Arctic grayling under the
ESA when – as here – natural and human forces have led the species to the brink of
extinction. Plaintiffs also seek reversal and remand of FWS’ most recent decision in 2002
that listing the Montana fluvial Arctic grayling as an endangered species is “warranted but
precluded” under the ESA.
JURISDICTION AND VENUE
6.
This Court has jurisdiction over this action under 16 U.S.C. § 1540(g)
(ESA citizen suit provision); 5 U.S.C. §§ 701-706 (APA); 28 U.S.C. § 1331 (federal
question), and 28 U.S.C. § 2201 (declaratory judgment).
7.
Venue lies in this judicial district by virtue of 16 U.S.C. § 1540(g)(3)(A) and
28 U.S.C. § 1391(e) because the violations occurred here and because Defendants reside
here.
8.
Plaintiffs have provided FWS with sixty days’ written notice of the violations
alleged herein pursuant to 16 U.S.C. § 1540(g).
9.
Plaintiffs have formally demanded that FWS correct the violations of the ESA
alleged herein, but FWS has failed to comply with these demands and continues to do so.
An actual controversy therefore exists between the parties within the meaning of 28 U.S.C.
§ 2201(a) (Declaratory Judgment).
COMPLAINT -- 3
PARTIES
10.
Plaintiff CENTER FOR BIOLOGICAL DIVERSITY (“Center”) is a non-
profit corporation dedicated to the preservation, protection, and restoration of biodiversity,
native species, ecosystems, and public lands throughout the United States, including the
West. The Center has over 7,500 members, many of whom reside in Montana. The Center
and its individual members have an interest in ensuring the conservation and recovery of the
Montana fluvial Arctic grayling through the grayling’s listing under the ESA. The Center’s
members and staff regularly use lands and intend to continue to use lands throughout the
western United States, including the habitat and potential habitat of the Montana fluvial
Arctic grayling, for observation, research, aesthetic enjoyment, and other recreational,
scientific, and educational activities. The Center’s members derive scientific, recreational,
and aesthetic benefits from the Montana fluvial Arctic grayling’s existence in the wild.
Jasper Carlton, a member of the Center’s staff and former director of the Biodiversity Legal
Foundation, which was incorporated into the Center, was the primary author of the petition to
list the grayling as endangered. These interests of the Center and its members have been, are,
and will be directly, adversely and irreparably affected by the Defendants’ failure to advance
the listing of the Montana fluvial Arctic grayling under the ESA. The Center and its
members will continue to be prejudiced by Defendants’ unlawful actions until and unless the
Court provides the relief prayed for in this complaint.
11.
Plaintiff WESTERN WATERSHEDS PROJECT (“WWP”) is a non-profit
membership organization dedicated to protecting and conserving the public lands and natural
resources of watersheds in the American West. WWP has over 1,200 members, including
many members who live in Montana. WWP also maintains an office in Missoula, Montana.
COMPLAINT -- 4
WWP, as an organization and on behalf of its members, is active in seeking to protect and
improve the riparian areas, water quality, fisheries and other natural resources and ecological
values of western watersheds. WWP and its individual members have an interest in ensuring
the conservation and recovery of the Montana fluvial Arctic grayling through the grayling’s
listing under the ESA. WWP, its members and staff regularly use lands and intend to
continue to use lands throughout the western United States, including the habitat and
potential habitat of the Montana fluvial Arctic grayling, for observation, research, aesthetic
enjoyment, and other recreational, scientific, and educational activities. WWP’s members
derive scientific, recreational, and aesthetic benefits from the Montana fluvial Arctic
grayling’s existence in the wild.
12.
George Wuerthner, an active WWP member, worked with Jasper Carlton to
draft and file the petition to list the Montana fluvial Arctic grayling in 1991. Mr. Wuerthner
is a long-time Montana resident who has long advocated for the protection of native fish in
Montana, including the Montana fluvial Arctic grayling. WWP, its members, including Mr.
Wuerthner, and staff have been, and will continue to be directly, adversely and irreparably
affected by the Defendants’ failures with respect to listing the Montana fluvial Arctic
grayling under the ESA. WWP, its staff and members will continue to be prejudiced by
Defendants’ unlawful actions until and unless the court provides the relief prayed for in this
complaint.
13.
Plaintiffs, their staff, and members use and enjoy the wildlands of the state
of Montana, in particular the Missouri River basin and the Big Hole river, for
recreational, scientific, aesthetic, and commercial purposes. Plaintiffs, their staff and
members derive or, but for the declining status of the Montana fluvial Arctic grayling,
COMPLAINT -- 5
would derive recreational, scientific, aesthetic, and commercial benefits from the
existence in the wild of this population of fluvial grayling through observation, study,
photography, and recreational and commercial fishing. The past, present, and future
enjoyment of these benefits by Plaintiffs, their staff and members has been, is being, and
will continue to be irreparably harmed by Defendants’ arbitrary and capricious and longdelayed action to protect the Montana fluvial Arctic grayling under the ESA.
14.
The above-described aesthetic, conservation, and scientific interests of
Plaintiffs and their members have been, are being, and, unless the relief requested is
granted, will continue to be adversely affected and irreparably injured by the actions and
omissions of the Defendants. Plaintiffs’ injury in fact is fairly traceable to Defendants’
conduct and would be redressed by the relief that Plaintiffs seek in this case. Plaintiffs
have no adequate remedy at law.
15.
Defendant UNITED STATES FISH AND WILDLIFE SERVICE is an
agency or instrumentality of the United States, within the U.S. Department of Interior,
and is the federal agency to which the Secretary of the Interior has delegated the
responsibility of implementing the ESA and its regulations with respect to inland fish
species, including the Montana fluvial Arctic grayling at issue here.
16.
Defendant GAIL NORTON is the Secretary of Interior and is sued solely
in her official capacity.
17. Defendant STEVEN WILLIAMS is the Director of the FWS and is sued
solely in his official capacity.
COMPLAINT -- 6
STATEMENT OF FACTS
18.
In North America, fluvial Arctic grayling are distributed across Alaska
and Canada. However, in the Continental U.S., only two geographically isolated
populations formerly existed south of Alaska and Canada, one in Michigan and the other
in the upper Missouri River drainage in Montana. The Michigan population became
extinct in 1936. In Montana, fluvial Arctic grayling was once widely distributed
throughout the upper Missouri River drainage above Great Falls. Today, the fluvial
Arctic grayling of the Big Hole River in Montana represents the last, strictly fluvial
native grayling population in the continental United States, representing approximately
4% of the historical range of the fluvial Arctic grayling in Montana.
19.
FWS itself determined that the Montana fluvial Arctic grayling is a
distinct population segment. 59 Fed. Reg. 37738, 37740 (1994). Genetically diverged
from more northern populations in Alaska and Canada, the Big Hole population is a
reproductively isolated stock of Montana grayling that is genetically identifiable and
behaviorally adapted to riverine existence.
20.
Because this is the last remaining fluvial Arctic grayling population in the
continental U.S., scientific studies recognize that it is essential to preserve its genetic blue
print and enable expansion into its historic habitat.
The importance of preserving this last indigenous population of fluvial
Montana grayling is emphasized by these findings that they are different
from all other populations analyzed, both genetically and in being adapted
for riverine existence. Others have repeatedly stated the importance of
managing and preserving individual stocks of salmonids in order to retain
the ability of the species to occupy the varying habitats within its original
distribution.
COMPLAINT -- 7
Calvin M. Kaya, Review of the Decline and Status of Fluvial Arctic Grayling, Thymallus
arcticus, in Montana, in Proc. Montana Academy of Sciences 1992.
A.
Statutory Framework of the ESA
21.
Congress enacted the ESA “to provide a program for the conservation of
… endangered species and threatened species” and “to provide a means whereby the
ecosystems upon which endangered species and threatened species depend may be
conserved.” 16 U.S.C. § 1531(b). As the first step in the protection of these species,
Section 4 of the ESA, 16 U.S.C. § 1533, requires the Secretary to list species as
endangered or threatened when they meet the statutory listing criteria.
22.
The ESA defines species to include “any subspecies of fish or wildlife or
plants, and any distinct population segment of any species of vertebrate fish or wildlife
which interbreeds when mature.” Id. § 1532(16). A species is “endangered” when it “is
in danger of extinction throughout all or a significant portion of its range,” id. § 1532(6),
and it is “threatened” when it is likely to become endangered within the foreseeable
future. Id. § 1532(20).
23.
The FWS is charged with listing species as threatened or endangered
based “solely on the basis of the best scientific and commercial data available . . .,” id. §
1533(b)(1)(A), and whenever listing is warranted based on any one of the following five
listing factors:
(A) the present or threatened destruction, modification, curtailment of its
habitat or range;
(B) overutilization for commercial, recreational, scientific, or educational
purposes;
(C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms; or
(E) other natural or manmade factors affecting its continued existence.
COMPLAINT -- 8
Id. § 1533(a)(1).
24.
The ESA provides two mechanisms for considering species for listing. First,
the Act requires FWS to identify and propose for listing those species that require listing
under the standards of section 4(a)(1), listed above. 16 U.S.C. §1533(a)(1). When, under this
internal initiative process, FWS determines that a species warrants listing as threatened or
endangered, but for various reasons determines not to list the species, FWS places the species
on a so-called “candidate species” list. Candidate species receive none of the protections
afforded to listed species under the ESA. 50 C.F.R. §424.15(b).
25.
Second, the ESA’s “petition process” enables the public to petition FWS to
add a species to the Threatened and Endangered Species List. The ESA requires that when
FWS receives such a petition, it must determine within 90 days whether the petition presents
substantial information that listing is warranted (“90-day finding”). 16 U.S.C.
§1533(b)(3)(A). If FWS makes a positive 90-day finding, it must then make one of three
possible findings within 12 months of receipt of the petition (“12-month finding”): whether
listing is warranted, not warranted, or warranted but precluded. 16 U.S.C. § 1533(b)(3)(B).
26.
A warranted but precluded finding means that immediate publication of a
proposed rule to list the species is precluded by higher priority listing proposals. For each
species that is subject to an initial “warranted but precluded” finding, the ESA requires the
FWS to demonstrate:
a. how listing the species is precluded by pending listing proposals;
b. that expeditious progress is being made to add or remove species from the
list of threatened and endangered species; and
c. a description and evaluation of the reasons and data on which the finding
COMPLAINT -- 9
is based.
16 U.S.C. § 1533(b)(3)(B)(iii). Species for which listing is “warranted but precluded”
receive none of the protections afforded to listed species under the ESA. Any “warranted but
precluded” finding is subject to judicial review. 16 U.S.C. §1533(b)(3)(C)(ii).
27.
For any petition regarding which FWS has made a “warranted but precluded”
finding, the ESA requires FWS to make a new 12-month finding on the petition on the
anniversary of the “warranted but precluded” determination. 16 U.S.C. §1533(b)(3)(C)(i).
Therefore, FWS must make a new 12-month finding on the petition each year until it
publishes a proposed rule listing the species as threatened or endangered, or makes a
determination that listing is not warranted.
28.
These required annual findings on warranted but precluded listing actions are
referred to as “recycled petition findings” and are made via FWS’s Candidate Notices of
Review (“CNOR”). See 67 Fed. Reg. 40664 (June 13, 2002). FWS is required to
demonstrate the same three findings listed above for each recycled petition finding. 16
U.S.C. §1533(b)(3)(C)(i).
29.
FWS adds all petitioned species subject to a “warranted but precluded”
finding to the candidate species list. See 67 Fed. Reg. 40664 (June 13, 2002). In their CNOR,
FWS makes a listing priority decision for each “warranted but precluded” species.
30.
In 1983, FWS published guidance for a system for prioritizing candidate
species for listing. 48 Fed. Reg. 43098 (September 21, 1983). This system considers three
factors in assigning species numerical listing priorities on a scale of 1 to 12 (with 1 as the
highest priority). The three factors are:
a. magnitude of threat, where “[s]pecies facing the greatest threats to their continued
COMPLAINT -- 10
existence would receive the highest listing priority;”
b. immediacy of threat, which “is intended to assure that species facing actual,
identifiable threats are given priority over those for which threats are only
potential or that are intrinsically vulnerable to certain types of threats but not
known to be presently facing such threats;” and
c. taxonomic distinctiveness, which is “intended to devote resources on a priority
basis to those species representing highly distinctive or isolated gene pools….The
more isolated or distinctive a gene pool, the greater contribution its conservation
is likely to make to the maintenance of ecosystem diversity.”
48 Fed. Reg. 43098, 43103 (September 21, 1983).
31.
The ESA also provides for the emergency listing of “warranted but precluded”
species in need of immediate protection. In 1988, Congress amended the ESA to require the
Secretary to develop a system to monitor the status of all species in the “warranted but
precluded” category, and directed that the Secretary “shall” make “prompt use” of the Act’s
emergency listing authority to “prevent a significant risk to the well-being of any such
species.” 16 U.S.C. § 1533(b)(3)(C)(iii). The emergency listing provision gives the Secretary
the authority to issue a regulation to protect a species from “any emergency posing a
significant risk to the well-being of any species of fish or wildlife or plants.” 16 U.S.C. §§
1533(b)(3)(C)(iii) and (b)(7).
32.
Emergency listing is not subject to the normal listing process and procedures.
An “emergency listing” may take effect immediately upon publication of the regulation in
the Federal Register, and is effective for 240 days thereafter. 16 U.S.C. § 1533(b)(7). Once
COMPLAINT -- 11
an emergency listing becomes effective, the species immediately receives the substantive
protections afforded to listed species under the ESA.
B.
History of Listing Process for the Montana Fluvial Arctic Grayling
33.
In 1982, FWS used its internal initiative process to place the Montana fluvial
Arctic grayling on the candidate species list, giving it a Category 1 listing priority number.
Thereafter, however, FWS failed to move forward with the listing process, despite the
urgency of the threats facing the grayling as documented by FWS itself.
34.
A petition to list the fluvial Arctic grayling in Montana as an Endangered
Species was received by FWS on October 2, 1991, submitted in part by George Wuerthner
who is an active member of plaintiff group Western Watersheds Project and by the
Biodiversity Legal Foundation which has since been incorporated into the Center for
Biological Diversity, also party to this case. The petition listed the primary causes for the
decline of the species as habitat degradation by livestock grazing and stream dewatering,
competition with nonnative trout and past overharvesting by anglers.
35.
On January 19, 1993, and long after expiration of the statutory deadlines set
forth in the ESA for FWS to respond to the listing petition, FWS published its initial finding
in the Federal Register that the 1991 listing petition provided substantial information
indicating that listing of the fluvial population of the Arctic grayling of the upper Missouri
River in Montana and northwestern Wyoming may be warranted. 58 Fed. Reg. 4975 (January
19, 1993).
36.
On July 25, 1994, FWS published its “12-month finding” that listing of the
Montana fluvial Arctic grayling is “warranted.” 59 Fed Reg. 37738 (July 25, 1994). In the
12-month finding, FWS determined that the fluvial form of the Arctic grayling in the upper
COMPLAINT -- 12
Missouri River drainage is a distinct population segment, and identified the threats to the
fish, including dewatering of streams, competition or predation by nonnative fish, and habitat
degradation. The finding stated that the major impact on fluvial Arctic grayling habitat is by
the diversion of water for irrigation, which reduces available instream habitat for grayling,
resulting in stranding of incubating eggs or young fish, reducing food availability, increasing
water temperatures, decreasing survival of young grayling, and increasing mortality of
trapped fish when diversions are shut down. Despite these immediate threats, FWS
determined that proceeding with the listing was “precluded” by work on other species having
a higher priority for ESA listing.
37.
In addition to this “warranted but precluded” determination, FWS downgraded
the listing priority of the Montana fluvial Arctic grayling from Category 1 to 9. To support
this downgrading, FWS cited state voluntary and future conservation efforts such as
reintroductions of fluvial Arctic grayling in other streams, and flow enhancement projects.
59 Fed. Reg. at 37740 (July 25, 1994)
C.
Current Status of Listing Process And The Artic Grayling
38.
Since 1994, FWS has continued to reaffirm its “warranted but precluded”
decisions regarding the Montana fluvial Arctic grayling, including the most recent CNOR
issued in June 2002. See Review of Species that are Candidates or Proposed for Listing as
Endangered or Threatened; Annual Notice of Findings on Recycled Petitions; Annual
Description of Progress on Listing Actions, 67 Fed. Reg. 40657, 40669 (June 13, 2002); See
also 66 Fed. Reg. 54808 (October 30, 2001).
39.
In the June 2002 CNOR, FWS provides minimal information and no
evaluation of the reasons and data on which the “warranted but precluded” and Category 9
COMPLAINT -- 13
decisions for the Montana fluvial Arctic grayling are based. Instead, the 2002 CNOR
contains only one short paragraph applicable to the grayling, and issues a blanket finding
regarding past and present listing actions and expeditious progress applicable to all thirty-five
(35) “warranted but precluded” species. See 66 Fed. Reg. 54808 (October 30, 2001) and 67
Fed. Reg. 40657 (June 13, 2002).
40.
With respect to the grayling, the 2002 CNOR decision states:
….Currently, the only self-sustaining remnant of the indigenous fluvial
Arctic grayling population exists in the Big Hole River, estimated to
represent 5% or less of the historic range for this species in Montana and
Wyoming. Reestablishment efforts are under way in four streams within
the historic range. The Arctic grayling faces threats primarily from a
decrease in available habitat as a result of dewatering of streams for
irrigation and stock water, ongoing drought conditions, and habitat
degradation from dams and reservoirs. Landowners and other interests are
implementing actions to ensure adequate water conditions in the Big Hole
River. Additionally, predation on or competition with Arctic grayling by
nonnative trout are thought to be factors limiting grayling populations.
Due to imminent threats of a low to moderate magnitude, we assigned this
DPS of Arctic grayling a listing priority number of 9.
67 Fed. Reg. 40657, 40669 (June 13, 2002); see also 66 Fed. Reg. 54808, 54819 (October 30,
2001) (exact same language for 2001 recycled petition finding).
41.
The June 2002 CNOR, like previous versions, thus identifies two factors as
reasons for the “warranted but precluded” finding and priority ranking: (1) “reestablishment
efforts” that FWS says are “under way in four streams within the historic range,” and (2)
“landowners and other interests are implementing actions to ensure adequate water
conditions in the Big Hole River.” However, in their finding FWS fails to recognize that
none of these efforts are mandatory or enforceable; and further, that monitoring shows these
efforts have not been successful. To the contrary, the Arctic grayling in the Big Hole River
has suffered from extreme low flows and high temperatures since 1999, and impaired
COMPLAINT -- 14
riparian habitat. In addition, no self-sustaining population of Montana fluvial Arctic grayling
has yet been established through reintroduction efforts. In their own monitoring document,
the Montana Department of Fish Wildlife and Parks admits that the current restoration and
reintroduction efforts are inadequate and have, to date, been unsuccessful.
42.
The blanket “warranted but precluded” finding in the 2002 CNOR identifies
39 actions that supposedly precluded FWS from listing any of the 35 "warranted but
precluded" species, including the Montana fluvial Arctic grayling. Of these 39 actions, FWS
identifies the promulgation of 21 proposed or final critical habitat designations, 5 proposed
listings, 7 final listings, 3 emergency listings, one 90-day finding and two 12-month findings.
67 Fed. Reg. at 40664-65 (June 13, 2002).
43.
FWS also predicts in the 2002 CNOR that 39 future actions will continue to
preclude the agency from listing any additional "warranted but precluded" species, including
the Montana fluvial Arctic grayling, for the coming year. These 39 future actions include the
promulgation of 21 proposed or final critical habitat designations, 4 proposed listings, 11
final listings, three 12-month findings, and an unspecified number of 90-day findings. Id.
44.
As stated above, the ESA requires FWS to demonstrate, in its “warranted but
precluded” findings, how listing the species is precluded by pending listing proposals, that
expeditious progress is being made to add or remove species from the list of threatened and
endangered species, and to provide a “description and evaluation of the reasons and data on
which the finding is based.” 16 U.S.C. §§ 1533(b)(3)(B)(iii) and (b)(3)(C)(i). This
description and evaluation of reasons and data supporting the “warranted but precluded”
decision is essential to the petitioning process and provides the basis for review of the
Secretary’s decision by the court.
COMPLAINT -- 15
45.
Most of the actions cited in the 2002 CNOR to support FWS’ “warranted but
precluded” determination are critical habitat designations. However, the ESA does not
include critical habitat designation as one of the reasons FWS can use to determine that
listing a species is “warranted but precluded.” The ESA states that FWS can only make a
“warranted but precluded” determination if it can show that listing “is precluded by pending
proposals to determine whether any species is an endangered…or a threatened species, and
expeditious progress is being made to add qualified species to either of the lists…and to
remove from such lists species for which protections of this chapter are no longer necessary.”
16 U.S.C. §1533(b)(3)(B)(iii)(emphasis added).
46.
In addition, as the District Court for the District of Columbia recently noted in
American Lands Alliance v. Norton, Civ. No. 00-2239 (RBW), by lumping all of the species
into one finding, “the FWS is failing to individually address why each specific species is
precluded, which the petition process arguably requires.” As the court recognized, such
lumping of all species into one finding does not take into account the regional variations in
funding allocations for ESA listings, and regional differences in listing priorities.
47.
The court further voiced concern that the FWS’ list of higher priority species
is mainly comprised of species that were the subject of earlier court orders and settlement
agreements. The court stated that while such higher priority species “may be entitled to a
priority greater than the species at issue in this case, classifying degrees of endangerment
solely on when court orders were issued or settlements were reached does not seem to this
Court to ensure that species that are most at risk will be given proper consideration for
listing.” Id.
48.
The 2002 CNOR also fails to provide an adequate description and evaluation
COMPLAINT -- 16
of reasons and data on which are based the Category 9 listing priority decision for the
grayling. As stated previously, the ESA requires that FWS base this evaluation on the three
candidate species prioritization factors: magnitude of threat, immediacy of threat, and
taxonomic distinctiveness.
49.
The 2002 CNOR does not do this for the Montana fluvial Arctic grayling, but
simply concludes that the magnitude and immediacy of threats are low to moderate because
there are reintroduction and restoration efforts ongoing. Defendants fail to include any
evaluation of the success, or lack thereof, of the restoration or reintroduction programs on
which this decision is based, or of the taxonomic distinctiveness of the Montana fluvial
Arctic grayling. As alleged above, monitoring information shows that the restoration and
reintroduction programs have not been a success to date, and have failed to improve the
status of Big Hole grayling population or establish other fluvial grayling populations within
the historic range.
50.
Defendants also violated the ESA by relying on the State of Montana’s
voluntary, unenforceable management actions for the “warranted but precluded” and
Category 9 decisions. As previously stated, the ESA requires FWS to consider five
factors in listing decisions, including “the adequacy of existing regulatory mechanisms.”
16 U.S.C. §1533(a)(1)(D). Yet FWS has nowhere addressed the inadequacy of the
State’s purely voluntary actions, which are not existing regulatory mechanisms.
51.
The ESA further directs FWS to base listing determinations on the best
available scientific data. 16 U.S.C. § 1533(b)(1)(A). While this section enables FWS to
“take into account those efforts, if any, being made by any State, …or any political
subdivision of a State…, to protect such a species…. 16 U.S.C. § 1533(b)(1)(A), courts
COMPLAINT -- 17
have specifically and repeatedly interpreted these provision to mean that the agency may
not rely upon a State’s future unenforceable actions to justify a decision not to list a
species as threatened or endangered.
52.
The Montana fluvial Arctic grayling reintroduction and restoration efforts are
purely voluntary and unenforceable, providing no assurances that they will be carried out,
when they will be carried out, nor whether they will be effective in eliminating the threats to
the species. Defendants have relied on these programs to project an optimistic future trend in
grayling populations and habitat since the initial “warranted but precluded” and Category 9
decisions in 1994, and continue to do so today.
53.
Defendants also violated the ESA by failing to make “prompt use” of the
ESA’s emergency listing mandate to protect the only remaining fluvial grayling population in
the continental U.S. from substantial and immediate threats. 16 U.S.C. §§ 1533(b)(3)(C)(iii)
and (b)(7).
54.
Substantial and immediate threats currently exist and pose the specter of
complete extinction in the wild of the Montana fluvial Artic grayling. In addition to the
extremely limited population numbers and location of the grayling, these threats include: (a)
the failure and voluntary nature of the state restoration and reintroduction efforts, (b)
recurring and persistent drought conditions, which have caused severely reduced water levels
and lethal temperatures in the Big Hole river for past few years; (c) poor riparian habitat
conditions, (d) and competition and predation by other fish species.
55.
As stated previously, conditions were so dire in 2000 and 2001 that no
monitoring of grayling could be conducted in the Big Hole River, and in 2002 surveys
captured the lowest number of grayling in the past 14 years of sampling. In addition, the
COMPLAINT -- 18
spawning population was skewed to older fish, indicating limited spawning success or poor
recruitment since 1999. These and other data show that the Montana fluvial Artic grayling
faces substantial and imminent threats to its continued existence, thus warranting emergency
listing actions under the ESA.
56.
Nevertheless, Defendants have failed and refused to use their emergency
listing mandate to protect the grayling from these threats, in violation of the express
mandates as well as the intent of the ESA. Plaintiffs lack an effective remedy at law to
prevent irreparable harm to the species and their interests. Absent judicial relief, such
irreparable and imminent harm threatens the viability and continued existence of the
Montana fluvial Artic grayling.
FIRST CLAIM FOR RELIEF:
FWS IS IN VIOLATION OF THE ESA AND APA BY FAILING TO
ACT TO PREVENT SIGNFICIANT RISK TO THE WELL-BEING
OF THE MONTANA FLUVIAL ARCTIC GRAYLING
57.
Plaintiffs incorporate by reference all preceding paragraphs.
58.
The ESA requires FWS to monitor all species for which a “warranted but
precluded” determination was made and to make “prompt use” of the Act’s emergency
listing authority to “prevent a significant risk to the well-being of any such species.” 16
U.S.C. §1533(b)(3)(C)(iii) and (b)(7).
59.
Monitoring information collected as part of the state voluntary restoration and
reintroduction programs, of which FWS is a part, details the significant risks to the wellbeing of the Montana fluvial Arctic grayling, and the imminent threat of extinction.
60.
Defendants are in violation their mandatory duty under the ESA, 16 U.S.C. §§
1533(b)(3)(C)(iii) and (b)(7), by failing to make prompt use of its emergency listing mandate
COMPLAINT -- 19
to prevent significant risk to the well-being of this unique population of grayling and reverse
the threat of imminent extinction.
61.
Defendants' failure to emergency-list the grayling also constitutes agency
action unlawfully withheld or unreasonably delayed under Section 706(1) of the APA. 5
U.S.C. § 706(1).
SECOND CLAIM FOR RELIEF:
FWS IS IN VIOLATION OF THE ESA AND APA BY FAILING TO
MAKE A LAWFUL “12-MONTH FINDING” IN THE 2002 CNOR
FOR THE MONTANA FLUVIAL ARCTIC GRAYLING
62.
Plaintiffs incorporate by reference all preceding paragraphs.
63.
As hereinbefore alleged, Defendants “warranted but precluded” and
Category 9 listing priority decisions for the Montana fluvial Arctic grayling in the 2002
CNOR violate several of FWS’ mandatory duties under the ESA including, but not
limited to:
a. Violation of 16 U.S.C. § 1533(b)(1)(A) and its implementing
regulations, 50 C.F.R. § 424.11, by failing to base their decisions solely on the
basis of the best scientific and commercial data available;
b. Violation of 16 U.S.C. §§ 1533(a)(1) and (b)(1)(A) and its
implementing regulations by basing their decisions on voluntary, unenforceable
and future management actions.
c. Violation of 16 U.S.C. §§ 1533(b)(3)(B)(iii) and (b)(3)(C)(i) by failing
to include a description and evaluation of the reasons and data on which the
findings are based.
64.
Defendants’ “warranted but precluded” and Category 9 listing priority
COMPLAINT -- 20
decisions for the Montana fluvial Arctic grayling in the 2002 CNOR are also arbitrary and
capricious an abuse of discretion, and not in accordance with law under section 706(2) of the
APA, 5 U.S.C. § 706(2), because they are not based on the best available science, they rely
on future, voluntary actions, and they are not supported by the reasons provided. Further,
Defendants’ failure to list the Montana fluvial Arctic grayling based on the best available
science constitutes agency action unlawfully withheld or unreasonably delayed under Section
706(1) of the APA. 5 U.S.C. § 706(1).
WHEREFORE, Plaintiffs pray for relief as set forth below.
REQUEST FOR RELIEF
By way of relief, Plaintiffs request that this Court:
A. Issue declaratory, injunctive, and/or mandamus relief, requiring Defendants to
issue and publish an adequate “12-month finding” on the Montana fluvial Arctic grayling
listing petition promptly, and in any event no later than 30 days from the date of the Court’s
order;
B. Declare Defendants to be in violation of the Endangered Species Act and/or
the APA and reverse and remand the 2002 CNOR decision with respect to the Montana
fluvial Arctic grayling.
C. Issue declaratory, injunctive, and/or mandamus relief requiring Defendants to
issue and publish an emergency listing decision for the Montana fluvial Arctic grayling
promptly, and in any event no later than 30 days from the date of the Court’s order;
D. Issue such other temporary, preliminary and/or permanent injunctive relief as
Plaintiffs may hereafter request;
COMPLAINT -- 21
E.
Award Plaintiffs their reasonable litigation expenses (including expert witness
and attorney fees) pursuant to the citizen-suit provision of the Endangered Species Act, 16
U.S.C. § 1540(g)(4), the Equal Access to Justice Act, and/or other applicable provisions of
law; and
F.
Grant Plaintiffs such further relief as may be appropriate.
Dated: May ___, 2003. Respectfully submitted,
_______________________________________
JAMES B. DOUGHERTY (D.C. Bar #939538)
709 Third St. SW
Washington DC 20024
(202) 488-1140
(202) 484-1789 [FAX]
______________________________________
JUDITH M. BRAWER (ID Bar #6582)
ADVOCATES FOR THE WEST
P.O. Box 1612
Boise, ID 83701
(208) 342-7024
(208) 342-8286 [FAX]
COMPLAINT -- 22