Nevada Grazing Permit Struck Down, and WWP and CBD File a Legal Complaint to Force the Listing of Montana's Declining Arctic Grayling

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USDI Administrative Law Judge James Heffernan Voids BLM Grazing Permit In Elko County Nevada

Western Watersheds Project and the Committee For The High Desert have successfully appealed a Bureau of Land Management decision to transfer a grazing permit from Bell Brand Ranches to Bert Brackett, one of Idaho's largest livestock operators, in O'Neil Basin in northern Nevada. The O'Neil allotment is home to a small population of Lahontan cutthroat trout in the West Fork of Deer Creek. Lahontan cutthroat have been listed under the endangered species act for thirty years without significant recovery.

The BLM sought to make the transfer without an environmental analysis required under the National Environmental Policy Act. Brackett's was represented by legal counsel Alan Schroeder of Boise.

In a ruling handed down on May 9, 2003, Administrative Law Judge James Heffernan reversed and remanded the BLM's action. In his ruling, Heffernan upheld WWP and CHD's claim that the decision to extend a 10-year permit to the O'Neil Grazing Association, which Brackett hastily formed, required full NEPA analysis, and that the agency's Documentation of NEPA Adequacy, or DNA, failed to comply with NEPA and was not a document recognized under any law.

Heffernan even chided the agency for using DNAs to make its case, noting that they are not part of NEPA but an independent, "ad hoc" creation of the agency.

Heffernan also ruled that the BLM failed to consider in its decision a previous environmental impact statement that indicated the need for environmental protection of O'Neil Basin.

WWP is pursuing further remedies under this decision under the legal representation of attorney Todd Tucci of the Boise office of Advocates For The West who also argued the successful case.

Conservation Groups Sue to Protect Montana Arctic Grayling

This News Release Was Sent Out Wednesday May 21, 2003:

The Center for Biological Diversity, Western Watersheds Project and conservationist George Wuerthner today sued the U.S. Fish and Wildlife Service for failing to list the Montana fluvial arctic grayling as an endangered species.

In response to a petition from CBD and Wuerthner, FWS determined in 1994 that the Montana fluvial (found in rivers) arctic grayling warranted protection as an endangered species under the Endangered Species Act. However, the agency maintained that this status was "precluded" by higher-priority activities.

Despite two decades of voluntary state actions that failed to restore the grayling, and recent dramatic declines in grayling populations, FWS has not taken further action to list the species.

Once found throughout the upper Missouri River drainage above Great Falls, Montana, the Montana fluvial arctic grayling has been reduced to a single self-sustaining population in a short stretch of the Big Hole River above Divide Dam. Dewatering of the grayling's stream habitat and degradation of riparian areas are primary factors in its decline.

Extensive water withdrawals from the Big Hole River and four consecutive years of drought continue to threaten the Big Hole population.

"Fish and Wildlife has delayed listing the grayling for more than 20 years," said Noah Greenwald, conservation biologist with CBD. "Further delays will result in the extinction of the last fluvial population of grayling in the continental United States and a unique part of Montana's natural heritage."

To avoid listing the grayling as endangered, the state of Montana, FWS, private landowners and others established a voluntary drought management plan for the Big Hole. Though well-intentioned, the plan failed to maintain critical flows in the river for the past four years, resulting in sharp declines in grayling populations.

In part, these efforts failed because several landowners failed to cooperate with the program.

Under a 1994 state recovery plan, Montana Fish, Wildlife and Parks attempted to establish populations of Montana fluvial arctic grayling in other rivers, including the Ruby, Sun and Missouri. According to the state's own studies, however, these efforts failed to establish self-sustaining populations.

"The failure of these efforts highlights the importance of the Big Hole population and the need for endangered listing," said Jon Marvel, executive director of WWP.

The conservation groups are represented by Judi Brawer from Advocates for the West in Boise, Idaho.


A member of the salmon family, the arctic grayling is widely distributed across Canada and Alaska. Historically, fluvial populations of the arctic grayling existed in only two places in the lower 48 states: Michigan and the upper Missouri River of Montana.

Populations in Michigan were extinct by the 1930s, and populations in Montana were restricted to the Big Hole River by the end of the 1970s.

Studies show that the Montana fluvial arctic grayling is genetically distinct from grayling populations in Canada and Alaska, and genetically and behaviorally distinct from lake populations in Montana and other states.

TAKE A LOOK at the Grayling Complaint filed by WWP (.doc)