The U.S. Fish and
Wildlife Service says it will rework its September 2005
critical habitat designation for threatened Columbia and
Klamath river bull trout stocks.
A lawsuit challenging the
legality of the designation was filed in U.S. District Court
in Portland in January 2006. The lawsuit was briefed over the
next year and oral arguments were heard in April 2007. No
decision has been issued.
Federal attorneys late last year notified the district that
a Dec. 15, 2008, report from the Department of Interior's
inspector general had concluded that then Interior deputy
assistant secretary for Fish, Wildlife and Parks Julie
MacDonald, acting alone or in concert with other Department of
the Interior officials, took actions that potentially
jeopardized the ESA decisional process in 13 of the 20 actions
investigated. The bull trout critical habitat decision was
among the 13 actions potentially influenced.
"As a result of this Investigative Report, Federal
Defendants will be reviewing the decision and administrative
record for this action to determine whether to continue this
litigation, amend their litigation position, or pursue further
administrative action with respect to the challenged rule,"
according to a federal notice filed with the court on Dec. 22.
After three months of deliberations, the agency opted to go
back to the drawing board.
"Federal Defendants have concluded their review of the
final designation of critical habitat for bull trout and,
without any concession of law or fact, have determined that it
is appropriate to seek a remand of the final rule," according
to a federal brief filed Monday. Plaintiffs in the lawsuit are
the Alliance for the Wild Rockies and Friends of the Swan.
The federal filing asked the court for 45 days "to pursue
negotiations" with conservation groups regarding a timeline
for completing the federal rulemaking process and producing a
new critical habitat designation, which is defined by the ESA
as specific geographic area(s) that contains features
essential for the conservation of a threatened or endangered
"We will be taking another look at critical habitat" for
bull trout, according to USFWS spokeswoman Joan Jewett. That
will involve another complete run through the federal
rulemaking process, which involves developing a proposal and
an economic analysis of that proposal. It also includes public
"They got what they asked for," Jewett said of the
conservation groups' legal request to have the 2005 decision
overturned and remanded to the USFWS.
The bull trout were listed as threatened under the ESA on
June 10, 1998, and an initial critical habitat proposal
emerged in November 2002 after prompting from a lawsuit filed
"We've been waiting for seven years for that to happen,"
the alliance's Michael Garrity said of the prospect of a legal
critical habitat designation. "We're delighted that the Fish
and Wildlife Service decided not to defend the Bush
The conservation groups favored the 2002 proposed
designation of 18,671 stream miles and approximately 532,700
acres of lakes and reservoirs as critical habitat for the bull
trout in the Columbia and Klamath basins. The proposal
included large portions of main stem rivers like the Snake,
Columbia, Clark Fork, as well as tributary rivers and streams
throughout Oregon, Washington, Montana and Idaho.
But in a 2004 Columbia/Klamath final rule, the USFWS
designated 1,748 miles of streams and 61,235 acres of lakes,
about 10 percent of the critical habitat in the proposed rule.
The agency said that it found, through public comment, that
many areas originally proposed as critical habitat already had
conservation efforts in place and did not need to be
designated. In other areas, the agency said that the social
and economic cost of a designation outweighed the conservation
A new final rule was ultimately published in September 2005
that combined critical habitat designations for the previously
designated Columbia and Klamath stocks with the other three
subpopulations, Jarbidge, Puget Sound, St. Mary's/Belly River,
for which critical habitat had not previously been designated.
The final designation was slightly larger than the 2004 final
rule. With the additions, 3,828 miles of streams and 143,218
acres of lakes were designated.
The September decision prompted yet another lawsuit. The
conservation groups asked the court to declare the 2005 final
rule invalid and remand it to the USFWS. They also asked the
court to order the USFWS to implement the 2002 draft rule as
interim critical habitat for bull trout in the Columbia and
Klamath, as well as all occupied habitat for the other three
bull trout populations during the remand.
Bull trout are members of the char subgroup of the salmon
family. They require cold, clean water to thrive and are
indicators of water quality and stream health, according to
the USFWS. Bull trout have declined due to habitat degradation
and fragmentation, blockage of migratory corridors, poor water
quality, past fisheries management and the introduction of
non-native species such as brown, lake and brook trout. While
bull trout occur over a large area, many of the populations
are small and isolated from each other, making them more
susceptible to local extinctions.
Bull trout have been found from their southern limits in
the McCloud River in northern California and the Jarbidge
River in Nevada to the headwaters of the Yukon River in
Northwest Territories, Canada. To the west, bull trout range
includes Puget Sound, various coastal rivers of British
Columbia, Canada, and southeast Alaska. They are wide-spread
throughout tributaries of the Columbia River basin, including
its headwaters in Montana and Canada.
Bull trout also occur in the Klamath River basin of
south-central Oregon. East of the Continental Divide, bull
trout are found in the headwaters of the Saskatchewan River in
Alberta and the MacKenzie River system in Alberta and British