Ruling advances effort to get ESA listing for Yellowstone cutthroat trout

By SCOTT McMILLION, Chronicle Staff Writer

The federal government must reconsider its decision not to protect the Yellowstone cutthroat trout under the Endangered Species Act, a federal judge in Denver ruled.

The decision could have wide implications for the way the ESA is enacted, a government scientist said Tuesday.

"It's a big concern, because it calls into question the way we've been dealing with requests for listing," said Lynn Kaeding, native fisheries manager for the U.S. Fish and Wildlife Service in Bozeman.

FWS has primary responsibility for deciding which species of animal, plant, fish or insect merits the protection of the Endangered Species Act.

"It's an important ruling if it stands and I'm not sure if we're going to appeal or not," Kaeding added.

The argument over the fish has been going on for years.

In 1998, several environmental groups formally petitioned FWS for the listing of the fish. Though statute calls for a response in 90 days, FWS did not give a formal answer until 2001. It denied the request, calling the information in the petition dated and inaccurate.

Three environmental groups later sued, and Judge Phillip Figa on Friday agreed with them.

He called FWS' consideration of the request "substantively and procedurally flawed."

"This is a huge victory for the Yellowstone cutthroat trout, an important icon of our western natural heritage," said Noah Greenwald, a biologist for the Center for Biological Diversity, one of the groups that sued.

Westslope cutthroats once abounded in several states around Yellowstone National Park, but their numbers have been drastically reduced by habitat loss and by competition with nonnative fish, like rainbows and brook trout.

A number of species, including grizzly bears, otters, osprey and others, depend on them as a food source.

In the 90-day reviews of petitions, which often take years to complete, FWS decides whether the petition is "substantial" or not.

In this case, FWS ruled the petition did not meet that standard because some information was old or inaccurate so the process went no further. The agency consulted with state governments, the Forest Service and the Park Service, Kaeding said, and all of them were "very critical of the petition." Federal and state governments have conservation plans to manage the fish.

The green groups, which also included the Pacific Rivers Council, the Ecology Center and the Biodiversity Conservation Alliance, argued in their suit the other plans are not adequate.

They amount to a "wait and see approach to conservation," said Mike Harris, of Earthjustice, the law firm for the green groups.

Figa agreed, and ordered FWS to perform a 12-month study of the fish's situation before it decides whether to list it.

That step, which is complicated and expensive, normally is not taken until a petition has been deemed substantial. Kaeding said he fears the ruling will force FWS to undergo the intensive studies even for requests that FWS believes have no merit.

"The same result (on deciding whether to list) may well ensue after FWS conducts such a review, perhaps not," Figa wrote. "But ... going through the right processes helps to ensure the right result."

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