Fish and Wildlife

A federal judge is allowing the U.S. Fish and Wildlife Service to reconsider its "critical habitat" designations for bull trout in the Pacific Northwest, and the service's regional recovery coordinator says the intent is to reinforce the rationale for excluding habitat originally proposed for designation.

During October, the service came out with a decision that designated 1,748 miles of streams and 61,235 lake acres as critical habitat in Oregon, Washington and Idaho. The decision excluded 90 percent of the habitat - including all waters in Montana - that initially was proposed for designation in 2002.

U.S. District Judge James Redden of Portland on Monday granted the service a partial remand that provides an "opportunity to reconsider the lack of designation of some of the identified habitat" and to consider additional public comments about the designations.

"The fact is that the government is in the process of beefing up the rationale for some of these habitat exclusions," said John Young, a regional bull trout coordinator for the Fish and Wildlife Service. "The rule that came out was incomplete. It didn't provide the rationale for any of these exclusions whatsoever."

Young expressed frustration that the agency did not establish a broader range of critical habitat to avoid litigation in 2004, and he says candidly that some of the habitat that was excluded from designation can't be justified.

"We're definitely seeking to provide additional input and rationale to support those exclusions," Young said. "And some of them are insupportable in my viewpoint. There is no sound reason to exclude them."

Young said the service's "curious path" has been influenced by politics.

"We got the biology right … but the critical-habitat process allows broad discretionary powers for the Secretary of Interior to exclude large areas," he said. "The reason we are doing [a reconsideration of habitat designations] is that many of those exclusions were arbitrary, and that's why the Department of Justice advised Interior that we can't defend this rule."

Young expects the service will be working on bull critical habitat for a long time, at considerable expense to taxpayers, because of an active lawsuit or other litigation that could come after the next version of critical-habitat designations, which is due by Sept. 15 under this week's court order.

Soon after the designations were announced during October, the Alliance for the Wild Rockies and Friends of the Wild Swan sued the service, alleging that the designations were developed without using the best scientific and economic data available.

The groups also are challenging the manner in which the service didn't allow for any public input about the decision to exclude 90 percent of those waters.

Arlene Montgomery, spokeswoman for Friends of the Wild Swan, said her group and the Alliance for the Wild Rockies opposed the service's request for a remand, largely because they want the original decision to be officially withdrawn.

"We don't want a post-hoc rationalization for their decision," she said. "What they want to do is, in light of what our objections are, they want to go back and beef up their record."

A major problem with the critical-habitat designations was the exclusion of all Montana waters, Montgomery said.

That decision, she said, largely was based on a "habitat conservation plan" that the state of Montana has proposed, but it is not expected to be in place until 2008. That is a central component in Montana's state bull trout recovery plan, which was intended to "be a companion" to a federal recovery plan, Montgomery said.

The problem with that is the Fish and Wildlife Service has suspended development of its bull trout recovery plan.

"They stopped working on recovery plans last year because they are in the process of working on a five-year status review for bull trout," she said.

The status review, requested by the governor of Idaho and that state's congressional delegation, is intended to determine whether bull trout still warrant protection under the Endangered Species Act. Bull trout were listed as a threatened species in 1998.

Reporter Jim Mann may be reached at 758-4407 or by e-mail at jmann@dailyinterlake.com.