Federal judge halts Paiute cutthroat trout recovery plan – Sacramento Bee
This is a story from the Sacramento Bee that I am posting in its entirety, since not every one reads the Bee.
Federal judge halts Paiute cutthroat trout recovery plan
By Denny Walsh
Published: Saturday, Sep. 10, 2011 – 12:00 am | Page 1B
A Sacramento federal judge has quashed a joint federal-state plan to improve conditions for a rare High Sierra fish, ruling that an auger driven by a gasoline-powered generator cannot be used in designated wilderness areas.
For more than 25 years, government agencies have sought by various means to increase the population of the Paiute cutthroat trout and restore this rare creature to its historical range.
Six years ago, U.S. District Judge Frank C. Damrell Jr. ordered a halt to the state’s plan to poison one stretch of a High Sierra creek and a lake as part of the recovery project.
This week it was Damrell again stepping in to block the latest plan with a permanent injunction based on the federal Wilderness Act.
Spokespersons for the U.S. Fish and Wildlife Service, the U.S. Forest Service and the California Department of Fish and Game vowed Friday that the agencies will continue to work together to find a way to accomplish the recovery and restoration of the Paiute cutthroat trout.
“Our team of lawyers are currently reviewing the order to see what we can do to move forward,” said Fish and Game spokesman Kevin Thomas.
Critical to this analysis, he said, is the Forest Service’s decision to employ the auger.
“We can retool the project to address the court’s concerns, we can appeal, that’s two of our options,” he noted.
The plan was to poison with rotenone 11 miles of Silver King Creek to kill non-native fish that crossbreed with the Paiute cutthroat and then to stock the stretch with pure Paiute cutthroat from established populations in the upper portions of the watershed.
The creek is in the Carson-Iceberg Wilderness section of the Humboldt-Toiyabe National Forest in Alpine County. The 11 miles includes six miles of the main stem of the creek downstream of Llewellyn Falls to Silver King Canyon and five miles of tributaries.
The auger would be used to distribute potassium permanganate to neutralize the toxicity of the rotenone further downstream.
The action was proposed to prevent extinction of the Paiute cutthroat, as required by the federal Endangered Species Act, the agencies say. The Paiute cutthroat is native only to Silver King Creek and is listed under the ESA as a threatened species.
The goal is 2,500 pure Paiute cutthroat greater than 3 inches in length in the pristine watershed.
The agencies recently announced they planned to begin the project in the late summer or early fall of next year. Rotenone was to be applied twice a year over two to three years; each application would take seven days.
Californians for Alternatives to Toxics, Wilderness Watch, and Friends of Silver King Creek, all nonprofit corporations, sued to stop the project.
They claim that the use of the auger does not qualify as an exception to the Wilderness Act’s prohibition of motorized equipment, that the project elevates recreational fishing over preserving wilderness character, and that the agencies failed to prove the project is necessary to meet the act’s minimum requirements for administering wilderness areas.
The agencies countered that using the auger is the most effective method of applying potassium permanganate compared to the drip system, and would minimize the human and ecological effects.
In his 63-page opinion issued Tuesday, Damrell agreed with the plaintiffs that, in choosing the conservation of the Paiute cutthroat over preservation of the wilderness character, “the agencies left native invertebrates species (such as stoneflies, caddisflies and mayflies) out of the balance, and thus improperly concluded that authorization of motorized equipment will comply with the act.”
The plaintiffs are entitled to a permanent injunction barring the project, the judge declared, because “they have demonstrated that rotenone treatment will kill sensitive macro-invertebrate species and that re-colonization will not occur for some species because they cannot adapt to the project area” once the plan has been carried out.
He said the facts tip in favor of the plaintiff “as no exigency exists to begin the project now,” and “the public interest favors preservation of the unimpaired wilderness.”