Malheur Wild and Scenic Rivers Bull Trout Habitat (ONDA v. U.S. Forest Service)
Bull trout populations are beginning to recover in protected corridors along the Malheur and North Fork Malheur Wild and Scenic Rivers after two decades of legal pressure targeting Forest Service mismanagement of their habitat. Livestock grazing schemes had pushed this native fish, listed as “threatened” under the Endangered Species Act, to the brink of extinction.
Starting with a federal lawsuit filed in 2003, ONDA argued that grazing on the Malheur National Forest was chronically inconsistent with forest plan standards intended to improve habitat and recover bull trout populations. By 2013, the U.S. Fish and Wildlife Service had determined there were fewer than 50 adult fish remaining in each of the two rivers. One agency official said the populations were “blinking out.”
Yet, over the course of complex, sometimes contentious litigation, ONDA’s tenacity paid off. The Forest Service began closing areas to grazing one at a time as ONDA field surveys and expert reports, and even the agency’s own record, illuminated how livestock had stripped streambanks and meadows of native plants, rendering stream channels too wide and shallow to maintain the clean, cold water that bull trout need to survive.
Today, the Forest Service no longer authorizes grazing along more than 64 miles of bull trout “critical habitat” on the two rivers and nine important tributary creeks. Spanning more than 36,000 acres of national forest lands, this is nearly 90 percent of the stream miles ONDA sought to protect in court. These areas have shown remarkable resiliency, as diverse plant communities rapidly recover and streambanks re-stabilize. In 2017, agency scientists found for the first time that bull trout numbers were increasing in the two rivers.
This upturn came about despite an adverse legal ruling in the final phase of the case. A federal appeals panel in the Ninth Circuit held in 2020 that the Forest Service need not explain whether site-specific grazing authorizations are consistent with forest plan standards intended to improve habitat and recover fish populations—even though the court’s prior cases require this consistency for other activities, like logging projects. The holding was particularly surprising given U.S. Supreme Court Chief Justice Roberts’ explanation, in rejecting the Trump administration’s unexplained decision to rescind the Deferred Action for Childhood Arrivals program: “The basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted.”
Even so, ONDA’s perseverance in the courtroom has led not just to changed land management and ecological recovery on the Malheur National Forest, but also to other restoration and conservation opportunities. ONDA volunteers have replanted willow and cottonwood along Summit and Wiwaanyatt creeks in the Malheur River watershed, and they continue to visit and document stream recovery (and grazing problems, where they persist) today. Some of the now ungrazed bull trout streams along the Malheur and North Fork Malheur rivers have been nominated for protection under the Wild and Scenic Rivers Act. Finally, ONDA established important Ninth Circuit legal precedent earlier in the case—still binding today—that the public has a right to challenge Forest Service and other agencies’ grazing decisions as “final agency actions” subject to court review.