Complaint 1

Gary K. Kahn (Oregon State Bar #814810)

Peggy Hennessy (Oregon Bar #872505)

Reeves, Kahn, Hennessy & Elkins

4035 S.E. 52nd Avenue

P.O. Box 86100

Portland, OR 97286-0100

Telephone: (503) 777-5473

gkahn@rke-law.com

phennessy@rke-law.com

Jack R. Tuholske (Montana Bar # 2902)

TUHOLSKE LAW OFFICE, P.C.

1149 Harrison St.

P.O. Box 7458

Missoula, MT 59807

Telephone: (406) 396-6415

jtuholske@gmail.com

(pro hac vice to be submitted)

Timothy Bechtold (Montana Bar #4376)

Bechtold Law Firm, PLLC

317 E. Spruce Street

PO Box 7051

Missoula MT 59807

Telephone (406) 721-1435

tim@bechtoldlaw.net

(pro hac vice to be submitted)

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

FRIENDS OF THE WILD SWAN, INC., a Montana

nonprofit corporation; ALLIANCE FOR THE WILD 

ROCKIES, INC., a Montana nonprofit corporation,

Plaintiffs,

vs.

ROBYN THORSON, Pacific Region Director, U.S. Fish and 

Wildlife Service; U.S. FISH AND WILDLIFE SERVICE, an 

agency of the U.S. Department of the Interior; S.M.R.

JEWELL, Secretary, U.S. Department of the Interior; U.S. 

DEPARTMENT OF THE INTERIOR, a federal executive 

department of the United States.

Defendants.

Cause No.:

COMPLAINT

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Plaintiffs Friends of the Wild Swan and Alliance for the Wild Rockies, by and through 

their attorneys, state their claims for relief as follows:

I. INTRODUCTION

1. This case arises from the Defendants’ approval of a legally deficient Recovery 

Plan (Plan) for the conservation and survival of the bull trout (Salvelinus confluentus), as 

required by Section 4(f) of the Endangered Species Act (the “ESA”), 16 U.S.C. § 1533(f). This 

case marks the 7th time in 20 years that these Plaintiffs have sued the Defendants to require them 

to comply with their obligations of the ESA to list bull trout, designate its critical habitat, and 

now establish a recovery plan for the species that will lead to their conservation, recovery and 

eventual de-listing. Bull trout was listed as a threatened species under the ESA approximately 17

years ago. During that time, bull trout populations have remained in a precarious state, as the 

human-caused threats that led to their listing under the ESA have remained present or even 

accelerated. Now the accelerating warming and seasonal drying of the Western United States 

from largely unfettered human deposition of carbon and other pollutants into the atmosphere will 

further imperil the species. Section 4(f) of the ESA requires the Defendants to develop and 

implement a final recovery plan for the bull trout. While the Defendants have now prepared a 

Plan (following a lawsuit requesting them to do so), the Plan fails to insure the long-term 

survival and recovery of the species, ignores the best available science, ignores its own previous 

findings about the status of bull trout and what they need for recovery and instead relies on novel 

and inadequate criteria for recovery devoid of any objective population criteria. Accordingly, the 

Plaintiffs have commenced this action to respectfully request that the Court declare the Plan in 

violation of the requirements of the ESA and order the Defendants to prepare a Plan that will 

insure the survival and recovery of the species. 

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II. PARTIES

2. Plaintiffs Alliance for the Wild Rockies Inc., and Friends of the Wild Swan, Inc., 

are both membership-based Montana nonprofit public benefit corporations. The Plaintiffs and 

their members have a longstanding interest in the protection of the bull trout and the aquatic 

environment that bull trout depend on in the Northern Rockies and Pacific Northwest. 

3. Plaintiff Friends of the Wild Swan Inc. is a tax exempt, public-benefit Montana 

non-profit corporation. Its principal place of business is in Swan Lake, Lake County, Montana. 

Friends of the Wild Swan is dedicated to protecting and restoring water quality and fish and 

wildlife habitat in Montana.

4. Plaintiff Alliance for the Wild Rockies Inc. is a tax-exempt, non-profit public 

interest organization dedicated to the protection and preservation of the native biodiversity of the 

Northern Rockies Bioregion, its native plant, fish, and animal life, and its naturally functioning 

ecosystems. Its registered office is located in Missoula, Montana. The Alliance has over 2,000 

members, many of whom live in watersheds with bull trout habitat. Members of the Alliance are 

researchers, scientists, naturalists, and nature enthusiasts who observe, enjoy, fish for and 

appreciate Montana's native fish, water quality, and aquatic habitat quality, and expect to 

continue to do so in the future.

5. Plaintiffs’ members observe, fish, and otherwise enjoy and appreciate the 

aesthetic beauty of the bull trout in its natural habitat on a regular and on-going basis throughout

the species’ range, and expect to continue to do so in the future. The Plaintiffs and their 

members are adversely affected by the decline in bull trout populations and habitat, and by

inadequate government efforts to protect the species including failing to approve a recovery plan 

that meets the requirements of the ESA. The recovery plan is the government’s blueprint to fully 

recover the species, and Defendants’ approval of an inadequate Plan hurts the recovery of bull 

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trout to the detriment of Plaintiffs’ members. In particular, the aesthetic, recreational, and

economic interests of the Plaintiffs and their members are directly and adversely affected by the 

failure of the Defendants to develop and implement a final recovery plan for the bull trout that 

complies with the law. In addition, the Plaintiffs and their members have an interest in ensuring 

that the Defendants adhere to the substantive law and procedures required by the ESA for the 

protection of bull trout, and in ensuring that the best scientific information regarding bull trout is 

used in the recovery plan process and is available to the public. The Defendants’ actions as 

alleged herein – and, more precisely, the Defendants’ failure to take action as required by the 

ESA – have harmed those interests as well. This suit is brought on behalf of each Plaintiff

organization and on behalf of its members who are directly and adversely affected by the 

Defendants’ violations of the ESA. 

6. The Defendants are described as follows:

a. Robyn Thorson is the Pacific Region Director of the U.S. Fish and 

Wildlife Service, located in Portland, Oregon. She is sued in her official capacity.

b. The U.S. Fish and Wildlife Service (the “Service”) is the agency in charge 

of administering the ESA, including developing and implementing recovery plans for threatened 

and endangered species.

c. Sarah Margaret Roffey Jewell is the Secretary of the Interior, and is the 

government official with overall responsibility for implementation of the ESA. She is sued in 

her official capacity.

d. The U.S. Department of the Interior is the federal executive department

that houses the U.S. Fish and Wildlife Service, and which therefore has overall responsibility for 

the implementation of the ESA.

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II. JURISDICTION AND VENUE

7. The Court has jurisdiction of this matter pursuant to 28 U.S.C. §1331, because 

this matter arises under the laws of the United States, and the Defendants are agencies or 

officials of the United States. The Court also has jurisdiction under 16 U.S.C. §1540 (c) and (g), 

pursuant to citizen suit provisions of the ESA, or, alternatively, under the APA, 5 U.S.C. §701 et 

seq. The Court may issue declaratory judgment and further relief pursuant to 28 U.S.C. § 2201 

and 2202. Mandamus may lie pursuant to 28 U.S.C. §1361. There is a real and present 

controversy between the parties.

8. Venue in this action is conferred upon this Court by 28 U.S.C. § 1391(e)(1)(a), 

which provides that a civil action against an agency of the United States or any officer thereof 

may be brought in any judicial district in which the officer resides. Defendant Thorson, Pacific 

Region Director of the U.S. Fish and Wildlife Service, resides in this District. The Regional 

Office is the lead office for bull trout listing, critical habitat and recovery planning. In addition, 

venue is proper under 28 U.S.C. § 1391(e)(1)(b) because a significant part of the subject matter 

of this action – listed populations of bull trout – are located in this District, and also because a 

substantial part of the events or omissions giving rise to the claims occurred here. Moreover, this 

Court has previously adjudicated approximately eight other cases involving bull trout.

III. GENERAL ALLEGATIONS

A. Background on Bull Trout

9. Native to the Pacific Northwest and Northern Rockies, bull trout were historically 

widely distributed and abundant in major river systems as well as smaller mountain streams. 

During the last 100 years, bull trout populations have declined precipitously, both in number and 

range. Compared to other salmonids, bull trout have more specific habitat requirements that 

appear to influence their distribution and abundance. These habitat components include very cold 

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water temperature, cover, channel form and stability, valley form, stream elevation, spawning 

and rearing substrates, and migratory corridors. Human activities in bull trout habitat over the 

last century, such as logging, road construction, dams, mining, grazing and urban development,

have negatively impacted bull trout habitat, causing widespread and significant population 

declines and local extirpations. In addition, overfishing and the introduction of exotic species 

have contributed to the ongoing demise of the species. 

10. Bull trout exhibit one of four different life history forms: resident, fluvial, 

adfluvial, and anadromous. Resident bull trout are non-migratory and spend their entire life 

cycle in the same or nearby streams. Unlike migratory forms, resident bull trout do not distribute 

themselves throughout an entire basin, and therefore do not recolonize vacant habitats. They 

face threats of habitat degradation, competition and predation by exotic species and are 

particularly vulnerable to stochastic events. 

11. Fluvial, adfluvial and anadromous bull trout are migratory. These migratory 

forms spawn in tributary streams and, as juveniles, migrate either to lakes (adfluvial), large rivers

(fluvial), or salt water (anadromous) to mature. Mature migratory bull trout return to small 

tributary streams to reproduce. Large migratory bull trout can exceed 30 pounds. Migratory bull 

trout facilitate genetic interchange among local and regional populations and ensure sufficient 

variability within populations. They also serve to recolonize local populations extirpated by 

natural or human-caused events. Migratory bull trout have been restricted or eliminated from 

most of their habitat due to human activity, including dams; irrigation diversions; detrimental 

changes in water quality; increased water temperature; and the alteration of natural stream flow 

patterns from logging, mining and grazing. Persistence of these migratory life history forms and 

maintenance or reestablishment of stream migration corridors is essential to the ultimate viability 

of the bull trout.

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12. Bull trout are extremely sensitive to changes in their habitat. They require clean, 

cold water that is free of barriers to migration, with clean gravel in headwater creeks on which to 

spawn. Bull trout also require migration corridors where water temperature and habitat 

conditions are conducive their survival and long-term presence. Accordingly, the development 

and implementation of a final recovery plan is essential to the bull trout’s protection, 

conservation and recovery.

13. In addition to the above-discussed factors that have impacted bull trout and its 

habitat, anthropogenic-induced changes to the climate of the Pacific Northwest and Northern 

Rockies has, and will continue to affect bull trout habitat. These changes include warmer air and 

water temperatures, reduced stream flows, increased late-summer low stream flows, increased 

catastrophic wildfire, and more intense flooding events. The adverse effects of climate change 

on bull trout will steadily worsen throughout the 21st century as carbon dioxide and other heat 

trapping pollutants continue to accumulate in the atmosphere. The failure of homo sapiens to 

reduce their green house gas emissions has foreclosed meaningful reduction in heat-trapping 

pollutants for the next several decades and perhaps the next century, which is likely to cause 

even more extreme weather changes that will adversely affect bull trout. These changes will 

reduce available bull trout habitat, stress existing populations and allow more heat tolerant nonnative species to out-compete bull trout. 

14. Scientific research has demonstrated the precarious and tenuous nature of the 

remaining bull trout populations, and has established the need to protect these populations from 

the human activities that have caused their decline. This scientific research formed the basis for 

the decision to protect bull trout under the ESA. Furthermore, recent research has demonstrated 

the importance of preserving all remaining populations of bull trout, given the need to preserve 

genetic variation in different populations, the fact that many existing populations are isolated and 

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threatened with extirpation, and the wide-ranging nature of the species. Developing and 

implementing a final recovery plant is an essential step in preserving all remaining bull trout 

populations and ensuring the recovery of the species.

B. Administrative and Legal Proceedings Regarding Bull Trout

15. On October 27, 1992, the Plaintiffs petitioned the Service pursuant to 16 U.S.C. § 

1533 and 50 C.F.R. § 424.14 for a rule to list the bull trout as an endangered species throughout 

its range with concurrent designation of critical habitat. Plaintiffs also requested emergency 

listing and critical habitat designation for bull trout in select ecosystems where the species faces 

an imminent threat of extinction. 

16. On May 17, 1993, the Service found Plaintiffs’ petition to contain substantial 

information indicating that a listing may be warranted. See 58 Fed. Reg. 288849.

17. Although the Service was required under the ESA to rule on the merits of such 

Petition within twelve months, see 16 U.S.C. § 1533(b)(3)(B), the Service failed to do so. 

Accordingly, on February 8, 1994, the Plaintiffs filed suit to compel such a ruling. Alliance for 

the Wild Rockies, et al. v. Babbitt, Civ. No. 94-0246 (JLG) (D.D.C. 1994).

18. Pursuant to a stipulation to resolve the Plaintiff’s lawsuit, the Service, through the 

Pacific Region office in Portland, issued a twelve-month Administrative Finding on June 10, 

1994, and the lawsuit was dismissed. The Service made a number of factual findings regarding 

the widespread decline of the bull trout, its extirpation from vast portions of its historical range, 

the demise of its habitat due to human activity, and the inadequacy of existing government 

efforts to protect bull trout. These findings led the Service to conclude that listing the bull trout 

as an endangered species throughout its range was warranted. Despite these findings, however, 

the Service concluded that a final rule listing the bull trout as endangered was precluded due to 

other higher priority listing actions.

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19. Plaintiffs then filed suit before this Court, challenging the Service’s decision not 

to list the bull trout as endangered. In November 1996, after numerous legal proceedings, Judge 

Jones held that the Service’s determination that listing the bull trout was “warranted but 

precluded” was arbitrary and capricious, and in violation of the ESA. Friends of the Wild Swan 

v. U.S. Fish and Wildlife Service, 945 F. Supp. 1388 (D. Or. 1996). The Court thus granted 

summary judgment to Plaintiffs on all claims, resulting in the publication of a proposed rule to 

list bull trout throughout the Columbia River Basin. 62 Fed. Reg. 32268 (June 13, 1997). On 

June 10, 1998, the Columbia River Basin and Klamath population of bull trout were listed as 

threatened and endangered, respectively. Klamath and Columbia Populations Final Rule, 63 

Fed. Reg. 31647 (1998) (codified at 50 C.F.R. pt. 17).

20. The Service then segregated three other sub-populations of bull trout as Distinct 

Population Segments and found them not warranted for listing. Plaintiffs again filed suit, 

challenging the splitting of the populations as arbitrary based on the Service’s earlier 

consideration of the entire bull trout population. Judge Jones again issued summary judgment 

for Plaintiffs, which resulted in publication of a proposed rule to list the remaining populations of 

bull trout. Friends of the Wild Swan v. U.S. Fish and Wildlife Service, 12 F. Supp. 2d 1121 (D. 

Or. 1997). The Jarbidge population was listed as threatened on April 8, 1999, and the CoastalPuget Sound and St. Mary-Belly River population was listed as threatened on November 1, 1999. 

Jarbidge Population Final Rule, 64 Fed. Reg. 17110 (1999) (codified at 50 C.F.R. pt. 17); 

Coastal-Puget Sound and St. Mary-Belly River Population Final Rule, 64 Fed. Reg. 58909 

(1999) (codified at 50 C.F.R. pt. 17). 

21. These populations are collectively referred to as the “listed populations” in this 

Complaint. By this reference Plaintiffs do not agree biologically or legally with the Service’s 

segmentation of bull trout populations, but that decision is not challenged herein.

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22. On January 26, 2001 Plaintiffs filed suit against the U.S. Fish and Wildlife 

Service for failing to designate critical habitat for bull trout as required under the Endangered 

Species Act. A year later plaintiff groups and USFWS reached a settlement agreement setting out 

timeline for critical habitat designation. On November 29, 2002 USFWS proposed critical habitat 

for 18,450 miles of streams and 532,700 acres of lakes in Montana, Idaho, Washington and 

Oregon. (67 FR 71235) In June 2004 USFWS proposed critical habitat for the Coastal-Puget 

Sound, St. Mary-Belly River and Jarbidge bull trout populations. (69 FR 35768)

23. On October 6, 2004 the USFWS published the final bull trout critical habitat rule 

designating only 1,748 miles of streams and 61,235 acres of lakes in the Columbia and Klamath 

River basins. No critical habitat was designated in Montana. (69 FR 59995) Plaintiffs filed suit 

in December 2004 for failing to designate an adequate amount of critical habitat to ensure the 

survival and recovery of bull trout in the Columbia and Klamath Basins and challenging the 

designation as politically motivated by then Under-Secretary Julie MacDonald. The case was 

voluntarily remanded back to the agency for revision in April 2005.

24. On September 26, 2005 the USFWS issued a new critical habitat designation for: 

Columbia, Klamath, Coastal-Puget Sound, Jarbidge and St. Mary Belly River. The designation 

totaled approximately 3,828 miles of stream, 143,218 acres of lakes in Idaho, Montana, Oregon 

and Washington and 985 miles of shoreline paralleling marine habitat in Washington. (70 FR 

56212) In January 2006 Plaintiffs again filed suit against the critical habitat final rule for being 

inadequate.

25. On March 23, 2007 the Dept. of the Interior Inspector General released a report 

alleging possible interference by Deputy Assistant Secretary of the Interior Julie MacDonald 

with the bull trout critical habitat designation. On December 15, 2008 the Inspector General 

released a new investigative report concluding that Julie MacDonald did interfere with the 

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designation of critical habitat for bull trout in several instances. She had instructed agency 

biologists to abandon the best available science, to exclude all federal lands and exclude all lands 

that had any “plan” governing land use whether that plan was adequate or specific to bull trout. 

26. On October 18, 2010 the USFWS issued the final rule on bull trout critical habitat 

that included: 19,729.0 mi of streams in Montana, Idaho, Washington, Oregon and Nevada; 

754.0 mi of marine shoreline in Washington; and 488,251.7 ac of reservoirs and lakes in 

Montana, Idaho, Washington and Oregon. (75 FR 63898.) The final critical habitat designation 

identified specific areas within each of the six new draft recovery units that contain the physical 

or biological features essential to bull trout conservation, considering distribution, abundance, 

trend, and connectivity needs. The objective was to ensure the areas proposed for designation as 

critical habitat would effectively achieve the principles the USFWS believes are important for 

recovery: (a) Conserve the opportunity for diverse life-history expression; (b) conserve the 

opportunity for genetic diversity; (c) ensure bull trout are distributed across representative 

habitats; (d) ensure sufficient connectivity among populations; (e) ensure sufficient habitat to 

support population viability (e.g., abundance, trend indices); (f) address threats, including 

climate change; and (g) ensure sufficient redundancy in conserving population units. These 

recovery principles take into account the threats and physical or biological needs of the species 

throughout its range, and focus on the range-wide recovery needs. To help determine which 

specific areas contained the physical or biological features essential to bull trout conservation, 

USFWS considered the species' status in each recovery unit by evaluating whether: (a) Bull trout 

are rare and exposed to threats, such that recovery needs include removing threats from 

essentially all existing occurrences and restoring bull trout to portions of their historic range; or 

(b) bull trout are declining and exposed to threats, such that recovery needs include stopping the 

decline and eliminating threats across key portions of their range, such as currently occupied 

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strongholds. In some areas, USFWS determined that specific areas outside the geographical area 

occupied by bull trout at the time of listing are essential for the conservation of the species, and 

they were designated as critical habitat. In those areas, bull trout habitat and population loss over 

time necessitates reestablishing bull trout in currently unoccupied habitat areas to achieve 

recovery. The primary consideration for designating critical habitat for occupied areas was to 

protect species strongholds for spawning and rearing, and foraging, migration and overwintering 

(FMO) habitats. The primary consideration for designating most of unoccupied areas we are 

including in this designation was to restore connectivity among populations by protecting FMO

habitats

27. In 2004 the Service undertook a five year status review to determine whether bull 

trout were still warranted for listing. In April 2008 the Service determined that bull trout should 

remain a threatened species. The Service cited bull trout’s reliance on the 4C’s (i.e., clean, cold, 

complex, and connected habitats); fragmentation of the species’ range by various threats at 

multiple scales, impacting the ability of the species to persist; invasive species such as lake trout 

that are a direct and increasing threat to many strong populations; anticipated ongoing and likely 

additional threats expected to create local extirpation in core areas; and low likelihood that 

existing threats will be eliminated and species status will improve. Evolutionarily, the bull trout 

uses multiple life history strategies to reduce risk, but fragmentation of its habitat by dams, water 

diversions, and culverts has adversely affected this strategy. Roads present an additional threat.

28. The 2008 Status Review evaluated bull trout population, abundance and trend and 

made the following observations: most population trends are unknown; there is a broad 

distribution of risk across the landscape; most core area bull trout populations are at high risk or 

at risk; and the smallest core areas tend to be at a higher risk. Overall, no broad trend can be 

described for bull trout population abundance range-wide. There has been no change in the 

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distribution of bull trout in core areas since listing. There continues to be limited information on 

demographic features across the coterminous range.

29. The Status Review also found that connectivity of habitat within and among core 

areas is low and new information affirmed that the use of migratory corridors is critical to the 

survival of bull trout. The review analysis indicated that 75 of the 121 (64%) core areas face 

either imminent, substantial, or moderate threats. Changes in habitat condition vary across and 

within core areas. Some habitat improvements (e.g., passage improvements, stream restoration, 

diversion screening, road decommissioning) have occurred at the local population level within 

individual core areas since the time of listing, however, no monitoring is in place to measure 

results and their effects to bull trout. In other areas, modification and destruction of habitat 

continue to threaten bull trout from a wide array of ongoing land uses such as forest management, 

road building, and development. 

30. Plaintiffs sent a 60 day notice to the USFWS on April 1, 2013, advising them that 

they must complete a recovery plan for bull trout. USFWS responded on June 3, 2013, that they 

were preparing a recovery plan and they anticipated a Federal Register notice being available by 

January 30, 2014. USFWS did not meet their own deadline so Plaintiffs filed a complaint on 

April 1, 2014. A settlement was reached on August 14, 2014, with the USFWS agreeing to 

complete a draft recovery plan and publish a notice of availability in the Federal Register no later 

than September 30, 2014, and a final recovery plan notice of availability would be published no 

later than September 30, 2015.

C. Recovery Plans Under the ESA

31. ESA Section 4(f) requires that the Service “shall develop and implement” a 

recovery plan for each threatened or endangered species, “unless [the agency] finds that such a 

plan will not promote the conservation of the species.” 16 U.S.C. § 1533(f)(1); Southwest Ctr. 

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for Biological Diversity v. Bartel, 470 F. Supp. 2d 1118, 1136 (S.D. Cal. 2006) (“The statutory 

scheme contemplates orderly and timely progression of action to list the species; designate its 

critical habitat; and create a recovery plan.”). A recovery plan provides a critical roadmap, 

detailing management measures necessary to reduce and eventually eliminate a species’ risk of 

extinction, designing and funding research priorities, and securing cooperation from other 

federal, state, regional, and local governmental and private entities. See Fund for Animals v. 

Babbitt, 903 F. Supp. 96, 104 (D.D.C. 1995).

32. Recovery Plans must contribute to the survival and conservation of the species, 

and be based on the best available scientific data. Fund for Animals v. Babbitt, 903 F. Supp. 96 

(D.D.C. 1995), amended by 967 F. Supp. 6 (D.D.C. 1997). In addition to the specific criteria 

listed above, Recovery Plans must not be arbitrary and capricious – they must consider all of the 

relevant factors, not just pre-ordained factors that Defendants have selected. Defendants must 

ensure that the Recovery Plan leads to recovery and removal of the species from the list.

33. The Service’s own “Endangered and Threatened Species Recovery Planning 

Guidance” publication (updated in June 2010) explains that the recovery planning process 

consists of three phases. The planning phase involves the actual writing of the recovery plan. 

Under the ESA, each recovery plan must identify: (1) “site-specific management actions” that 

“may be necessary . . . for the conservation and survival of the species,” (2) “objective, 

measurable criteria which, when met, would result” in the species’ delisting, and (3) “estimates 

of the time . . . and the cost” required to achieve the plan’s goals. 16 U.S.C. § 1533(f)(1)(B). 

Further, the agency “shall, to the maximum extent practicable give priority to those . . . species . . 

. that are most likely to benefit from such plans, particularly those species that are . . . in conflict 

with construction or other development projects or other forms of economic activity.” Id. § 

1533(f)(1)(A). An agency must provide the public an opportunity for notice and comment 

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before finalizing a recovery plan. Id. § 1533(f)(4). This phase therefore includes solicitation and 

incorporation of comments via peer review and public comment. Final recovery plans “should 

be completed within 2.5 years of listing.” Guidance at 1.5.1.

34. The third and final phase consists of the actual implementation of the recovery 

actions called for in the recovery plan, as well as monitoring of implementation and the 

effectiveness of the actions, and adaptation of the plan, if necessary.

35. As explained by the Service, the development and implementation of recovery 

plans is necessary to the protection of listed species, and fulfills the ultimate goal of the ESA in 

recovery and eventually removing such species from the ESA’s protection. In this connection, a 

recovery plan is vitally important because it spells out the variety of actions needed to achieve 

recovery. “[W]ithout a plan to organize, coordinate and prioritize the many possible recovery 

actions, the effort may be inefficient or even ineffective.” Guidance at 1.1. The prompt 

development and implementation of recovery plans “ensures that recovery efforts target limited 

resources effectively and efficiently into the future.” Id. Recovery plans are a “road map for 

species recovery – [they] lay[] out where [the Service] needs to go and how best to get there.” 

Id. As such, recovery plans are “one of the most important tools” to ensure sound decision 

making throughout the recovery process. Id.

36. On September 9, 2015, pursuant to the settlement agreement reached between 

these parties in previous litigation, Defendants released their Recovery Plan for the Coterminous 

United States Population of Bull Trout (Salvelinus confluentus) (the “Plan”).

37. On October 7, 2015 the Plaintiffs sent Defendants a 60-Day Notice of Intention 

to sue outlining the legal deficiencies in the Plan that are the subject of this Complaint. In the 

60-Day Notice Plaintiffs raised the basic issues that are the subject of this lawsuit. More than 60 

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days have elapsed and the Defendants did not respond or take action to remedy the defects in the 

Plan.

38. Bull trout habitat remains under increasing pressure from human activities, and 

the outlook for remaining bull trout populations is tenuous. During the time that it has taken for 

the Defendants to provide adequate Critical Habitat and a final Recovery Plan, bull trout have 

remained threatened from the same human activities that caused them to be listed under the ESA. 

Bull trout are susceptible to impacts caused by human degradation of the atmosphere by the 

continuous, constantly accelerating human-caused deposition of pollutants in our global 

atmosphere commonly referred to as “Green House Gases.” The dramatic acceleration of GHG 

pollution since bull trout were listed has already led to increasing temperatures, reduced 

snowpack especially at lower elevations, reduced late summer stream flows that lead to 

restrictions on fishing seasons, and warmer water temperatures that favor the non-native species 

that humans, in their prescience, decided to introduce into trout waters decades ago. Near 

universal scientific consensus is that human alteration of the atmosphere will cause the Western 

United States where bull trout reside to become hotter (by as much as 5 degrees Fahrenheit) and 

seasonally drier (particularly in late summer) during the course of this century, adding 

cumulatively to the other factors that caused the species to become imperiled.

39. Section 4(f) of the ESA requires the Defendants to develop a Plan that 

incorporates: 

(i) a description of such site-specific management actions as may be 

necessary to achieve the plan’s goal for the conservation and survival of the species;

ii) objective, measurable criteria which, when met, would result in a 

determination, in accordance with the provisions of this section, that the species be 

removed from the list; and;

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(iii) estimates of the time required and the cost to carry out those measures 

needed to achieve the plan’s goal and to achieve intermediate steps toward that goal.

As set for below in the Claims for Relief, the Defendants have failed to comply with this 

legal mandate. 

FIRST CLAIM FOR RELIEF

VIOLATION OF THE ENDANGERED SPECIES ACT

40. Plaintiffs reallege all previous paragraphs as if set forth in full.

41. The Plan allows 25% of the Coastal, Mid-Columbia, Upper Snake, and Columbia 

Headwaters Recovery Units to be extirpated.

42. Bull trout populations had decreased by 60% by the time the species was given 

Endangered Species Act protection. The Plan implies that the Services assume there is flexibility 

to make management choices deliberately allowing some core area populations of bull trout to go 

into decline or extinction, on the expectation others will appear from scratch, or disperse from 

severely depressed relict populations elsewhere in the Recovery Unit to arise in new locations. 

However, the Plan, the previous listing and recovery planning record, and the published 

scientific literature present virtually no evidence to substantiate that new populations of bull trout 

have established in contemporary times, either at the Core Area scale or the next smaller scale of 

breeding populations.

43. The Plan does not explain why the extirpation of bull trout from any extant core 

area does not irretrievably foreclose future recovery opportunity, and therefore materially reduce 

the likelihood that the species will not be endangered in the future. 

44. The 5-year status review (USFWS 2008) is the only quantitative assessment 

available to date of status of individual core areas across the range of bull trout. Of the then 121 

core areas identified, over half were of unknown population status—itself a most troubling 

Case 3:16-cv-00681-AC Document 1 Filed 04/19/16 Page 17 of 26
Complaint 18

statistic. Of the 55 core areas for which assessment was possible, bull trout populations in 42%

(23) of them were reported to be declining; just 32% (18) were thought to be stable, and 25% 

(14) were reportedly increasing. With more than 40 percent of the total collection of core areas 

reported in decline, there is little leeway for sanctioning further declines in the stable or 

increasing portion of the species range.

45. Allowing 25% of the Coastal, Mid-Columbia, Upper Snake, and Columbia 

Headwaters Recovery Units to be extirpated is a violation of the ESA.

SECOND CLAIM FOR RELIEF

VIOLATION OF THE ENDANGERED SPECIES ACT

46. Plaintiffs reallege all previous paragraphs as if set forth in full.

47. The Plan’s recovery goals, objectives and criteria are not consistent with NMFSFWS Interim Recovery Planning Guidance 2010, Bull Trout Recovery: Monitoring and

Evaluation Guidance 2008, and the 2010 Bull Trout Critical Habitat Final Rule.

48. The Plan identifies the seven principles of conservation from the Recovery

Planning Guidance:

(1) conserve the opportunity for diverse life-history expression;

(2) conserve the opportunity for genetic diversity;

(3) ensure bull trout are distributed across representative habitats;

(4) ensure sufficient connectivity among populations;

(5) ensure sufficient habitat to support population viability (e.g., abundance, 

trend

indices);

(6) address threats, including climate change; and

(7) ensure sufficient redundancy in conserving population units.

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Complaint 19

49. The Plan fails to incorporate other components of the Recovery Planning 

Guidance, including:

(1) Recovery criteria will usually also include population numbers, sizes, 

trends and distribution, population structure or recruitment rates, specific habitat 

conditions, and minimum time frames;

(2) Addressing threats in recovery criteria. Recovery criteria include

population numbers, sizes, trends, and distribution.

(3) Recovery Plans include demographic criteria, such as abundance and 

distribution, separate from “threats-based” criteria.

(4) Population Viability Analyses are not replacements for threat-based 

criteria, but are supplements. The criteria describe the conditions in which a Population 

Viability Analysis indicates long-term viability.

50. The Plan fails to incorporate the recovery objectives identified in the Bull Trout 

Recovery: Monitoring and Evaluation Guidance (2008), which include the following: 

distribution, abundance, habitat, genetics. These are all considered important characteristics of 

population viability and recovery. 

51. The 2002 Draft Bull Trout Recovery Plan established four broad “recovery 

objectives” for bull trout that are absent from the Plan:

(1) maintain current distribution of bull trout and restore distribution in 

previously occupied areas;

(2) maintain stable or increasing trends in abundance of bull trout;

(3) restore and maintain suitable habitat conditions for all bull trout life 

history stages and strategies; and

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Complaint 20

(4) conserve bull trout genetic diversity and provide opportunity for genetic 

exchange. 

52. The Plan fails to incorporate the principles deemed important for recovery in the 

2010 Bull Trout Critical Habitat Final Rule because they take into account the threats and 

physical or biological needs of the species, including:

(1) conserve the opportunity for diverse life-history expression;

(2) conserve the opportunity for genetic diversity;

(3) ensure bull trout are distributed across representative habitats;

(4) ensure sufficient connectivity among populations;

(5) ensure sufficient habitat to support population viability;

(6) address threats, including climate change; and

(7) ensure sufficient redundancy in conserving population units.

53. The failure of the Plan to include these important considerations as alleged here is 

a violation of the Endangered Species Act.

THIRD CLAIM FOR RELIEF

VIOLATION OF THE ENDANGERED SPECIES ACT

54. Plaintiffs reallege all previous paragraphs as if set forth in full.

55. Demographic criteria are not included in the Plan.

56. The Plan discards reliance on quantitative targets for bull trout population size, 

number, life history diversity as factors for determining whether recovery is occurring; i.e., 

delisting criteria. Instead the Plan relies almost exclusively on the Service’s perception of 

whether identified threats have been “managed” to both structure and assess recovery. In so 

doing, the Service discards a large body of scientific literature and well-established scientific 

conventions for describing population and species status and recovery under the Endangered 

Case 3:16-cv-00681-AC Document 1 Filed 04/19/16 Page 20 of 26
Complaint 21

Species Act and in other fishery restoration programs.

57. The Plan does not explain why key data sources — such as bull trout redd count 

time series, observation of presence of migratory life histories within populations, field surveys 

of bull trout distribution and change in distribution over time, and genetic estimates of effective 

population size — are no longer to be considered in establishing delisting criteria for bull trout. 

Each of these data sources has well-established protocols and methods, and known accuracy 

established through many years of research on bull trout (e.g., Rieman and McIntyre 1996, 

Rieman and Myers 1999, Dunham et al. 2001, High et al. 2008). Published scientific applications 

have shown how evaluation of time series in bull trout spawner counts has been instrumental in 

understanding the habitat and environmental factors underlying population trends and the 

robustness and recovery of populations within core areas (e.g., Rieman and McIntyre 1996, 

Baxter et al.1999).

58. The Plan relies on managing primary threats as the means to characterize 

recovery. This reliance is based on a complex set of assumptions about the ways that threats act 

on the habitat and population ecology of bull trout to determine population viability. Erroneous 

assumptions about the outcomes of threat management are highly likely — in fact, virtually 

certain — if the underlying assumptions of cause and effect are not empirically checked against 

measured biological outcomes. The Plan fails to provide for such an empirical verification.

59. Scientific research has demonstrated the potentially enormous value of allelic, 

genomic and population genetic information for understanding and predicting population 

viability, including size, exchange of individuals with other populations, and the development, 

fixation, or evolution of local genetic traits (Whitely et al. 2006, Ardren et al. 2011). The Plan 

does not provide for such collection of this genetic information, and does not consider 

Case 3:16-cv-00681-AC Document 1 Filed 04/19/16 Page 21 of 26
Complaint 22

demographic threats such as inbreeding, loss of genetic variation, and loss of evolutionary 

potential.

60. The failure of the Plan to include important demographic information as alleged 

here is a violation of the Endangered Species Act.

FOURTH CLAIM FOR RELIEF

VIOLATION OF THE ENDANGERED SPECIES ACT

61. Plaintiffs reallege all previous paragraphs as if set forth in full.

62. The Plan places no reliance on habitat metrics for assessing population status and 

delisting criteria.

63. USFWS has already determined with the critical habitat designation that bull trout 

need certain habitat components called Primary Constituent Elements (PCEs). The Plan does not 

contain any habitat standards or explain how managing primary threats will achieve the habitat 

conditions that bull trout require or provide the PCEs.

64. Physical habitat information is crucial to assure that threat reduction is actual and 

effective, and not a paper exercise, and much useful information specific to bull trout 

conservation has already been published. Heedless, the Plan lacks any critical examination or 

disclosure about how the effects of threats or their treatment on habitat and population viability 

will be informed prior to action, or verified after action.

65. The failure of the Plan to include habitat metrics as alleged here is a violation of 

the Endangered Species Act.

FIFTH CLAIM FOR RELIEF

VIOLATION OF THE ENDANGERED SPECIES ACT

66. Plaintiffs reallege all previous paragraphs as if set forth in full.

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Complaint 23

67. USFWS intends to govern recovery and delisting on the basis of ameliorating 

primary threats, yet the Plan fails to effectively or objectively evaluate threats, and the Recovery 

Unit Implementation Plans do not contain a complete listing and assessment of threats.

68. The Plan offers no systematic or scientifically defensible framework for the 

quantitative characterization of threats, or for the many potential interactive effects of multiple 

threats acting on bull trout habitat and populations.

69. The failure of the Plan to effectively or objectively evaluate threats as alleged 

here is a violation of the Endangered Species Act.

SIXTH CLAIM FOR RELIEF

VIOLATION OF THE ENDANGERED SPECIES ACT

70. Plaintiffs reallege all previous paragraphs as if set forth in full.

71. The Plan relies on adaptive management and monitoring that are vaguely defined 

and lack protocols.

72. Effective adaptive management for biological restoration and species recovery 

requires close attention to defining testable treatments, adequate scientific engagement in 

monitoring, analysis, and reporting of results, followed by a formal decision process that is 

triggered by a predetermined threshold response in the data, and is bounded by meaningful a 

priori biological criteria to gauge outcomes (McDonald et al. 2002, Murphy and Weiland 2014, 

Westgate et al. 2014).

73. The Plan lacks any such process for its adaptive management regime.

74. The Plan simply identifies adaptive management as an undefined means of 

resolving (entirely unspecified) uncertainties and potentially improving (in no specified way) 

future decisions and actions—with no identified means of providing the species a hedge against 

experimental actions or inactions that could cause widespread, irreversible harm.

Case 3:16-cv-00681-AC Document 1 Filed 04/19/16 Page 23 of 26
Complaint 24

75. The Plan’s reliance on vaguely defined monitoring and adaptive management as 

alleged here is a violation of the Endangered Species Act.

SEVENTH CLAIM FOR RELIEF

VIOLATION OF THE ENDANGERED SPECIES ACT

76. Plaintiffs reallege all previous paragraphs as if set forth in full.

77. USFWS has provided no clear evidence or demonstration that a general finding of 

“threats are managed” can be made with sufficient certainty that it should be the primary basis of 

permitting and species protection, recovery, and potential delisting. The Plan also fails to 

provide clear operational guidance for how such a determination is to be made for bull trout.

78. The failure of the Plan to provide clear operational guidance on determination of 

threat management as alleged here is a violation of the Endangered Species Act.

EIGHTH CLAIM FOR RELIEF

VIOLATION OF THE ENDANGERED SPECIES ACT

79. Plaintiffs reallege all previous paragraphs as if set forth in full.

80. The Plan does not adequately address the effects of climate change on the cold 

water habitat that bull trout need for survival. 

81. The Plan appears to assume that because climate change may hasten the 

extinction of some populations and thwart restoration efforts in others, it is grounds for not 

adopting any quantitative criteria for population persistence or distribution. However, the 

continued persistence of bull trout in arid and semiarid regions within the range of the bull trout 

indicates that persistence and potentially expansion of extant populations is possible under 

climatically stressed conditions if the natural hydrologic mechanisms that maintain water quality 

and habitat for bull trout are protected and restored.

82. The Plan fails to identify and protect these hydrologic and ecological factors that 

confer resilience to extant bull trout populations.

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Complaint 25

83. The Plan fails to incorporate any clear strategic assessment, prioritization, or 

specific slate of actions pertinent to sustaining these critical environmental actors and functions.

84. The failure of the Plan to address the effects of climate change as alleged here is a 

violation of the Endangered Species Act.

NINTH CLAIM FOR RELIEF

VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT

85. Plaintiffs reallege all previous paragraphs as if set forth in full.

86. In the alternative to the Claims for Relief under the Endangered Species Act, the 

APA grants this Court the authority to “hold unlawful and set aside... agency action found to be 

arbitrary, capricious or an abuse of discretion.” 5 U.S.C. § 706(2).

87. As described above, for each claim set forth above, USFWS has failed to consider 

relevant factors, failed to articulate a rational connection between the facts found and the 

decision made, and/or failed to follow applicable policy, regulation and law, all in violation of 

the APA.

PRAYER FOR RELIEF

WHEREFORE, the Plaintiffs pray for relief from this Court as follows:

A. To issue a declaratory judgment that the Defendants are in violation of Section 

4(f) of the ESA for the reasons set forth herein.

B. In the alternative, to issue a declaratory judgment that the Defendants are in 

violation of the APA, 5 U.S.C. § 706(2).

C. To issue a mandatory injunction ordering the Defendants to promptly develop and 

implement a lawfully adequate recovery plan for listed populations of the bull trout, and in no 

case to delay publishing a Notice of Availability for the draft revised recovery plan for more than 

more than 180 days from the date judgment. 

Case 3:16-cv-00681-AC Document 1 Filed 04/19/16 Page 25 of 26
Complaint 26

D. To award the Plaintiffs reasonable costs and attorney’s fees incurred in 

prosecuting this action.

E. For any other relief this Court deems just and proper in this action.

Dated this 19th day of April, 2016.

/s/ Gary K. Kahn ___________________

Gary K. Kahn (Oregon State Bar #814810)

Peggy Hennessy (Oregon Bar #872505)

Reeves, Kahn, Hennessy & Elkins

4035 S.E. 52nd Avenue

P.O. Box 86100

Portland, OR 97286-0100

Telephone: (503) 777-5473

phennessy@rke-law.com

/s/ Jack R. Tuholske____________________

Jack R. Tuholske (Montana Bar # 2902)

TUHOLSKE LAW OFFICE, P.C.

1149 Harrison St.

P.O. Box 7458

Missoula, MT 59807

Telephone: (406) 396-6415

jtuholske@gmail.com

(pro hac vice to be submitted)

Timothy Bechtold (Montana Bar #4376)

Bechtold Law Firm, PLLC

317 E. Spruce Street

PO Box 7051

Missoula MT 59807

Telephone (406) 721-1435

tim@bechtoldlaw.net

(pro hac vice to be submitted)

Attorneys for Plaintiffs

Case 3:16-cv-00681-AC Document 1 Filed 04/19/16 Page 26 of 26