A Rio Grande cutthroat trout. Photo courtesy Andrew Todd.
Cutthroat trout historic range via Western Trout
FromThe Grand Junction Daily Sentinel (Charles Ashby):
In a federal lawsuit filed by the Tucson, Arizona-based Center for Biological Diversity, U.S. District Senior Judge Marcia Krieger ruled that the service used one method of counting the fish when it first considered adding it to the endangered list in 2008, but changed that method when it reconsidered its decision in 2014 without explaining why.
“Because the service had offered no explanation for the different methodologies it used in 2008 and 2014 to calculate the number of healthy trout populations, the court must conclude that the change in methodology was, on the instant record, arbitrary and capricious,” Krieger wrote.
“It may very well be that new studies, new sampling methods, or other analytical tools developed since 2008 call into question the service’s 2008 determination that 2,500 trout are required before a population can be declared stable,” she added. “But the service has not pointed the court to evidence in the record that establishes the basis for such a change in methodology.”
As a result, Krieger reversed the service’s 2014 denial of adding the fish to the list, and ordered the federal agency to provide more analysis and explanation for the criteria it used to calculate what constitutes a healthy trout population.
Officials with the center said this doesn’t mean the trout will be added to the list just yet, but the ruling gets it closer to that goal.
“We’ve been fighting to save Rio Grande cutthroat trout for more than 20 years,” said Michael Robinson, a conservation advocate for the center. “It’s a relief to have it one step closer to getting the help it so badly needs. The trout is barely hanging on in a small number of tiny, isolated headwater streams.”
Robinson said the service had found that the trout deserved protection in 2008, but never actually added it to the list. In 2014, it changed its mind about that determination, saying the fish didn’t need protection, but did so after arbitrarily lowering that 2,500-fish population threshold to just 500, he said.
“The Fish and Wildlife Service moved the goal posts in order to get to a politically driven decision that the trout doesn’t warrant protection,” Robinson said. “The livestock industry and states like Colorado and New Mexico oppose trout protections.”
The Rio Grande cutthroat normally is found in high-elevation streams and lakes of the Rio Grande, Canadian and Pecos rivers in Colorado and New Mexico, according to Colorado Parks and Wildlife, which says the fish now only occupies about 12% of its historic habitat on about 800 miles of streams…
Last week, Colorado joined 16 other states in challenging the Interior Department’s changes in how endangered species are put on and taken off the list, including a new rule that allows the financial cost of listing a species to be a determining factor.
This summer, the Yurok Tribe declared rights of personhood for the Klamath River — likely the first to do so for a river in North America. A concept previously restricted to humans (and corporations), “rights of personhood” means, most simply, that an individual or entity has rights, and they’re now being extended to nonhumans. The Yurok’s resolution, passed by the tribal council in May, comes during another difficult season for the Klamath; over the past few years, low water flows have caused high rates of disease in salmon, and cancelled fishing seasons.
With the declaration, the Yurok Tribe joins other Indigenous communities in a growing Rights of Nature movement aimed at protecting the environment. Last year, the White Earth Band of Ojibwe adopted the Rights of Manoomin to protect wild rice — manoomin — and the freshwater sources it needs to survive in Minnesota. And in 2017, the New Zealand government adopted the Rights of the Whanganui River, stemming from a treaty process with Māori iwis, or tribes, that gives the river its own legal standing in court. “By granting the rights of personhood to the Klamath River, not only does it create laws and legal advocacy routes, but it’s also an expression of Yurok values,” says Geneva Thompson, associate general counsel for the tribe and citizen of the Cherokee Nation, who worked on the resolution. “The idea is that the laws of a nation are an expression of the nation’s values.”
The Yurok resolution draws inspiration from the Rights of Manoomin, as well as the United Nations Declaration on the Rights of Indigenous People, which enshrines the right of Indigenous people to conserve and protect their lands and resources. Legal personhood provides a different framework for dealing with problems like pollution, drought and climate change, though no case has yet been brought to put the Whanganui, Manoomin or Klamath rights to the test in court. The crucial aspect to establishing these legal frameworks, Indigenous lawyers say, involves shifting relationships and codifying Indigenous knowledge — in other words, recognizing non-human entities not as resources, but as rights-holders.
“From New Zealand to Colombia, the powerful idea that nature has rights is taking root in legal systems,” says David Boyd, U.N. special rapporteur on human rights and the environment, of the Yurok Tribe’s resolution. “We must no longer view the natural world as a mere warehouse of commodities for humans to exploit, but rather a remarkable community to which we belong and to whom we owe responsibilities.”
In essence, the Yurok resolution means that if the river is harmed, a case can be made in Yurok tribal court to remedy the problem. Currently, says Yurok Tribe General Counsel Amy Cordalis, laws like the Clean Water or Endangered Species acts can be used to protect rivers by addressing symptoms of problems like diseased fish or pollution. But the Yurok resolution seeks to address the river’s problems directly and holistically, including the impacts of climate change. “You’re working towards making the river whole again,” Cordalis says.
In December 2018, the White Earth Band of Ojibwe and the 1855 Treaty Authority, an organization that upholds treaty rights for Chippewa bands, established legal personhood for wild rice. The resolution draws from the Rights of Nature — an international concept that argues that nature should have the same rights as humans — and is the first law to recognize legal rights of plant species. The rights spell out that within White Earth and other Chippewa ceded territories, wild rice has “inherent rights to restoration, recovery and preservation,” including “the right to pure water and freshwater habitat,” the right to a healthy climate and “a natural environment free from human cause global warming.” Frank Bibeau, executive director of the 1855 Treaty Authority and a White Earth tribal member, says the rights are an extension of Ojibwe treaty rights both on and off the reservation. And they may soon be put to the test — the proposed crude oil Enbridge Line 3 pipeline, which requires state approval, would cross into off-reservation areas where manoomin and freshwater sources are.
The resolutions give tribal nations new legal strategies for use in court, especially in regards to climate change: “The idea of having legal avenues to address the harms of climate change is an important next step as legal systems adapt to the climate crisis,” says Thompson at the Yurok Tribe. And they also encourage a change in mindset, says Maia Wikaira, an environmental law attorney who worked with the Yurok Tribe’s legal team, and a member of the Ngāti Tūwharetoa, Te Rarawa and Ngāpuhi tribes of New Zealand. As tribal nations establish rights for nonhumans, it creates an opportunity for states to follow suit, and incorporate the concept into their own court systems. “It’s another example of where long-held Indigenous perspectives and association with the natural world are not only being embedded within our legal system — they’re being seen in popular environmental movements as an innovative way forward and a necessary step,” Wikaira says. “So, old is new again.”
Rights of nature have already been established in Colombia, Ecuador and India, with varying success, and have also appeared in non-Native communities in the U.S. In Ohio this February, voters passed a law — which is already being challenged — granting Lake Erie personhood rights. An attempt in 2017 by Coloradoans to force the state to grant the Colorado River rights of personhood collapsed after the state threatened possible sanctions against the lawyer behind the case.
Now, Thompson says, the relationship between the Yurok Tribe and the Klamath River is reflected in the tribe’s law. “It shifts the conversation, and it shifts the value system, because you see the environment has a right to be clean and protected for the environments sake.”
Anna V. Smith is an assistant editor for High Country News. Email her at email@example.com.