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Ted Turner, media mogul and self-proclaimed environmentalist, wants
to poison 77 miles of creek and tributary, including a lake inside
a congressionally designated Wilderness Area. The reason: to kill
a thriving fishery and attempt to plant a new one.
In the process, Turner may receive a rare dispensation under the
Endangered Species Act that exempts him from potential bison or
land management restrictions on his adjacent ranch–and may eventually
be able to restrict all but his own access to fishing in the area,
as well. For once, most of the state’s environmental groups–perhaps
because they now rely on Turner for so much of their funding–are
willing to support the idea or remain silent, rather than vociferously
oppose as they have numerous other proposals in recent years,
many of which have promised less potential impact on the natural
and human environment.
Most amazing, government agencies normally accustomed to making
others follow painstaking environmental review and permitting
processes, in this case very nearly went ahead with the project–funded
by Turner–without applying the same laws to themselves.
That’s one way of looking at it. There are other ways, and that’s
why the Cherry Creek controversy in Montana isn’t likely to dissipate
in the near future. In fact, the controversy is just getting started,
and one of the mysteries is that it took several years to attract
attention. The lack of the usual shrill opposition from environmental
groups may explain the delay.
From now on, the whole world will be watching. Last summer, Outdoor
Life called it “Playing God with Cherry Creek,” and the allusion
was apt. The controversy reduces to the questions of who gets
to play God and how; of what is natural and “native” and what
isn’t; and how the answers to these questions may affect future
efforts to protect and rebuild populations of threatened or endangered
species.
Begin at the beginning, with Cherry Creek itself. Its ice-cold
spiderweb of tributaries forms in the high country between Bozeman
and Norris, Mont., inside the Lee Metcalf Wilderness on U.S. Forest
Service land, where seven-acre Cherry Lake sits at an elevation
of 8,520 feet. From its public land-based sources the creek descends
over the course of 21 miles, flowing through the mountainous grasslands
of Ted Turner’s Flying D Ranch and down into the Madison River,
one of Montana’s most famous fisheries, about 20 miles upstream
from the small town of Three Forks. For roughly seven months of
the year, brutal winter conditions freeze over most of the upper
Cherry Creek waters.
When Lewis and Clark first passed through the Madison River valley
nearly 200 years ago, they reported in their journals on the abundance
of fish in the Yellowstone area that today are known as Yellowstone
cutthroat trout. At that time, just a few miles away, the waters
of Cherry Creek and Cherry Lake were barren. In the early 1900s,
fish and game departments began planting waters all over Montana
with various fish. Yellowstone cutthroats and other species were
planted in Cherry Creek and Cherry Lake.
Over the years, the waters came to support a multifaceted, self-sustaining
fishery, with large populations of Yellowstone cuts as well as
rainbows, brook trout and an unknown range and number of nongame
species. By the late 1980s, the U.S. Forest Service concluded
that Cherry Creek and Cherry Lake could take care of themselves
forever with no further help from humans–and that allowing them
to do so should be the guiding management policy. This “leave
it alone” decision for the fishery was completely consistent with
historic applications of the Wilderness Act, but the Forest Service
is now contradicting it with support for the poisoning project.
Some fish biologists offer a series of good reasons for leaving
the fishery alone. For one thing, they say the uniquely harsh,
predominantly ice-bound environment of the area’s waters has acted
upon generations of trout so that the fish there today represent
nature’s most perfect adaptation for the setting. They also note
that under historic interpretations of the Wilderness Act, species
present at the time of designation should be regarded as “native”
if they can sustain themselves, as they can in the case of Cherry
Lake. On top of that, they note that the Yellowstone cutthroat
is Montana’s state fish. It’s also potentially in line for listing
under the Endangered Species Act, which is another reason some
say the Cherry Creek and Lake waters should be left alone: the
area could be used as a natural hatchery, providing highly adapted
eggs to help restore Yellowstone cutts to other, similarly demanding
high country environments.
But the Yellowstone cutthroats aren’t Montana’s only state fish.
All cutthroats are, and that includes another subspecies, the
westslope cutthroat. And there’s the rub. Westslopes, too, are
expected soon to come under special protection (sooner than Yellowstones),
and it was for that reason that the Cherry Creek and Cherry Lake
poisoning proposal was hatched. Montana wildlife officials say
they hope to prevent the endangered listing for westslopes, by
quickly building new populations of them in places like Cherry
Creek.
Never mind that both subspecies are in trouble, with only the
Yellowstones firmly established in, and technically “native” to,
the Cherry Creek and Lake waters. Never mind that, in fact, the
Yellowstone cutthroat has the higher ranking in Montana’s list
of “species of special concern,” and that Yellowstones survive
in a smaller percentage of their original range than do westslopes.
And never mind that, as many point out, a species called “westslopes”
by definition may not be truly “native” to the east slope of the
Continental Divide, where Turner’s Flying D Ranch and the Cherry
Creek waters lie.
The idea is to help save the westslopes by destroying the others
that already thrive. The state’s Fish, Wildlife & Parks department
proposal calls for pouring the poisons rotenone and antimycin
into Cherry Lake and Cherry Creek every year for up to four or
five years, in hopes of killing every fish (and everything else)
already there, and then to plant the waters with westslopes.
One of the reasons for the demise of westslopes elsewhere is that
they crossbreed with other species, including Yellowstones, and
numerous species can easily out-compete them; thus, creating a
new westslope fishery requires that the planted fish have no competition.
In effect, the Cherry Creek-Lake proposal seeks to make up for
the fact that past fish-planting practices helped decimate previous
westslope populations elsewhere. It’s playing God again today
(in a setting that’s doing just fine, thank you), to correct the
mistakes that playing God created earlier somewhere else.
Exactly who hatched this proposal is impossible to say for sure.
At a minimum, it was clear to leaders of the state’s fish and
wildlife agency that Ted Turner would be willing to fund or help
fund large-scale “native” fish population restoration efforts,
perhaps especially if they were to occur near his massive ranch
properties in western Montana. After all, Turner had created a
foundation especially for the purpose of assisting in endangered
species recovery, which had funded a recent (and failed) planting
of arctic grayling in the same Cherry Creek waters. Agency officials
acknowledge that without Turner’s offer of additional funding,
on the order of $500,000, they wouldn’t be proceeding with the
new Cherry Creek project. (Ironically, if even one of the recently
planted graylings has survived, then the new Cherry Creek proposal
would be illegal on its face, directly afoul of the Endangered
Species Act.)
“It doesn’t matter who thought this up. It just doesn’t make sense
to eradicate a healthy population of Yellowstone cutthroat to
replace them with westslopes,” says George Ochenski, one of the
state’s only card-carrying environmental activists willing to
criticize both Turner and the state fish and wildlife agency.
Ochenski thinks it makes no sense to destroy an existing, “fabulously
healthy” fishery, in the hopes of creating a new and different
one. Especially not when the odds of succeeding seem lower than
agency officials admit, and not when the ramifications and potential
consequences of the action have been so poorly analyzed, or even
revealed, for meaningful, and required, public participation in
decision-making.
One of the ironies of the Cherry Creek issue is the government
agencies that developed and would implement the proposal–agencies
that ordinarily make others follow rigorous environmental review
and public involvement processes–in this case seem to have skipped
or avoided key required steps in permitting the project. And the
environmental groups that ordinarily regard themselves as the
watchdogs of the process, and who often use demands that the nuances
of permitting rules be applied fully, in this case have turned
a consistently blind eye to such questions.
At a minimum, if anyone other than a state agency funded by Ted
Turner sought to pour poisons into a wilderness lake and 77 miles
of surrounding creek and tributary, the state’s leading environmental
groups would be screaming that three kinds of permits are needed.
A “3a authorization” is the permit required for creating “short-term”
exceedances in state water quality standards. Critics of the Cherry
Creek proposal believe that four or more years of fish poisoning
would hardly qualify anyone other than a state agency for a “short-term”
permit, but at least back in early 1998, the Montana fish and
wildlife agency did apply for and obtain one of these. On the
other hand, the permit was acquired without the now-standard Environmental
Impact Statement (EIS), and it granted permission only to exceed
the state’s standard for turbidity. The decision process had analyzed
and allowed nothing in the way of exceeding water quality standards
by introducing poisons.
“They would have gone ahead with the poisoning last year, with
just this deficient ‘3a authorization,’ if it hadn’t been for
public outcry at the last minute,” says Alan Joscelyn, a Helena,
Mont., attorney who is helping several small grassroots groups
that oppose the proposal. In the past, Joscelyn has represented
mining companies in their numerous (often failed) attempts to
obtain water quality permits, and he is keenly aware of an apparent
double-standard in how the agencies have applied permitting rules
to others in the recent past as compared to themselves in this
instance.
At the eleventh hour last year, the U.S. Forest Service revoked
its permission to use poison inside the Wilderness Area (and to
use motors as well, to disperse the poisons throughout Cherry
Lake), because it noticed that a requirement to publish a “public
notice” in local newspapers had been ignored. Some of the project’s
opponents also claim that on the very day the first poisoning
was to have occurred, a television news crew from Fox-TV showed
up at the front gate of Turner’s ranch, seeking access to film
the event. Turner happened to be there that day, they say, and
the project only came to a screeching halt when he became aware
of the possibility that a rival news network could soon be airing
footage of a lake and creek filled with floating dead fish–on
Ted Turner’s property.
The postponement gave Joscelyn time to raise questions about the
legitimacy of the permitting process the agencies had used. In
addition, he pointed out that the agencies had skipped entirely
two separate, required permitting processes.
A “401 certification” is required under the federal Clean Water
Act whenever a federal agency plans to allow something on its
turf that might affect water quality. To acquire a 401 certification,
the state involved has to “certify” that the action won’t violate
state law or state water quality standards. For some reason, neither
the state, the feds, nor the usual environmental watchdogs had
noticed that a 401 certification would be required to permit the
poisoning of Cherry Creek.
They also “forgot” about a third permit that Joscelyn contends
is needed, a discharge permit that the Clean Water Act requires
before any foreign “pollutant” can be put into waters, especially
those classified as “outstanding natural resource waters” like
Cherry Creek. This is one of the permit requirements environmental
groups in Montana have used actively as a tool for delaying and
attempting to deny development actions they have opposed in the
past.
“My contention is that this is too important to leave to agency
discretion on a case by case basis,” Joscelyn says. “We’re a nation
of laws, not of men. Once you have a law out there, everyone has
to abide by it equally if the law’s going to mean anything. Otherwise,
you’re leaving it to changing political and subjective whims and
the law loses its meaning. They should be able to do this only
if they abide by the law fully the way anyone else would have
to.”
This year the fish and wildlife agency started from scratch, applying
for the 401 certification and reapplying for the 3a authorization.
(They still haven’t applied for the discharge permit that Joscelyn
also believes is required under the Clean Water Act.) The department
produced an environmental assessment (EA) that concluded there
is no need for an EIS, because there would be no significant impact
from five years of poisoning, and that killing all the fish and
aquatic life would have no significant impact on the birds and
mammals that feed on them.
The EA concluded there was little chance that any of the existing
fish would escape the effects of poisoning and thus ruin the project’s
promised outcome, and that replanting the waters with westslope
cutthroats would succeed. There was no mention of any possibility
the new fish could be ill-adapted to the harsh environment of
Cherry Creek. Neither was there mention of the possibility that,
presuming the successful creation of a new westslope fishery,
and presuming the species might soon be listed under the Endangered
Species Act, another outcome could well be the permanent closure
of the Cherry Creek and Lake waters to sportfishing–by anyone
other than Ted Turner and his friends, that is.
That’s when local opposition to the proposal crystallized and
gathered further steam. Public comment on the fish and wildlife
agency’s EA ran five-to-one against the project, and a poll of
Outdoor Life’s national readership has since found 98 percent
of respondents opposed. But the agency proceeded with its plans,
and the state’s health department issued another EA in late summer,
concluding the project would produce no adverse effects on public
health.
“This reminds me of Vietnam, destroying a village to ‘save’ it,”
Ochenski complains. “It is unknown if westslope cutthroats from
a domestic hatchery will be able to survive in these waters, but
the Yellowstone cutthroats have been in Cherry Creek for nearly
a century, self-maintaining and thriving now, fully adapted. This
is a huge-scale biology experiment that may well fail, and either
way there is almost no question in my mind that the ultimate outcome
will be an end to sportfishing for a long time to come.”
That’s what motivates the unstinting opposition of Bill Fairhurst,
president of the Public Lands Access Association, Inc. (PLAAI)
and prime mover of those who are fighting to stop the project.
Now 70 years old, Fairhurst grew up in the area and has fished
the Cherry Creek waters his entire life. Years ago, when Ted Turner
first was attempting to acquire a portion of his ranch through
a land exchange with the state, Fairhurst led his group to file
suit to ensure the waters would remain open to public access and
sportfishing. The ultimately successful action nearly bankrupted
his organization. He says he has no intention of allowing that
victory to be nullified by a risky “native” species “reintroduction”
in a location where the westslope species has never before existed.
Fairhurst and several of his friends have organized a steadily
growing opposition to the poisoning proposal. Besides the PLAAI,
there are the Anaconda Sportsmen Club, the Montana Coalition for
the Appropriate Management of State Lands, the Cherry Creek Access
Association, Montanans for Multiple Use, and the City Council
of Three Forks, all now on record asking for a full EIS or a stop
to the project.
Lined up on the other side, supporting the project without further
study, are Trout Unlimited, Montana Ecosystems Defense Council,
American Wildlands, and the Federation of Flyfishers. But numerous
other environmental groups in Montana have been uncharacteristically
silent.
“The usual environmental groups are afraid to oppose Ted Turner
and the state agencies on this project,” Fairhurst charges. “They
are setting a horrible and hypocritical precedent of allowing
sloppy and incomplete environmental analysis to guide government
decisions for their friends, when if this were a mining company
or a timber company or anyone else they would be demanding full
and even extreme application of permitting laws.”
At a public hearing on the project held in Bozeman last August,
Fairhurst and others called for an Environmental Impact Statement
before permits are granted, and they noted a series of inadequacies
in the state’s assessments to date. The proposal’s impacts on
nongame species have yet to be assessed, and federal law requires
that any reduction in nongame species be addressed in an EIS process.
The EA doesn’t say what will happen to the millions of dead fish
bodies, nor what effect they will have on the environment, and
fails to adequately assess what will happen throughout the food
chain in the project area. The project also seems to have been
developed in a vacuum where long-term fish restoration is concerned:
why not plant westslopes in a place where no existing fishery
would have to be killed, and especially why do it in a fishery
that includes a threatened species? Where’s the statewide analysis
that demonstrates Cherry Creek is the smartest location for the
first large-scale project of this kind?
Perhaps most alarming to some who oppose the poisoning proposal,
none of the state’s analyses has discussed in any detail the presence
and potential effects of the various “inactive” ingredients involved
in the poisons that would be used. That’s what worries the town
of Three Forks, which draws its drinking water from the Madison
River system downstream.
The state’s health department and fish and wildlife agency both
assure everyone that none of the substances, including at least
one known carcinogen, could have an adverse health effect at the
levels of dilution involved. But local officials find no comfort
in this claim, because the last memorable time state agencies
made such assurances about a large-scale use of the same chemicals
the ultimate outcome was disaster, pure and simple. It happened
in the town of Portola, Calif., where the economy depends significantly
on tourism and sportfishing, just like Three Forks, Mont. Five
years after California wildlife officials poisoned nearby Lake
Davis to kill off all the northern pike, the pike persist (contrary
to government predictions), the town’s former drinking water supply
is contaminated and unusable (contrary to government predictions),
and the economy has dried up.
Montana’s state agencies point to numerous differences between
the Lake Davis disaster and their proposal for Cherry Creek, but
opponents insist that the decision-makers have yet to provide
the kind of rigorous analysis environmentalists would ordinarily
demand of them, both of the carcinogens and other ingredients,
and of how they would degrade and interact with the environment
once released.
Some opponents of the Cherry Creek proposal add that in their
view Montana’s fish and wildlife agency has a dismal record when
it comes to playing God on a large scale, so they find the government’s
current reassurances unpersuasive and even ominous. They fear
their favored fishing grounds above the Madison River will suffer
the same sort of fate Montana wildlife officials dealt Flathead
Lake, the largest natural freshwater lake west of the Mississippi.
In 1968 and 1975, the state agency planted mysis shrimp in Flathead
Lake’s tributaries, intending that this added fish food would
improve the area’s thriving salmon fishery. But the actions backfired
horrendously when the shrimp turned out to feed on the same zooplankton
as the lake’s salmon and native cutthroats. Today, the salmon
and cutthroats have been decimated, the mysis shrimp thrive, and
lake trout populations have surged to the point where they are
now outcompeting bull trout in local rivers. Bull trout are now
being listed under the Endangered Species Act, and, according
to Dr. Jack Stanford of the University of Montana Flathead Lake
Biological Station, “the most ecologically agonizing issue currently
relates to the changing food web caused by the mysis shrimp.”
Fairhurst and the groups allied with him will likely file a lawsuit
if state agencies decide this fall to grant themselves the permits
they acknowledge needing in order to poison Cherry Creek. Joscelyn
believes courts will agree with him, that the permitting process
has been inadequate and unlawful. “Not only has the state done
an incomplete job in the two permitting processes they have applied
to themselves,” he says, “but they still have not applied for
the basic discharge permit required by the Clean Water Act.”
Strangely, the Environmental Protection Agency, the very agency
that administers the Clean Water Act, doesn’t know if Joscelyn
is right about this or not. When Fairhurst asked the governing
agency whether a discharge permit should be required in this instance,
northern region EPA director John Wardell sent back a letter saying
that there’s internal disagreement about that question and no
one knows. In other words: “Go to court and find out; it’s not
our job to say.”
Skeptics at the grassroots level in Montana can perhaps be forgiven
for wondering: If the folks seeking to poison a wilderness fishery
weren’t a state agency funded by Ted Turner and supported by environmental
groups that usually are the naysayers, would EPA’s answer have
been the same?
Tom Daubert is a writer and environmental communications consultant
in Helena, Mont. He can be reached at <doebare@aol.com>. |
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