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Murky Waters

Ted Turner, government agencies, and the poisoning
of Montana’s Cherry Creek.

By Thomas Daubert

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 <>.


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