Whitebark pine trees face eradication from beetles, fungus, climate change and, according to a judge’s decision, lack of government funding.

But that last threat is a legitimate reason for the U.S. Fish and Wildlife Service to label whitebark pines “warranted but precluded” from Endangered Species Act protection. U.S. District Judge Dana Christensen wrote he wouldn’t try to force Congress to provide more money to list the tree.

“There is no question that the listing program is underfunded, and as a result, many candidate species otherwise deserving of the (Endangered Species) Act’s wide protections are languishing in ‘warranted but precluded’ limbo,” Christensen wrote in his April 25 decision. “However, Congress is ultimately endowed with the exclusive authority to appropriate funds, and thus to grant, deny or modify any request that the Secretary might make. The Court declines to take the drastic step of overturning the warranted but precluded determination … based on the agency’s alleged failure to do its level best to obtain the full amount needed to fund the listing program.”

The case, WildWest Institute and Alliance for the Wild Rockies v. Ashe, Salazar and the state of Wyoming, was decided on April 25. The two environmental organizations filed suit on Jan. 15, 2013.

AWR Director Michael Garrity said the groups planned to appeal to the 9th U.S. Circuit Court of Appeals.

“Their excuse was they don’t have enough money to list it,” Garrity said Friday. “Even though two other courts have ruled along the lines we thought (Christensen) should rule, he’s disagreeing with them. We think it’s their job to ask for more money, and we’d like the 9th Circuit to resolve the issue.”

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Whitebark pines grow on high-altitude mountain slopes and mature trees can produce big crops of protein-rich pine nuts. Grizzly bears and other animals count on the trees as a major food source. But decades of devastation by blister rust fungus and mountain pine beetle infestation have put it in danger of extinction. FWS research expects it to be gone from the landscape within two or three generations.

In July 2011, FWS decided whitebark pine was warranted but precluded from protection under the Endangered Species Act. That means while the agency agrees the tree is in danger, it does not have the resources to prioritize its protection over other species already listed.

The Fish and Wildlife Service ranks species’ risk numerically from 1 to 12, based on their respective threats and rarity. The environmental groups argued that whitebark pine got a rank of 2 – second-most serious – but the federal agency let species with lower ranks get protection while the tree was precluded.

Christensen ruled the ranking could assist FWS in setting its priorities, but didn’t force it to work exclusively by the strict order of worst-first standing.

“Congress could have expressly bound the service to its (listing priority number) rankings or some other proxy for degree of threat, but chose not to do so,” Christensen wrote. “The court will respect that decision.”

In September 2011, FWS settled another lawsuit over its endangered species backlog by creating a work plan to finish initial reviews of more than 600 species and settle the status of 251 “candidate” species that were already under review. But the whitebark pine status was done before that agreement was imposed, Christensen said.

Christensen also agreed with FWS’ claim that developing multi-species protection plans (that might include whitebark pine with things facing similar threats or use similar areas) was a reasonable and logical effort.

“The service provided sufficient reasoning and data upon which the finding that listing of the whitebark pine is ‘precluded by pending proposals to determine whether any species is an endangered species or a threatened species’ as required by (law),” Christensen wrote. “In the case of the whitebark pine, the service turned in its homework, which the court gives a passing grade.”

Reporter Rob Chaney can be reached at 523-5382 or at rchaney@missoulian.com.

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