While the court case dealing with the request for an injunction against the fish bypass and concrete weir at Intake is not over yet, Lower Yellowstone Irrigation Project manager James Brower no longer feels like it is an uphill battle.
Strong responses from the Department of Justice combined with that of LYIP effectively argue against the injunction on the basis of law and the public interest.
The DOJ filings dispute every part of the suit filed by the defenders of Wildlife and the Natural Resources Council, including the plaintiffs’ claims that their side was never considered. Ample opportunity was given for comments since the final environmental assessment in 2010 including multiple public comment periods. Allegations by the plaintiffs that the Bureau of Reclamation and the Army Corps of Engineers were not following regulations are also strongly disputed. Quoting multiple cases, the DOJ makes their case for disallowing the injunction. Brower is pleased with the DOJ filing, not having expected such an aggressive response. Six Department of Justice environmental and conservation attorneys are signed up on the case.
LYIP also filed in support of the DOJ and included 22 declarations of support for the project at Intake. “That makes our case so strong,” Brower said. “It provides proof of the public interest, including that further delays will harm the pallid sturgeon.”
In 2005, when Congress authorized the USACE to improve fish passage, it was with the stipulation that irrigation remain effective. “These declarations from local communities and friends were instrumental in proving our case,” Brower stated. “It’s not won yet, but it no longer feels like an uphill battle.”
The Injunction hearing goes before a judge in Great Falls on August 27. In the meantime, the USACE is reviewing the bids which have been received, to make sure they meet specs. As soon as the hearing is resolved in favor of the project, work can begin.
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