Preliminary Injunction Dissolved

In a crucial victory for the farmers and communities along the Yellowstone River, the preliminary injunction halting the construction of the concrete weir and fish bypass at Intake has been dissolved by U.S. District Court Judge Brian Morris.

Citing resolution of the concerns that led to the injunction, as well as precedent set by other projects, the judge granted the defendants’ (Lower Yellowstone Irrigation Project and Federal agencies) motion for partial dismissal and to dissolve the preliminary injunction.

With cooperation of the U.S. Army Corps of Engineers, the funding is in place and construction will begin immediately in the middle of the island without disturbing the river until after this year’s migration of the pallid sturgeon.

The pallid sturgeon was placed on the endangered species act in 1990. After spawning, the larvae drift for 152 to 329 miles while developing. The purpose of the new fish bypass is to provide a route around the concrete weir, allowing for enough drift. The FWS identified in its Biological Opinion that “successful passage above the dam would cause a population response conducive to recovery.” The current design of the bypass channel includes a review of information on the swimming ability of the pallid sturgeon, performance of other fish bypass channels, potential causes for bypass failures, and use of side channels for upstream movement. “Passage will increase the potential for recruitment and thus recovery.” The 2016 ROD deduces that the project “may increase the chances of natural recruitment and contribute to meeting recovery goals as defined in the Pallid Sturgeon Recovery Plan.” Telemetering has shown that the pallid sturgeon explore around the dam “and move both downstream and back upstream indicating they may be searching for a passageway around the dam.”

Federal defendants also studied other fish bypass channels including the Glen – Colusa constructed gradient facility (riffle) on the Sacramento River, which was built for passage of the green sturgeon. A three year monitoring study demonstrated that 12 – 50% of the tagged fish successfully migrated upstream past the riffle. Federal defendants contend that this number reflects a conservative estimate since the study was conducted at the end, or after, spawning season.

The Federal defendants also analyzed the Muggli Bypass Channel on the Tongue River in Montana, which was built by private people who could not afford to build it to biologist engineers fish bypass specifications. It was built far too steep by non-professionals. Although the Federal agencies state that it failed to pass the shovelnose sturgeon, Mr. Muggli says it does pass a lot of sturgeon.

The Court recognized that NEPA is not a crystal ball and does not require the Federal Defendants to make a quantitative assessment of each alternative’s probability of success when Federal Defendants lack data to make those assessments. “Federal Defendants’ analysis of pallid sturgeon behavior when approaching the dam, analysis of other fish passages, and careful study of pallid sturgeon swim patterns in flumes and the highwater side channel, satisfy the Court that the Federal Defendants have attempted to provide the best available information. The Court lacked the authority to require anything more in its preliminary injunction order.”