9th Circuit Vacates Injunction

On April 4th, the 9th Circuit Court of Appeals unanimously ruled to vacate the injunction imposed by District Court Judge Brian Morris on construction of the fish bypass and concrete weir at Intake.

Although the ruling was a huge, positive step in what has been a very long, frustrating process, Lower Yellowstone Irrigation Project manager James Brower stressed the need for attendance at the summary judgment hearing in Great Falls on April 26th. "It is an undeniable miracle when three 9th Circuit judges rule in favor of farmers from a small Montana community," he said. "But, we can't let this positive ruling cause us to become complacent."

The Defenders of Wildlife has asked for an extension in order to reply to the ruling.

The 9th Circuit ruled to remove the injunction, in part, because the defendants (Defenders of Wildlife) did not say they were going after existing operations of the dam. But, they are doing exactly that in the most recent filings with the district court. Brower said there are over 12 other legal complaints that Morris could use to stop the project. "We have only won a battle," Brower said. "We have not yet won the war."

Brower pointed out that the fish bypass would have already been completed and working this season if the environmental clubs hadn't sued and stopped construction in 2015. The pallid sturgeon would have been on its way to recovery right now,

Although contracts for construction of the fish bypass and concrete weir have expired and will need to be renegotiated, funding for the project remains mostly in place thanks to our senators and congressmen in Washington.

The 9th Circuit ruled that Judge Morris erred when he considered the harm caused by the "continued operation of the existing weir" in its assessment of the irreparable harm attributable to the proposed project because the DOW did not seek to enjoin the operation and maintenance of the existing weir. Morris again erred when he flipped the burden of proof to the Corps, rather than the DOW on whether the proposed project would allow fish passage. The Court also ruled that the district court has no basis to conclude that the public interest favored an injunction.

The district court also erred in concluding that DOW had established a likelihood of success on its claims under the Endangered Species Act, the National Environment Protection Act or the Clean Water Act. "Under this deferential standard, we find no basis to conclude that DOW was likely to succeed on the merits of its claims," the court decision stated. The 9th Circuit found Judge Morris's ruling on the various alternatives to the proposed project, including pumping, as arbitrary and capricious. It also said that the Corps' finding that there was no other practicable solution was supported by ample evidence.

The hearing for Summary Judgment is scheduled for Thursday, April 26 at 1:30 p.m. in Great Falls. Buses will begin loading at 5 a.m. at the Richland County Extension building and will leave promptly at 5:15 a.m. Lunch and beverages will be provided and LYIP will provide a hot meal after the hearing.

Anyone wishing to ride is asked to contact Richland Economic Development at 406-482-4679. Also, please let them know if you plan to drive on your own; the court needs to know how many people in that courtroom are there in support of our community.

Updated 4-10-2018: The hearing for the Summary Judgement has been set to Thursday, April 26 at 1:30 p.m. in Great Falls. The story has been edited to reflect this new information.