Federal district court judge Brian Morris issued his summary judgment ruling in the lawsuit that threatened to end irrigation in the lower Yellowstone valley. The ruling is cause for joy and celebration with caution.
The ruling is a solid win for our community. In addition, some of its points, besides contributing to this win, can be beneficial in future cases. There are, however, several reasons for caution about further litigation.
Let’s look at points that can help us in future cases.
At last, due consideration was given to the fact that Congress specifically authorized irrigation dams on the Yellowstone River. The Intake dam was authorized by Congress. The Endangered Species Act was passed afterwards. This lawsuit attempts to apply the ESA retroactively or as if the passage of ESA repealed the earlier authorization of the dam. In this new order, Judge Morris puts the kibosh on that. He recognized that a second act of Congress must show a clear intention to repeal a prior act, or else the authorization continues.
Also at last, due consideration was given to irrigation as part of the overall purpose of the project. Well duh!
In the challenge to the project under the Clean Water Act, Defenders of Wildlife separated the irrigation purpose from two environmental purposes. With irrigation left out of the equation, it then condemned the Army Corps of Engineers’ decision that the multiple pumps alternative to the fish bypass channel was not practical for the overall purpose of the project. In the appeal of the second preliminary injunction, the 9th Circuit Court of Appeals keyed in strongly on Judge Morris’ failure to consider the impracticality of multiple pumps for irrigation. The overall purpose should include all three, not just two, of the purposes. In this new order, he now includes irrigation in the equation, recognizes the impracticality of multiple pumps for the irrigation purpose, and recognizes even some environmental doubts about multiple pumps.
Also at last, due consideration was given to the viability of hatchery pallid sturgeon. There are precious few wild pallid sturgeons in the Yellowstone and Missouri Rivers. Defenders of Wildlife tried to treat wild fish and hatchery fish almost as if they were different species. That would disqualify the thousands of hatchery fish from being considered for recovery of the species following construction of the new project, and hence stop the project. Those from our community who attended the oral arguments will recall how surprised Judge Morris said he was about the hatchery fish. He acted as if they never had been mentioned before, though our side had brought them up multiple times both orally and in written briefs. In this new order, Judge Morris recognizes prior 9th Circuit decisions that hatchery fish can be considered and we have a good supply of hatchery pallid sturgeon.
The 9th Circuit said Judge Morris had flipped the burden of proof about a major issue under the ESA from the Defenders of Wildlife to our side. This new order recognizes where the burden of proof is, and that should help in the future.
There are some reasons for caution.
Defenders of Wildlife can appeal. The 9th Circuit could reverse. It probably won’t, but it could.
This ruling applies only to some of the 14 claims of Defenders of Wildlife’s complaint. It only disposes of claims 1, 2, 4, 5, and 11 to 14. We should look at the remaining claims.
A major part of this new order depends on the Corps and the Bureau of Reclamation following through with their plan to develop the Project with its new bypass channel. So we need to be an active part of encouraging them to follow through.
The dismissal is “without prejudice.” This means the claims could be filed again. The order discusses scenarios in which refiling could be viable both as to Intake and Fort Peck. Regarding Fort Peck, Judge Morris issued an ominous warning to the Corps. After we have enjoyed this victory for a time, we need to delve more into the scenarios that could allow refiling of claims.
Even with these cautions, the ruling is worthy of jubilant and public celebration as a great victory. Many human hands were in this work, and one mighty Divine hand.
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