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Thursday, March 22, 2018

Ninth Circuit Court to hear appeal on Intake injunction

By Jason Stuart

Ranger-Review Staff Writer

The outcome of the court case tying up the Intake diversion dam project may now rest with a federal appeals court.

Lower Yellowstone Irrigation Project manager James Brower said on Thursday that the U.S. 9th Circuit Court of Appeals based in San Francisco has agreed to hear an appeal on the injunction against the project moving forward from LYIP and U.S. Justice Department attorneys. 

Brower, for his part, was somewhat encouraged that the 9th Circuit Court agreed to hear the case.

“They could have turned us down, but they thought that our case might have merit,” he said. “So the 9th Circuit is hearing all the original evidence and going over the issues that our attorneys and the Justice Department’s attorneys had with (U.S. District Court Judge Brian Morris’) decision.”

Morris issued an injunction against the project proceeding to replace the existing Intake structure with a new concrete weir and fish bypass channel in September 2015 following a lawsuit filed by the Defenders of Wildlife and the Natural Resources Defense Council, who claim that the bypass channel design will not work to achieve fish passage around the structure for the endangered pallid sturgeon. 

Morris lifted the injunction this April after the federal government delivered a complete Environmental Impact Study for the project as ordered. However, Morris promtly reinstated the injunction a couple of months later after the environmental groups claimed it wasn’t thorough enough because the government did not study removing the Intake structure completely as an option.

Brower said he is hopeful that the justices of the 9th Circuit Court will accept what state, federal and university biologists studying the pallid sturgeon have concluded — that the wild population of the fish, numbering only about 150 or so individuals in the Yellowstone-Missouri river system, are rapidly approaching the point where they will be too old to breed, which Brower noted researchers have said could happen “as early as 2018.” 

Therefore, he argued, the chance to save the wild pallid sturgeon population is being lost as a direct result of the delay caused by the environmental groups’ lawsuit. Moreover, Brower noted that the government spent more than a decade studying, researching and modeling the bypass channel design. Removing the Intake structure completely has never been studied, and besides being a death knell for the LYIP, Brower said if the government spends another 10 years studying the ins and outs of that, any chance of saving the wild pallid population will certainly have been lost.

“The main thing is to get rid of this injunction so we can complete the fish bypass before it really is too late to help the wild pallid sturgeon,” Brower said. “We believe the wild pallid sturgeon population is in danger, and that’s why we’re hoping the 9th Circuit will see the harm that’s being done to the wild population by not constructing the fish bypass on schedule.”

While the court battle over Intake has drug out for more than two years now, a decision from the 9th Circuit could come within the next couple of months. Brower noted the appeals court has “expedited rules” for hearing appeals on injunctions. He said based on the schedule he’s seen for both sides to present evidence and respond to the other’s arguments, he thinks a decision could come before the end of the year.

“So there’s a very real chance the 9th Circuit could remove the injunction by December,” Brower said.

The appeals court could also send the case back to Morris at the district court level with notes and instructions on how he should judge the case.

“If (the 9th Circuit does not remove the injunction outright), they could at least give guidance to the existing judge on how Endangered Species Act standards should be applied,” Brower said.

Reach Jason Stuart at rrreporter@rangerreview.com.

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