The Roundup -

LYIP Attorneys File Final Reply Brief


December 13, 2017 | View PDF

On Monday, December 4, attorneys for Lower Yellowstone Irrigation Project filed the final reply brief to the 9th Circuit Court of Appeals to end the injunction on construction of the concrete weir and fish bypass at Intake. Oral arguments in the case should be heard in March, probably in Portland, OR. The Plaintiffs (Defenders of Wildlife, et al) are asking for further delay until after Judge Morris makes his final decision. To further complicate matters, Montana Trout Unlimited and the American Fisheries Society have asked to file an amicus brief alleging that the concrete capped weir will block off fish passage for all species in the Yellowstone River.

In the legal brief, LYIP attorneys argue that” the district court abused its discretion when it granted a preliminary injunction against a project that will substantially improve the likelihood of survival and recovery of an endangered species. The Army Corps of Engineers and the Bureau of Reclamation recognized that the Intake Diversion Dam (a submerged rock-filled weir) is a barrier to upstream passage for the endangered pallid sturgeon. The agencies sought to improve fish passage and restore the ecosystem while continuing to irrigate nearby farmland.”

The brief goes on to say that, despite the plaintiffs allegations, there is no “irreparable harm” caused by the project. The existing weir constitutes the reason that pallid sturgeon cannot swim upriver. The preliminary injunction preserves the status quo and does nothing to improve fish passage.”

The brief also addresses the concerns at the time of the initial 2015 injunction and the steps taken by the federal agencies to address those concerns, including an 800 page environmental impact statement and consultation with and approval by the Fish & Wildlife Service of the new plan.

The plaintiffs wish for an open river, without any regard to the devastating impacts on the farmers and communities served by LYIP. Their suggestion that pumps could be used to provide irrigation water is soundly refuted. “The corps analyzed each alternative and determined that the bypass channel alternative was the most cost-effective and avoided unacceptable adverse impacts to the aquatic ecosystem.”

The conclusion to the brief is “This Court should vacate the district court’s preliminary injunction order.”

“This is the LYIP Attorney’s opinion of plaintiffs claims in the lawsuit. We can only hope that the Appeals Court agrees with us,” stated LYIP project manager James Brower. Amen to that.


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