First Impressions Of Appellate Argument In Irrigation Project Case

Guest Opinion


March 14, 2018 | View PDF

The U. S. Ninth Circuit Court of Appeals heard the appeal from the federal district court’s preliminary injunction against improvements to the Lower Yellowstone Irrigation Project on March 5, 2018 in Portland, Oregon. Video of the arguments is posted on YouTube at

Here are some first impressions of how the arguments went. Whenever I get the chance to go back through the video again, I might have some changed or additional impressions.

A. All three judges knew the file. That is good

B. Just like when I argued in the 9th circuit, questions from the court to the attorneys began immediately and questioning remained vigorous throughout the arguments. That is good. The questions give notice of where you need to make your case, and give you a chance to do it. In appellate arguments, a quiet court is not a friendly court.

C. The most challenging questions to the government and the districts were answered well by their attorneys, except only on one question the second time the government’s attorney spoke. It is pretty common for all attorneys to have at least one bad exchange in these kinds of arguments, so this is not a criticism of the attorney, nor does it signal defeat for our position. On the whole, we can be proud of the attorneys for our side.

D. The questions to the plaintiffs’ attorney were excellent, and showed the value of the strategic stance the government and the districts took, which is to seek to improve conditions for the fish. That way there is no clash over the value of the fish. Any environmentalist sentiments of the court can as easily be satisfied by reversing the injunction as by affirming it.

E. The court seems to be on to the fact that a harbored, non-acknowledged objective of the plaintiffs is to simply get rid of the irrigation project.

F. One judge made the connection between cost of pumping and whether pumping is “practicable.” Then another judge chimed in and signaled serious doubt about the district court’s reasoning on that point. After some back and forth with the plaintiff’s attorney, finally the second judge said, at 27:25 or so in the video, “I understand your argument,” with inflection, posture, and gestures that indicated, “And I don’t agree with it, you did not make the sale.” This was a good sign for us.

G. At about 29:10 in the video, plaintiffs’ counsel calls the existing weir a dam, and then the court starts referring to it sometimes as a dam, which makes me wonder further about the possible impact of 33 Stat. 1045, which specifically authorizes dams on the Yellowstone River for the irrigation project.

H. I don’t think the court properly appreciated the “purposes of the project” element in the definition of what is and is not practicable. One of the judges kept talking over the top of the attorney’s attempt to speak about that. It was element 3 or 4 in the attorney’s explanation of what “practicable” means, and the judge seemed to get impatient after the first couple elements and interrupt just when the attorney tried to talk about purposes of the project. Hopefully this by itself will not defeat our position.

I. The attorneys for the government and the districts did a good job of making a key point about the plaintiffs’ opposition to an improvement for the fish just because, in their view, it is not perfect or something else would be better. My impression is that all three judges caught that point. Time will tell, but this, combined with the point of the government’s attorney that the district court failed to give the proper and legal deference to the agency on a matter within its expertise, could turn out to be the most important part of the argument.

On the whole, I was encouraged by the way the arguments went and I want to be optimistic, but it often happens that the decision an appellate court makes is contrary to the way the argument seemed to go, so there no telling for sure what will happen.


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