The Roundup -

It's Finally Over!

Judge Rules In Favor of Intake Diversion Project


August 1, 2018 | View PDF

The excruciatingly long battle to save the Intake Diversion Project is finally over with the decision by District Judge Brian Morris to grant the Federal Defendants/Intervenor Defendants’ cross motions for summary judgment and to dismiss the Plaintiff’s (Defenders of Wildlife) request that the court order the Bureau to finalize a plan to bring its operation at Intake Dam into compliance with the Endangered Species Act (ESA). Morris also dismissed the Plaintiffs request that the court order the U.S. Army Corps of Engineers (Corps) to finalize a plan to bring its operation of Fort Peck Dam into compliance with the ESA since that claim was rendered moot by the Corps re-initiation of consultation with the Fish and Wildlife Service (FWS) in 2015.

The Corps is now accepting bids on the project through the last week in August. Construction should begin this fall, probably starting with the fish bypass so that the water has a place to go during construction of the concrete weir.

Lower Yellowstone Irrigation Project Manager James Brower is delighted with the ruling. “After substantive and significant analysis of an incredible amount of evidence brought up in the last three years, Judge Brian Morris put out a very well thought out and correct legal opinion on all counts,” he said. All claims concerning Intake have been resolved with any remaining points involving Fort Peck.

Brower also expressed his deep appreciation to the entire community for its on going support during this difficult process. “Thank you to each and every member of our community who didn’t give up and made the time to help and pray for us! I testify God helped us in the end and this win is going to help farmers all over this nation as a legal precedent.”

In his ruling, Judge Morris referred to the 9th Circuit Court ruling, which reversed his earlier injunction, multiple times. He now concluded that the FWS 2016 Biological Opinion and Incidental Take Statement (ITS) for the Project does not violate the ESA. The Bureau’s and the Corp’s reliance on the Biological Opinion to authorize the Project did not violate their ESA section 7 substantive duty. The Bureau’s and the Corp’s ROD and EIS (Environmental Impact statement) for the Project does not violate the National Environmental Protection Act. The Corps selected the bypass channel alternative in accordance with guidelines.

The Plaintiffs’ ESA challenge to the Corps operation and maintenance of Fort Peck Dam proves moot at this point. However the Corps and the Bureau cannot continue to stall. He stated, “The day of reckoning will come when the Corps and Bureau must actually complete the consultation process with the incorporation of RPAs, as no one, including the Corps and the Bureau, stands above the law”.

Morris recognized that the Intake Diversion dam and its maintenance, including the yearly rocking to maintain water flow, was mandated by Congress and that the Endangered Species Act could not be applied retroactively.

Judge Morris also ruled that the new bypass channel and concrete weir must be built at Intake or he would dismiss the plaintiffs’ claims without prejudice and allow it to re-file the claims.


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