Hearing threatens to terminate irrigation from existing Intake weir

Published on:
The Roundup, April 4, 2018 here
Sidney Herald, April 7, 2018 here

​Despite claims to the contrary, the lawsuit against the Lower Yellowstone Irrigation Project is not a suit only to stop a new weir and fish bypass. It threatens to terminate irrigation from the existing Intake weir.

In response to my previous article, “Buffalo Commons by way of the pallid sturgeon,” a new Facebook user named Ictiobus Bubalus, said: “Tom, as an attorney I’d expect you to understand the arguments in the filed complaint. This litigation has absolutely nothing to do with taking anyone’s water or changing livelihoods.”

Ictiobus Bubalus is the Latin name for the smallmouth buffalo fish, in apparent reference to “Buffalo Commons” and the pallid sturgeon fish of my article. Like others, the anonymous agent is spreading propaganda that misinforms the public. Irrigation by the existing weir is before the court.

I have read the 276 pages of motions and briefs for the upcoming hearing on April 19. Here is the truth. The plaintiffs seek not only to stop the new weir and fish bypass that would improve conditions both for endangered species and irrigation. They seek to have the court decide that, completely aside from a new weir and fish bypass, ongoing operation of the existing weir violates federal law and cannot be allowed to continue. You don’t have to be a lawyer or a rogue biologist to know what that means.

The plaintiffs argue, “Reclamation’s ongoing operation of Intake dam violates [the Endangered Species Act].” (Plaintiff’s brief, pp. 73-74.) This refers to ongoing operation of the existing irrigation weir, not to the proposed new weir and fish bypass.

In another place, the plaintiffs say, “Reclamation may not lawfully proceed with either the Intake Project or its ongoing operations.” (Plaintiff’s brief, p. 83) The plaintiffs speak of those as two different things, and ongoing operation refers to operation of the existing weir.

The plaintiffs’ motion has a glossary of terms. It defines “Intake Project” as “Bypass Channel Alternative for Lower Yellowstone Intake Diversion Dam Fish Passage Project.” So when the motion talks about “Intake Project,” it means the proposed new weir and fish bypass, and when it talks about “ongoing operation,” it means operation of the existing weir.

With that definition in mind, anyone can see what the plaintiffs seek. They say, “Reclamation and the Corps originally conceived of the Intake Project as a means of addressing Reclamation’s ongoing [Endangered Species Act] violations at Intake Dam. But the Intake Project violates three federal statutes and cannot lawfully be implemented. However, Reclamation cannot simply continue its ongoing operations because these operations violate Sections 7 and 9.” (Plaintiff’s brief, p. 73.) The phrase “simply continue its ongoing operations” means, not building the new weir and fish bypass and instead continuing with the existing weir.

LYIP’s attorneys argue truly that “the multi-pump alternative means the demise of LYIP and the communities, resources and habitats it supports.” (LYIP brief, p. 9.) LYIP’s attorneys unmask the real target of the plaintiffs. They “target the Congressionally authorized structure and operation, they cannot argue some other action is the real target.” (LYIP brief, p. 16). The lawsuit “directly challenge[s] the operation of the existing diversion weir.” (LYIP brief, p. 17.) That is the truth, no matter propagandists say.
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