Lawsuit threatens to end Lower Yellowstone irrigation

Published on
Billings Gazette April 21, 2018 here

A federal lawsuit in Great Falls threatens to end irrigation in the Lower Yellowstone Valley.

Defenders of Wildlife sued the U. S. Army Corps of Engineers to stop the Corps from building a fish bypass channel at Intake. The Corps proposed the channel to help an endangered species, the pallid sturgeon. The channel would harmonize irrigation with protecting the sturgeon.

For over 100 years, Richland County has produced food, wildlife habitat, and a way of life for people using water from the Yellowstone River. The irrigation project is sponsored by the U. S. Bureau of Reclamation with specific congressional authorization.

Water is taken into the main irrigation canal by a below-the-surface weir in the river. The weir interferes with sturgeon swimming upstream to spawn. Some get by off and on in a natural side channel in the river, but not enough.

The Corps proposed to build a fish bypass channel. Biologists gave an opinion that this will improve conditions for the sturgeon.

Because the improvement is not perfect, Defenders of Wildlife are not satisfied. They insist on removing the weir and building five batteries of huge pumps. The works for such a system would be humungous. The electrical infrastructure for the pumps does not even exist. Farmers cannot pay the enormous costs of operating such pumps. The pumps themselves hurt fish and have multiple adverse environmental impacts.

Why would friends of fish insist on something so bad for fish and so impossible for farmers? Simple. To get rid of irrigation altogether.

Indeed, one of the judges of the Ninth Circuit Court of Appeals recently unmasked that purpose. The District Court had imposed a preliminary injunction against the bypass. The Corp and the irrigation district appealed. During arguments on that appeal, the appellate judge recognized that Defenders of Wildlife just want irrigation abolished.

The conflict is coming to a head at a hearing on motions for summary judgment on April 26. Summary judgment means judgment without a trial. It means final judgment, and it threatens to end irrigation.

I have read the 276 pages of motions and briefs for the upcoming hearing. 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.

The Lower Yellowstone Irrigation Project’s attorneys argue truly that “the multi-pump alternative means the demise of LYIP and the communities, resources and habitats it supports.”

LYIP’s attorneys identify the real target of the plaintiffs. They “target the congressionally authorized structure and operation, they cannot argue some other action is the real target.” The lawsuit “directly challenge[s] the operation of the existing diversion weir.” 

If Defenders of Wildlife prevails, we should expect such lawsuits to step their way upstream and eliminate all irrigation projects on the Yellowstone.
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