The Roundup May 2, 2018 here
The federal district court in Great Falls heard arguments on motions for summary judgment in the lawsuit by Defenders of Wildlife against our irrigation project. Summary judgment means judgment without a trial. It can be granted only when the law and facts are so clear that a trial would be a waste of time.
Judge Brian Morris asked why the Court wasn't told before now that, when it comes to recovery of the species, there is no difference between hatchery pallid sturgeon and wild pallid sturgeon. He said he was stunned to hear it.
What is stunning about it? Well, if there are 18,000 hatchery fish already in the rivers and they are as vital for recovery of the species as wild fish, then what was this whole lawsuit about to begin with?
But, those fish had been brought up before. It is difficult to account for the judge having missed it. This throws a wildcard into his deliberations.
The response by the government's attorney, Coby Howell, was good. Disagreeing with a judge is risky. Howell showed valor in standing up for us. He said the issue actually had been addressed before, both in filings and oral arguments.
The plaintiff's lawyers were allowed to filibuster the hearing. They talked so long that little time was left for our side to speak. Supporters of irrigation took this as a bad sign.
It might be bad, but maybe not. Sometimes when judges are inclined to rule against a party, they give that party lots of time and rulings on things like objections. This avoids giving the losing party issues for appeal about how the judge presided over the hearing. Judges may try to "appeal proof" a decision.
This could be at play for us. Early in the hearing, Judge Morris told the plaintiff's attorneys, "You need to persuade me that the 9th Circuit is wrong." He was referring to the 9th Circuit's reversal of his preliminary injunction against us. If we can take it at face value, this statement fits with an optimistic view of why he allowed the filibuster. Maybe he allowed it because, given the 9th Circuit ruling, now he thinks Defenders of Wildlife are trying to roll a stone up a hill.
This hearing raised public consciousness about a claim by Defenders of Wildlife that ongoing operations of the Intake diversion weir are illegal and must be stopped. This is completely aside from whether a new weir is constructed or a fish bypass is built. Now we see more newspapers reporting the truth that this lawsuit threatens to terminate irrigation.
Attorneys on our side used their short time well to address that, and their arguments dovetailed nicely with each other. The government's attorney said it would not make sense for Congress to approve the weir but not approve maintenance for its annual operation. Then the irrigation project's attorney amplified that argument with another argument based on the words Congress used in a statute. There is a statute authorizing the Secretary of the Interior to construct, use, and operate dams on the Yellowstone River for irrigation. The words construct, use, and operate sound like they include maintenance so that we can keep irrigating.
This hearing also raised public consciousness that the suit challenges Fort Peck. Many have said, if Defenders of Wildlife win this case, next they will attack Fort Peck. But, Fort Peck already is under attack in this lawsuit.
Attorneys for our side used well the presence of 240 to 250 supporters of irrigation. Usually it is considered inappropriate to "appeal to the gallery" in court arguments. There was a moment when it was clarified that the prohibitive costs of the pumping alternative sought by Defenders of Wildlife would be assessed to LYIP. One attorney said, in other words, assessed to the people in this room.
That "appeal to the gallery" in this instance was a good move. The people on whom the burden would be loaded needed to be tangible to the Court. Work by the economic development corporation, the irrigation project, the county commissioners, and community leaders like Philip C. Johnson, James Brower, and others to bring people to court set the stage for a capable lawyer to make the impossible burden of pumping visible in concrete terms. He made the people into a courtroom exhibit.
Defenders of Wildlife claim that the biological opinion that the fish bypass will make thing better for the pallid sturgeon is so flawed as to be illegal. This bites off a big mouthful. Flaws in biological opinions can be less extreme than that. When the flaws are less extreme, they must be proved at a trial because the flaws are disputable by evidence. But a motion for summary judgment seeks to win without letting the other side have a trial. That is why Defenders of Wildlife, to avoid a trial, had to claim the flaw was so extreme that it went beyond a matter of clashing evidence in a trial to a matter of law that does not require a trial.
This claim might be too extreme to prove to the 9th Circuit in an appeal of summary judgment. Along with the 18,000 hatchery fish, this is my primary reason for being cautiously optimistic. Judge Morris has to know the appeal prospects for this claim. The question is: how much will the appeal prospects influence the judge's decision?