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Thursday, March 22, 2018

Intake, LYIP future to be determined at April 5 hearing

By Jason Stuart

Ranger-Review Staff Writer

The future of not only the Intake diversion dam but the entire Lower Yellowstone Irrigation Project may hinge on what a federal judge decides following a court hearing in Great Falls on April 5.

The U.S. District Court informed the LYIP on Thursday morning that Judge Brian Morris has set a hearing for 1:30 p.m. on April 5 to hear the U.S. government’s motion to dissolve the injunction preventing the replacement of the existing rock dam at Intake with a concrete weir and fish bypass channel. Morris put the injunction in place in September 2015 following a lawsuit filed by two environmental groups, Defenders of Wildlife and the Natural Resources Defense Council.

The timing of the hearing is of particular importance, because the clock is running out on the availability of the $58.9 million in federal funding it will take to build the proposed concrete weir and fish passage. Congress authorized the funding over two years ago, and the U.S. Army Corps of Engineers had bid the project out and was ready to begin construction in fall of 2015 before Morris’ ruling left the project in limbo.

LYIP manager James Brower said the deadline for the Corps to start spending the authorized funding for Intake is April 15, making the April 5 hearing of the utmost importance.

“The injunction has to removed by April 15 or all the federal funding will be lost, but the irrigation district would still be required to provide fish passage,” Brower said. “If (Morris) doesn’t remove the injunction, then we lose all the funding.”

If that were to happen, Brower said he fears for the future viability of the LYIP. As he noted, the loss of federal funding would not take the irrigation district off the hook for having to provide fish passage around the dam in order to comply with the Endangered Species Act. The entire push to replace the existing Intake dam is due to the endangered pallid sturgeon. 

Brower argued that what the plaintiffs in the case don’t seem to understand is if the federal funding for the project to replace Intake is lost, it would have the end result of driving both the LYIP and the pallid sturgeon into extinction.

“Even if we lose this hearing, the plaintiffs don’t win, because there would be no funding to do what they want to have done,” he said. “This is kind of like the pallid sturgeon’s last hope.”

With so much on the line in that April 5 hearing, the LYIP  is providing free buses to Great Falls for locals to attend the hearing and show their support for the irrigation district. Brower noted that in legal practice, an injunction can only be left in place if it “does not harm the public,” and packing the courtroom with locals may help drive that message home to the judge. The LYIP will also be providing those who attend with sack lunches, refreshments and a dinner after the hearing.

Those who choose to attend must observe proper courtroom decorum, however. No t-shirts bearing slogans (like the ones the LYIP distributed at a public meeting last summer), picket signs or any other overt display of support for the LYIP will be allowed inside the courtroom and attendees must comply with all the other rules of conduct for federal court.

For more information on traveling to the April 5 hearing with the LYIP, contact the district’s main office at 433-1306.


Reach Jason Stuart at rrreporter@rangerreview.com.

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