Judge grants restraining order against Grant-Kohrs Ranch ditch
Laura Lundquist
(Missoula Current) A federal judge has ordered irrigators to temporarily shut off a ditch below Deer Lodge due to the harm it’s likely causing to threatened bull trout in the upper Clark Fork River.
On Wednesday, Butte federal judge Brian Morris ordered that the West Side Ditch be immediately shut down until Sept. 25, when a hearing is scheduled to decide whether limitations should be placed on the ditch for a longer period.
The order is the first court action in a case that Save the Bull Trout and the Alliance for the Wild Rockies filed in June against the U.S. Department of the Interior and the West Side Ditch Company, alleging that the ditch extracts too much water from the Clark Fork River, leaving insufficient streamflows for bull trout and other aquatic organisms to survive, let alone thrive. For that reason, they accuse the defendants of illegally taking bull trout in violation of the Endangered Species Act.
The West Side Ditch diverts water from the Clark Fork River near Deer Lodge and conveys it to multiple users along its 13.6-mile channel, including the Grant-Kohrs Ranch National Historic Site, which the Department of the Interior oversees as a historic working cattle ranch open to the public. The Grant-Kohrs Ranch owns 16% of the ditch company for its hay fields.
The bull trout was listed as threatened in 1999 due to the increasing loss of habitat, and in 2010, the U.S. Fish and Wildlife Service designated almost 63 miles of the upper Clark Fork, including the stretch along the Grant-Kohrs Ranch, as critical habitat that bull trout depend on for migration, spawning and survival. The Service also determined that 90 cubic feet per second is the minimum flow measured at the Deer Lodge flow gage that can support a fishery in the Clark Fork River. However, the flow has regularly dropped below 90 cfs in the summer over the past four decades.
The upper Clark Fork has had extremely low flows in 10 out of the past 16 years. Last year was a severe drought year and the Clark Fork had less than 90 cfs almost constantly from mid-July through early October. This year, the flow dipped to 90 cfs on July 9 and has averaged around 80 cfs since then, dropping to 57 cfs on Aug. 17, according to U.S. Geological Survey data. One thing that might have helped the river retain more flow than last year is water releases from Silver Lake that the state Department of Natural Resources Conservation authorized in July.
The West Side Ditch doesn’t help when it removes about half the river’s flow in mid- to late-summer during a normal year. That becomes worse in drought years, when the ditch can withdraw as much as 90% of the flow out of the river, according to court records. A few times last year, the river flow readings below the West Side Ditch diversion dropped to single digits, according to court records. With water barely trickling through the cobble, fish can’t survive, let alone escape to deeper, safer waters.
On Aug. 25, Save the Bull Trout and the Alliance for the Wild Rockies filed for an injunction to stop the West Side Ditch Company from diverting water when the Deer Lodge gage showed flows of less than 90 cfs. Four days later, they requested the temporary restraining order than Morris granted Wednesday.
In his order, Morris said the plaintiffs are likely to succeed in their claims because the West Side Ditch Company doesn’t have an incidental-take statement. The Department of the Interior has submitted one, but it’s insufficient. It doesn’t take into account that the agency reneged on its settlement agreement that it would pay to upgrade the West Side Ditch so bull trout wouldn’t swim into the irrigation ditch and return flows wouldn’t degrade the river. The Trump administration cut the funding.
The judge also decided that the balance of hardships tips toward bull trout that have been negatively affected. The West Side Ditch Company claimed it would suffer hardships in the form of agricultural losses if the ditch were shut down. But the judge pointed out that the irrigation season is nearly complete.
The plaintiffs were pleased with Morris’ ruling.
“Considering the Clark Fork River was a healthy river full of bull trout when the original Grant-Kohrs Ranch was founded in 1862, the question is whether the Park Service should destroy bull trout critical habitat for a historic ranch display when simply growing less hay can help return the Clark Fork to a living river where bull trout can once again survive, spawn, and avoid extinction,” said Mike Garrity, Alliance for the Wild Rockies executive director, in a release.
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.