9th Circuit revives Lower Yellowstone dam designed to aid endangered sturgeon

The pallid sturgeon was placed on the U.S. Fish and Wildlife Service’s list of endangered species in 1990. (USFWS)

A Ninth Circuit panel on Thursday threw out a court order halting the federal government’s construction of a dam on the Lower Yellowstone River meant to aid the survival and recovery of the endangered pallid sturgeon in eastern Montana.

The three-judge panel ruled in a scathing unsigned memorandum that U.S. District Judge Brian Morris in Great Falls abused his discretion in issuing a preliminary injunction stopping the proposed project.

It concluded that it was error to find that the project would cause irreparable harm absent an injunction, and that the plaintiffs had established a likelihood of success on the merits of their Endangered Species Act, National Environment Protection Act and Clean Water Act claims.

“The law is clear that only harm that will occur ‘in the absence of preliminary relief’ may be considered in determining irreparable harm,” the panel wrote. “A court may not consider harm that will occur irrespective of an injunction, i.e. harm that the award of an injunction will not alleviate or prevent.”

Environmental groups Defenders of Wildlife and Natural Resources Defense Council sued over the dam project in 2015, claiming that although the U.S. Army Corps of Engineers, the Bureau of Reclamation and the Fish and Wildlife Service had formally recognized the sturgeon’s plight, they failed to make modifications to two dams on the Yellowstone and Missouri rivers that would allow the 125 surviving pallid sturgeon to swim upriver and reproduce.

The pallid sturgeon was placed on the U.S. Fish and Wildlife Service’s list of endangered species in 1990. The prehistoric-looking fish dates back at least 78 million years and once thrived in more than 3,500 miles of river, including the Missouri, according to the agency.

The plaintiffs claimed the dams prevented the fish from naturally reproducing in the upper Missouri River basin because the timing, magnitude and temperature of water released from Fort Peck Dam destroy the fish’s spawning and nursery habitat, and because the intake diversion dam keeps the fish from reaching historic spawning habitat upstream.

To help the fish swim upriver, the federal agencies proposed building a new dam and a channel for the fish to pass, after the Fish and Wildlife Service concluded that the project would be “a substantial improvement to the outlook for the survival and recovery of this ancient fish,” according to the defendants’ appellate brief.

Seeking to throw out the injunction, the government argued that it was error to find that the project would irreparably harm the plaintiffs “even though it will improve the plight of pallid sturgeon.” It also argued Morris erred in ruling that the plaintiffs demonstrated a likelihood of success on the merits of their claims because the balance of equities and public interest tip in favor of the project.

The Ninth Circuit agreed, finding Thursday that Morris should not have considered the harm caused by the operation of the intake diversion dam in assessing the potential irreparable harm of the proposed dam. The panel said the plaintiffs had not sought to enjoin the operation of the intake dam.

Aaron Hall, Rockies and Plains representative for Defenders of Wildlife, said in a statement: “We are currently reviewing the Ninth Circuit’s order and considering our next steps as we continue to fight for the clear win-win solution: removal of intake diversion dam and replacement with pumps to provide water for irrigators and a free-flowing river for endangered pallid sturgeon and all other Yellowstone River fish.”

In finding Morris also erred by determining the plaintiffs had established a likelihood of success on the merits, the panel said Morris “supplanted” the deferential standard of review afforded to federal agencies under the Administrative Procedure Act.

The panel said Fish and Wildlife provided a “reasonable basis” under the Endangered Species Act to support its conclusion that the project wouldn’t jeopardize the survival and recovery of the pallid sturgeon, finding that the analysis showed a “substantial reduction in the impairment of breeding caused in the project’s absence.”

Likewise, the panel found Morris erred in determining the defendants violated the National Environment Protection Act, under which an agency must evaluate alternatives to a proposed project, pointing out that the agency analyzed the environmental consequences of the alternatives.

It made a similar finding on the plaintiffs’ Clean Water Act claim, which prohibits projects that discharge dredged or fill material if a less-harmful alternative exists. The Army Corps of Engineers had determined that there was no such alternative, which the panel concluded “was supported by ample evidence.”

The Justice Department declined to comment.

Circuit Judges Andrew Hurwitz and N.R. Smith, and U.S. District Judge Gonzalo Curiel from the Southern District of California sat on the panel.

McCrystie Adams with Defenders of Wildlife represented the plaintiffs, and Brian Collins with the Justice Department represented the government.