Court Lifts Block on Montana Dam in Endangered Fish Dispute

Ruling allows construction of $59 million dam on the Yellowstone River

By Molly Priddy

HELENA — A federal appeals court ruling Wednesday will allow construction of a $59 million dam on Montana’s Yellowstone River that wildlife advocates say could doom an endangered ancient fish species.

The three-judge panel from the 9th U.S. Circuit Court of Appeals ruled Wednesday that the advocacy group Defenders of Wildlife did not prove the project would cause irreparable harm to the river’s pallid sturgeon.

The panel also reversed U.S. District Judge Brian Morris’ order to block the project because the appellate judges disagreed with Morris that Defenders of Wildlife was likely to win its lawsuit against the U.S. Army Corps of Engineers.

It’s the second time that the courts have blocked and then ordered the project to go ahead over concerns about whether the 125 remaining pallid sturgeon would be able to swim around the dam to spawn.

Aaron Hall, the Rockies and Plains representative for Defenders of Wildlife, said his organization will still fight to prevent the dam from being built.

“We’re still reviewing things and deciding where to go,” he said.

Corps of Engineers spokeswoman Jamie Danesi did not have an immediate comment.

The long-snouted pallid sturgeon, which evolved from fish that were alive in the age of dinosaurs, are already cut off from their spawning grounds by a wood-and-rock irrigation dam in eastern Montana.

Both the U.S. Army Corps of Engineers, which leads the construction project, and Defenders of Wildlife, which is suing to stop it, agree something needs to be done soon if the species is to survive.

But their solutions are very different. The Corps’ project includes a man-made bypass channel for the fish to swim to their spawning grounds. Defenders of Wildlife is concerned that the fish won’t use the bypass channel, and propose to make that section of river free-flowing and install pumps to provide river water for irrigation.

The irrigators who favor constructing the new dam applauded the 9th Circuit panel’s ruling. James Brower, manager for the Lower Yellowstone Irrigation Project, noted that the appellate judges said the Corps had provided ample evidence that installing pumps instead of the proposed intake dam was unfeasible because of the huge costs associated with pumping.

“The most environmentally friendly court circuit we know of has ruled pumps would not be practical in our situation,” Brower said.

But Brower added that the legal fight wasn’t over, with an April 19 hearing scheduled before Morris.

“The district court judge can find other reasons to stop construction,” Brower said. “What’s at stake is the continued existence of the dam and ongoing operations of the irrigation district.”

Morris blocked the project last July after ruling the Corps hadn’t properly analyzed the effects of the dam and bypass channel on the sturgeon. It was the second time Morris blocked the project after finding the Corps’ environmental analysis fell short.

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