Lawsuit Over Bull Trout Protecions on St. Mary Project Dismissed

MISSOULA, Mont. (NMB) – A U.S. District Court Judge has dismissed a lawsuit filed by the Alliance for the Wild Rockies against the Bureau of Reclamation and other defendants over the protection of bull trout on the St. Mary-Milk River Irrigation Project.

U.S. Magistrate Judge Kathleen L. DeSoto dismissed the lawsuit last week in Missoula at the request of the defendants, saying the issue is now moot since U.S. Fish and Wildlife Service has issued a Biological Opinion (BiOp) and accompanying Incidental Take Statement (ITS) for the St. Mary’s Unit that permit Reclamation’s take of bull trout.

The Biological Opinion states that they are are implementing measures to minimize the entrainment of the threatened species.

Jennifer Patrick, Project Manager for the Milk River Joint Board of Control, says this dismissal will allow the rehabilitation of the St. Mary’s to move forward in the near future without fear of litigation.

“It was great for the Milk River. I’m super excited the Judge moved so quickly on it after we received a take statement so we’re not spending a lot of money on attorney fees and stuff. So it was good.”

The Alliance for the Wild Rockies’ request for “Declaratory Relief” was not granted, but Mike Garrity, their Executive Director, says they still feel like they accomplished their main objective.

“We’re happy we did what we asked them to do. Which was consult with the Fish and Wildlife Service and get a take permit and agree to put up screens to keep fish from going into the St. Mary Canal and dying.”

The ITS is good for five years, and Garrity says he doesn’t expect to file suit again once it expires.

“But they also said they’ve been saying for a long time they would consult with the Fish and Wildlife Service to get a take permit and then they didn’t. So I’ll just take them at their word that they’ll get another (take permit) in five years.”

Temporary fish screens were installed on the Diversion Dam earlier this fall to protect bull trout when the system turned back on last month after emergency repairs were completed.

“The fish screens are if we operate in October,” Patrick says. “Hopefully, most normal operation seasons, we don’t operate in October, so we probably will not have to use those. But this does put us on a timeline for that Diversion Dam, fish passage, and all of that…It does move the Diversion Dam right up front and center, that some (restoration project) has to be done on that.”

The lawsuit cited the unnecessary deaths of hundreds of bull trout, a threatened species, every year due to poor dam design and operation, unscreened diversions into irrigation ditches and river dewatering.

“The real important thing is that they agreed to put up fish screens,” Garrity says. “So all those bull trout that were dying in the canal before won’t be able to get in the canal and therefore, they won’t die.”

The lawsuit was filed back in March, with the Alliance arguing that the lack of an ITS and BiOp meant the project was not exempt from the Endangered Species Act.

According to the Court document that dismissed the case, an incidental take permit can exempt the incidental taking of threatened species from potential violations of the Endangered Species Act, provided that the ITS, “specifies responable and prudent measures necessary or appropriate to minimize the impact,” is incidental to the “carrying out of an otherwise lawful activity,” and that the action is “not likely to jeopardize the continued existence of any endangered species or result in the destruction or adverse modification,” of a species’ critical habitat.

The Bureau of Reclamation declined to comment, saying that they do not respond to questions about litigation.

The St. Mary Canal and Conveyance Works System provides supplemental irrigation water along the Milk River, as well as water to the Fort Belknap Indian Community, the Blackfeet Nation and many towns along the Hi-Line.

The System was shut off for the winter at the end of October, but water should continue flowing into Fresno Reservoir over the next few days.

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