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Alliance for the Wild Rockies v. Burman

ELR Citation: 50 ELR 20188
Nos. CV 20-22-GF-KLD, (D. Mont., 08/10/2020) (DeSoto, J.)

A district court denied a motion to dismiss or stay a challenge to the Bureau of Reclamation's alleged ongoing, unpermitted take of bull trout near Glacier National Park. An environmental group argued the Bureau's water control and delivery structures that were part of its irrigation project near the park were resulting in mortality of the threatened trout, and thus that the Bureau was in violation of ESA §9. The Bureau moved to dismiss the claim as moot because it was actively engaged in formal consultation with FWS and expected the Service to issue an incidental take statement (ITS) alongside its biological opinion (BiOp) by September, which would exempt the Bureau from the ESA's take prohibition. The court found that although the Bureau and FWS were working together to produce a BiOp and ITS, it was not certain whether these documents would be produced by the proposed deadline or whether the Service would issue an ITS with the BiOp, and thus declined to speculate as to both the time frame and outcome of the Service's ESA obligations. The Bureau alternatively sought to stay the proceedings, but the court found that granting a stay would harm the group by allowing the Bureau to continue engaging in unlawful behavior with no concrete end date or abatement measures in place. It therefore denied the Bureau's motion to dismiss or stay the suit.