In re Operation of Missouri River System Lit., 04-2737.
| Decision Date | 16 August 2005 |
| Docket Number | No. 04-2994.,No. 04-2785.,No. 04-2774.,No. 04-2737.,No. 04-2794.,No. 04-2878.,04-2737.,04-2774.,04-2785.,04-2794.,04-2878.,04-2994. |
| Citation | 421 F.3d 618 |
| Parties | In re: OPERATION OF THE MISSOURI RIVER SYSTEM LITIGATION. American Rivers, Inc.; Environmental Defense; National Wildlife Federation; Iowa Wildlife Federation; Kansas Wildlife Federation; Montana Wildlife Federation; Nebraska Wildlife Federation; North Dakota Wildlife Federation; South Dakota Wildlife Federation; Izaak Walton League of America, Inc., Appellants, v. United States Army Corps of Engineers; Les Brownlee, Acting Secretary of the United States Army; United States Fish and Wildlife Service; Gale Norton, Secretary of the United States Department of Interior, Appellees. State of Nebraska; Nebraska Public Power District; State of Missouri; State of North Dakota; State of South Dakota; Blaske Marine, Inc.; the Mandan, Hidatsa and Arikara Nation; Conocophillips Company; Ergon Asphalt and Emulsions, Inc.; Magnolia Marine Transport Company; Midwest Terminal Warehouse Company, Inc.; Mo-ark Association; Missouri River Keepers; Missouri River Energy Services Appellees. State of Nebraska, Appellant, v. United States Army Corps of Engineers; Les Brownlee, Acting Secretary of the United States Army; United States Fish and Wildlife Service; Gale A. Norton, Secretary of the United States Department of Interior, Appellees. American Rivers, Inc.; State of Missouri; State of North Dakota; State of South Dakota; Blaske Marine, Inc.; the Mandan, Hidatsa and Arikara Nation; Conocophillips Company; Ergon Asphalt and Emulsions, Inc.; Magnolia Marine Transport Company; Midwest Terminal Warehouse Company, Inc.; Mo-ark Association; Missouri River Keepers; Missouri River Energy Services, Appellees. Nebraska Public Power District, Appellant, v. United States Army Corps of Engineers; Les Brownlee, Acting Secretary of the United States Army; United States Fish and Wildlife Service; Gale Norton, Secretary of the United States Department of Interior, Appellees. American Rivers, Inc.; State of Missouri; State of North Dakota; State of South Dakota; Blaske Marine, Inc.; the Mandan, Hidatsa and Arikara Nation; Conocophillips Company; Ergon Asphalt and Emulsions, Inc.; Magnolia Marine Transport Company; Midwest Terminal Warehouse Company, Inc.; Mo-ark Association; Missouri River Keepers; Missouri River Energy Services, Appellees. State of Missouri, Appellant, v. United States Army Corps of Engineers; Les Brownlee, Acting Secretary of the United States Army; United States Fish and Wildlife Service; Gale Norton, Secretary of the United States Department of Interior, Appellees. American Rivers, Inc.; State of Nebraska; Nebraska Public Power District; State of North Dakota; State of South Dakota; Blaske Marine, Inc.; the Mandan, Hidatsa and Arikara Nation; Conocophillips Company; Ergon Asphalt and Emulsions, Inc.; Magnolia Marine Transport Company; Midwest Terminal Warehouse Company, Inc.; Mo-ark Association; Missouri River Keepers; Missouri River Energy Services, Appellees. The Mandan, Hidatsa and Arikara Nation, Appellant, v. United States Army Corps of Engineers; Les Brownlee, Acting Secretary of the United States Army; United States Fish and Wildlife Service; Gale Norton, Secretary of the United States Department of Interior, Appellees. American Rivers, Inc.; Environmental Defense; National Wildlife Federation; Iowa Wildlife Federation; Kansas Wildlife Federation; Montana Wildlife Federation; Nebraska Wildlife Federation; North Dakota Wildlife Federation; South Dakota Wildlife Federation; Izaak Walton League of America, Inc.; State of Nebraska; Nebraska Public Power District; State of Missouri; State of North Dakota; State of South Dakota; Blaske Marine, Inc.; Conocophillips Company; Ergon Asphalt and Emulsions, Inc.; Magnolia Marine Transport Company; Midwest Terminal Warehouse Company, Inc.; Mo-ark Association; Missouri River Keepers; Missouri River Energy Services, Appellees. Blaske Marine, Inc.; Conocophillips Company; Ergon Asphalt and Emulsions, Inc.; Magnolia Marine Transport Company; Midwest Terminal Warehouse Company, Inc.; Mo-ark Association; Missouri River Keepers, Appellant, v. United States Army Corps of Engineers; Les Brownlee, Acting Secretary of the United States Army; United States Fish and Wildlife Service; Gale Norton, Secretary of the United States Department of Interior, Appellees. American Rivers, Inc.; Environmental Defense; National Wildlife Federation; Iowa Wildlife Federation; Kansas Wildlife Federation; Montana Wildlife Federation; Nebraska Wildlife Federation; North Dakota Wildlife Federation; South Dakota Wildlife Federation; Izaak Walton League of America, Inc.; State of Missouri; State of North Dakota; State of South Dakota; the Mandan, Hidatsa and Arikara Nation; Missouri River Energy Services, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Peter Hennigan, argued, Minneapolis, MN, for Appellant American Rivers, et al.
Thomas Wilmoth, argued, Lincoln, NE, for Appellants State of Nebraska and NE Public Power District.
William Bryan, argued, Asst. Atty. Gen., Jefferson City, MO, for Appellant State of Missouri.
Robert Vincze, argued, Denver, CO, for Appellant Blaske Marine, et al.
Daniel Israel, argued, Boulder, CO, for Appellant The Mandan, Hidatsa and Arikara Nation.
Robert H. Oakley, argued, U.S. Dept. of Justice, Washington, DC, for Federal defendants.
James A. Maysonett, argued, U.S. Dept. of Justice, Washington, DC, for Wildlife and Marine Resources.
Charles M. Carvell, argued, Attorney General's Office, Bismarck, ND, for Appellee State of North Dakota.
Diane Best, argued, Pierre, SD, for Appellee State of South Dakota.
Robert J. Vincze, argued, Denver, CO, for Appellee Mo-ark.
Before WOLLMAN, BEAM, and GRUENDER, Circuit Judges.
In these consolidated appeals, various parties challenge the operation of the Missouri River main stem reservoir system by the United States Army Corps of Engineers ("the Corps") and associated wildlife assessments produced by the United States Fish and Wildlife Service ("FWS"). The district court1 granted summary judgment to the Corps and FWS and their named individual officers (collectively "the Federal Defendants") on all claims. For the reasons stated below, we dismiss three claims as moot and affirm the judgment of the district court on all remaining claims.
The Missouri River originates in Montana and runs through North Dakota, South Dakota, Nebraska, Iowa, Kansas and Missouri before emptying into the Mississippi River. In its natural state, the river subjected the surrounding basin to extensive flooding every spring. With the Flood Control Act of 1944 ("FCA"), Congress authorized the construction of a dam and reservoir system on the upper river to control the flooding. In addition to flood control, the FCA envisioned that the reservoirs would provide water for local irrigation projects, steady release into the river during the summer months to support downstream navigation, hydroelectric power generation and lake recreation. The FCA delegated construction and management of the main stem reservoir system to the Corps.2
The current challenges to the Corps' operation of the system arise from two directions. First, a persistent drought in the Missouri River basin has led to a recurring conflict between upstream and downstream water-use interests. In 2002, the Corps planned to release water from Lake Oahe into the river to maintain downstream navigation throughout the summer. South Dakota, fearing a negative impact on the seasonal fish spawn in Lake Oahe and concordantly on the reservoir's sport fishing industry, obtained an injunction in federal district court preventing the Corps from lowering any reservoir in South Dakota until after spawning season. When the Corps decided to lower Lake Sakakawea instead, North Dakota obtained a similar injunction. Not to be outdone, Montana obtained an injunction to prevent releases from Fort Peck Lake. In response, Nebraska obtained an injunction ordering the Corps to make the required releases to support navigation as called for by the Corps' Missouri River Main Stem Reservoir System Master Water Control Manual ("1979 Master Manual").
In a consolidated appeal of these injunctions, we ruled that the FCA vested the Corps with discretion to balance the competing water-use interests. South Dakota v. Ubbelohde, 330 F.3d 1014, 1027 (8th Cir.2003). Because the FCA's legislative history and its interpretation by the Supreme Court "indicate[] that the Corps's primary concerns should be flood control and navigation," we upheld the Corps' decision to follow the 1979 Master Manual and draw down the reservoirs to support downstream navigation. Id. at 1032.
The second point of conflict has been that flood prevention and steady summer flows for downstream navigation disrupt the natural habitat of protected bird and fish species in the Missouri River ecosystem. In litigation initially separate from the Ubbelohde cases, environmental groups have attempted to force the Corps to operate the system to produce more "natural" river flows to benefit the protected species. To understand the current stances of the parties in this litigation, it is necessary to review in some detail the Corps' previous attempts to accommodate competing interests while developing its operating procedures.
The Corps sets forth its general operational guidelines for the Missouri River reservoir system in a Master Manual and the operational details for each year in an Annual Operating Plan. The first Master Manual was published in 1960 and revised in 1973, 1975 and 1979. The year 1987 brought the onset of the first persistent drought in the region since the reservoir system had become fully operational. Because it found that the operational procedures in the 1979 Master Manual were not well-tailored to handle a...
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