North Dakota v. U.S. Army Corps of Engineers, No. A1-03-050.

• Decision Date: 29 May 2003
• Docket Number: No. A1-03-050.
• Citation: 264 F.Supp.2d 871
• Parties: State of NORTH DAKOTA, et al., Plaintiffs, and [PG State of South Dakota, and State of Nebraska, et al., Plaintiffs/Intervenors, v. The UNITED STATES ARMY CORPS OF ENGINEERS, et. al, Defendants.
• Court: U.S. District Court — District of North Dakota

264 F.Supp.2d 871

State of NORTH DAKOTA, et al., Plaintiffs, and [PG State of South Dakota, and State of Nebraska, et al., Plaintiffs/Intervenors, v. The UNITED STATES ARMY CORPS OF ENGINEERS, et. al, Defendants.

No. A1-03-050.

United States District Court, D. North Dakota, Southwestern Division.

May 29, 2003.

Lyle Gregory Witham, Dean J. Haas, Bismarck, ND, for Plaintiffs/Intervenors.

Daniel W. Pinkston, U.S. Dept. of Justice, Denver, CO, Cameron W. Hayden, U.S. Attorney's Office, Bismarck, ND, Fred R. Disheroon, U.S. Dept. of Justice, Washington, DC, for U.S. Army Corps of Engineers.

Cameron W. Hayden, U.S. Attorney's Office, Bismarck, ND, Fred R. Disheroon, U.S. Dept. of Justice, Washington, DC, for David A Fastabend, Kurt F. Ubbelohde.

Daniel H. Israel, Boulder, CO, for Three Affiliated Tribes of Fort Berthold Reservation.

Clark Jay Bormann, Bormann Law Office, Bismarck, ND, David D. Cookson, Lincoln, NE, for State of Nebraska.

John P. Guhin, Attorney General's Office, Pierre, SD, for State of South Dakota.

ORDER DISSOLVING EX PARTE TEMPORARY RESTRAINING ORDER

HOVLAND, Chief Judge.

I. PROCEDURAL HISTORY

The matter before the Court is the Defendants' (the "Corps of Engineers") Motion to Dissolve the Ex Parte Temporary Restraining Order entered by state district court Judge Gail Hagerty, on April 29 2003, and extended by this Court on May 7, 2003. On May 16, 2003, the Court modified the Ex Parte Temporary Restraining Order with the consent of the parties. The Ex Parte Temporary Restraining Order ("TRO") enjoined the Corps of Engineers from exceeding specified discharge rates at Garrison Dam and lowering elevation levels of Lake Sakakawea and Lake Oahe.

The State of North Dakota filed a complaint in state district court on April 29, 2003. In its complaint, the State alleges that the Corps of Engineers violated North Dakota's water quality standards in Lake Sakakawea through its operation of the Garrison Dam. See N.D.C.C. § 61-28-06(1)(b); N.D. Admin. Code § 33-16-02.1. It is alleged in the complaint, and the state district court found in its TRO, that Section 313(a) of the federal Clean Water Act constitutes a waiver of sovereign immunity which allows states to sue federal entities for alleged violations of state water quality standards. See 33 U.S.C. § 1323(a). In essence, the State of North Dakota alleges that the Corps of Engineers' management of water levels in Lake Sakakawea during the next five (5) months will violate North Dakota's water quality standards as it relates to the maintenance of a cold water fishery in Lake Sakakawea.

The April 29, 2003, Ex Parte Temporary Restraining Order (a) enjoined the Corps of Engineers from releasing water from Garrison Dam during May 2003 in excess of a daily average of 17,450 cfs and establishes specific release amounts for June August 2003; (b) ordered the Corps to submit a plan to the North Dakota state court within twenty days to achieve and maintain compliance with all North Dakota water pollution laws and water quality standards; (c) required the Corps to submit to the state court an implementation schedule for the Corps to come into compliance with North Dakota water pollution laws and water quality standards as soon as practicable; (d) prohibited the Corps from lowering the water elevation at Lake Oahe prior to a show cause hearing; and (e) ordered the Corps to show cause why the state court should not issue a preliminary injunction which specifies the amount of water which may be released by the Corps from Garrison Dam for the months of May through September 2003.

On April 30, 2003, the day following the issuance of the TRO, the Defendants removed the case to federal court. On May 6, 2003, the Corps of Engineers filed a Motion to Dissolve the Ex Parte Temporary Restraining Order. On May 6, 2003, the State of Nebraska filed a Motion to Intervene pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure. South Dakota filed an identical motion on May 8, 2003. The Court granted the Motions to Intervene on May 9, 2003.

South Dakota also seeks injunctive relief to (1) prevent the Corps of Engineers from lowering water levels in other main stem reservoirs to increase the elevation in Lake Sakakawea; (2) to prevent irreparable harm under the 1944 Flood Control Act and the Administrative Procedure Act to fisheries of main stem reservoirs when the harm is inflicted to benefit downstream navigation; and (3) to prevent lowering the elevation of Lake Oahe to the extent that it will impair the designated cold water fishery in that lake. On May 23, 2003, South Dakota filed a Motion for a Preliminary Injunction.

Nebraska has also filed a complaint against the same Defendants for alleged violations of the 1944 Flood Control Act. Nebraska asserts that the Flood Control Act

"... established the hierarchy of authorized uses of the Main Stem Missouri River reservoirs. Flood control and navigation are the dominant functions of the Corps' reservoirs. Secondary uses are authorized by the FCA, provided they do not interfere with these dominant functions and lawful uses existing at the time the FCA was enacted. See Nebraska Complaint, ¶ 2".

In its prayer for relief, Nebraska seeks an order requiring the Corps of Engineers to operate Garrison Dam and all other federal reservoirs within this Court's jurisdiction in accordance with the Flood Control Act, the Master Manual and the Corps' Annual Operating Plan for 2003. See Nebraska Complaint, ¶ 9. Nebraska has also filed notice that it is requesting the Eighth Circuit stay this proceeding until a decision is issued in a pending Eighth Circuit case. Nebraska also requested an Order of Transfer from the Multidistrict Litigation Panel.

In summary, North Dakota seeks injunctive relief that would limit releases from Garrison Dam throughout the summer of 2003. South Dakota wants the Court to order that water elevations in other main stem reservoirs not be lowered in order to raise the elevation of Lake Sakakawea and specifically wants to prevent the lowering of water elevations in Lake Oahe. The State of Nebraska wants the Corps of Engineers to comply with the 2003 Annual Operating Plan forecast which means drawing down the water levels from the upper reservoirs throughout the summer to support the Endangered Species Act, navigation, and other downstream needs. The diverse interests of the states and their needs for adequate water levels in the Missouri River and its reservoirs come at a time when this region of the country is again experiencing drought conditions.

II. BACKGROUND

A. THE MISSOURI RIVER MAIN STEM DAM SYSTEM.

The Commerce Clause confers upon Congress complete authority with regard to the regulation of navigable waters. U.S. v. Rands, 389 U.S. 121, 88 S.Ct. 265, 19 L.Ed.2d 329 (1967). Congress has the constitutional authority to regulate the nation's waters and it may delegate that power to a federal executive agency as it has done with the Corps of Engineers under the Flood Control Act of 1944.

Pursuant to Section 9 of the Flood Control Act of 1944, Congress authorized the construction of all but one of the Missouri River main stem dams in accordance with the "Pick Plan," a Corps of Engineers' planning document which proposed navigational improvements and flood control, and the "Sloan Plan," a Bureau of Reclamation planning document which emphasized the use of water resources for irrigation in the upper basin states. The combined plans are commonly referred to as the "Pick-Sloan Plan." The plans set forth broad goals and objectives including flood control, hydro power, irrigation, navigation, wildlife, and recreation.

Congress authorized the Missouri River Main Stem Dam System by adopting the "Pick-Sloan Plan" in the Flood Control Act of 1944. Pursuant to this Congressional authorization, the following six (6) dams and reservoirs were constructed:

1) Fort Peck Dam (Montana) and Fort Peck Lake;

2) Garrison Dam (North Dakota) and Lake Sakakawea;

3) Oahe Dam (South Dakota) and Lake Oahe located in both South Dakota and North Dakota;

4) Big Bend Dam (South Dakota) and Lake Sharpe;

5) Fort Randall Dam (South Dakota) and Lake Francis Case;

6) Gavins Point Dam (border of South Dakota and Nebraska) and Lewis & Clark Lake.

The Missouri River is America's longest river. The Missouri River Main Stem Dam System is North America's largest reservoir system with the capacity to store 73.4 million acre-feet of water. Garrison Dam was constructed from 1947-1954. The dam is located on the Missouri River between Mercer and McLean Counties. Garrison Dam is the fifth largest dam in the United States and Lake Sakakawea, its reservoir, is the third largest man-made lake in the United States. Garrison Dam National Fish Hatchery, located at the base of the dam, is the largest walleye and northern pike producing facility in the world.

Lake Sakakawea extends approximately 178 miles and at normal operating pool (1850 feet mean sea level) the lake covers 368,000 acres and has approximately 1,300 miles of shoreline. It is the largest dam in the system with a storage capacity of approximately 23.8 million acre-feet of water, or approximately 32% of the total storage capacity of 73.4 million acre-feet of water in the Missouri River system. Lake Oahe, which extends into North Dakota from a dam located in South Dakota, has a storage capacity of approximately 23.1 million acre-feet of water, or approximately 31% of the total storage capacity of the Main Stem Dam System.

The Corps of Engineers has developed a water control plan for the operation of the Missouri River Main Stem Dam System that is designed to serve the congressionally authorized project purposes. The guidelines used in the execution of the water control plan are documented in the Missouri River Main Stem Reservoir System Master Reservoir Regulation Manual commonly referred to as the "Master Manual." The Master Manual was first published in 1960 and...