North Dakota v. U.S. Army Corps of Enginers, No. Al-03-050.
| Decision Date | 14 July 2003 |
| Docket Number | No. Al-03-050. |
| Citation | 270 F.Supp.2d 1115 |
| Parties | State of NORTH DAKOTA, et al., Plaintiffs, and 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 |
Dean J. Haas, Lyle Gregory Witham, Attorney General's Office, Civil Litigation, Bismarck, ND, for plaintiffs.
Daniel W. Pinkston, U.S. Department of Justice, Environmental Defense Section, Denver, CO, Cameron W. Hayden, U.S. Attorney's Office, Bismarck, ND, Fred R. Disheroon, U.S. Department of Justice, Environment and Natural Resources, Washington, DC, for defendants.
Daniel H. Israel, Boulder, CO, for amicus.
Clark Jay Bormann, Bormann Law Office, Bismarck, ND, David D. Cookson, Nebraska Atty Gen's Office, Lincoln, NE, John P. Guhin, Attorney General's Office, Pierre, SD, for intervenor.
MEMORANDUM AND ORDER DENING NORTH DAKOTA'S MOTION FOR A PRELIMINARY INJUNTION
This case arises out of the management and operation of the Missouri River and its attendant reservoirs. The matter before the Court is the State of North Dakota's Motion for a Preliminary Injunction. North Dakota seeks a preliminary injunction order stating:
that the Corps maintain a minimum cold water habitat in Lake Sakakawea of 200,000 acre-feet through September 30, 2003. The particular way to achie minimum 200,000 acre-feet should be left, however, to the Corps' management and discretion.
That a Special Master be appointed by the Court to monitor compliance with the order throughout the summer, and to make recommendations to the Court to address any changes or adjustments that may be needed based on higher or lower flows than anticipated in the Corps' June 1, 2003 forecast, or to address any unanticipated downstream impacts.
On May 7, 2003, the Court extended an Ex Parte Temporary Restraining Order entered on April 29, 2003, by state district court Judge Gail Hagerty. On May 16, 2003, the Court again extended the Ex Parte Temporary Restraining Order until the end of May based on the consent of the Corps of Engineers, modified the Order to allow a maximum daily average release of 21,500 cfs from Garrison Dam, and suspended the requirement that the Corps of Engineers submit a compliance plan by May 19, 2003. On May 29, 2003, the Court granted the Corps of Engineers' Motion to Dissolve the Ex Part Temporary Restraining Order. On June 4, 2003, the Court held a hearing on both North Dakota's and South Dakota's Motions for Preliminary Injunctions, at which the parties submitted additional evidence and the Court heard testimony from several witnesses. The same day, June 4, 2003, the Eighth Circuit released its opinion in South Dakota v. Ubbelohde, 330 F.3d 1014 (8th Cir.2003).1
This matter comes before the Court with a complex and lengthy history involving the dispute between the Corps of Engineeras and the various Missouri River Basin states regarding the management of the Missouri River. A more extensive review of the background of the case is set forth in the Court's Orders of May 16, 2003, and May 29, 2003. However, a brief summary is necessary to provide the backdrop to North Dakota's Motion for a Preliminary Injunction.2
On February 20, 2003, the North Dakota Department of Health issued a "Notice of Violation" to the Corps of Engineers alleging continuing violations and actions that threatened to violate North Dakota's water quality standards applicable to Garrison Dam and Lake Sakakawea. The Notice of Violation indicated that the North Dakota Department of Health may file suit against the Corps of Engineers. In essence, the Notice of Violation asserted that the Corps' management of Lake Sakakawea constitutes a form of "pollution" under state law which would threaten the lake's cold water fishery by decreasing the lake's water elevation.
The State of North Dakota filed a complaint in state district court on April 29, 2003. In its complaint, the State alleged that the Corps of Engineers violated North Dakota's water quality standards in Lake Sakakawea through its operation of the Garrison Dam. 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, thus allowing 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 management of water levels in Lake Sakakawea during the summer months will violate North Dakota's water quality standards as it relates to the maintenance of a cold water fishery in Lake Sakakawea.
The State of North Dakota contends that the Corps of Engineers' management of the Missouri River Mainstem Reservoir System, and particularly the management of the release of waters from Garrison Dam, constitutes a form of "pollution" because it is a "man-made or man-induced" change that has altered the physical, chemical, and biological integrity of Lake Sakakawea. According to the State, adherence to the Corps of Engineers' April 1, 2003, and May 1, 2003, projected forecast and its current Annual Operating Plan will result in no cold water fish habitat remaining in Lake Sakakawea by the end of the summer of 2003. However, based on the June 1, 2003, forecast, approximately 173,340 acre-feet of cold water habitat would remain at the end of September 2003. It is undisputed that at the present time, no specific violations of North Dakota law or of water quality regulations have occurred.3
The State of North Dakota is seeking injunctive relief to (1) maintain a minimum cold water habitat in Lake Sakakawea of 200,000 acre-feet through September 30, 2003; and (2) to appoint a Special Master to monitor compliance with the preliminary injunction throughout the summer. North Dakota contends that the survival of the cold water fishery in Lake Sakakawea this summer is dependent upon (1) the average elevation of Lake Sakakawea in May before it stratifies; and (2) the amount that inflow into the lake exceeds outflow during the months of June, July, and August. The first factor is now moot because the State's initial concern about maintaining the average elevation of Lake Sakakawea in May before it stratified has been addressed. Thus, the issue of whether to grant a preliminary injunction focuses on the amount of inflow and outflow at Lake Sakakawea for the remainder of the summer months.
Since the original filing in North Dakota state district court, the case was removed to federal district court, and the States of Nebraska and South Dakota have been allowed to intervene. To summarize the current litigation, 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 mainstem 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 experiencing its fourth year of drought conditions.
In determining whether preliminary injunctive relief should issue, the Court is required to consider the factors set forth in Dataphase Systems, Inc. v. C.L. Sys. Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc). The Eighth Circuit summarized those factors as follows:
When considering a motion for a preliminary injunction, a district court weighs the movant's probability of success on the merits, the threat of irreparable harm to the movant absent the injunction, the balance between harm and the injury that the injunction's issuance would inflict on other interested parties, and the public interest. Dataphase Systems, Inc. v. C.L. Sys, Inc., 640 F.2d 109, 114 (8th Cir.1981) (en banc). We reverse the issuance of a preliminary injunction only if the issuance "is the product of an abuse of discretion or misplaced reliance on an erroneous legal premise." City of Timber Lake v. Cheyenne River Sioux Tribe, 10 F.3d 554, 556 (8th Cir.1993) cert, denied 512 U.S. 1236, 114 S.Ct. 2741, 129 L.Ed.2d 861 (1994).
Pottgen v. Missouri State High School Activities Association, 40 F.3d 926, 929 (8th Cir.1994).
The burden of establishing the necessity of a preliminary injunction is on the movant. Baker Electric Co-op. Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir.1994); Modern Computer Systems, Inc. v. Modern Banking Systems, Inc., 871 F.2d 734, 737 (8th Cir.1989) (en banc). "No single factor in itself is dispositive; in each case all of the factors must be considered to determine whether on balance they weigh towards granting the injunction." Baker Electric Co-op, 28 F.3d at 1472 (quoting Calvin Klein Cosmetics Corp. v. Lenox Labs., Inc., 815 F.2d 500, 503 (8th Cir. 1987)). The granting of a preliminary injunction is an extraordinary remedy and the right to such relief must be clearly established by the movant. Brookins v. Wissota Promoters Ass'n, Inc., 142 F.Supp.2d 1149, 1151 (D.N.D.2000). The Court will address each of the Dataphase factors.
To succeed on the merits, North Dakota must clear several hurdles including issues pertaining to the availability of judicial review, sovereign immunity, and the application of water quality standards.
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