Oahe Conservancy Sub-District v. Alexander, CIV78-1006.
| Decision Date | 01 May 1978 |
| Docket Number | No. CIV78-1006.,CIV78-1006. |
| Citation | 452 F. Supp. 714 |
| Parties | OAHE CONSERVANCY SUB-DISTRICT, a political Sub-division of the State of South Dakota, and the James River Flood Control Association, a non-incorporated South Dakota Association and the Tacoma Park Association, a South Dakota Corporation, Plaintiffs, v. Clifford L. ALEXANDER, Jr., Secretary of the Army, Lieutenant General John W. Morris, Chief of Engineers, Department of the Army, Colonel William Ray, District Engineer, Omaha District, Corps of Engineers, Defendants. |
| Court | U.S. District Court — District of South Dakota |
Tom P. May, Aberdeen, S. D., for plaintiffs.
Robert D. Hiaring, First Asst. U. S. Atty., Sioux Falls, S. D., and Gary D. Blair, Asst. Dist. Counsel, Omaha District, Corps of Engineers, Omaha, Neb., for defendants.
Murray G. Sagsveen, Asst. Atty. Gen., Bismarck, N. D., amicus curiae for the State of North Dakota.
Plaintiffs seek a preliminary injunction preventing the Corps of Engineers from discharging any water from the Jamestown and Pipestem Dams in North Dakota until such time as the flooding conditions along the James River in northern South Dakota are adequately alleviated. This matter was originally presented before the Court on April 12, 1978, at which time plaintiffs requested a temporary restraining order. At the conclusion of that hearing, the Court, while refusing to completely shut down the discharge of water from those dams as sought by plaintiffs, did grant a temporary restraining order restricting the release of water from the dams to 50 cubic feet per second or to such greater amount as that which equals the inflow of water to the two dam projects.
On April 21, 1978, a hearing was held on plaintiffs' application for a preliminary injunction. At that time the Court considered it inappropriate to decide the issue of an additional injunction without submission of legal memoranda by the parties and without the Court drafting a written decision. Therefore, the Court exercised its discretion by extending the temporary restraining order for an additional ten day period to permit the preparation and filing of this decision.
Plaintiff, Oahe Conservancy Sub-district, is a political subdivision of the state of South Dakota. It is organized and exists under South Dakota law, S.D.Comp.Laws Ann. 46-18, with the established purpose of developing desirable water resource projects for sixteen South Dakota counties. In pursuit of that general purpose the Sub-district adopted the James River Resolution which provides a plan for the river's general improvement and its flood control.
Plaintiff, James River Flood Control Association, is a non-incorporated association organized under the laws of the state of South Dakota. Its purpose is to manage and control the river for the benefit of its members and all residents living along the James River in Brown and Spink Counties. Plaintiff, Tacoma Park Association, is a corporation organized under the laws of South Dakota for the development of a permanent community and recreational facilities on a certain area along the James River.
These plaintiffs allege that the actions of the Corps of Engineers in the management of the Pipestem and Jamestown Dams have adversely affected their management and control of local water projects and goals and have individually injured members of plaintiff organizations who reside on land along the flood-stricken James River. Plaintiffs seek relief in this court on the basis that defendants have failed to adequately promulgate regulations for the operation of the two dams and that in following the regulations that do exist in regard to the operation of the dams the Corps of Engineers has acted arbitrarily and capriciously. In both regards, plaintiffs have made an inadequate showing that they are entitled to relief and therefore the Court feels compelled to deny the application for a preliminary injunction despite sharing concerns for the spring conditions faced by South Dakota citizens all along the James River. This spring's flood conditions with respect to the James River paint a sad and ugly esthetic and economic picture. Those facts alone, however, do not permit intervention by the federal courts in the administration of certain specified out-of-state dams by the Corps of Engineers.
A review of the evidence presented reveals the following: Due to an abnormally heavy snow cover during the winter of 1978, this spring has witnessed an extensive runoff into the descriptively narrow and winding James River. Beginning in late March of this year, severe flood conditions appeared along the James River in Brown and Spink Counties in northern South Dakota. In hopes such action could assist in alleviating the problem, representatives of the Oahe Conservancy Sub-district contacted the regional office of the Corps of Engineers in Omaha, Nebraska, requesting the Corps to close the flood gates to the Jamestown and Pipestem Dams in North Dakota until the flood conditions in South Dakota dissipate. The Corps refused to do so and as a result this litigation was initiated.
The James River begins its winding course in the middle eastern portion of North Dakota. It flows south through North Dakota and most of South Dakota before eventually emptying into the Missouri River. Along its course, the river passes Jamestown, North Dakota, a city with approximately 15,000 inhabitants. As the James River approaches Jamestown, the waters from Pipestem Creek empty into it. This is just north of the city. From Jamestown, the river winds south approximately eighty miles to the North Dakota-South Dakota border. It is about another thirty miles from that border to the start of the area involved in this litigation. Prior to reaching that area and just south of the North Dakota border, the river flows through the Sand Lake National Refuge.
This litigation primarily concerns the flooding problems near and just south of Columbia, South Dakota. The channel capacity in this area is approximately 500 c.f.s. On April 20, 1978, the water level at Columbia was 14 feet 30 inches. At that time the level was falling. The flood stage at that point in the James River is eleven feet. From Jamestown, North Dakota, to Columbia, South Dakota, the water's journey down the James River is slow. It takes water from Pipestem Dam 2½ to 3 weeks to get to Columbia. The Sand Lake Refuge is partly responsible for slowing that water's journey. The lake under normal conditions provides certain flood protection benefits as it is naturally capable of storing a large amount of water. It is not so capable presently as it is flooded like numerous other areas along the James River.
Between Jamestown and Columbia the James River absorbs water from numerous other sources. It is also true that a portion of the water from Pipestem Dam is lost along the route. Only about five to ten percent of the water at Columbia actually came from Pipestem. Figures introduced by the Corps reflect that a release of 50 c.f.s. of water at Pipestem will raise the water level at Columbia four-tenths of a foot under normal conditions when the river is contained within its narrow banks. Otherwise, during flood conditions such as those presently persisting a 50 c.f.s. release has a two-tenths of a foot effect at Columbia. These figures do not take into consideration any loss of water from Jamestown to Columbia by seepage, evaporation or any other cause.
The two dams which the plaintiffs seek to close are the Jamestown Dam and the Pipestem Dam. The Jamestown Dam and Reservoir is located approximately one mile upstream from the intersection of the James River and Pipestem Creek. The dam is on the James River. The construction of the Jamestown Dam was authorized under the Flood Control Act of 1944. Construction began in 1953 and was completed the following year. The dam was built by the United States Bureau of Reclamation and that agency has retained jurisdiction over the use and management of the structure. The dam is part of the Corps of Engineers' flood control system, however, in that once the reservoir pool level reaches the exclusive flood zone level, an elevation of 1440 feet, jurisdiction is taken over by the Corps of Engineers.
As required by the Flood Control Act of 1944, regulations with respect to the operation of the Jamestown Dam are published in the Code of Federal Regulations, 33 C.F.R. 208.50. No regulations with respect to the operation of the Pipestem Dam are recorded in C.F.R. or the Federal Register. The reason that such regulations are recorded for Jamestown Dam is that the law requires the publication in the Federal Register of the regulations for any reservoir constructed with flood storage capability that was built and is operated by someone other than the Corps of...
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Oahe Conservancy Sub-District v. Alexander
...and Pipestem dams in North Dakota. Plaintiffs' motion for preliminary injunction was denied by the Court in Oahe Conservancy Sub-District v. Alexander, 452 F.Supp. 714 (D.S.D.1978). The action was tried on the merits June 9, 10 and 11, 1980. The Court now concludes that it must reject plain......