State of Mo. ex rel. Nixon v. Craig
| Citation | 978 F.Supp. 902 |
| Decision Date | 29 August 1997 |
| Docket Number | No. 96-4086-CV-C-9.,96-4086-CV-C-9. |
| Court | U.S. District Court — Western District of Missouri |
| Parties | STATE OF MISSOURI, ex rel., Jeremiah W. ("Jay") NIXON, et al., Plaintiffs, v. Colonel Richard W. CRAIG, et al., Defendants. |
Robert Joseph Vincze, Law Offices of Robert J. Vincze, Overland Park, KS, for Mo-Ark Association.
Alleen S. VanBebber, U.S. Atty.'s Office, Kansas City, MO, Fred R. Disheroon, U.S. Dept. of Justice Environment and Natural Resources Div., Washington, DC, for Richard W. Craig, H. Martin Lancaster, Togo P. West.
Julie Krenz, Bismarck, ND, for State of N.D., amicus.
Tim D. Hall, Helena, MT, for State of Mont., amicus.
John P. Guhin, Pierre, SD, State of S.D., amicus.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
On September 23, 1996, plaintiffs State of Missouri and the MO-ARK Association (MO-ARK) filed their First Amended Complaint (Complaint) pursuant to the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. Plaintiffs allege that the Army Corps of Engineers (the Corps) adopted an Annual Operating Plan for 1996-97 in violation of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq. Specifically, plaintiffs allege that the Corps took a "major Federal action" regarding management of the Missouri River without first preparing an Environmental Assessment, Finding of No Significant Impact, or Environmental Impact Statement.
This case is before the court on the parties' cross-motions for summary judgment. Also before the court are the suggestions of amici curiae States of Montana, North Dakota, and South Dakota.
Pursuant to the Flood Control Act of 1944, 58 Stat. 887, the Corps is responsible for managing the six dams and reservoirs that constitute the Missouri River Main Stem Reservoir System (Main Stem). The Corps' management of the Main Stem is intended to improve flood control, irrigation, power generation, navigation, fish and wildlife conservation, recreation, water quality, and water supply. See Plaintiffs' Suggestions in Support, Ex. 1 (Draft Environmental Impact Statement); Defendants' Suggestions in Support, Ex. 1-C, p. 1 (Reservoir Regulation Manual).
In 1979, the Corps prepared a Reservoir Regulation Manual (Master Manual) for the Main Stem. The Master Manual states as follows:
In order to achieve the multi-purpose benefits for which the main stem reservoirs were authorized and constructed, they must be operated as a hydraulically and electrically integrated system. Therefore, this master manual presents the basic objectives and the plans for their optimum fulfillment, with supporting data.
Master Manual, p. I-1.
One of the Corps' purposes in operating the Main Stem is to regulate commercial navigation on the Missouri River. The eight-month commercial navigation season on the Missouri River lasts from approximately April 1 through approximately December 1, depending, in part, on ice conditions in the river. Id. at IX-6. Commercial navigation during ice-free seasons is "dependent upon low flow supplementation from the main stem reservoir system, with occasional assistance from certain tributary reservoirs." Id.
The Master Manual provides that the navigation season may be shortened in the event of a severe drought "in order to conserve the remaining available water supply." Id. at IX-9. The 1979 Master Manual provides "[c]urrent criteria" for shortening the navigation season in the event of drought. Id. Whether the navigation season will be shortened in a particular year depends on the level of water storage in the reservoir system on July 1 of that year. The Master Manual provides that a navigation season may be shortened by two weeks if the system storage falls below 39 maf on July 1 of the year in question. Master Manual, Table 9. This figure is sometimes referred to as the trigger point.
The Corps shortened the Missouri River navigation season due to drought conditions in 1981, 1988, 1989, 1990, 1991, and 1992. Defendants' Suggestions in Support, Ex. 1, pp. 4-5 (affidavit of Duane Sveum).
The Master Manual, which establishes the "basic objectives" of the river management also provides for the preparation of an Annual Operating Plan (AOP) by the Corps. Master Manual, p. IX-20. An AOP is adopted by the Corps to provide the following:
a. A basis for advance coordination with the Federal, state, and local agencies which are concerned with operation of the main stem reservoirs;
b. A guideline to actual operations;
c. A record of past operations and accomplishments; and
d. A means of informing interested agencies and individuals concerning past and expected future operations.
Id. at IX-20.
Pursuant to the Corps' 1996-97 AOP, if the reservoir storage level falls below 52 maf by July 1, 1997, then the Corps may shorten the navigation season by two weeks. In the briefing it is unclear at times whether plaintiffs are claiming that the Corps failed to comply with NEPA in adopting the entire AOP or whether plaintiffs are claiming only that the Corps failed to comply with NEPA in raising the trigger point. Based on the wording of the Complaint and the focus of plaintiffs' argument, plaintiffs are making the latter argument, i.e., defendants failed to comply with NEPA in raising the trigger point to 52 maf in the 1996-97 AOP. See Complaint, ¶¶ 34, 47.
Before the 1996-97 AOP was adopted, the Corps held six public meetings for review, discussion, and commentary on the contents of the proposed AOP. See 1996-97 AOP, pp. 1-2. The Corps also accepted written comments from interested parties on the proposed plan. Id. The final version of the 1996-97 AOP was adopted and published during the briefing of the parties' cross-motions and replaces the 1995-96 AOP. Because the 1996-97 AOP replaces the 1995-96 AOP and because the 1996-97 AOP raises the trigger point as did the 1995-96 AOP, plaintiffs' motion will be denied as moot to the extent that it seeks review of the obsolete 1995-96 AOP.
The Master Manual provides for a five year extension to the AOP "to serve as a guide for longer range planning of the operations of the main stem...." Master Manual, p. IX-22. The 1996-97 AOP includes a proposed five year extension of the 52 maf trigger point. 1996-97 AOP, pp. 123-25. Although the Corps has proposed to extend the higher trigger point for five years, the Corps has only adopted the 52 maf trigger point for the 1996-97 season. Whether the same trigger point will be in effect after the 1996-97 season depends on whether the Corps adopts an AOP incorporating the 52 maf figure in the future.
Plaintiffs allege that the change in the trigger point from 39 maf to 52 maf in the 1996-97 AOP is a "major Federal action" that will cause economic and environmental harm not considered by the Corps. Id. at ¶¶ 9-17, 34, 41-42, 47-49. Therefore, plaintiffs allege that the Corps was obligated but did not prepare an Environmental Impact Statement(EIS), Environmental Assessment (EA), or Finding of No Significant Impact (FONSI) as required by NEPA. See Complaint ¶¶ 34-40.
Plaintiffs also allege that the Corps' action was taken in violation of "the Corps' own rules governing system operations." Complaint, ¶ 1. Plaintiffs pray "for an order mandating that the defendants operate the reservoirs as specified in the Master Manual unless and until the appropriate Environmental Assessments and Environmental Impact Statements have been prepared...." Complaint, ad damnum clause at ¶ 3.
This is the second time plaintiffs have challenged the Corps' attempt to provide for shortening the navigation season. On May 11, 1992, these and other plaintiffs filed a Complaint alleging that the Corps violated its own rules as set forth in the Master Manual by adopting a plan that made it possible to shorten the 1992 navigation season to conserve water in case of drought. See Missouri v. Bornhoft, No. 92-4206-CV-C-9. Plaintiffs' request for a preliminary injunction was denied on the ground that plaintiffs did not show irreparable harm or likelihood of success on the merits. See transcript of proceedings, August 28, 1992, p. 9. The case was dismissed as moot at the close of the 1992 navigation season. See Order Dismissing Case as Moot dated June 21, 1993.
The Corps moves for summary judgment in this case on the grounds that 1) plaintiffs lack standing, 2) the challenged Corps action is committed to agency discretion and therefore not subject to judicial review, 3) the challenged Corps action relates to routine operational and managerial actions which are not governed by NEPA, and 4) the challenged Corps action is categorically excluded from NEPA. Defendants' Motion for Summary Judgment, p. 2.
Plaintiffs move for summary judgment on the ground that the Corps failed, as a matter of law, to satisfy the requirements of NEPA. Plaintiffs' Suggestions in Support, p. 1.
Rule 56(c), Federal Rules of Civil Procedure, provides that summary judgment shall be rendered if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In ruling on a motion for summary judgment, it is the court's obligation to view the facts in the light most favorable to the adverse party and to allow the adverse party...
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Missouri ex rel. Nixon v. Craig, 98-1332
...The district court denied the plaintiffs' motion as to the 1995-96 AOP as being moot in view of the 1996-97 AOP. Missouri v. Craig, 978 F.Supp. 902 (W.D.Mo.1997) (order granting summary judgment).3 The mootness doctrine is of such importance that "[i]t is the duty of counsel to bring to the......