Petition for Writ of Certiorari — North Dakota v. Ubbelohde

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nv 39 DEC 2 9 2003

In The

Supreme Court of the Cinites States

3 —

STATE OF NORTH DAKOTA AND

STATE OF SOUTH DAKOTA,

Petitioners,

Vv.

LT. COL. K.F. UBBELOHDE, DIST. ENGINEER, OMAHA

DIST., U.S. ARMY CORPS OF ENGINEERS; BRIG. GEN.

W.T. GRISOLI, COMMANDER, NW DIV., PORTLAND,

OR., U.S. ARMY CORPS OF ENGINEERS; STATE OF

MISSOURI; AND THE STATE OF NEBRASKA; ET AL.,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

STATE OF NORTH DAKOTA STATE OF SOUTH DAKOTA

WAYNE STENEHJEM LAWRENCE E. LONG

Attorney General _ Attorney General

CHARLES M. CARVELL JOHN P. GUHIN

Counsel of Record Counsel of Record

Asst Attorney General Deputy Attorney General

State 3ar ID No. 03560 State Bar ID No. 653

OFFICE OF THE OFFICE OF THE

ATTO ‘NEY GENERAL ATTORNEY GENERAL

500 N.: th 9th Street 500 E. Capitol Ave.

Bism:r<k, ND 58510-4509 Pierre, SD 57501-5070

Telephone (701) 328-3640 Telephone (605) 773-3215

Facsimile (701) 328-4300 Facsimile (605) 773-4106

Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831 ’

eenneniaiee eens,

QUESTION PRESENTED

This case concerns competing uses of the Misso:ri River.

Uses to which this 2, 20-mile river is put include commer-

cial navigation, a myriad of recreational uses, irrigation,

municipal drinking water, and nuclear and hydro power

generation. There has been a long-standing anid divisive

dispute between upper and lower basin states over how to

| properly manage the ‘low of Missouri River water. In

essence, upstream states want water retained in upstream

reservoirs to support the recreation industry, while down-

| stream states want water released to support navigation.

Recreation in the upper basin is vibrant. Its economic

value is many times greater than navigation, which is a

declining industry. The United States Corps of Engineers

manages the Missouri River under the 1944 Flood Control

Act. The Act requires that the Corps equitably balance the

uses to which the river is put. The Corps itself has stated

that it is obligated to equitably balance uses. The court

below, however, ruled that the Act requires that the Corps

must generally favor stagnant downstream navigation

over thriving upstream recreation. The question presented

is:

ede ae _s —

Whether the 1944 #lood Control Act allows the Corps of

Engineers to consistently allocate the water from the

Missouri River’s upper basin reservoirs to serve down-

stream navigation at the expense of upstream fish, wildlife

and recreation?

a ee a

RULE 14(1)(b) STATEMENT - LIST OF PARTIES

The following are parties to the proceeding below:

The State of Missouri

The State of Nebraska

The State of North Dakota

The State of South Dakota

The U.S. Corps of Engineers

The MO-ARK Association, a Kansas Non-Profit

Association

Ergon Asphalt & Emulsions, Inc.

Magnolia Marine Transport Co.

Blaske Marine, Inc.

Koch Materials Co.

Mid-West Terminal Warehouse Co., Inc.

Tosco, a subsidiary of __—— 66 Co.

Jebro, Inc.

Memco Barge Line, dese

While the following were not parties to the proceeding

below, they are parties to ongoing litigation involving the

Missouri River’s proper management:

Montana Department of Fish, Wildlife & Parks

South Dakota Department of Game, Fish, & Parks

North Dakota Department ofGame & Fish _\

American Rivers

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

iii

RULE 14(1)(b) STATEMENT -

LIST OF PARTIES -— Continued

Mandan, Hidatsa, & Arikara Nation

Missouri River Energy Services, Inc.

Nebraska Public Power Dist.

Coalition to Protect the Missouri River, a Missouri

Non-Profit Corporation

ConocoPhillips Co.

Midwest Area River Coalition 2000, a Missouri

Non-Profit Association

Missouri River Keepers, an Iowa Non-Profit

Corporation

U.S. Department of Interior

U.S. Fish & Wildlife Service

TABLE OF CONTENTS

Page

QUEBTION PER eens BAR) cesccceccveceseccccsceccenecesebernecees i

RULE 14(1)(b) STATEMENT - LIST OF PARTIES... ii

PETITION FOR A WRIT OF CERTIORARI ............. 1

CUP Ov iesescccstisniiiticntbeiansgsineplteiiaien 1

FTE tctn rinse cnivesnninddticininistinnacat 1

STATUTORY PROVISIONS INVOLVED.................. 1

IT ca ictntniicinnsnttiahabadapateniiieteinsamenncinaal ees 2

Fe. Fe ienrccinitdidsetccmnvibisbedaiiniiamananiteiins 2

BD. Bebb TOC OUING oc cicnccecccerccescoccneseccsescess 2

se arth ticecencittaiiiinnntinntedctnncnsane 4

D. District Court Decisions,......................cceseceeees 9

E. Other Missouri River Litigation .................... 11

F. The Court of Appeals’ Decision ...................... 13

REASONS FOR GRANTING THE PETITION ......... 14

I sasiciscivneriscteeaiscnciasnicteinsnaniastene 14

The Decision Below Misinterpreted the 1944

Flood Control Act and, Consequently, Failed to

Accord Recreation its Proper Role in Managing

the Missouri River’s Multi-Purpose Facilities....... 15

A. The 1944 Flood Control Act .................. cece eee 16

Bi: ~ Pe I TID cc scccsititidoubisibinneeidedsbannaeaindaiees 17

C. The Pick Plan (Doc. 475) and the Sloan Plan

GE, Fe iaedctstdenntaiateccaecadaioinncdecideintanie 18

Fo. Fe aE i cctesndicsonnticttiisiccicenselsaceannanianiied 18

TABLE OF CONTENTS — Continued

Page

D. Agency Interpretation of the Flood Control :

TOU stinvirvipiiintniaiucinnentttiiiaiiauibiisbibdosiiisiccie i 21

E. The Actions of the Corps Belie its Words,

Leading to the Present Controversy .............. 24

F. The Court of Appeals Erred in its Evaluation

of the Applicable Law............ccceccccecceseseceeees.., 25

CO aide 28

TABLE OF AUTHORITIES

Page

CASES

American Rivers v. United States Army Corps of

Engineers, 271 F.Supp.2d 230 (D.D.C. 2003).................. 6

Chevron, U.S.A., Inc., v. Natural Resources Defense

Comment, SEF UF, Ga Ce cccicicevessceccovenscinnesstivensesevess 23

ETSI Pipeline Project v. Missouri, 484 U.S. 495

Cl wichivssichblinicieunnueasianenicenimmieimenminieiaineds voesee Fp Ay OO, Oe

In re Operation of the Missouri River System

Litigation, 277 F.Supp.2d 1378 (J.P.M.L. 2003)............ 12

New Jersey v. New York, 283 U.S. 336-1931) ................6 2

North Dakota v. United States Corps of Engineers,

270 F.Supp.2d 1115 (D.N.D. 2003)....................0. 5, 6, 8, 9

North Dakota v. United States Corps of Engineers,

264 F.Supp.2d 8111 (D.N.D. 2003)................cssssssssssseesees 5

Skidmore v. Swift & Co., 323 U.S. 134 (1944)... 23

South Dakota v. Bourland, 508 U.S. 679 (1993)......... 17, 26

United States v. Mead, 533 U.S. 218 (2001)....................4 23

Yankton Sioux Tribe v. U.S. Army Corps of Engi-

neers, 194 F.Supp.2d 977 (D.S.D. 2002)............. ce eeeeeeee 6

STATUTES

1944 Flood Control Act, Pub. L. No. 78-534, 58 Stat.

eC sacs cacehesecevedivntesescanstuepeindeimnubenuraigbedeinaies passim

Act of Aug. 30, 1935, 49 Stat. 1028 (1935)........... ec eeeeeeeee 5

a a re a ee

vii

TABLE OF AUTHORITIES - Continued

Page

MISCELLANEOUS

Baumel & Van Der Kamp, Past and Future Grain

Traffic on the Missouri River (Inst. for Ag. &

Trade Policy, July 2008)....0......c.ccccecesessseseseseseceseoeee-n. 7, 25

Beck, A Book Review of River of Promise, River of

Peril: The Politics of Managing the Missouri

River Great Plains Nat. Resources J. 477, 479

TD vsctstinsinavcnnteeschimnbicintnnsptatesinneiitabeaticenisibiniseic Hee ose a... 5

Davidson and Geu, The Missouri River and Adap-

tive Management: Protecting Ecological Function

and Legal Process, 80 Neb. L. Rev. 816 (B01) ...0cccceees 6,7

Garrison Diversion Unit Comm’n, Final Report

a Bi icisirsinneenisvnnebisieiintennitectce te. 8

Lawson, Dammed Indians: The Pick-Sloan Plan

and the Missouri River Sioux, 1944-1980

na esiccinitiocntiensttiecaieinchinsimsenbboimaiciecattgi 5, 6, 7, 8

Morris, Unanswered Prayers: The Upper Missouri

River Basin States Take on the U.S. Army Corps

of Engineers, 68 N.D. L. Rev. 897 (1992)..................... 7,9

Street, Addressing Missouri’s Domestic Conflict of

Interests in the Missouri River: A Suggested Ap-

proach for Resolution, 5 Mo. Envtl. L & Pol’y Rev.

OT GPU iasinateinisicstiitiaieatsileimcncian cdkicietecegitse 3, 8

U.S.. Army Corps of Engineers, Missouri River

Revised Draft Environmental Impact Statement

Vol. 1: Main Report (Aug. 2001).......ccccccccecece------... passim

U.S. Gen. Accounting Office, Water Resources,

Corps Management of Ongoing Drought in the

Missouri River Basin (Jan. 1992) .......ecccccccccccecoeeeeeescs... 24

PETITION FOR A WRIT OF CERTIORARI

The petitioners respectfully petition for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Eighth Circuit.

OPINIONS BELOW

The opinion of the court of appeals is reported at 330

F.3d 1014. App. at 1. The opinion was issued in a consoli-

dated case that reviewed preliminary injunctions issued by

three district courts. These injunctions are unreported. App.

at 49, 69, 75. The court’s order denying North Dakota’s

petition for rehearing with suggestion for rehearing en banc

is unreported. App. at 82. This order also denied the United

States Corps of Engineers’ petition for rehearing en banc.

JURISDICTION

The judgment of the court of appeals was entered on

June 4, 2003. North Dakota’s and the Corps of Engineers’

petitions for rehearing were denied on September 30,

2003. App. 82. The jurisdiction of this Court is invoked

under 25 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant provisions of the 1944 Flood Control Act,

Pub. L. No. 78-534, 58 Stat. 887 ( 1944), are in the Appen-

dix at 83.

STATEMENT

A. Introduction

“A river ... offers a necessity of life that must be

rationed among those who have power over it.” New Jersey

v. New York, 283 U.S. 336, 342 (1931) (Holmes, J.). This

case is about the fair division of Missouri River waters

among the seven states through which it flows. It is about

whether those states —- Montana, North Dakota, and South

Dakota — that sacrificed the most to protect the entire

basin from floods are to be allowed an appropriate meas-

ure of benefit from federal dams and reservoirs — facilities

that flooded towns, farms, ranches, and hundreds of

thousands of acres of some of the most valuable land in

these states.

North and South Dakota were promised, in return for

the presence of huge reservoirs within their borders, large

irrigation projects. These promises remain unfulfilled.

Thus, this case is about whether the benefit these states

have themselves largely built, a lake-based recreation

industry, will be allowed to develop, or whether the lavish

water needs of the small, marginally economic down-

stream navigation industry, an industry that provides less

than 1% of the economic benefits produced by the river,

gets priority.

B. Statutory Background

Damaging floods in 1942 and 1943 spurred Congress

to consider managing the unruly Missouri River. In 1944

the Corps of Engineers filed with Congress its plan to

control the river and develop the basin. H.R. Doc. No. 475,

78th Cong., 2nd Sess. (1944). The primary author was Col.

Lewis Pick and so the Corps’ plan became known as the

“Pick Plan.” A few months later, the Bureau of Reclama-

tion presented Congress with its plan. S. Doc. 191, 78th

Cong., 2nd Sess. (1944). The primary author was a Bureau

employee, William Sloan. The Bureau’s proposal became

known as the “Sloan Plan.”

The two plans differed. The Pick Plan recommended

construction of extensive downstream levees; some tribu-

tary dams; and five large dams on the river’s main stem.

H.R. Doc. No. 475, supra at 26-28. The Corps described its

proposed reservoir: as “multiple-purpose” facilities, id.,

and its proposal as “comprehensive,” one that would

“provide for the most efficient utilization of the waters of

the Missouri River Basin for all purposes, including

irrigation, navigation, power, domestic and sanitary

purposes, wildlife, and recreation.” Jd. at 29. The Bureau

of Reclamation’s Sloan Plan proposed dozens of smaller

dams in the headwaters and on tributaries, and three

large dams on the main stem. S. Doc. 191, supra at 52-53,

66-67, 78, 95, 118. The Sloan Plan, like the Pick Plan,

recommended projects for the comprehensive, multiple use

of Missouri River waters, and proposed numerous uses,

including “recreation” and “fish and wildlife preservation.”

Id. at 17-18.

Congress thus had before it two different plans from

two powerful federal agencies. But fearing that the Mis-

souri’s development might be given to a new, independent

entity, the Corps and Bureau reconciled their differences,

setting forth their agreement in a Joint Report. App. at 93.

Their agreement did not sacrifice the objectives of their

individual plans. The two agencies “essentially agreed to

build all the projects they had proposed.” Craig A. Street,

Addressing Missouri’s Domestic Conflict of Interests in the

Missouri River: A Suggested Approach for Resolution, 5

Mo. Envtl. L & Pol’y Rev. 117, 126 (1998). Congress ac-

cepted the proposed consolidation stating that the “general

comprehensive plans” in the two proposals, “as revised and

coordinated by” the Joint Report, “are hereby approved.”

App. at 90.

As stated, the two plans each set forth varied pur-

poses for which the dams would be operated. Included

within each articulation of project purposes was wildlife

and recreation. E.g., H.R. Doc. 475, supra at 29; S. Doc.

191, supra, at 13, 17. The Joint Report combined the

objectives of both plans and so wildlife and recreation are

necessarily included. Indeed, the Joint Report states that

the basin’s development is to secure benefits for “flood

control, irrigation, navigation, power, domestic and sani-

tary purposes, wildlife, and recreation.” App. at 102. The

Joint Report and Congress, through its adoption of the

Report, did not set priorities among these uses, with one

exception. The O’Mahoney-Milliken Amendment provided

that upstream consumptive uses, such as appropriations

for irrigation and drinking water, have priority over

navigation. App. at 85. The Flood Control Act’s preamble

also instructs that navigation works are to be limited to

those that provide “a substantial benefit” and that are

“operated consistently with appropriate and economic use

of the waters . . . by other users.” Jd. at 83. Other than this

priority for upstream consumptive uses over navigation,

and the preamble’s other limit on navigation, the uses

were not ranked or given priorities.

C. Factual Background

After enactment of the 1944 Flood Control Act, five

dams were built on the main stem of the Missouri River,

four in South Dakota and one in North Dakota. Montana’s

Ft. Peck Dam, which had been built earlier under a

different statute and primarily to aid navigation, Act of

Aug. 30, 1935, ch. 831, 49 Stat. 1028, 1034 (1935), was

converted to a multiple-purpose dam. App. at 97.

North Dakota’s Lake Sakakawea was formed by

construction of Garrison Dam. The lake extends 178 miles,

covers 368,000 acres at its normal operating level, and has

1,300 miles of shoreline. North Dakota v. United States

Corps of Engineers, 264 F. Supp.2d 871, 875 (D.N.D. 2003).

Lake Sakakawea holds 32% of the total storage capacity in

the Missouri River system. Jd. South Dakota’s Lake Oahe

extends 231 miles and has 2,250 miles of shoreline. U.S.

Army Corps of Engineers, Missouri River Revised Draft

Environmental Impact Statement Vol. 1: Main Report 3-

134 (Aug. 2001) (hereafter “Revised DEIS”). Oahe provides

31% of the system’s storage capacity. North Dakota v.

United States Corps of Engineers, 270 F.Supp.2d 1115,

1129 (D.N.D. 2003).

Construction of the main stem dams came at a price,

and not just a fiscal one. “The reservoirs were built at

great cost to the upper Missouri basin states and their

inhabitants.” Robert E. Beck, A Book Review of River of

Promise, River of Peril: The Politics of Managing the

Missouri River, 1 Great Plains Nat. Resources J. 477, 479

(1996). South Dakota “gave up over 530,000 acres of the

most productive and valuable farm land in the state to

build the dams and flood the land, all of which was and is

designed to protect downstream communities from flood-

ing.” App. at 59. North Dakota gave up a similar amount

of land. Flooding this land upset “[t]he ecological balance

of the entire region, and that of the Dakotas in particular.”

Michael L. Lawson, Dammed Indians: The Pick-Sloan

Plan and the Missouri River Sioux, 1944-1980 194 (1982).

“The inundation of precious forests and bottomlands not

only eliminated the natural wildlife habitat but also

created serious erosion problems.” Jd. Lake Sakakawea

cut-banks are eroding at rates as high as 19 feet a year

and on Lake Oahe as high as 23 feet a year. Revised DEIS

at 3-22. Tribal governments describe the erosion as “‘ex-

tensive.’” Id. Thus, the loss of agricultural land in the

upper basin continues and unstable banks have led to the

loss of sacred and cultural sites. See, e.g., Yankton Sioux

Tribe v. U.S. Army Corps of Engineers, 194 F.Supp.2d 977,

983 (D.S.D. 2002).

The downstream states have been well served by the

Act’s flood control benefits, but the attempt to sustain a

viable navigation industry downstream has failed. Accord-

ing to two scholars, despite the fact that the government

built an “expensive” nine-foot channel in the lower basin

and continually maintains it, navigation, which requires

“lavish amounts of water, [has] not developed into an

enterprise of noticeable size or need.” John H. Davidson &

Thomas Earl Geu, The Missouri River and Adaptive

Management: Protecting Ecological Function and Legal

Process, 80 Neb. L. Rev. 816, 836 (2001). The industry is

presently worth only $7 million annually, e.g., American

Rivers v. United States Army Corps of Engineers, 271

F.Supp.2d 230, 261 (D.D.C. 2003); App. at 59; Revised

DEIS at 5-125, and maybe as little as $1 million. North

Dakota, 270 F.Supp.2d at 1129. Navigation delivers less

than 1% of the overall economic benefits produced by the

river. Revised DEIS at 5-131. As the South Dakota District

Court found, downstream navigation has been declining

for some time, “will continue to decline greatly, and is of

little, if any, net economic value on the Missouri River.”

App. at 59. Navigation tonnage peaked in 1977 at 3.3

million tons. Revised DIES at 3-145. By 1990 and 2000 the

volume had slipped to 1.3 million tons. Jd. at 3-146. Grain

shipments fell 81% from the peak of 1.95 million tons in

1964 to just 0.37 tons in 2000. C. Philip Baumel & Jerry

Van Der Kamp, Past and Future Grain Traffic on the

Missouri River 1 (Inst. for Ag. & Trade Policy, July 2003).

The small volume of Missouri River commerce is apparent

when compared to other rivers. Mississippi barges carry

over 380 million tons per year and the Ohio River moves

at least 150 million tons. Brian Morris, Unanswered

Prayers: The Upper Missouri River Basin States Take on

the U.S. Army Corps of Engineers, 68 N.D. L. Rev. 897, 915

(1992). Unsurprisingly, commentators describe down-

stream navigation as “moribund,” “an experiment that has

failed,” and “the army’s bad joke.” Jd. at 935; Davidson &

Geu, supra, at 836; Lawson, supra, at 187. A district court

below described it as “rather meager.” App. at 59.

For their sacrifices, the upper basin states were to

receive massive irrigation projects. ETS] Pipeline Project

v. Missouri, 484 U.S. 495, 508 (1988). This promise has

remained unfulfilled. While most of the water in South

Dakota’s Lake Oahe was projected to be used for irriga-

tion, “none of this water has been allotted for irrigation, no

works have been constructed to make use of this water for

irrigation, and none of this water has ever been used for

irrigation or is likely to be used for that purpose in the

foreseeable future.” Id. at 509 n.5. See also App. at 60 (the

promised irrigation of South Dakota’s James River Valley,

“an idea that primarily drove the Pick-Sloan Plan, never

materialized”). Indeed, “South Dakota has received rather

little from the dams and has given up much.” App. at 60.

The story of unfulfilled irrigation promises is the same in

North Dakota. E.g., Street, supra, at 127.

North Dakota sacrificed hundreds of thousands

of acres, much of it prime river bottomland, for

the greater benefit of the nation. In return, the

Federal Government promised assistance in re-

placement of the economic base of the State and

Indian Tribes. There is evidence that this has not

taken place.

Garrison Diversion Unit Comm’n, Final Report i (Dec. 20,

1984). Without question, “the upper basin states and...

tribes have been short-changed in the management of the

Missouri River and something should be done about it.”

Beck, supra, at 490.

Of all the benefits Pick-Sloan promised, the “most

immediate and successful” have been upstream recreation

and tourism. Lawson, supra, at 188. Vacationers come to

the upstream reservoirs to swim, boat, camp, and picnic.

Id; Revised DEIS at 3-127. The primary attraction of the

reservoirs, however, is fishing. The reservoirs are fishing

destinations for tens of thousands of local and out-of-state

fishermen in search of trophy walleye. The upstream

reservoirs are national and world class sport fisheries.

North Dakota, 270 F.Supp.2d at 1129, 1130. South Da-

kota’s Lake Oahe may be “the greatest [w]Jalleye fishery in

the United States.” App. at 50. Anglers in turn support

local hotels, bait and boat shops, marinas, and businesses

near and on the road to the reservoirs. “Businesses cater-

ing to tourists and outdoor enthusiasts have thrived.”

Lawson, supra, at 188.

The economic value provided by Missouri River

recreation is exceptional, even though it has not attained

shes —

its full potential. South Dakota’s Missouri River fishing

industry is worth $51 million a year. App. at 50; North

Dakota, 270 F.Supp.2d at 1130. Lake Oahe fishing alone

produces revenues of about $20 million a year. App. at 38.

North Dakota has calculated the benefits of its fishing and

tourism industry at about $65 million a year, with the

value of the Lake Sakakawea fishery alone being at least

$23 million a year. North Dakota v. Corps, 270 F.Supp.2d

at 1129. In sum, the competition for Missouri River water

is between the lower basin’s stagnant, localized navigation

industry and the upper basin’s “growing recreation indus-

try.” Morris, supra, at 898.

The allure of trophy walleye drives upstream recrea-

tion. But the walleye cannot survive without its primary

food source, the rainbow smelt. The smelt spawn occurs

each spring when the smelt lay their eggs within about six

inches of the surface. App. at 40. If the water recedes the ,

eggs will die after a few minutes of exposure to the air. Jd.

Thus, a successful smelt spawn requires a stable or rising

water level. Jd. The Corps in 2002, as it had many times

before, threatened to sacrifice upstream fisheries by

destroying the smelt to satisfy the demands of the dwin-

dling navigation industry. This threat triggered the

litigation now before this Court.

D. District Court Decisions

South Dakota biologists were anticipating an excellent

smelt spawn in the spring of 2002. This was after several

years in which the smelt population had been “greatly

reduced .. . thus starving the walleye population.” App. at

49. The reduced smelt population was caused in part by

the Corps’ “great flushes of water,” which forced the smelt

through the Oahe Dam’s turbines. Jd. To protect the

spawn, South Dakota needed a few weeks of stable water.

The Corps, however, wanted to release more water from

South Dakota reservoirs than was flowing in. The effect of

the loss of the smelt spawn on the walleye would have

been devastating to South Dakota and the businesses and

communities that depend on the fisheries. Jd. at 42-43, 54.

“Destruction of the fisheries would deprive South Dakota

of the remaining benefit from having over a half million of

its acres flooded and forever lost.” Id. at 60.

To protect its smelt spawn, South Dakota obtained a

restraining order and later a preliminary injunction

prohibiting the-Corps from drawing down two reservoirs.

Id. at 35. Because the injunction was designed to protect

only the spring smelt spawn, it was set to expire on May

25, 2002. Id. at 62-63. In response to the South Dakota

injunction, the Corps announced plans to immediately

draw down North Dakota’s Lake Sakakawea and Mon-

tana’s Ft. Peck Reservoir. This stirred these two states to

obtain injunctions to protect their fisheries. Jd. at 64, 69,

72. Because the purpose of these injunctions was to protect

the 2002 smelt spawn, they too were of short duration.

North Dakota’s was to expire on May 25th and Montana’s

on the 23rd. Jd. at 71, 73-74.

Nebraska, after being denied intervention in South

Dakota’s suit, filed an action in the District of Nebraska,

into which Missouri intervened. The Nebraska District

Court injunction ordered the Corps to comply with its

Missouri River Master Manual. Id. at 75. The Master

Manual guides the Corps’ river management.’ Faced with

these injunctions, the Corps appealed. The Eighth Circuit

promptly stayed the North Dakota, South Dakota, and

Nebraska injunctions. (The Court of Appeals did not

address the Montana order. Montana is in the Ninth

Circuit).

E. Other Missouri River Litigation

While the Corps’ appeal was pending, there was no

activity in the underlying actions, though Montana volun-

tarily dismissed its suit in June of 2002. But with the

drought continuing into its fourth year, three new suits -

were filed in 2003. Private downstream interests sued the

Corps, the U.S. Fish & Wildlife Service, and the Montana,

North Dakota, and South Dakota game and fish depart-

ments. First Amended Complaint, Blaske Marine, Inc., et

al. v. Norton, et al., No. 8:03CV142 (D. Neb. Apr. 14, 2003).

The plaintiffs assert, in part, that walleye stocking pro-

grams in the upper basin adversely affect the Missouri

River’s pallid sturgeon, an endangered species. They also

challenge agency decisions made under the Endangered

Species Act (“ESA”), NEPA, the 1944 Flood Control Act,

and other federal laws.

Also in the spring of 2003, North Dakota again sued

the Corps, but on a theory different than its 2002 suit. The

state contends that the ongoing draw down of Lake Sa-

kakawea is removing so much water that the lake’s cold

‘ The Master Manual, which is supplemented with an Annual

Operating Plan, was last revised in 1979. In 1989 the Corps recognized

the Manual as out-of-date and in need of revision. Since 1989 it has

been working on issuing a new Manual. App. at 6.

water habitat is in jeopardy. Complaint, North Dakota, et

al. v. United States Corps of Engineers, et al., No. A1-03-

050 (D.N.D. Apr. 29, 2003). The Corps’ actions, North

Dakota contends, violate water quality standards North

Dakota adopted for Lake Sakakawea under the federal

Clean Water Act, and that these violations will lead to the

loss of the lake’s cold water habitat, endangering the

health of the walleye and salmon.

Environmental groups also filed suit in 2003. First

Amended & Supp. Complaint, American Rivers, et al. v.

United States Corps of Engineers, et al., No. 1:03CV00241

(D.D.C. May 8, 2003). This suit asserts that the Corps and

Fish & Wildlife Service violated the ESA by failing to

protect two Missouri River shore birds, the threatened

piping plover and the endangered least tern, as well as the

river’s endangered pallid sturgeon. In 2000 the Fish &

Wildlife Service had issued a biological opinion under the

ESA that concluded that the Corps’ river operations

jeopardize endangered and threatened species. To avoid

ESA violations, the biological opinion called for imple-

menting a new regime of low summer flows by 2003. When

the Corps’ proposed 2003 operating plan did not include

low summer flows, the environment groups sued.

Thus, there are six suits pending over the Corps’ river

management, that is, the South Dakota, Nebraska, and

North Dakota 2002 suits, and the North Dakota, Blaske

Marine, and American Rivers 2003 suits. The litigation

was consolidated in the District of Minnesota. Jn re Opera-

tion of the Missouri River System Litigation, 277 F.Supp.2d

1378 (J.PM.L. 2003). And on June 4, 2003, the Eighth

Circuit issued an important decision in the dispute.

F. The Court of Appeals’ Decision

The court below rejected the Corps’ argument that its

river operations are not subject to judicial review. It ruled

that while the Corps has “a good deal of discretion” under

the 1944 Flood Control Act to manage the river, its “discre-

tion is not unconstrained.” App. at 21. The Act sets forth a

number of functions for the river system and the Corps

has a duty to balance them. Jd. The Corps’ Master Manual

also provides law needed for judicial review. 7d. at 26.

After deciding that the Corps’ actions are reviewable,

the court below considered the propriety of the prelimi-

nary injunctions. It began its review of the 1944 Flood

Control Act by citing ETSI Pipeline Project, 484 U.S. 495

(1988), for the proposition that the Act’s “dominant func-

tions” are flood control and maintaining downstream

navigation. App. at 5. See also id. at 21, 32. It then re-

viewed the Corps’ Master Manual.

Section.9-3 of the Manual contains a numbered list of

six uses for which the system is to be operated. Id. at 23.

The list “calls for sequential consideration” of the uses.

App. at 6. See also id. at 32. In other words, since flood

control is listed first, it is the pre-eminent purpose for

which the river is to be managed, and since in this list

navigation appears fourth and recreation sixth, the court

ruled that navigation trumps recreation. Jd. This interpre-

tation of Section 9-3 was particularly important in light of

the ruling that the Master Manual is binding. Id. at 22.

Based on its interpretation of the Master Manual and

Flood Control Act, the court below ruled that the injunc-

tions issued by the North Dakota and South Dakota

District Courts, even though they expired in late May of

2002 when the smelt spawn was complete, were improp-

erly issued because they adversely affected navigation. Jd.

at 33-34. It ruled that the Nebraska District Court’s

injunction was proper because it ordered compliance with

the Master Manual.

REASONS FOR GRANTING THE PETITION

Introduction

The decision below should be reviewed because it is

inconsistent with the 1944 Flood Control Act, in which

Congress directed that the river’s reservoirs be managed

as multi-purpose facilities, serving a number of interests,

and with flexibility that adjusts to the basin’s changing

circumstances. Congress did not intend the river to be

managed to favor a marginal $1 to $7 million a year

navigation industry over a thriving recreation industry

with a much greater economic value. Further, the Corps of

Engineers, the agency responsible for administering the

Flood Control Act, does not interpret the Act as giving

navigation priority. The court below, however, failed to

consider and respect this agency understanding.

This case creates a particularly strong claim on the

Court’s attention because the decision of the court below

vests pervasive power over life in the basin with the

federal government and, in particular, with the military.

The impact on the basin from the government’s construc-

tion and operation of the reservoirs has been, and will

continue to be, immense. Towns were wiped out to allow

for the permanent flood of the reservoirs, economies were

disrupted, and ecologies turned upside down. Flood control

protected downstream and upstream areas, and allowed

certain areas to flourish in safety. Downstream economies

sought to capitalize on the heavily subsidized navigation

allowed under the Act, but navigation has been in economic

doldrums for decades. The upstream states likewise never

enjoyed the economic boom anticipated from the proposed

federal irrigation projects. The projects fell victim to political

and other attacks. The upstream states did, however, invest

in and develop fisheries and recreational facilities that have

become vital to their economies. The magnitude of the

federal impact alone merits this Court’s attention.

Moreover, special attention is appropriate because the

court below essentially held that Congress entrusted the

Missouri River Basin’s cultural, political, social, and

economic development to the military. North and South

Dakota have great respect for the military and are among

the leaders in sending their youth into military service.

The duties entrusted to the Army under the 1944 Flood

Control Act are not, however, military duties, nor are they

duties commonly entrusted to a branch of the military

concerned with engineering problems. The duties here

concern the day-to-day balancing of civilian political, social,

and economic interests. It is appropriate that this Court

extend its scrutiny to this case to ensure that the military

adheres to Congressional standards in what is essentially a

civilian dispute.

THE DECISION BELOW MISINTERPRETED THE

1944 FLOOD CONTROL ACT AND, CONSE-

QUENTLY, FAILED TO ACCORD RECREATION ITS

PROPER ROLE IN MANAGING THE MISSOURI

RIVER’S MULTI-PURPOSE FACILITIES

The 1944 Flood Control Act governs Missouri River

operations. The Act, as discussed, not only had its origins

in but incorporates the Corps’ and the Bureau’s opposing

plans, as reconciled in the Joint Report. App. at 90. The

Joint Report, as well as the plans themselves, make it

clear that recreation, at the minimum, is entitled to parity

with other uses. The Flood Control Act itself contains

provisions supporting this conclusion.

A. The 1944 Flood Control Act

The Flood Control Act’s preamble sets forth several

propositions that guide the Act’s application. It expresses

congressional policy recognizing state interests and rights

“in determining the development of the watersheds within

their borders.” App. at 83. It recognizes a state’s “interests

and rights in water utilization and control” to protect to

“the fullest possible extent established and potential uses.”

Id. The preamble expresses a congressional policy that

seeks “comprehensive” development. Jd. Thus, the pream-

ble proclaims that a state’s interests in its water resources

are not to be compromised. If the decision below stands,

the basin’s comprehensive development will be hindered

and the primary interest that North and South Dakota

have in the Missouri River — its usefulness as a recreation

resource — will be compromised.

Perhaps of greater significance is the preamble’s

instruction that navigation works are to be limited to

those that provide “a substantial benefit” and that are

“operated consistently with appropriate and economic use

of the waters ... by other users.” Jd. Navigation does not

provide a substantial benefit to the basin. It provides less

than 1% of the system’s economic benefit, Revised DEIS,

supra at 5-131, and favoring it hinders other appropriate

and more economic uses.

Section 4 of the Act reveals that Congress had recrea-

tion in mind. The section authorizes the construction and

maintenance of recreation facilities in reservoir areas and

adds: “The water areas of all such reservoirs shall be open

to public use ... for boating, swimming, bathing, fishing,

and other recreational purposes.” App. at 87. See also

South Dakota v. Bourland, 508 U.S. 679, 688-90 (1993).

The water is open “without charge” and “ready access” to it

shall be maintained. App. at 87. No use may be permitted

that is inconsistent with state “laws for the protection of

fish and game.” Jd. at 88. Section 4 creates recreation as

an authorized project purpose and indicates that deference

is to be given to the state’s use of the areas for fish and

recreation purposes. While the court below properly noted

that the Act recognizes numerous uses, id. at 5-6, the Act

itself contains neither language about primary or secon-

dary uses, nor anything suggesting a ranking of uses.

B. The Joint Report

The Flood Control Act approved the Pick Plan and

Sloan Plan, “as revised and coordinated” by the Joint

Report. App. at 90. The Joint Report contains critical

direction about the uses to which the facilities would be

put. It states that development of the basin in accordance

with the two plans, “as coordinated in the enclosed joint

engineering report ... will secure the maximum benefits

for flood control, irrigation, navigation, power, domestic

and sanitary purposes, wildlife, and recreation.” App. at

102. Thus, recreation and wildlife are expressly included.

Equally important, the Report does not contain a list of

priorities. There is no division of uses into first class and

second class; primary and secondary. Because the Joint

Report, which Congress adopted through the Flood Control

Act, includes recreation as an authorized use and does not

provide a list of priorities, the decision below merits

review.

C. The Pick Plan (Doc. 475) and the Sloan

Plan (Doc. 191)

The plans adopted by the Flood Control Act contain

not only the plans, but additional comments from the

Corps and Bureau as well as other agencies. They refer to

recreation as an authorized use, the need for the basin’s

comprehensive development (which necessarily requires

equitable consideration for all uses), and the need for

flexible management to adjust operations when circum-

stances change.

1. The Pick Plan. The Pick Plan includes numerous

descriptions of the proposed facilities and uses as “multi-

ple-purpose.” E.g., H.R. Doc. 475, supra, at 1, 4, 18, 26, 30.

There are even references to “maximum” multiple-purpose

use. Id. at 3. The Pick Plan states an intent to develop a

comprehensive project, the benefits of which will flow

broadly throughout the basin. The Corps’ Chief Engineer

stated that all federal agencies reviewing the plan “agree

that the maximum feasible multiple-purpose use of water

and the broadest economic program of reservoirs for that

type of use are the primary principles on which the

planned development ... of the Missouri River Valley

should be based.” Jd. The plan “establishes a broad

framework for comprehensive basin-wide improvements.”

Id. at 4. The plan’s benefits “will be very great and wide-

spread.” Jd. at 18. Expressly included among the Pick

Plan’s purposes were “wildlife” and “recreation.” In addi-

tion to flood control benefits the plan also provides for the

Se ae ee

most efficient use of Missouri River waters “for all pur-

poses, including . . . wildlife, and recreation.” Jd. at 28-29.

An important characteristic of the Corps’ plan was its

flexibility. Document 475 includes the Department of

Agriculture’s statement of its understanding of the plan as

“not necessarily final, but a framework around which the

ultimate basin-wide plan can progressively be developed,

with full recognition given to the best utilization of the

waters ...in accordance with the multiple-purpose princi-

ple.” Id. at 12. The Corps’ Chief Engineer commented on

the plan’s evolving nature. “Due allowances must be made

for any changed conditions that may arise in the fu-

ture.... The adjustment of water use to meet the chang-

ing needs of the Missouri Basin as a whole can and will be

made.” Jd. at 3. “[S]teps can be taken to meet new eco-

nomic situations that may arise.” Jd. The plan is “flexible”

and provides “sufficient latitude to permit such modifica-

tions thereof and changes therein as may be found advis-

able.” Id. at 4.

This flexibility is crucial for ordering present-day

uses. While recreation was among the authorized uses, it

did not always have the economic importance it does today.

But now that the upstream states have developed their

reservoirs into superior fisheries and recreational facili-

ties, the Pick Plan’s flexibility, and therefore the Flood

Control Act’s flexibility, must be implemented. In present-

ing the Pick Plan to Congress, the Chief Engineer stated

that “preference can be given to the functions which

contribute most significantly to the welfare and livelihood

of the people of various parts of the basin.” Jd. at 3. The

court below turned this on its head. It gives a preference to

the function, navigation, that of all the Act’s purposes

contributes the least to the basin’s welfare and livelihood.

Revised DEIS, supra at 5-131.

2. The Sloan Plan. Interior Secretary Ickes stated

that his agency’s Sloan Plan “contemplates utilization of

the waters of the Missouri River beneficially for multiple

purposes in the stabilization of the agriculture and econ-

omy of this vast basin.” S. Doc. 191, supra, at 1. He added

that “[s]ubstantial and material benefits would accrue

through recreational use of the waters and facilities

proposed; through their use in fish and wildlife conserva-

tion.” Id. at 2. The Department of Interior’s Board of

Review described the Sloan Plan as a “comprehensive

plan” for, among other things, the “recreational use of

waters, conservation of fish and wildlife, and pollution

abatement.” Id. at 10. The Sloan Plan itself states:

Every water resource and all feasible beneficial

uses of water, such as aids to navigation, flood

control ... fish and wildlife preservation, and

recreation, were taken into account in an effort

to formulate a basin-wide plan most likely to

yield the greatest good to the greatest number of

people.

Id. at 17.

Significantly, the Sloan Plan, like the Pick Plan, was

intended as flexible. It could be modified as “changes in

physical and economic conditions make necessary.” Jd. And

times do and have changed. For example, the 1979 Master

Manual that the Corps uses to manage the river is out-

dated and requires revision, as the Corps acknowledges.

E.g., Revised DEIS at 1-1, 1-3.

Any doubt that the Department of the Interior and its

Bureau of Reclamation contemplated a broad program for

the basin and included recreation in their vision, is dis-

pelled by the letter written by the Bureau’s Commissioner

and included in Document 475. The Commissioner, in

commenting on the Pick Plan, stated that certain princi-

ples must govern the river’s management. One of those

principles is that the project must include “a wide variety

| of functions, including ... fish and wildlife preservation

and recreation.” H.R. Doc. 475, supra at 6. The Commis-

sioner added that the reservoirs “should be operated to

obtain the maximum benefits ... for fish and wildlife

preservation, [and] recreation.” Jd. at 7. He stated that

where the uses conflict, “preference should be given to

functions which contribute most significantly to the

welfare and livelihood of the largest number of people.” Jd.

at 7.

D. Agency Interpretation of the Flood Control

Act

The statement by the court below that the Corps has a

duty to generally prefer navigation over recreation is

surprising because not even the Corps takes that extreme

position. The Corps has repeatedly stated that the 1944

Flood Control Act does not give navigation priority over

recreation.

In a brief to the court below the Corps stated: “There

is no statement in the Act ... that navigation is always

entitled to a priority over the needs of fish and wildlife.”

Consol. Reply Brf. of Fed. Defendants-Appellants at 10

(undated). Not only is the Act silent about priorities so too,

the Corps added, is the legislative history. “The purposes

identified in the legislative history, are not specifically

identified as primary or secondary purposes and are not

prioritized in importance by Congress.” Jd. at 1. See also

id. at 8-9. “[W]ith the exception of flood control, none of the

purposes of the System automatically takes precedence

over the other purposes.” Jd. at 6. In another brief to the

court below the Corps stated that the Pick and Sloan

Plans identify broad objectives, “listing among other goals,

flood control, irrigation, navigation, power, wildlife, and

recreation.” Consol. Brf. of Fed. Defendants-Appellants at

24 (undated). At oral argument before the court below, the

Corps’ attorney was asked, “[are] navigation and recrea-

tion equal or is navigation higher?” He answered: “Our

view of it is that it should be equal, that we should try to

support the navigation season and we should try to sup-

port recreation.”

In 1992 the Department of Justice wrote North

Dakota: “Congress did not assign a priority to these

[project] purposes.” Letter from B.H. Hartman, Acting

Asst. Att’y Gen. Env’t & Nat. Res. Div., Dep’t of Justice, to

N.J. Spaeth, N.D. Att’y Gen. (Mar. 10, 1992). Rather, “it

was contemplated that the Corps ... would balance these

functions in order to obtain the optimum development and

utilization of the water resources of the Missouri River

Basin to best serve the needs of the people.” Id.

Corps officials have stated under oath that all project

purposes should receive equal consideration. Depo. of J.P.

Elmore, Chf. of Operations, Const. & Readiness, U.S.

Corps of Engineers at 34-42, South Dakota, et al. v. Born-

hoft, et al., No. CV-91-26 (D. Mont. July 14, 1992). In 1993

testimony the Corps’ Col. Schaufelberger stated that

“nothing in the law” gives preference to navigation over

recreation. Hrg. Before the Comm. on Env’t & Pub. Works

(Oct. 1, 1993, Glendive, Mont.) (reprinted in 141 Cong.

Rec. S3744-04, at S3755 (1995)). The Colonel added:

[T]he law does not discriminate. The law says in

the purpose of the reservoirs .. . there is no pri-

ority established. So there is nothing in the law

that says there has to be one priority over the

other. The only priority established in the law is

the O’Mahoney-Milliken amendment, which

specified that consumptive use has priority over

other purposes. That’s the only priority that I’m

aware of that is specified by law.

Id. At a public meeting the Corps’ Gen. Witherspoon stated

that while flood control is given priority, “[a]fter that we

don’t have a set order or priorities.” Corps of Engineers

Pub. Mtg. on Missouri River Master Water Control Manual

Rev. & Update, Trans. at 38 (June 18, 1990, Council

Bluffs, Iowa).

Thus, the Corps has often and consistently stated that

navigation does not take precedence over recreation. Its

statements are considered and authoritative, and have

been made by key Corps officials as well as the Depart-

ment of Justice. This Court has “long recognized that

considerable weight should be accorded to an executive

department’s construction of a statutory scheme it is

entrusted to administer.” Chevron, USA, Inc. v. Natural

Res. Def. Council, 467 U.S. 737, 844 (1984). The degree of

deference may vary with the circumstances. United States

v. Mead Corp., 533 U.S. 218, 228 (2001). Useful considera-

tions are the degree of the agency’s care, consistency,

formality, and expertness, and the persuasiveness of the

agency position. Id. See also Skidmore v. Swift & Co., 323

U.S. 134, 139-40 (1944).

The Corps’ statements have been consistent. They

have been made in formal settings, such as congressional

and judicial hearings, and clearly upon careful, not cursory

24 ~

thought. And the statements are persuasive, as indicated

by the Government Accounting Office’s independent

analysis of the governing law. Its analysis “did not reveal a

statutory scheme for regarding project purposes ... as

primary or secondary.” U.S. Gen. Accounting Office, Water

Resources, Corps Management of Ongoing Drought in the

Missouri River Basin 33 (Jan. 1992).

E. The Actions of the Corps Belie its Words,

Leading to the Present Controversy

As noted above, this litigation was precipitated by the

Corps’ actions in the spring of 2002, actions that chal-

lenged plans of state biologists. Since the closing of the

Oahe Dam in 1958 South Dakota has worked hard to turn

Lake Oahe into a nationally known, trophy walleye desti-

nation. In 1997, however, the Corps flushed from the

reservoir a half a billion rainbow smelt, the forage fish

that support the walleye. App. at 38. This action, combined

with others, produced a crisis in the walleye. The South

Dakota District Court found that Lake Oahe had become

“full of hungry, stunted walleyes in poor condition.” Id. at

39. In the spring of 2002, South Dakota’s biologists in-

formed the Corps that conditions were near ideal for

recovery of the forage fish population; all that was needed

to protect the smelt eggs was a stable or rising water level

in Lake Oahe for a limited period. Jd. at 8. Nonetheless,

the Corps announced its intention to drop Lake Oahe’s

water level approximately two feet from mid-April to mid-

May. This action would have destroyed most of Oahe’s

smelt eggs; the eggs would have dried out and died.

The South Dakota District Court thus, after hearings,

issued both a TRO and preliminary injunction. The court -

carefully considered the question of how the Corps had

historically, and recently, preferred downstream naviga-

tion over upstream fish and recreation. It also had before

it “very persuasive and detailed” evidence showing “the

rather meager, if any, economic impact downstream

navigation produces.” Jd. at 59. In 1960 the Corps pre-

dicted commercial traffic would increase to five million

tons by 1980. Baumel & Van Der Kamp, supra at 1. It

peaked at 3.3 million tons in 1977 and ever since had been

in precipitous decline. Revised DEIS at 3-145, 3-146.

The District Court concluded that the Corps does not

give recreation interests proper consideration. “Whenever

a water shortage occurs, it is the Corps’ practice to require

all or some of the upstream states ... to ‘take the hit.’”

App. at 58. “[I]t is clear from the evidence that the Corps,

in times of low water ... always chooses to seriously

impact upstream states to continue navigation, ‘come Hell

or low water. The more dire the water conditions up-

stream, the more water that is released for downstream

purposes.” Id. Even when the upstream states make a

“modest” request, “the Corps refuses to abide or even

properly consider such requests.” Jd.

F. The Court of Appeals erred in its evalua-

tion of the applicable law.

The critical conclusion of the court below was that the

1944 Flood Control Act obligates the Corps to give priority

to flood control and navigation. But as discussed above, (a)

the Act’s text does not support this conclusion, (b) the

Corps’ pronouncements before courts and elsewhere

repudiate this conclusion, (c) the GAO evaluation does not

support it, and (d) putting this conclusion into practice

gravely harms recreation, fish, and wildlife interests, to

the benefit of inconsequential navigation. The source of

the error below was the court’s misreading of Supreme

Court precedent. This Court has twice considered-the 1944

Flood Control Act. Its most recent examination was in

South Dakota v. Bourland, 508 U.S. 679 (1993), in which

the Court reviewed the Act’s recreation, fish, and wildlife

provisions, and determined that the state had exclusive

fish and wildlife jurisdiction over non-Indians on Missouri

River waters and on Corps’ land adjoining the reservoirs.

While the court below did not mention Bourland, it

cited ETSI Pipeline Project v. Missouri, 484 U.S. 495

(1988), to support its view that the 1944 Flood Control

Act’s “dominant functions” are flood control and naviga-

tion. App. at 5, 21, 32. ETSI, however, concerned a con-

tract signed by the Secretary of the Interior allowing a

private company to withdraw water from Lake Oahe for

use in a slurry pipeline to transport coal from Wyoming to

the southeastern United States. ETSI, 484 U.S. at 497-98.

Downstream states challenged the Secretary’s authority to

enter the contract without the Corps’ approval. Thus, the

case was about the division of authority between the Corps

and Interior. Id. at 499. It did not involve an upstream-

downstream dispute over rationing water, or over priori-

ties.

The Court ruled that the Secretary did not have

unilateral authority to authorize the withdrawal. Id. at

513-17. It found explicit language in the Flood Control Act

supporting this conclusion. Because the Act “speaks

directly to the dispute .. . [tJhat is ‘the end of the matter.’”

Id. at 517. And that is where the court below should have

left ETSI; as a decision addressing the jurisdiction of

federal agencies over a water withdrawal. ETSI should not

have been used by the court below as the springboard to

decide an entirely different issue, that is, whether the

Corps, in operating the river, must favor navigation over

recreation.

The court below erred in finding that ETSI had ruled

that navigation was a “dominant function” of the reser-

voirs. App. at 5, 21, 32. While the “dominant function”

language does appear in E7'SI/, 484 U.S. at 512, it was

used in the context of discussing only one of the plans

offered to Congress — the Sloan Plan. Id. The 1944 Flood

Control Act was, as established above, a combination of all

the Sloan Plan and Pick Plan components. The Pick Plan,

as described in ETSI, 484 U.S. at 500, expressly included

“wildlife” and “recreation.” The Flood Control Act itself

approved the “general comprehensive plans set forth in

[the Pick and Sloan Plans] as revised and coordinated by

Senate Document 247.” Id. at 502. The Sloan Plan thus

could not be accurately cited to set out “dominant func-

tions,” because it was only part of the plan ultimately

adopted in the Act. The court below erred in its heavy

reliance on ETSI’s Sloan Plan citation, see App. at 5, 21,

32, while ignoring ETSI’s reference to the Pick Plan and

its inclusion of “wildlife” and “recreation.” ETSI, 484 U.S.

at 500.

This Court is thus respectfully requested to authorita-

tively define what priorities bind the Corps of Engineers

and the degree of flexibility that it has in applying those

priorities. North and South Dakota urge that undertaking

this task is appropriate because of the inconsistencies in

words and actions of the military officers who operate the

reservoirs. Further, the very nature of the arrangement

created by Congress calls for judicial supervision of mili-

tary officers performing functions so vital to the daily lives

of millions of citizens throughout the Missouri River

Basin.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

STATE OF NORTH DAKOTA STATE OF SOUTH DAKOTA

WAYNE STENEHJEM LAWRENCE E. LONG

Attorney General Attorney General

CHARLES M. CARVELL JOHN P. GUHIN

Counsel of Record Counsel of Record

Asst. Attorney General Deputy Attorney General

State Bar ID No. 03560 State Bar ID No. 653

OFFICE OF THE OFFICE OF THE

ATTORNEY GENERAL ATTORNEY GENERAL

500 North 9th Street 500 E. Capitol Ave.

Bismarck, ND 58510-4509 Pierre, SD 57501-5070

Telephone (701) 328-3640 Telephone (605) 773-3215

Facsimile (701) 328-4300 Facsimile (605) 773-4106

December 2003

App. 1

330 F.3d 1014

United States Court of Appeals,

Eighth Circuit.

State of SOUTH DAKOTA, and William J. Janklow,

Governor, Plaintiffs - Appellees,

Lt. Colonel Kurt F. UBBELOHDE, District

Engineer, Omaha District, United States

Army Corps of Engineers, and General David A.

Fastabend, Commander, NW

Division, Portland, Oregon, Defendants,

MO-ARK Association, formerly known as

Missouri-Arkansas River Basins

Association, Movant - Appellant.

State of South Dakota, and William J. Janklow,

Governor, Plaintiffs - Appellees,

Lt. Colonel Kurt F. Ubbelohde, District Engineer,

Omaha District, United States

Army Corps of Engineers, and General David A.

Fastabend, Commander, NW

Division, Portland, Oregon, Defendants,

Ergon Asphalt and Emulsions, Inc.; Magnolia

Marine Transport Company; Blaske

Marine, Inc.; Koch Materials Company; Mid-West

Terminal Warehouse Company,

Inc.; Tosco, a subsidiary of Phillips 66 Company;

Jebro, Incorporated, and

Memco Barge Line, Inc., Movants - Appellants.

State of South Dakota, and William J. Janklow,

Governor, Plaintiffs - Appellees,

Lt. Colonel Kurt F. Ubbelohde, District Engineer,

Omaha District, United States

Army Corps of Engineers, and General David A.

Fastabend, Commander, NW

Division, Portland, Oregon, Defendants,

App. 2

State of Nebraska, Movant - Appellant.

State of South Dakota, and William J. Janklow,

Governor, Plaintiffs - Appellees,

Lt. Colonel Kurt F. Ubbelohde, District Engineer,

Omaha District, United States

Army Corps of Engineers, and General David A.

Fastabend, Commander, NW

Division, Portland, Oregon, Defendants - Appellants.

State of Nebraska, also known as Don Stenberg,

Attorney General of the State of

Nebraska, ex rel., Plaintiff - Appellee,

State of Missouri, Intervener Below - Intervener on Appeal,

Kurt F. Ubbelohde, Lt. Colonel, District Engineer,

Omaha District, United States Army Corps of Engineers,

and General David A. Fastabend, Commander, NW

Division, Portland, Oregon, Defendants - Appellants,

State of Iowa, Amicus on Behalf of Appellee.

State of North Dakota, and John Hoeven,

Governor, Plaintiffs - Appellees,

Lt. Colonel Kurt F. Ubbelohde, District Engineer,

Omaha District, United States Army Corps of Engineers,

and General David A. Fastabend, Commander, NW

Division, Portland, Oregon,Defendants - Appellants.

State of Missouri, Intervener on Appeal.

Nos. 02-2133SD, 02-2144SD, 02-2185SD,

02-2187SD, 02-2191NE and 02-2305ND.

Submitted: Feb. 10, 2003.

Filed: June 4, 2003.

Rehearing and Rehearing En Banc Denied Sept. 30, 2003.*

* Judge Bye would grant the petitions for rehearing en banc.

App. 3

Robert J. Vincze, argued, Denver, CO, for appellant in

No. 02-2133.

John P. Guhin, argued, Pierre, SD, for appellee in Nos.

02-2133, 02-2144, 02-2185 and 02-2187.

Mark F. Marshall, argued, Sioux Falls, SD, for appel-

lant in No. 02-2144.

Jon C. Bruning, argued, Lincoln, NE, for appellant in

No. 02-2185.

Robert H. Oakley, argued, Washington, DC, for appel-

lant in Nos. 02-2187, 02-2191 and 02-2305.

William J. Bryan, argued, Jefferson City, MO, for

intervenor in No. 02-2191.

Charles M. Carvell, argued, Bismarck, ND, for appel-

lee in No. 02-2305.

Before WOLLMAN, RICHARD S. ARNOLD, and

MELLOY, Circuit Judges.

RICHARD S. ARNOLD, Circuit Judge.

This case arises out of the management of the Mis-

souri River, which runs through seven states in its journey

from Montana to Missouri. The United States Army Corps

of Engineers is charged with the responsibility of manag-

ing this river and its attendant reservoirs. In carrying out

this charge, the Corps must strike a balance among many

interests, including flood control, navigation, and recrea-

tion. In good times, the Corps can accommodate all such

interests, but, when facing a continuous drought, the

Corps is forced to make hard choices. In the Spring of

2002, the Missouri River Basin was in the midst of just

such a prolonged drought. The Corps decided to release

App. 4

water from a single reservoir, Lake Oahe, to maintain

downstream river flow. The State of South Dakota, where

Lake Oahe is located, sought and received an injunction

barring this release. This action led other states to seek

similar injunctions. Within a period of days, courts had put

four of the six main stem reservoirs off limits for releases.

The State of Nebraska then sought and received an injunc-

tion requiring the Corps to maintain downstream river flow.

In this case we review the decisions of three district

courts to issue preliminary injunctions binding the Corps.

District Courts in North Dakota and South Dakota en-

joined the Corps from drawing down reservoirs located in

their states for short periods of time, and a Nebraska

District Court ordered the Corps to abide by its governing

Missouri River operations manual. We reverse the judg-

ments of the District Courts in North Dakota and South

Dakota and affirm the judgment of the Nebraska District

Court.

Congress enacted the Flood Control Act of 1944 to

provide for the orderly management of the Missouri River

Basin. Pub.L. No. 78-534, 58 Stat. 887 (1944). The Act had

numerous purposes. First, it entrusted the Army Corps of

Engineers with the task of managing the River basin. The

Corps is charged, for example, with constructing and

managing the dams and reservoirs created by the Act, 16

U.S.C. § 460d, making contracts for use of surplus water

available at the reservoirs, 33 U.S.C. § 708, and “pre-

scrib[ing] regulations for the use of storage allocated for

flood control or navigation at all reservoirs ... the opera-

tion of any such project shall be in accordance with such

App. 5

regulations,” 33 U.S.C. § 709.’ The Act thus granted the

Corps considerable power over the River basin.

The Act also laid out certain substantive interests that

it was to serve. The dominant functions of the Flood

Control Act were to avoid flooding and to maintain down-

stream navigation. ETSI Pipeline Project v. Missouri, 484

U.S. 495, 512, 108 S.Ct. 805, 98 L.Ed.2d 898 (1988). The

Act’s dominant functions were expressed repeatedly in

three Congressional Documents: Senate Documents 191

and 247 and House Document 475. See Flood Control Act

Section 9, 58 Stat. at 891. House Document 475, which

represented one of two competing plans, confirmed this

view, stressing flood control. H.R. Doc. No. 475, 78th

Cong., 2d Sess. 28-29 (1944). At the same time, however,

the Act recognizes secondary uses of the River including

irrigation, recreation, fish, and wildlife. See Flood Control

Act Section 4, 58 Stat. at 889-90; 33 U.S.C. § 708; 43

U.S.C. § 390. The House Document just cited noted that

the management plan “would also provide for the most

efficient utilization of waters of the Missouri River Basin

for all purposes, including irrigation, navigation, power,

domestic and sanitary purposes, wildlife, and recreation.”

H.R. Doc. No. 475, supra, at 29. Senate Document 247,

which reconciled the competing proposals, included a

discussion of the purposes of Lake Oahe: “the irrigation of

750,000 acres of land ... as well as to provide useful

storage for flood control, navigation, the development of

* The Act also gave certain responsibilities to the Department of

the Interior. See generally ETSI Pipeline Project v. Missouri, 484 U.S.

495, 108 S.Ct. 805, 98 L.Ed.2d 898 (1988). These responsibilities are not

at issue in this case.

App. 6

hydroelectric power, and other purposes.” S. Doc. No. 247,

78th Cong., 2d Sess. 3 (1944). Thus, the Flood Control Act

provided the Corps with a wide array of interests to

consider in regulating the River.

While the Flood Control Act laid out broad goals, the

intricacies of the River basin required the Corps to work

out a specific management plan. The Corps devised this

more specific management plan and published it in the

Missouri River Main Stem Reservoir System Reservoir

Regulation Manual, commonly referred to as the Master

Manual, which explains how the Corps is to go about

managing the River system. The most recent version of the

Master Manual was promulgated in 1979, although the

Corps has been in the process of revising the manual since

the late 1980’s, and the Corps assures this Court that the

revisions should be completed quite soon.

The Master Manual accomplishes numerous goals.

For one, Section [X lays out the “general approach” that is

to be used to plan reservoir operation, an approach that

calls for sequential consideration of the various interests.

Predictably, it indicates that flood control will be provided

for first. After flood control, the Manual calls for the Corps

to consider (in order) irrigatign, water supply and water-

quality requirements, navigation and power, and finally

recreation, fish, and wildlife. Notably, the final provision

reads: “insofar as possible without serious interference

with the foregoing functions, the reservoirs will be oper-

ated for maximum benefit to recreation, fish and wildlife.”

Master Manual Section 9-3. In addition to laying out this

general approach, the Master Manual includes more

specific technical guidelines. Thus, the Manual lays out

minimum flows that are to be maintained at different

points on the River, Master Manual Section 9-17, and

App. 7

methods for deciding the length of the navigation season

based upon river flow at certain times of the year. Master

Manual Section 9-18. The Master Manual also explains

that the Corps has always promulgated Annual Operating

Plans, which lay out the Corps’s particular plan for the

year. Master Manual Sections 9-47 & 9-48. These plans

also give the public notice of the Corps’s plan for operating

the system, allowing interested individuals to order their

affairs for the year.

The dispute in this case arose out of the prolonged

drought conditions that the Missouri River has been

experiencing over the last several years. This shortage of

water has forced the Corps to make decisions about the

allocation of water between the states and between differ-

ent interests. Pursuant to its 2002 Annual Operating Plan,

the Corps decided to release water from Lake Oahe in

South Dakota to maintain downstream navigation on the

Missouri River. At the same time, the Corps was planning

on holding water levels constant at the other five reser-

voirs. The Corps generally lowers only one reservoir if

releases are necessary to maintain navigation, and it

attempts to shift this burden from year to year. Because

Lake Oahe’s water level had not been reduced the year

before (it had actually increased), the Corps chose Lake

Oahe to bear the burden of the drought in 2002.

The Corps’s plan to release water from Lake Oahe was

troubling to South Dakota, because it wanted the water

level of Lake Oahe to be held constant from late April to

late May to allow for a fruitful fish spawn during that

period. Lake Oahe has become a well-known destination

for trophy walleye fishing. Since 1997, however, the State

noticed a marked reduction in the quality of fish in the

lake — a reduction that has reduced recreation at the lake.

App. 8

The State concluded that this reduced quality was caused

by a sizable decrease in the number of rainbow smelt, the

prey fish of the walleye. This decrease was due in part toa

massive water release from Lake Oahe in 1997 and in part

to the overpopulation of walleye. South Dakota set out to

remedy this problem by allowing for increased walleye

fishing, which would reduce the number of predators of

the rainbow smelt. After this increased fishing, the State

concluded that the rainbow smelt were poised to have an

extremely fruitful spawn in 2002. Because the smelt lay

their eggs in shallow water, however, the spawn would not

be successful if the water level was reduced even by as

little as six inches. South Dakota therefore asked the

Corps to forego its plans to release water from Lake Oahe

during the smelt’s spawning season — late April until late

May. The Corps indicated that it nevertheless intended to

abide by its annual operating plan, which called on the

Corps to continue the releases from Lake Oahe to main-

tain downstream navigation.

On April 25, 2002, after the Corps refused to change

its plans, the State of South Dakota filed suit in the

District Court for South Dakota. The suit claimed that the

Corps acted arbitrarily and capriciously in maintaining

downstream navigation rather than maximizing recrea-

tion at upstream reservoirs. The suit sought a declaration

that the Corps’s practice of always requiring one of the

reservoirs to bear the burden of a drought was unlawful.

The suit sought to enjoin the Corps from releasing water

from Lake Oahe until after the spawning season. After a

hearing, the Court entered a temporary restraining order

requiring the Corps to maintain the water level until a

preliminary-injunction hearing could be held. When the

Court entered this restraining order, the Corps announced

App. 9

its intention to release water from Lake Francis Case to

offset its inability to lower Lake Oahe. Lake Francis Case

is also in South Dakota, and the State requested that the

District Court consider the propriety of lowering Lake

Francis Case at the preliminary injunction hearing. Before

the preliminary-injunction hearing, the State of Nebraska

and numerous private entities moved to intervene in the

case, but the Court denied these motions. After hearing

arguments from all sides on May 9 and 10, the District Court

entered a preliminary injunction that required the Corps to

maintain the water level at both Lake Oahe and Lake

Francis Case until May 25 — the end of the spawning season.

The South Dakota Court’s injunction had a cascading

effect. To cope with the injunction, the Corps planned to

lower Lake Sakakawea, which is located in North Dakota.

The State of North Dakota brought suit in the federal

District Court in North Dakota to enjoin the Corps from

lowering this reservoir. The District Court entered a

temporary restraining order on May 12, which required

the Corps to maintain the lake’s water level. When the

TRO expired ten days later, the parties agreed that it

would be converted into a preliminary injunction.’

When it was not allowed to intervene in the South

Dakota case, the State of Nebraska went to the federal

District Court in Nebraska seeking a preliminary injunc-

tion that would require the Corps to operate the River

* The Corps then planned to lower Fort Peck Reservoir in Mon-

tana, but as in North Dakota and South Dakota, Montana went to court

and obtained an injunction barring any release. This injunction ran its

course, and the State of Montana has since dropped its suit against the

Corps.

App. 10

according to the Master Manual and the 2002 Annual

Operating Plan. On May 13, the District Court entered an

injunction ordering as much. The Court noted that it was

“reluctant to interfere with the discretion of the Corps, but

must recognize that court orders in other jurisdictions

designed to safeguard interests of upstream users are

quickly stripping the Corps of Engineers of its ability to

function as an objective steward of the water flows in the

Missouri River Basin.” Addendum to Corps’s Brief 29. This

order left the Corps in a thorny predicament. The Ne-

braska order required it to maintain navigation, but with

Lakes Oahe, Francis Case, and Sakakawea and Fort Peck

Reservoir off limits, the Corps was forced to rely on the

two smallest reservoirs for the releases. Ultimately,

downstream flows were reduced, and navigation and other

downstream interests suffered.

The Corps immediately appealed the judgments of

each of the District Courts. Additionally, Nebraska and the

other proposed intervenors have appealed the South

Dakota District Court’s orders denying their motions to

intervene. This Court stayed each of the injunctions on

May 22, 2002. The injunctions in North Dakota and South

Dakota expired by their own terms on May 25, 2002. The

Nebraska District Court’s injunction has not expired and

will go into effect again if we lift our stay.

II.

We must decide whether the three District Courts

erred in enjoining the Corps and whether the South

Dakota Court erred in denying the motions to intervene.

We conclude that the District Courts in North Dakota and

South Dakota erred in enjoining the Corps from lowering

App. 11

reservoirs to maintain navigation, and that the District

Court in Nebraska correctly ordered the Corps to follow

the Master Manual. We also conclude that the South

Dakota District Court erred in denying the motions to

intervene.

Before reaching the merits of this case, we must

consider whether the expiration of the preliminary injunc-

tions in North Dakota and South Dakota renders the

appeals of those orders moot. Although none of the parties

to this appeal has urged this Court to dismiss the case, we

must nevertheless satisfy ourselves that this case is not

moot. See Kremens v. Bartley, 431 U.S. 119, 136, 97 S.Ct.

1709, 52 L.Ed.2d 184 (1977). We are so satisfied for nu-

merous reasons. First, we note that the injunction issued

by the District Court in Nebraska is still in effect, so the

Corps’s appeal from that injunction is clearly not moot,

and many, if not all, of the substantive issues raised by the

South Dakota and North Dakota appeals will be decided

anyway.

The North Dakota and South Dakota cases fall within

the well-known “capable of repetition, yet evading review”

exception to the mootness doctrine. Weinstein v. Bradford,

423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975).

This exception applies when two conditions are met: “(1)

the challenged action [is] in its duration too short to be

fully litigated prior to cessation or expiration, and (2)

there [is] a reasonable expectation that the same com-

plaining party [will] be subject to the same action again.”

Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140

L.Ed.2d 43 (1998).

App. 12

A preliminary injunction that bars the Corps from

releasing water from the reservoirs during spawning will

never last long enough to allow for full litigation because

of the brevity of spawning season. Thus, if these actions

were to recur, they would continually evade review. More-

over, we have every reason to suspect that these events

will recur. On previous occasions, we were inclined to

think this type of litigation would not repeat itself. See

South Dakota v. Hazen, 914 F.2d 147 (8th Cir.1990) (decid-

ing case was moot because the injunction had expired); cf.

Missouri ex rel. Nixon v. Craig, 163 F.3d 482 (8th Cir.1998)

(deciding that a challenge to the Corps’s annual operating

plan was moot because the plan had lapsed). But repeti-

tion now seems quite likely. At oral argument the parties

agreed that drought conditions continue along the River,

meaning that the Corps will again be forced to choose

between releasing water from the reservoirs or letting

downstream navigation suffer. We have every reason to

believe that the Corps will choose to release water from at

least one reservoir, and we are confident that the legality

of such a release would again be challenged in the courts.

In the end, then, we are persuaded that the questions

presented in this appeal are likely to recur, yet will evade

review when they do. Therefore, the expirations of the

preliminary injunctions do not render the appeals moot.

Next, we must decide whether the South Dakota

District Court erred in refusing to allow various parties to

intervene in the case brought by the State of South Da-

kota. After the initiation of the suit by South Dakota, the

District Court received three separate motions to inter-

vene as of right under Federal Rule of Civil Procedure

App. 13

24(aX2): one from MO-ARK Association, one from Ergon

Asphalt and Emulsions, Inc., and other corporate entities,

and one from the State of Nebraska.’ A party seeking to

intervene must establish both that it has standing to

complain and that the elements of Rule 24(aX2) are met.

Rule 24(a)(2) requires that the proposed intervenor estab-

lish that it claims an interest in the property or transac-

tion which is the subject of the litigation, that disposition

of the litigation in the party’s absence may impede or

impair its ability to protect its interest, and that the

interest is not adequately represented by the current

parties to the suit. Fed.R.Civ.P. 24(a)(2); Jenkins v. Mis-

souri, 78 F.3d 1270, 1274 (8th Cir.1996). The South Dakota

District Court concluded that the proposed intervenors

failed to prove that they had standing and failed to meet the

requirements of Rule 24(aX2). Additionally, the Court con-

cluded that allowing the State of Nebraska to intervene

would be problematic because it would put Nebraska and

South Dakota on opposite sides of the dispute, thus bringing

the case within the exclusive jurisdiction of the Supreme

Court.

We review the District Court’s conclusion that these

‘parties were not entitled to intervene de novo. Arrow Uv.

Gambler’s Supply, Inc., 55 F.3d 407, 409-10 (8th Cir.1995).

The proposed intervenors presented sufficient evidence of

their interest in the case to give them standing to intervene.

* The proposed intervenors also sought permissive intervention,

and the State of Nebraska moved to be allowed to join as an indispen-

sable party under Rule 19. Because we ultimately rule that each of the

intervenors was entitled to intervene as a matter of right, we need not

reach these alternative theories.

App. 14

Each of the proposed intervenors presented substantial

evidence that the remedies sought by the State of South

Dakota threatened it with serious injury. MO-ARK repre-

sents numerous interests along the Missouri River, includ-

ing members with interests in navigation, agriculture, and

water treatment. Ergon and the corporate entities that

joined its motion to intervene utilize the lower Missouri

River to transport their goods. And the Missouri River

runs through the State of Nebraska. Each of these pro-

posed intervenors claimed an interest in the litigation

based upon the fear that the Court’s ruling would lead to

decreased water flow downstream. They offered to present

significant evidence that a reduction in the flow of the

River would cause a great deal of harm to downstream

interests. Among the threats were an interruption in their

ability to navigate the River, problems for power plants

that relied upon the River water for cooling, and decreases

in water quality for community water supplies. Moreover,

the parties presented evidence that decreasing the flow for

even a short period of time could be troublesome because

of the effects that such a short-term reduction could have

on wildlife. Specifically, the parties presented evidence

that if the water levels were decreased, two endangered

species of birds would nest on the newly exposed river bed.

Once these birds nested, the proposed intervenors feared,

the water flow could not be increased until after the

fledgling birds could leave the nest. Thus, according to this

argument, flow reduction could not be limited to a short

term.

The Court did not disagree with this evidence, but

merely held that it did not believe that its order would

lead to a reduction in downstream flow. The Court noted

that it was not ordering the Corps to reduce downstream

App. 15

flows, but only to maintain the water levels at the South

Dakota Reservoirs. Thus, the Corps was free to maintain

the downstream flows by lowering water levels at other

reservoirs. The Court found that because its preliminary

order would not require a reduction in flow, the proposed

intervenors did not have an interest in the litigation. This

finding led the Court to reject the motion to intervene not

only on Rule 24 grounds but also for lack of standing.

However, the proposed intervenors did not move to inter-

vene in only the preliminary-injunction hearings. Instead,

they sought to intervene in the whole case. As the pro-

posed intervenors explain, the State of South Dakota was

seeking more than a preliminary injunction for the short

period of time that it lasted. South Dakota is also seeking

a more permanent, forward-looking declaration that will

affect the way the Missouri River is managed in the

future. South Dakota alleges that the Corps should “give

all water uses equal consideration while the Master

Manual Review is undergoing a revision,” First Amend.

Compl. 4 39, and to accomplish this goal seeks injunctive

relief “to prevent irreparable harm to the fisheries of the

mainstream reservoirs, when the harm is inflected [sic] to

benefit downstream navigation.” Id. at 755. If South

Dakota ultimately prevails in this case, the Corps may be

forced to reduce downstream flows in drought conditions

to maintain the water levels at all of the reservoirs. When

we consider the effect that an ultimate ruling for South

Dakota might have, we think the proposed intervenors

presented sufficient evidence of a threatened injury to give

them standing.

The District Court did not base its decision solely

upon its conclusion that the proposed intervenors lacked

standing; the Court also concluded that the proposed

App. 16

intervenors had not proved that they were entitled to

intervene under Rule 24(a)(2). The Court first concluded

that the proposed intervenors had not shown that they

had an interest in the litigation. Again, we disagree.

Success by South Dakota in the whole litigation would

impair the proposed intervenors’ interests in the operation

of the River.

The Court also concluded that the proposed interve-

nors were not entitled to participate in the action because

their interests were adequately represented by the Corps

under the parens patriae theory. This theory creates a

presumption that a government agency will represent the

interests of all citizens in cases raising matters of sover-

eign interest. Mausolf v. Babbitt, 85 F.3d 1295, 1303 (8th

Cir.1996). Proposed intervenors can rebut this presump-

tion, however, if they can make a strong showing of inade-

quate representation, for example, by showing that the

proposed intervenor’s interest is not subsumed within the

general interests of the public. Jd. The District Court

concluded that the presumption applied in this case, and

that the proposed intervenors had not overcome it. We

respectfully disagree.

The Mausolf case is instructive. There, snowmobile

enthusiasts sued the Secretary of the Interior, seeking to

enjoin the enforcement of certain snowmobiling restric-

tions in a federal park. Various conservationist organiza-

tions moved to intervene in the case for fear that the

Secretary would settle the case or back away from his

rules. The District Court denied intervention, partly

because of the parens patriae presumption. This Court

reversed, finding that the presumption was rebutted. We

noted that the government must represent the interests of

all of its citizens, which often requires the government to

App. 17

weigh competing interests and favor one interest over

another. Where such conflicts exist, “even the Government

cannot always adequately represent conflicting interests

at the same time.” Jd. at 1303.

This case presents just such a conflict. The Corps is

charged with managing the Missouri River system as a

whole — a charge that requires it to balance the interests

of the upstream and downstream users. The proposed

intervenors, on the other hand, wish to represent exclu-

sively downstream interests. Indeed, South Dakota’s

lawsuit itself indicates a fear that the Corps cannot

adequately represent the interests of all parties. The very

crux of this suit is that the Corps has failed in its repre-

sentative role. Yet South Dakota asks this Court to hold

that the Corps will adequately represent downstream

users. We decline to do so. Given that the Corps is asked to

balance multiple interests, we conclude that it cannot

adequately represent the interests of downstream users in

this case. The parens patriae presumption, therefore, does

not present an obstacle to intervention. Thus, the proposed

intervenors met the requirements for intervention under

Rule 24(a)(2) and were entitled to intervene.

The District Court presented an additional reason for

not allowing the State of Nebraska to intervene — the

Court feared that doing so would strip the Court of juris-

diction. The Court worried that allowing Nebraska to

intervene would create a case or controversy between two

states — a controversy within the Supreme Court’s exclu-

sive original jurisdiction. This was not an appropriate

reason for rejecting Nebraska’s motion to intervene, however,

because, even had Nebraska been allowed to intervene, the

controversy would not have been between South Dakota and

Nebraska. The Supreme Court’s exclusive jurisdiction

App. 18

under 28 U.S.C. § 1251(a) applies only when one state

seeks relief from another state. See Mississippi v. Louisi-

ana, 506 U.S. 73, 78 n. 2, 113 S.Ct. 549, 121 L.Ed.2d 466

(1992) (“Louisiana’s intervention is also unaffected by

§ 1251(a) because it does not seek relief against Missis-

sippi.”); see also United States v. Nevada, 412 U.S. 534,

537, 93 S.Ct. 2763, 37 L.Ed.2d 132 (1973) (per curiam)

(“The complaint ... is not one alleging a case or contro-

versy between two States within the exclusive jurisdiction

of this Court, under 28 U.S.C. § 1251l(a), but a dispute

between the United States and two States over which this

Court has original but not exclusive jurisdiction under

§ 1251(b)(2).”); Connecticut v. Cahill, 217 F.3d 93 (2d

Cir.2000) (holding that Connecticut could maintain an

action against officers of New York in federal district court

because the action was styled as a suit against officers, not

the state). In this case, the controversy is between each of

the states and the Corps. Although the states would have

had adverse interests, each state would be seeking relief

from the Court against the Corps. Thus, allowing inter-

vention by Nebraska would not strip the District Court of

jurisdiction.

The District Court’s denials of the motions to inter-

vene are reversed.

III.

We now turn our attention to the question of whether

the District Courts erred in issuing preliminary injunc-

tions in these cases. The decision to issue a preliminary

injunction is within a district court’s discretion in the first

_ instance. The following factors govern the exercise of that

discretion:

App. 19

Whether a preliminary injunction should issue

involves consideration of (1) the threat of irrepa-

rable harm to the movant; (2) the state of the

balance between this harm and the injury that

granting the injunction will inflict on other par-

ties litigant; (3) the probability that movant will

succeed on the merits; and (4) the public interest.

Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109,

113 (8th Cir.1981) (en banc). We review a district court’s

decision to grant a preliminary injunction for abuse of

discretion, and can reverse such an injunction only if the

district court “clearly erred in its characterization of the

facts, made a mistake of law, or abused its discretion in

considering the equities.” Bhd. of Maint. of Way Employees

v. Burlington Northern R.R., 802 F.2d 1016, 1020 (8th

Cir.1986).

The facts of these cases are largely undisputed, and

the District Courts did not clearly err in their fact finding.

All sides seem to agree that each of the plaintiffs can show

that they will suffer irreparable harm absent the injunc-

tions imposed. The States of North Dakota and South

Dakota demonstrated that the population of fish in the

reservoirs would decrease if the water levels were not

maintained. Each state presented evidence that such a

decrease would lead to a decrease in recreation on the

- reservoirs. Nebraska presented evidence that it would be

harmed by the Corps’s failure to follow the Master Man-

ual, because the decreased flows would harm many of its

citizens. In each case, the District Court concluded that

the complaining party would suffer irreparable harm

without an injunction. There was no clear error here.

The balance-of-harms and public-interest criteria

present closer questions, but we need not pursue these

App. 20

issues. The dispositive issue on this appeal is the likeli-

hood that each plaintiff would succeed on the merits. In

each of these cases, the plaintiffs are challenging agencv

actions. Thus, our review is guided by the Administrative

Procedure Act. Under the APA, district courts review

agency actions to determine whether they are “arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A). In this case,

however, the review is more complicated, because the

Corps maintains that its actions are not subject to judicial

review at all. It contends that the Flood Control Act

commits these decisions to the Corps’s discretion. See 5

U.S.C. § 701(a)(2). Thus, before considering whether the

Corps’s actions were unlawful or were arbitrary and

capricious, we must decide whether the Corps’s actions are

subject to judicial review.

A. Is There Law To Apply?

The Corps first argues that the District Courts erred

because its actions are not subject to judicial review. As a

general rule, courts presume that Congress intended

agency action to be subject to judicial review. Kenney v.

Glickman, 96 F.3d 1118, 1124 (8th Cir.1996); see also 5

U.S.C. § 702. There is a very narrow exception to this

presumption “applicable in those rare instances where

statutes are drawn in such broad terms that in a given

case there is no law to apply.” Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28

L.Ed.2d 136 (1971) (internal quotations omitted). This

exception is quite narrow and does not apply where

statutes provide even minimal guidance to limit agency

discretion. Jd. at 411-13, 91 S.Ct. 814 (holding that an

agency action was subject to review because the granting

App. 21

statute provided factors for the agency to consider in

making the decision). And courts can find law to apply

either “in the underlying statute or in the regulations by

the agency interpreting the underlying statute.” Kenney,

96 F.3d at 1124. Thus, to prevail on its claim that its

actions are not subject to judicial review, the Corps must

demonstrate that neither the Flood Control Act nor any of

its internal regulations provides law to apply in these

cases. We reject this argument. We conclude that the

Corps’s actions are constrained both by the Flood Control

Act and by the Master Manual.

The Flood Control Act clearly gives a good deal of

discretion to the Corps in the management of the River.

But this discretion is not unconstrained; the Act lays out

purposes that the Corps is to consider in managing the

River. The Act recognizes what the Supreme Court has

called the dominant functions of the River’s reservoir

system — flood control and navigation. ETSI Pipeline

Project v. Missouri, 484 U.S. 495, 512, 108 S.Ct. 805, 98

L.Ed.2d 898 (1988). While flood control and navigation are

dominant functions, the Act also recognizes recreation and

other interests and secondary uses that should be provided

for. Flood Control Act Section 4, 58 Stat. at 889-90. The

text of the Flood Control Act thus sets up a balance be-

tween flood control, navigation, recreation, and other

interests. Because the Flood Control Act calls on the Corps

to balance these various interests, the courts can review

the Corps’s decisions to ensure that it considered each of

these interests before making a decision. What the text of

the Act does not provide is a method of deciding whether

the balance actually struck by the Corps in a given case is

correct or not. Nevertheless, the Flood Control Act clearly

App. 22

provides some law to apply, so the decisions of the Corps

are subject to judicial review under the Act.

The minimal guidance provided by the Flood Control

Act is only the beginning of our inquiry, however. We turn

next to the Master Manual to decide whether it binds the

Corps. The Corps has promulgated the Master Manual,

which sets out priorities and directs the Corps to take

certain actions in given situations. Upon close examina-

tion, we conclude that the Master Manual is binding on

the Corps because it sets out substantive requirements,

and its language and context indicate that it was intended

to bind the Corps’s discretion.

The Corps maintains that the Manual is not binding

because it is not a rule, merely a policy statement. Indeed,

the Master Manual was not promulgated through the

notice-and-comment rulemaking procedures of the Admin-

istrative Procedure Act. This does not by itself render the

Master Manual non-binding. Agency statements can be

binding upon the agency absent notice-and-comment

rulemaking in certain circumstances. Where a policy

statement purports to create substantive requirements, it

can be a legislative rule regardless of the agency’s charac-

terization. Northwest National Bank v. United States Dep't

of the Treasury, 917 F.2d 1111, 1116-17 (8th Cir.1990); see

also Syncor Int'l Corp. v. Shalala, 127 F.3d 90, 94

(D.C.Cir.1997) (holding that policy statements can become

binding on the agency if so intended, which is a determi-

nation made by examining the statement’s language and

context).

The language of the Master Manual itself implies that

it is binding. Throughout, the Manual speaks of what “is”

done or “will” be done. Section 9-3 of the Manual, for

po ees Clk et oh i Dn ade i tilt id a had a i i ”.

App. 23

example, explains that the “general approach, which was

developed and generally agreed upon during planning and

design of the reservoirs, is observed in operation planning

and subsequent reservoir regulation procedures.” Master

Manual Section 9-3 (emphasis added). This general ap-

proach prioritizes the different interests that will be

considered in regulating the reservoirs. The interests are

to be provided for in this order: flood control, irrigation

and upstream beneficial uses, downstream water supply,

navigation and power, power generation, and finally

recreation and wildlife. In the midst of this prioritization,

the Master Manual speaks in mandatory terms. Focusing

on the areas of most interest to this case, the fourth

priority section reads: “the remaining water supply avail-

able will be regulated in such a manner that the outflow

from the reservoir system at Gavins Point provides for

equitable service to navigation and power.” Id. (emphasis

added). Two paragraphs later, the Manual indicates that

recreation, fish, and wildlife will be provided for insofar as

possible, but consistently with the preceding considera-

tions (including navigation). Section 9-3 itself seems to

indicate that the Manual was intended to bind the Corps,

and later provisions bolster this conclusion.

In addition to sections, like Section 9-3, which explain

general priorities and goals, the Master Manual also

includes provisions that direct the Corps to take certain

actions when given circumstances occur. In Section 9-19,

for example, the Manual provides that “Fall extensions of

the navigation season beyond the normal 8-month length

will be scheduled” when certain triggering events occur.

Other provisions require the Corps to maintain minimum

flow levels at various points on the River at different

times. See generally Master Manual Section 9. These

App. 24

provisions can hardly be termed non-binding; they, like

Section 9-3, speak of what the Corps will do in given

circumstances. The Manual’s provisions, then, do not

merely give advice to administrators; instead, they direct

the operation of the River. There is no indication in the

text of the Manual that the Corps is free to ignore its

provisions if it so chooses. Indeed, the language of the

Manual appears to assume that members of the Corps

must follow its provisions.‘ .

In addition to the Master Manual itself, the Corps’s

promulgated regulations indicate that the Manual is

binding. The Code of Federal Regulations includes a

section that “prescribes policies and procedures to be

followed by the U.S. Army Corps of Engineers in carrying

out water control management activities, including estab-

lishment of water control plans for Corps and non-Corps

projects as required by Federal laws and directives.” 33

C.F.R. § 222.5 (2002). The regulation goes on to require the

Corps to develop water control plans “to conform with

objectives and specific provisions of authorizing legislation

and applicable Corps of Engineers reports,” and indicates

that “[tJhorough analysis and testing studies will be made

as necessary to establish the optimum water control plans

possible within prevailing constraints.” Id. § 222.5(f).

“[P]lans developed for specific projects and reservoir

systems will be clearly documented in appropriate water

* The Master Manual contains various other provisions that bolster

this conclusion, including a provision that the Manual may be revised

when necessary. Master Manual Section I. If the Manual were non-

binding, there would be little need to include a provision allowing for

revision; the Corps could simply ignore the Manual entirely.

nO a, a ee a

App. 25

control manuals.” Jd. The regulation also recognizes the

need to create a “Master Manual” in cases where several

projects are linked together. Id. § 222.5(iX2). These manu-

als are to be created with the aid of public involvement. Id.

§ 222.5(gX2). And once produced, these plans are to be

made publicly available. Id. § 222.5(g)(2)(ii). These provi-

sions support the conclusion that the Manual binds the

Corps. The most significant of these provisions is the

indication that in creating Master Manuals, the Corps will

consider public comment on its plans and then publicize

the completed plans. The public-comment provision

recognizes the power that these Manuals wield — a power

that should be exercised only after public consideration.

The provision which makes these manuals publicly avail-

able likewise recognizes that these manuals will affect

individuals, and that potentially affected people should

have access to the documents. These are not the types of

procedures one would expect in the promulgation of an

internal, non-binding agency guideline.

Moreover, the Corps’s treatment of the Manual indi-

cates that it is binding. Lawrence Cieslak, a member of the

Corps, indicated in his testimony to the South Dakota

District Court that all of the critical decisions that were

made in the Spring of 2002 were based upon the instruc-

tions in the Master Manual. The Corps decided the length

of the navigation season and decided not to cut the re-

leases from the reservoirs because the Master Manual

instructed as much. Moreover, Mr. Cieslak concluded his

testimony by observing that “we have stated that we will

continue to try to meet the operational objectives of the

current Master Manual,” until a revised manual is com-

pleted. Appendix at 792. As this testimony demonstrates, the

Corps continues to treat the Master Manual as a how-to

App. 26

manual for operating the Missouri River. The Corps has

treated and continues to treat the Master Manual as a

constraint on its discretion in operating the River.

Because the language and context of the Master

Manual and the Corps’s treatment of the manual indicate

that it binds the Corps, we conclude that it is binding. The

Corps is not free to ignore the Master Manual (though it

may elaborate upon details of operation in its annual

operating plans), and courts can review the Corps’s actions

to ensure conformity. In the end, then, there is sufficient

law to apply in these cases. In each case, courts can assess

whether the Corps’s actions run afoul of either the Flood

Control Act or the Master Manual.

B. South Dakota

We turn our attention first to the injunction entered

by the South Dakota District Court. The Court enjoined

the Corps from releasing water from either Lake Oahe or

Lake Francis Case. The State of South Dakota claimed

that it was entitled to this relief on three grounds. First, it

alleged that the Flood Control Act requires the Corps to

act so as to maximize all interests on the River, including

recreation. Second, the State argues that it is entitled to

relief because the Corps is judicially estopped to favor

navigation over recreation. Finally, South Dakota main-

tains that the Corps acted arbitrarily and capriciously in

favoring navigation over recreation. We hold that none of

these arguments is likely to succeed on the merits.

TE SEIN EER

App. 27

South Dakota argues that the Flood Control Act

requires the Corps to maximize the benefits of the River,

including fish-and-wildlife benefits.° This argument is not

based upon the text of the statute, but instead upon the

Act’s legislative history. Senate Document 247 states that

the plan “will secure the maximum benefits for flood

control, irrigation, navigation, power, domestic and sani-

tary purposes, wildlife, and recreation.” S. Doc. No. 247, at

5; see also H.R. Doc. No. 475, at 29 (“the comprehensive

plan would . .. provide for the most efficient utilization of

the waters of the Missouri River Basin for all purposes,

including irrigation, navigation, power, domestic and

sanitary purposes, wildlife, and recreation.”); id. at 3

(“When completed the basin plan will be operated for

maximum multiple purpose use.”). Moreover, Senate

Document 191, which represented one of the original

competing views, included a provision that stated that

“during the spawning season every effort will be made to

maintain as constant a pool level as possible.” S. Doc. No.

191, 78th Cong., 2d Sess. 211 (1944). South Dakota main-

tains that the sum total of this legislative history compels

the Corps to balance the interests each year so as to

maximize each category of benefits, and that courts can

review the annual operating plans to ensure that they do

indeed maximize the benefits.

We reject this argument. South Dakota’s proffered

standard — whether the Corps’s management of the River

maximizes the benefits to all interests — is not the kind of

standard that courts regularly employ in reviewing agency

* South Dakota does not argue that the Corps’s decision to release

water from Lake Oahe was contrary to the Master Manual.

App. 28

action. As a general rule, courts defer to agency policy

decisions because it is not a court’s “function to substitute

[its] judgment for that of the agency.” Aman & Mayton,

Administrative Law § 13.10.2 (1993). Under South Da-

kota’s proffered standard the Corps’s actions would receive

no deference and the courts could be called upon to review

every decision that the Corps makes, no matter how

minute. Although Congress could give the courts the

power to engage in such searching review, we do not

believe that the portions of the Flood Control Act’s legisla-

tive history to which South Dakota directs this Court are

sufficient to achieve such a radical shift from the normal

standard of review. Indeed, the statements that South

Dakota points to are merely general statements of policy

goals. They are not phrased as limitations on the Corps’s

discretion. Given that this argument finds no support in

the text of the statute, and given the vagueness of the

legislative history on the matter, we refuse to apply South

Dakota’s proffered standard. Courts are simply not em-

powered to review every decision of the Corps to ensure

that it maximizes the benefits of the River for all interests.

Indeed, such a standard would be impossible to meet,

anyway. In times of drought it is not possible for both

navigation and fishery benefits to be maximized. Some-

thing has to give.

South Dakota next argues that judicial estoppel

requires the Corps to give equal consideration to recrea-

tion and other interests including navigation. This argu-

ment is based upon an agreement reached in previous

litigation in Montana. There, South Dakota maintains, the

Corps agreed to give all interests, including recreation, equal

consideration in the management of the River — as opposed

to giving flood control, navigation, or other interests priority

App. 29

over recreation — until the revision of the Master Manual

was complete. Even assuming that the elements of judicial

estoppel were met in this case,° the only thing that the

Corps agreed to was that it would give all interests equal

consideration. S.D. Brief at 27 (citing the ruling in a

previous suit that gave rise to the judicial estoppel claim).

Equal consideration does not mean equal results. In this

case, South Dakota has presented no evidence that the

Corps did not give equal consideration to recreation; only

that in the end, the Corps decided to lower one reservoir

per year during a drought to maintain navigation. This

result could easily arise from the Corps’s giving equal

consideration to each interest. Indeed, the Corps main-

tains that it considered the interests of recreation equally.

Testimony of Lawrence Cieslak, App. at 823 (“[I]n the

Annual Operating Plan we are giving equal consideration

to all of the project purposes in trying to meet the opera-

tion objectives.”) The Corps concluded that it does not need

to hold the water level at every reservoir constant every

year to allow recreational activities to flourish. The evi-

dence before the Corps indicated that a good fish spawn

once every four to five years is sufficient to maintain the

fisheries of each reservoir. Master Manual Section 9-31.

According to this conclusion, then, the Corps can lower

each reservoir on a rotating basis (one per year) and still

maintain the fish stock in the reservoirs. Given this fact,

the Corps’s decision to lower one reservoir per year during

a drought simply does not provide any proof that the

* Because we rule that there is no evidence that the Corps failed to

give equal consideration to recreation, we do not reach the question of

whether the elements of judicial estoppel were met in this case.

App. 30

Corps was not giving recreation equal consideration.

South Dakota is unlikely to succeed on its judicial-estoppel

theory.

Finally, we must consider whether the Corps’s deci-

sion to lower Lake Oahe in the Spring of 2002 to maintain

downstream navigation was arbitrary and capricious. See

5 U.S.C. § 706(2)A). “To make this finding the court must

consider whether the decision was based on a considera-

tion of the relevant factors and whether there has been a

clear error of judgment. Although this inquiry into the

facts is to be searching and careful, the ultimate standard

of review is a narrow one. The court is not empowered to

substitute its judgment for that of the agency.” Overton

Park, 401 U.S. at 416, 91 S.Ct. 814 (citations omitted). To

pass scrutiny, “(t]he agency must articulate a rational

connection between the facts found and the choice made.”

Bowman Transp., Inc. v. Arkansas-Best Freight System,

Inc., 419 U.S. 281, 288, 95 S.Ct. 438, 42 L.Ed.2d 447

(1974) (internal quotations omitted). This standard of

review gives great deference to the policy decisions made

by the agency and does not allow a court to overturn an

agency action merely because the court would have acted

differently; a court may find an action to be arbitrary and

capricious only when there is no rational basis for the

policy choice.

The policy choice that South Dakota is challenging is

not arbitrary and capricious. The Corps provided a ra-

tional basis for its decision to lower one reservoir per year

during drought conditions. The Corps had evidence that

every reservoir did not need to have a good spawn each

year to maintain the fish stocks. Thus, so long as each

reservoir’s water level was not lowered every year, the fish

stocks in the reservoirs would not be irreparably harmed.

App. 31

The Corps decided to alternate the harm among the

reservoirs, maintaining the water level at all but one

reservoir each year. This plan would presumably allow

each reservoir to have a fruitful spawn five out of every six

years even in the worst drought conditions. This plan was

eminently rational. South Dakota’s efforts to increase the

rainbow smelt stock during the Spring of 2002 do not

make the plan irrational. South Dakota knew that Lake

Oahe’s water level had not been lowered in 2001, and that

it was thus among the candidates to be lowered in 2002.

Moreover, if Lake Oahe had been lowered as planned in

2002, it presumably would not be lowered in 2003, which

would allow for a fruitful spawn this year. The Corps’s

policy was not irrational when written and did not become

irrational in the Spring of 2002 because of South Dakota’s

efforts on Lake Oahe. South Dakota, therefore, is not

likely to succeed on its theory that the Corps acted arbi-

trarily and capriciously.

Because none of South Dakota’s theories for relief is

likely to succeed on the merits, it was not entitled to a

preliminary injunction. We therefore reverse the prelimi-

nary injunction entered in the South Dakota District

Court and remand the case to that Court for further

proceedings consistent with this opinion.

C. North Dakota

The arguments raised by North Dakota in favor of

affirming the injunction entered in the North Dakota

District Court are quite similar to those made by South

Dakota. Having already rejected South Dakota’s judicial-

estoppel theory and its argument that the Corps’s policy to

release water from one reservoir per year is arbitrary and

App. 32

capricious, we need not address these arguments again. In

addition, North Dakota argues that the Flood Control Act

itself precludes the Corps from favoring navigation over

recreation. This argument is simply incorrect; the Flood

Control Act does not require the Corps to give equal

treatment to recreation. The Flood Control Act provides

little guidance about what priority the Corps can or must

give to different interests. The evidence that we do have,

including the sequential listing of interests that uniformly

lists navigation before recreation, indicates that the

Corps’s primary concerns should be flood control and

navigation. The Supreme Court appears to have accepted

_ as much. ETSI, 484 U.S. at 512, 108 S.Ct. 805. The Corps

has adopted this prioritization, as evidenced by the listing

of interests in Section 9-3 of the Master Manual. The

Corps’s decision to adopt this prioritization was not im-

permissible.

Because, like South Dakota, North Dakota has not

demonstrated that it is likely to succeed on the merits, the

North Dakota District Court erred in entering a prelimi-

nary injunction in its favor. We therefore reverse the

preliminary injunction and remand this case to the Dis-

trict Court for further proceedings consistent with this

opinion.

D. Nebraska

The preliminary injunction entered in the Nebraska

District Court was wholly different from those entered in

North Dakota and South Dakota. The Nebraska District

Court ordered the Corps to abide by the Master Manual

because it concluded that the Manual binds the Corps. We

can find no error with this conclusion. The Master Manual

eee ee ee ee ee -

_ TLL

App. 33

does bind the Corps, and under 5 U.S.C. § 706, Nebraska

was entitled to an order that the Corps abide by its own

formally adopted policies.

The Corps argues strenuously against the preliminary

injunction entered in Nebraska. It feels that it should not

be bound by the Manual when unforeseen circumstances

arise. The record before this Court does not allow us to

assess the validity of this argument on this appeal. Proba-

bly the Corps should be accorded some flexibility if an

unforeseen circumstance arises. We leave such questions

to the District Court to decide on remand if necessary. The

Nebraska District Court order granting a preliminary

injunction is affirmed, and the stay entered by this Court

is vacated. This case is remanded to the District Court for

proceedings consistent with this opinion.

IV.

In summary, we conclude that the South Dakota

District Court erred in denying the motions to intervene

and in entering a preliminary injunction requiring the

Corps to maintain the water level at Lakes Oahe and

Francis Case. The Court’s orders are, therefore, reversed,

and the case is remanded for proceedings consistent with

this opinion.

We likewise conclude that the North Dakota District

Court erred in enjoining the Corps from releasing water

from Lake Sakakawea. That Court’s order is, therefore,

reversed, and the case is remanded for proceedings consis-

tent with this opinion.

Finally, we conclude that the Nebraska District Court

did not err in entering a preliminary injunction requiring

App. 34

the Corps to follow the Master Manual. That Court’s order

is, therefore, affirmed, and the case remanded for proceed-

ings consistent with this opinion.

The motion for an expanded stay is denied as moot.

It is so ordered.

App. 35

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

CENTRAL DIVISION

ae A ae He ae he he ae he He ae He ee he ae he ae ae he He ee a ae he ae ie he a ee ee ee a Oe OO OK OK EK

STATE OF SOUTH °

DAKOTA, and WILLIAM J. *

JANKLOW, GOVERNOR, *

Plaintiffs,

-vVs-

LT. COLONEL KURT F.

UBBELOHDE, DISTRICT

ENGINEER, OMAHA

DISTRICT, UNITED

STATES ARMY CORPS OF

ENGINEERS, and GENERAL

DAVID A. FASTABEND,

COMMANDER, NW

DIVISION, PORTLAND,

OREGON,

Defendants.

He he He he ae ae he ie he he ae ae he he he ae he he ee ae ie he ee ae ie ie ee ae ie he ie ee 2 ie 2 ee a OO oe OK

The State of South Dakota and its current Governor,

William J. Janklow (collectively “the State”), instituted

this action pursuant to Fed.R.Civ.P. 65 against the United

States Army Corps of Engineers (“the Corps”), to prevent

the continued, planned release of additional water out of

Lake Oahe, effectively lowering Lake Oahe by several feet.

The State argues that if Lake Oahe is lowered as planned,

the State will suffer irreparable injury. This alleged

irreparable injury is the loss of literally millions of rain-

bow smelt which serve as the primary food source for

walleye, a popular sport fish. Lake Oahe is nationally known

for its excellent walleye production and concominent [sic]

CIV 02-3011

TEMPORARY

RESTRAINING ORDER

(Filed May 2, 2002)

* &# ete HF HF HHH He HH OH OH OF

App. 36

sport fishing. That national recognition pays big dividends

to the State’s treasury as well as to the local communities

and businesses along Lake Oahe and highways leading to

it. The State argues that if the Corps is permitted to lower

the level of Lake Oahe, the State will lose many millions of

dollars due to the devastating impact the loss of the smelt

would have on the walleye fishing industry. After careful

consideration of the materials submitted by the parties

and the arguments made at the May 1, 2002 hearing, the

court concludes that the Corps should be restrained as

detailed below.

BACKGROUND

This case is the newest installment in an on-going,

epic struggle between the Corps and the upper basin

states of Montana, North Dakota, and South Dakota over

the use of the Missouri River. The river is vital to the

economies of the upper basis states as it is to the lower

basin states of Iowa, Nebraska, Kansas, and Missouri. An

important difference separating the lower basin states

from the upper basin states is the use of the Missouri

River by the lower basin states as a means of navigation.

From Sioux City, Iowa, to St. Louis, Missouri, barges use

the river to transport various items and commodities. It is

undisputed that no barge traffic exists in the upper basin

states. The upper basin states primarily use the river for

hydroelectric power, irrigation, domestic water use, and

recreational activities.

The Corps operates six dams and reservoirs located on

the Missouri River in the upper basin pursuant to the

Flood Control Act of December 22, 1944, 58 Stat. 887.

Governing or guiding the Corps’ operation of those dams

App. 37

and reservoirs is the Master Manual which was last

updated and adopted in 1979. It is that Master Manual

which, at least in part, serves to fuel the on-going contro-

versy between the parties. In the 1979 Master Manual, the

Corps listed, in order of importance, the priorities it set

out to achieve in this operation and regulation of the dams

and reservoirs. Navigation was ranked fourth, with

recreation, fish, and wildlife ranked sixth. In ranking

them sixth, the Corps stated that, “insofar as possible

without serious interference with the foregoing functions,

the reservoirs will be operated for maximum benefit to

recreation, fish, and wildlife.” 1979 Master Manual, p. [X-1.

In other words, recreation, fish, and wildlife are

subservient to and dependent for their existence on not

seriously interfering with the five previous rankings of

use. The upper basin states have repeatedly accused the

Corps of subordinating their interests in maintaining and

promoting their recreation industries to the interests of

navigation. To put it rather bluntly, the upper basin states

strongly object to having river water flushed south, caus-

ing harmful effects to fishing industries, so that barges

may operate hundreds of miles away. In sum, the upper

basin states want the Corps to afford recreation, fish, and

wildlife a higher priority than they currently receive.

In 1989, the Corps announced it was going to overhaul

its Master Manual. This process has been amazingly slow,

being tied up in bureaucratic and political quagmires.

Despite its announcement over a decade ago, the Corps

App. 38

has not yet successfully revised the Master Manual.’ In

the interim, the Corps has relied on the 1979 Master

Manual to guide its Missouri River operations.

In early and mid-1900’s, walleye fishing and the

revenue it raised significantly increased in South Dakota.

This increase was largely due to the outstanding success of

Lake Oahe as a nationally recognized trophy walleye

fishery. From April to October of 1991 through 1998, an

average of 265,743 angler trips were made to Lake Oahe

every year. This fishing boon produced an average eco-

nomic impact of approximately $20 million per year.

Fishermen and women came to Lake Oahe because of the

real possibility of catching a trophy walleye, that is, one

weighing over eight pounds. During the summer months of

1993 to 1998, the average walleye harvested from Lake

Oahe was larger than 17 inches. In sum, during the mid-

1990’s, Lake Oahe was a major revenue raiser for South

Dakota and the communities which lie near it or on the

route of travel. That continued revenue was dependent

upon continued successful walleye fishing.

In 1997, walleye fishing on Lake Oahe began to suffer.

A major contributing factor of that downturn was the

Corps’ decision in the spring of 1997 to release water

through the Oahe Dam. In doing this, the Corps flushed

almost a half a billion smelt through the Oahe Dam’s

turbines. The loss of so much smelt significantly altered

the balance between predator and prey in Lake Oahe.

Because its primary food source was lacking, the walleye

* In its submissions to the court in this case, the Corps claims that

it is aiming to release its revised Master Manual in 2003.

App. 39

population suffered. As one researcher observed, following

the 1997 smelt crash, Lake Oahe became full of hungry,

stunted walleyes in poor condition. As news of the crash

and resulting poor walleye condition spread, anglers, not

surprisingly, stayed away. In 2000, angler trips fell to a

low of 109,665, approximately 156,078 fewer trips than

was experienced, on average, between 1993 and 1998. The

loss of so many anglers devastated the fishing economy as

to Lake Oahe. Only $8.2 million dollars in revenue was

generated in 2000, compared to the yearly average of

nearly $20 million between 1991 and 1998. Thus, the

smelt crash of 1997 produced a very real, tangible eco-

nomic loss to South Dakota.

The State, in an effort to turn Lake Oahe walleye

fishing around, implemented a bold management plan in

2001. The primary goal of the plan was to reestablish the

balance between predator and prey in Lake Oahe. The

State understood that future walleye fishing success

hinged on temporarily lowering the number of walleyes in

Lake Oahe. Walleye numbers had to be reduced to give the

smelt an opportunity to rebound from the 1997 disaster.

To accomplish this, the State greatly increased its walleye

limits on Lake Oahe. It raised the limit from eight wall-

eyes for two days of fishing to forty-two for three days of

fishing.

Biologists for the State had reason for optimism

earlier this spring. Their tests indicated that the balance

between predator and prey in Lake Oahe had a real

chance of recovery this year. Tests signaled that this

year’s smelt production would be high. This is due, in large

part, to the natural smelt cycle that is beyond human

control. It was also due, the State contends, to its bold

management decision last year to dramatically increase

App. 40

the walleye limits on Lake Oahe. Thus, the State had

reason to hope that a successful smelt spawning season

this year could reverse the last few years’ poor walleye

fishing seasons.

After collecting the data signaling a strong smelt

spawn, biologists for the State sent this information to the

Corps along with a request to maintain water levels on

Lake Oahe between April 8 and May 22, 2002. Water

levels play a crucial role in the success of the smelt spawn.

Rainbow smelt lay their eggs in very shallow water along

the shores of Lake Oahe. Generally, the eggs are laid in

water no deeper than six inches with many of the eggs

being laid in water no deeper than a quarter of an inch. If

the eggs are exposed to air, they dry out and die rather

quickly. Thus, lowering water levels on Lake Oahe after

the eggs have been laid guarantees the smelt spawn will

not survive. Despite this information, the Corps indicated

that it planned to proceed with its earlier decision to

continue to lower Lake Oahe by several feet. The Corps

refused to maintain Lake Oahe’s water levels between

April 8 and May 22 as requested by the State. It is that

decision which resulted in this litigation.

This litigation is not the first between the parties. In

an action very similar to this one, the upper basin states

sued the Corps in 1990 in federal court in North Dakota

seeking an injunction prohibiting the Corps from releasing

water from Lake Oahe in an effort to protect various sport

and forage fish. The district court enjoined the Corps from

releasing any additional water, but the United States

Court of Appeals vacated the injunction without opinion.

In a later decision, the Eighth Circuit vacated its prior

decision and declined to reach the merits finding that the

case had become moot and did not come within the exception

_ |

App. 41

which allows a court to deal with an issue likely to reap-

pear. See State of South Dakota v. Hazen, 914 F.2d 147

(8th Cir. 1990).

In 1991, the upper basin states again sued the Corps,

this time in federal court in the District of Montana. The

upper basin states argued that the Corps had improperly

assigned downstream uses, i.e., navigation, a higher

priority over recreation, fish and wildlife as a result of its

alleged erroneous interpretation and the unlawful static

priorities of the 1979 Master Manual. Because the Master

Manual was allegedly set to be revised, the Corps, the

State argues, mooted the lawsuit by agreeing to give all

water uses equal consideration while the Master Manual

was being reviewed. Thus, the case was dismissed.

Despite the Corps’ assurances of equal use considera-

tion in 1991, the State maintains that the Corps has not

kept its word and misrepresented matters to the district

court in Montana. The State contends that a temporary

restraining order is necessary to keep the Corps from

decimating the rainbow smelt population by continued

water releases from Lake Oahe. The State argues that the

extraordinary remedy of the temporary restraining order

is necessary because, unless the Corps is immediately

restrained from releasing water out of Lake Oahe, the

rainbow smelt spawn will irreparably suffer, causing

significant financial losses for South Dakota, both this

year and in years to come. The immediacy ofthe State’s

request for a temporary restraining order is dictated by

the fact that the smelt spawn has begun and will conclude

around May 22. Unless this court restrains the Corps

continued water releases, the State argues, the smelt

spawn will be lost. There is no dispute about that.

App. 42

DISCUSSION

In deciding whether to grant or deny a request for a

temporary restraining order, the court is to consider the

following four factors: (1) the threat of irreparable harm to

the State; (2) the state of the balance between this harm

and the injury that granting the injunction will inflict on

other litigants; (3) the probability that the State will

succeed on the merits; and (4) the public interest. See

Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d

109, 113 (8th Cir. 1981). In reviewing such a request, the

court is to adopt a flexible approach that will enable it to

encompass the particular circumstances of the case. Jd. In

balancing the equities, no single factor listed above is

determinative; rather, the court should employ a prag-

matic approach, keeping in mind the relative injuries to

the parties and the public. Jd. If the movant has raised a

substantial question and the equities are otherwise

strongly in its favor, the showing of success on the merits

can be less. Jd.

The threat of irreparable harm to the State is real. As

detailed above, the State’s revenue from walleye-related

fishing or Lake Oahe has decreased from nearly $20

million in 1996 to just over $8 million in 2000. A primary

cause of that decrease was the disastrous results to the

smelt spawn of 1997 when almost half a billion smelt were

flushed out of Lake Oahe. The net result was that fisher-

men stayed away and the State lost revenue. If this year’s

smelt spawn is similarly decimated, the State stands to

lose millions of dollars, as do the many communities and

businesses who rely on Lake Oahe walleye fishing for their

economic livelihood.

~- ee —————

App. 43

The court, in considering the irreparable harm to the

State, is mindful of the undisputed evidence that this year

has the likely potential to be very positive from a smelt

production standpoint, This is due, in part, to the natural

cycles of smelt production as well as the efforts taken by

the state to lower the number of walleye in Lake Oahe in

an attempt to halt the smelt population recover. Thus, if

this year’s smelt population is decimated, the combination

of the State’s efforts and the fortuitous turns of this year’s

advantageous smelt cycle will be lost. Thus, the State not

only stands to lose several millions of dollars this year, but

stands to lose millions more in the years to come.

The Corps will not suffer any harm if the court orders

a temporary restraining order. As a regulatory entity, it

stands to lose nothing.’ All it would be required to do is

maintain water levels on Lake Oahe for a short period of

time pending the hearing on the application for a prelimi-

nary injunction which hearing will begin on Thursday,

May 9, five working days from today. Given the capabili-

ties of the Corps, it would be able to adhere to the court’s

order quickly and without serious disruption to its opera-

tions.” Thus, this factor, when weighed with the harm that

* In its submissions to the court, the Corps included several

affidavits from those associated with the barge industry, warehouse

industry, docking industry, and other navigation related industries.

None of those entities are parties <o this action. Thus, any harm that

the court’s temporary restraining order could cause them is more

correctly considered under the publi: interest factor.

* The court has no interest to run the Corps or tell it how to

operate. All it is enjoined from doing is lowering Lake Oahe. How it

accomplishes that, i.e., releasing more water from other reservoirs or

reducing the amount of water going south from Sioux City, is not before

the court today.

App. 44

the State would suffer, counsels in favor of the temporary

restraining order.

The likelihood that the State will succeed on the

merits is sufficient given the amount the State would lose

if the temporary restraining order is not granted. As the

Eighth Circuit stated in Dataphase, the showing of success

on the merits may be less if the other factors weigh heav-

ily in favor of the injunction. Jd. Here, the State advances

two arguments on the merits. First, the State argues that

the doctrine of judicial estoppel applies in this case,

prohibiting the Corps from not honoring its assurances in

the 1991 Montana litigation that it would consider all

water uses equally. The State makes a convincing pre-

liminary argument that the Corps, in deciding to let

millions of smelt die, is arbitrarily and capriciously favor-

ing navigation over recreation, fish and wildlife. This is

especially true given the State’s request that the water

level on Lake Oahe not be lowered for a very short time.

The Corps’ refusal to meet that request does raise an issue

of whether it is favoring navigation over recreation, fish

and wildlife. If it is, the doctrine of judicial estoppel may

apply. Thus, on this issue, the State has made a sufficient

showing. It raises a substantial question, at least at this

early junction, one that could well be resolved in its favor.

Additionally, the State argues that the Corps’ decision

to cause the death of millions of smelt, effectively ruining

the State’s Lake Oahe walleye production, in favor of

downstream navigation is an unreasonable and arbitrary

decision under the administrative Procedures Act, 5

U.S.C. § 706. The State argues that the Corps’ interpreta-

tion of the Master Manual is erroneous and that its refusal

to consider the dramatic shifts in both navigation and

recreation, fish and wildlife is arbitrary and capricious.

Perr ere

App. 45

Again, the State has made a sufficient showing at this

early stage of the proceedings. Of particular importance is

the following language from the 1979 Master Manual:

“insofar as possible without serious interference with the

foregoing functions, the reservoirs will be operated for

maximum benefit to recreation, fish and wildlife.” The

court concludes at this early juncture that serious ques-

tions surround both whether “serious interference” would

be caused by maintaining Lake Oahe’s current level for a

very short period and whether the Corps’ decision gives

the “maximum benefit” to recreation, fish and wildlife,

especially in light of the evidence of a declining barge

industry and a greatly expanding recreation, fish and

wildlife industry. Thus, for purposes of the temporary

restraining order, the court concludes that the State has

sufficiently demonstrated its likely success on the merits.

Given the size of the harm facing the State, the court

concludes that the water level should be maintained

pending a hearing on the preliminary injunction request.‘

Given the extensive consideration to the merit’s issue

by both parties and to the incredible interest expressed in

it as well by various states, interest groups, and others

who tried to participate as either amicus or as intervenors,

the court feels compelled to state that this determination

is preliminary only. The court, in addressing the merits

issue for purposes of the temporary restraining order, was

* The Corps argues at length that the State cannot succeed on the

merits. In focusing so intently on the merits, however, the Corps

overlooks the fact that if the movant has raised a substantial question

and the equities are otherwise strongly in its favor, the showing of

success cn the merits can be less. See Dataphase, 640 F.2d at 113. The

other factors weigh heavily in favor of the State in this case.

App. 46

required to “peek under the tent” and see if enough was

there warranting the extraordinary remedy of the tempo-

rary restraining order. Because the other factors weigh

heavily in favor of the State, the court concludes that

enough is there on the merits to support a temporary

restraining order. Whether the State will ultimately

prevail on the merits is a decision for another day. Noth-

ing in the temporary restraining order analysis requires

sure success on the merits. At this early stage, the court

finds that the State has demonstrated enough to justify

the temporary restraining order.

The final consideration is the public interest. As with

beauty, the public interest is in the eye of the beholder.

For the thousands of people who depend on the fishing

industry in Lake Oahe, the public interest is obvious.

Similarly, for the barge owners and others downstream,

the public interest is equally obvious. There is only a finite

amount of Missouri river water. The southern basin states

want more of it; the northern basin states want more of it.

Each wants it for their own legitimate reasons. Despite

such obvious tension, the court concludes that the public

interest would be best served in this case by granting the

temporary restraining order. Barge traffic could be im-

pacted, if at all, for one week at this point. However, there

has been no significant impact thus far and no evidence

that there will be any. The State, however, would be

negatively impacted for years to come. The time compo-

nent necessarily resolves the public interest factor in favor

of the State. Under the circumstances, equity commands

that those downstream possibly wait a short period rather

than have those upstream financially devastated for years

to come. Thus, this factor also weighs in favor of the

temporary restraining order.

a ee eee ee ee ee ee, ee ee ee, ee re ee ee ee ee ae ee

App. 47

The court is not unmindful of the many affidavits

submitted by the Corps from those dependent upon the

barge industry and other water users. The temporary

restraining order may or may not impact their operations.

It must be remembered that nothing in the court’s order

requires the Corps to “turn off the water” flowing south.

The Corps is only temporarily restrained as to lowering

Lake Oahe. If the Corps desires to draw down other

reservoirs, it is free to do so. Thus, the economic horrors

detailed in those affidavits may well never come to pass.

However, if the smelt spawn is decimated, the horrors

articulated by the State will surely occur. Thus, this fact

supports the court’s determination that the public interest

would best be served by issuing the temporary restraining

order.

Fed.R.Civ.P. 65(c) requires the court to consider

whether security shall issue and, if so, in what amount.

Although Rule 65(c) allows the district court much discre-

tion in setting a bond, the district court is required to

make the necessary findings in support of its determina-

tions. See Hill v. Xyquad, Inc., 939 F.2d 627, 632 (8th Cir.

1991), citing Rathmann Group v. Tanenbaum, 889 F.2d

787, 789 (8th Cir. 1989). In this case, the court finds that a

bond would serve no useful purpose. The Corps has not

articulated any losses it would suffer if the court prevents

it from lowering the water level of Lake Oahe. How the

defendants choose to maintain the current water level

(whether by stopping releases from the Oahe Dam or

compensating for those releases from other dams) is at

present their affair.

App. 48

ORDER

Based on the foregoing

IT IS ORDERED that the defendants and each of

them are temporarily restrained from reducing the water

level of the Oahe Reservoir below the level which the

defendants have voluntarily maintained since April 27,

2002, until either further Order of the court or May 11,

2002, whichever first occurs.

Dated this 2nd day of May. 2002.

BY THE COURT:

/s/ Charles B. Kornmann

CHARLES B. KORNMANN

United States District Judge

ATTEST:

JOSEPH HAAS, CLERK

BY: /s/ Barbara J Pinkerton

DEPUTY

(SEAL)

App. 49

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

CENTRAL DIVISION

Oe Ae ie He He ie He ee ee ee He He ie he he ae he ae ee 2 ae 2c 2p 26 2k 2k 2k 2s 2k 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2

STATE OF SOUTH DAKOTA, * CIV02-3011

and WILLIAM J. JANKLOW,

GOVERNOR,

Plaintiffs, PRELIMINARY

-vs- INJUNCTION

LT. COLONEL KURT F.

UBBELOHDE, DISTRICT

ENGINEER, OMAHA DISTRICT,

UNITED STATES ARMY CORPS

OF ENGINEERS, and GENERAL

DAVID A. FASTABEND,

COMMANDER, NW DIVISION,

PORTLAND, OREGON

Defendants.

9 3 KK HK KK HK KK KKK AK KK KK KKK KKK KKK KKK KKK KKKK KK KK

(Filed May 14, 2002)

* & & & Fe He HH He HO HR HH OF

On April 25, 2002, the State of South Dakota and its

current Governor, William J. Janklow (collectively “the

State”), initiated this action seeking a temporary restrain-

ing order, preliminary injunctive relief, declaratory relief,

and a permanent injunction prohibiting the defendants

(collectively “the Corps”) from continuing to lower the

water level on Lake Oahe in South and North Dakota

during the rainbow smelt spawn. This is an extraordinary

year of production for smelt, the smelt population having

been greatly reduced in recent years, thus starving the

walleye population, largely caused by great flushes of

water by the defendants, causing the smelt to go through

the turbines at Oahe Dam. Walleye, a popular sport fish,

primarily feed on rainbow smelt in Lake Oahe. The State

App. 50

alleged that if Lake Oahe’s water level continued to drop

as a result of releases by the Corps, the smelt spawn

would be decimated, thereby causing irreparable harm to

the walleye population in Lake Oahe, and, in turn, causing

irreparable economic injury to the State and the various

businesses on and around Lake Oahe that are dependent

upon Lake Oahe’s fishing industry and the annual reve-

nues. Hundreds of other business enterprises “on the way

to Oahe” also depend greatly on tourists intent on going

fishing at probably the greatest Walleye fishery in the

United States. The economic impact to South Dakota from

the Missouri River fishing industry runs to up to $51

million per year. There are approximately 100 boat ramps

and 67 recreation areas now maintained by the State on

the Missouri River in South Dakota. All these allegations

are uncontested.

On the same day, April 25, 2002, the court had an

informal telephonic conference with representatives of the

Corps and the State. During that conference, the Corps

agreed to voluntarily maintain Lake Oahe’s water level

pending a hearing that was then scheduled for May 1,

2002. The Corps, true to their word, succeeded in main-

taining Lake Oahe’s water levels. However, instead of

decreasing the water flow out of Gavin’s Point Dam, the

Corps immediately began to draw down Lake Francis

Case, a Missouri River reservoir in South Dakota just

south of Lake Oahe and north of Gavin’s Point Dam, also

in South Dakota. The daily draw down on Lake Francis

Case became and continues to be very significant, namely

at an average rate of four to five inches per day. Releases

of water from Lake Francis Case, since April 26, 2002,

have been of such quantity as to discharge 2,000 cubic feet

per second (CFS) above even what the Corps argues is the

App. 51

minimum needed for downstream navigation, beginning at

Sioux City, Iowa. No explanation was provided why the

Corps would discharge such quantities of water. The

walleye spawn was in progress on Lake Francis Case.

Such significant and rapid draw downs have caused great

damage and harm to the walleye spawn on Lake Francis

Case. Again, all of these facts are undisputed.

The State responded to the draw down of Lake Fran-

cis Case with an amended complaint filed on April 30,

2002, the day before the scheduled hearing on the tempo-

rary restraining order request for Lake Oahe. The State

contended that the Corps’ decision to draw down Lake

Francis Case, causing the decimation of the walleye

spawn, while providing more than ample water for down-

stream navigation, was further evidence that the Corps

arbitrarily and capriciously favored navigation interests

over recreation, fish, and wildlife. It is the alleged unlaw-

ful, rigid, and never varying favoring of downstream

navigation and perhaps other downstream wants or needs

over upstream recreation, fish, And wildlife interests that

serves to fuel the underlying dispute between the parties.

The State attempted to expand the scope of the May 1,

2002, hearing to include Lake Francis Case. The court

declined to do so, limiting the issues solely to Lake Oahe,

concluding it would be unfair to the Corps to so broaden

the hearing with such short notice. On May 2, 2002, the

court issued an Order temporarily restraining the Corps

from lowering the water level on Lake Oahe. The court

then scheduled a preliminary injunction hearing for May

9, 2002, to consider whether the Corps should be prelimi-

narily enjoined from lowering Lake Oahe and whether

Lake Francis Case’s water level should be similarly

maintained. On May 9 and 10, 2002, a rather extensive

App. 52

evidentiary hearing was held on the preliminary injunc-

tion requests. After listening to the evidence, reading the

exhibits, considering the affidavits, the briefs, and the

applicable law, the court concludes that the Corps should

be preliminarily enjoined as detailed below.

DISCUSSION

The legal framework for determining whether to grant

a preliminary injunction parallels the analysis used by the

court in issuing its temporary restraining order. That

framework consists of the following four factors: (1) the

threat of irreparable harm to the State; (2) the state of the

balance between this harm and the injury that granting

the injunction will inflict on other litigants; (3) the prob-

ability that the State will succeed on the merits; and (4)

the public interest. See Dataphase Systems, Inc. v. C.L.

Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981). In review-

ing a request for a preliminary injunction, the court is to

adopt a flexible approach that will enable it to encompass

the -particular circumstances of the case. Jd. In balancing

the equities, no single factor listed above is determinative;

rather, the court should employ a pragmatic approach,

keeping in mind the relative injuries to the parties and the

public. Jd. If the movant has raised a substantial question

and the equities are otherwise strongly in its favor, the

showing of success on the merits may be less. Id.

A. Lake Oahe

The four factors listed above weigh in favor of the

preliminary injunction as to Lake Oahe. The court, in

issuing the temporary restraining order, considered all of

the above factors and concluded that preliminary relief

App. 53

was warranted. Nothing has changed in the past week to

detract from the court’s conclusion that preliminary relief

is clearly needed. In fact, as discussed below, recent rains

in the past week, both in South Dakota and downstream,

support the court’s decision. Flood conditions in Missouri

which have very recently occurred support less release of

water to flow south. At Jefferson City, Missouri, c. 200,000

cubic feet per second (CFS) of water is passing. The court

will preliminarily enjoin the Corps from further lowering

the water level on Lake Oahe (the lake having been

lowered substantially by the Corps prior to the filing of

this lawsuit) until the smelt spawn and the walleye spawn

have been completed, namely until close of business on

May 25, 2002." Expanded or additional factors supporting

the relief as to Lake Oahe are discussed in the portion of

this preliminary injunction dealing with Lake Francis

Case.

B. Lake Francis Case

The walleye spawn that was threatened by the Corps’

action of lowering Lake Francis Case was set to conclude

on May 7, 2002. While that date has passed, causing a

significant loss to the walleye spawn, thousands of walleye

eggs still do exist and require an eighteen day incubation

period. As the State’s biologist made clear, if water levels

are reduced during the incubation period, the eggs will dry

out and die. Thus, while the walleye spawn on Lake

Francis Case has concluded, the incubation period has just

* For a more detailed analysis of the Dataphase factors and the

facts of this case as they relate to Lake Oahe, please see the court’s

temporary restraining order, Doc. 38.

App. 54

begun. If the radical draw down of Lake Francis Case

continues, the walleye eggs that have survived will die,

ensuring the total destruction of the 2002 walleye class. In

addition, another popular sport fish, the small mouth bass,

is set to now begin its spawn on Lake Francis Case. A

continued draw down would doom that spawn, as well as

the bait fish population necessary to support the walleye

population.

While the fishing industry on Lake Francis Case is

not as economically significant as it is on and around Lake

Oahe, the destruction of the 2002 walleye class would have

devastating effects on South Dakota and the businesses

and communities dependent upon Lake Francis Case.

While the effects of the destruction would not be immedi-

ately felt, they would be realized in approximately three to

four years. The postponement of the harm, however, does

not alter the court’s conclusion that the destruction of this

year’s walleye class, baitfish class, and bass class would

cost the State and Lake Francis Case’s dependent commu-

nities millions of dollars. The economic value of the fishing

industry as to Lake Francis Case is approximately $11.5

million annually. The harm, therefore, for purposes of the

preliminary injunction, is real and substantial. It is not in

any way speculative. It is also irreversable [sic]. A contin-

ued draw down of Lake Francis Case would devastate its

fishery and the economic outlook for the businesses and

communities that rely upon it. The Corps does not argue

about the magnitude of the damages to South Dakota.

The other Dataphase factors governing the issuance of

preliminary injunctive relief also favor the State. As

previously discussed, the Corps will suffer no harm if

preliminary injunctive relief is granted. In addition,

because any preliminary injunctive relief would extend for

App. 55

only two weeks, the public interest Dataphase factor

rather easily resolves in favor of the State. While the court

understands that requiring water levels to be maintained

on both Lake Oahe and Lake Francis Case may reduce the

water available for release from Gavin’s Point Dam, the

short time period involved significantly lessens any

potential harm to downstream water users.’ Since the

issuance of the temporary restraining order, significant

rainfall in downstream states, especially Missouri, has

caused flood-like conditions, as already discussed. The

Corps concedes that water is plentiful in the Missouri

River channel from Kansas City to St. Louis. That stretch

of the river, therefore, will be totally unaffected by any

preliminary injunction. Moreover, a significant majority of

the barges on the Missouri are south of Kansas City.

There are currently no barges in transit that could possi-

bly be affected. There are thirteen loaded barges that

could conceivably be affected but they are all securely

moored. If not properly moored, they can easily be better

moored. Any reduced water flows, therefore, would pro-

duce a minimal impact when compared to the effects that

the destruction of two upstream fisheries would produce.

The court is also satisfied that maintaining Lake Oahe’s

and Lake Francis Case’s current water levels for two

weeks would not significantly adversely impact other

downstream users of water. Especially important to the

court and the public interest consideration are the many

* The court is not forbidding the Corps from releasing water backed

up by Gavin’s Point Dam. The Corps is merely forbidden from lowering

Lake Oahe and Lake Francis Case until close of business on May 25,

2002. How the Corps chooses to abide by the court’s Order and other-

wise operate the Missouri River system is its affair.

App. 56

downstream municipalities that rely on the river for their

drinking water. No significant impacts will be produced by

a two week reduction in flows, if any such reduction

occurs. Electric utility entities, especially those operating

nuclear reactors, agree that no disruption in service would

result from the court’s very limited temporary restraining

order. Any impact on downstream users would be mini-

mal. Moreover, the court expressly offered the Corps the

opportunity of reconvening in a few days if it desired to

further attempt to make a credible showing of any credible

and significant ills that the court’s Order could cause

downstream. The Corps declined that request, even after

hearing from the court that the evidence at the hearing of

danger to moored barges was speculative at best. Thus,

the Corps’ suggestion that some barges could be signifi-

cantly damaged is speculative at best. No evidence was

introduced to prove any such speculation. No expert

witness was called to so testify, even though the court, as

already noted, expressly issued such an invitation to the

Corps. In any event, heavy recent rains and their run-offs

producing full water level Missouri River tributaries

combined with the fact that the Corps is only prohibited

from lowering two reservoirs for two weeks, necessarily

tips the public interest factor in favor of ordering prelimi-

nary injunctive relief. Some problems, including those

with endangered species, can and should be mitigated or

solved by the Corps without great economic significance,

especially in comparison with the losses faced by South

Dakota.

Finally, as the court previously determined, the State

has made a sufficient showing of its likely success on the

merits to warrant the issuance of a preliminary injunction.

Both the judicial estoppel clatm-~and the arbitrary and

App. 57

capricious claim under the Administrative Procedures Act,

5 U.S.C. § 706, raise significant issues. In the judicial

estoppel context, it is clear that the Corps has not changed

its operation at all since the dismissal of the 1993 Mon-

tana litigation. It has continued to completely subordinate

the upper basin interests in recreation, fish, and wildlife

for the betterment of downstream navigation despite a

federal judge’s understanding (as set forth in the memo-

randum opinion) in the Montana litigation that all water

uses were to thereafter receive equal consideration,

making the case moot. Obviously, if the Corps told the

judge in Montana its plans for equal water uses considera-

tion, and did not fulfill those representations, the Corps

would be obligated to act exactly as the judge was told.

Otherwise, judicial estoppel may well apply. The court

does not intend to permit any party, much less the federal

government, to play fast and loose with the judicial proc-

ess. Resolution of that issue, of course, will be determined

at a later date. For purposes of preliminary relief, how-

ever, the State has made a sufficient showing of its likely

success on the merits as it relates to judicial estoppel.

Additionally, the State has made a sufficient showing

regarding its claim that the Corps’ decision to destroy two

upstream fisheries for the benefit of downstream naviga-

tion may well be arbitrary and capricious under the

Administrative Procedures Act, 5 U.S.C. § 706. From what

has been submitted to the court thus far, it is clear that

the only goals being addressed are flood control and

navigation. Recreation, fish, and wildlife interests are not

now being addressed or logicaily considered. The court

believes that this is largely due to the Corps’ reliance on

out-dated and inaccurate information to guide its opera-

tions. All parties concede that the Master Manual is and

App. 58

has been for years in need of substantial revision. It was

written and amended before the fishing industry in South

Dakota had become so viable and economically important.

It was striking to learn that it is the Corps’ position that

Lake Oahe would have to be reduced forty feet in depth

before downstream navigation would be halted. The court

cannot imagine the devastating economic and ecological

impact such a significant reduction would produce. De-

spite that devastation, the declining and little used navi-

gation industry would continue to enjoy business as usual.

Strongly supporting the State’s arbitrary and capri-

cious argument is the fact that navigation never has never

been required to “take a hit” when water is in short

supply. Whenever a water shortage occurs, it is the Corps’

practice to require all or some of the upstream states of

Montana, North Dakota, and South Dakota to “take the

hit.” The Corps has followed a consistent practice of

permitting or causing the destruction of upstream fisher-

ies, this despite the fact that the fisheries need only a few

weeks to produce successful spawns. Despite the modest

nature of the upstream states’ request that water levels be

maintained during that period, the Corps apparently

refuses to abide or even properly consider such requests.

Instead, navigation receives a full eight month season.

Again, it is clear from the evidence that the Corps, in

times of low water flows (as a result of drought or little

snow melt or both), always chooses to seriously impact

upstream states to continue navigation, “come Hell or low

water.” The more dire the water conditions upstream, the

more water that is released for downstream purposes.

There is no dispute about this being the Corps policy. It

may well be arbitrary and capricious.

App. 59

Requiring upstream fisheries to shoulder that burden

is perhaps made all the more unreasonable in light of the

expert testimony received by the court. An economics

expert called by the State detailed in a very persuasive

and detailed manner the rather meager, if any, economic

impact downstream navigation produces. The economic

impact of the upstream fisheries, however, continues to

grow; Lake Oahe alone outpaces navigation’s claimed

contributions (and the court believes that these claims are

highly overstated) almost three to one. Seven million

dollars annuz'ly is claimed for navigation compared with

Lake Oahe’s annual twenty million dollars. The evidence

presented was clear that barge traffic has consistently

declined greatly, will continue to decline greatly, and is of

little, if any, net economic value on the Missouri River.

The State’s expert effectively showed that the data and

studies relied upon by the Corps are not credible and

continue to be totally unrealistic as to barge traffic. Later

water releases (during the course of the summer and fall)

from the upstream dams would benefit barge traffic on the

Mississippi River and would result in higher Western Area

Power Administration electricity revenues.

The Corps’ decision to adhere to navigation’s sole

interest in a full eight month season at the expense of the

few weeks needed by upstream fisheries may well be

arbitrary and capricious. Of course, a decision on that

issue will come later. For purposes of the preliminary

injunction request, the State’s showing is easily sufficient.

The Corps gives no consideration to the fact that

South Dakota gave up over 530,000 acres of the most

productive and valuable farm land in the state to build the

dams and flood the land, all of which was and is designed

to protect downstream communities from flooding, i.e.

App 30

from loss of life and property. South Dakota has forever

lost the tax revenue that those acres would have produced.

In addition, the promised wide spread irrigation of the

James River Valley in South Dakota, an idea that primar-

ily drove the Pick-Sloan Plan, never materialized. While

that may have been a blessing in disguise, it is further

evidence that South Dakota has received rather little from

the dams and has given up much. The primary benefits

the dams produce in South Dakota are recreation, fish,

and wildlife. Destruction of the fisheries would deprive

South Dakota of the remaining benefit from having over a

half million of its acres flooded and forever lost. The

injunction should issue even without these facts.

It is clear that the State has standing to launch the

challenge here. Iowa, Nebraska, and Missouri, in State of

Missouri v. Andrews, 787 F.2d 270 (8th Cir. 1986), suc-

cessfully challenged action by the Secretary of Interior and

the State of South Dakota attempting to permit water to

be moved from the Oahe reservoir to Wyoming for the

purpose of a coal slurry pipeline. These states alleged that

this action threatened “their right to obtain sufficient

quantities of Missouri River water” for certain beneficial

purposes and claimed that “the planned depletion would

injure fish and wildlife habitats.” Id. at 276. The district

court in Nebraska found, inter alia, that the allegations of

injury to fish, wildlife habitats, and sewage disposal stated

a cause of action under the Fish and Wildlife Coordination

Act, 16 U.S.C. §§ 661, 1531. Id. at 277. The lower court

also held that the states had standing to invoke judicial

review of the agencies’ allegedly improper conduct under

the Administrative Procedure Act, 5 U.S.C. § 701 (1982).

Id. The Court of Appeals held: “We conclude that the states’

allegations of injury to the beneficial uses of Missouri River

EEE,

App. 61

Basin water, and to the fish and wildlife habitats which

this water supports, meet the injury-in-fact requirement.

The appellants’ argument that this injury is not fairly

traceable to their actions, nor likely to be redresse? by our

decision today, is unpersuasive.” Jd. It was also noved that

the decision by the Court of Appeals “does not address the

issue of South Dakota’s right, as against other states and

the federal government, to allocate waters within its

borders. This issue was not presented to us and South

Dakota is not a party to this case.” Jd. (FN 5).

Another issue before the Court of Appeals in 1986 was

the impact of Section Six of the Flood Control Act of 1944,

33 U.S.C. 708 (1982). This provides: “That the Secretary of

War is authorized to make contracts with States, munici-

palities, private concerns, or individuals, at-such prices

and on such terms as he may deem reasonable, for domes-

tic and industrial uses for surplus water that may be

available at any reservoir under the control of the War

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