Opposition Brief — North Dakota v. Ubbelohde

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Supreme Court, U.S.

FILED

HAR 5 5 2004

No. 03-935

In the Supreme Court of the Gnited States

NORTH DAKOTA, ET AL., PETITIONERS

Vv.

KURT F. UBBELOHDE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

THOMAS L. SANSONETTI

Assistant Attorney General

ANDREW MERGEN

ROBERT H. OAKLEY

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals erred in reversing two

preliminary injunctions that required the United States

Army Corps of Engineers to maintain water levels in

certain reservoirs in the Missouri River Main Stem

Reservoir System during the smelt-spawning season of

Spring 2002.

(I)

TABLE OF CONTENTS

Page

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REESE EE AE Oe ee Ee 2

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STITT “cesciaciiaitanieaintaninaddidnpetibeiniaeniasematiioeeteveneeeeteenenemessivetensenes 13

CONCLUSION ........ccecceceeeeeees Saeed adedbiceaeiiesteesinehienialabiieiasimaiiet 18

TABLE OF AUTHORITIES

Cases:

American Rivers v. U.S. Army Corps of Eng’rs,

271 F. Supp. 2d 230 (D.D.C. 2008) .........s.scccsecsseserererereeereees 12

Brotherhood of Locomotive Firemen v. Bangor &

Aroostock R. R., 389 U.S. 327 (1967) ......sccccccccscessesereeeseees 16

Brown v. Chote, 411 U.S. 452 (1978) ......cccccsccccsssssesseesseeees 16

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

SII chdeichiatainiincinieedeebibiceahdniacenenepetientteneintesdemenseteemeseenenmneesenees 14

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,

Eo 16

Missouri v. Bornhoft, No. 92-4206-CV-C-9

I TEs IID nseciccacesiisensinintgeeneetenensensenenensnseneneee 16

Missouri v. Craig, 978 F. Supp. 902 (W.D. Mo.

1997), vacated as moot, 163 F.3d 482 (8th Cir.

EEE EEE 15-16

Operation of the Missouri River Sys. Litig., In re,

27 F. Supp. 2d 1378 (J.P.M.L. 2008) ......cccscscscsssreseressresereees 12

Operation of the Missouri River Sys. Litig., In re,

03-MD-1555 (D. Minn. Feb. 26, 2004) ..........cccccssesscseseseseeees 12-13

University of Tex. v. Camenisch, 451 U.S. 390

UE ESS 16

Virginia Military Inst. v. United States, 508 U.S.

ee 16

Weinstein v. Bradford, 423 U.S. 147 (1975) .......cccccceseeees 11

(III)

Statutes: Page

Act of May 18, 1938, ch. 250, 52 Stat. 403 oc eseeeeeeeeees 3

Administrative Procedure Act, 5 U.S.C. 701 et seq.:

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Tt: SUID hactesivcneilinesinnceniabenidandiciichntashiniabdecisieiiahetbabliaadebeiaias 6

Flood Control Act of 1944, ch. 665, 58 Stat. 887 .........0 2

River and Harbor Act of 1935, ch. 831, 49 Stat. 1028 ......... 3

ae es: THEE cccetenicinditdiniiapeendintamsarabintdadininlinieidietngrsuntemnubemetas 3

ay Sra teta: TUE cocnibcctonnseinisestectanenieilaatacitinaelinidadeeeteamumetiuipiainiiaandiamenihe 3

Miscellaneous:

Robert L. Stern, et al., Supreme Court Practice

As MTITEE cncsnntinietiiacapesictoninversiashededitareatiiminiamaineimnine titetiii 16

Jn the Supreme Court of the United States

No. 03-935

NORTH DAKOTA, ET AL., PETITIONERS

Vv.

KURT F. UBBELOHDE, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-34) is

reported at 330 F.3d 1014. The order of the district

court for the District of South Dakota granting the

State of South Dakota a temporary restraining order

prohibiting the lowering of water levels in Lake Oahe

(Pet. App. 35-48) is unreported. The order of the

district court for the District of South Dakota granting

South Dakota a preliminary injunction prohibiting the

lowering of water levels in Lake Oahe and Lake

Francis Case (id. at 49-63) is unreported. The order of

the district court for the District of North Dakota

granting the State of North Dakota a temporary

restraining order prohibiting the lowering of water

levels in Lake Sakakawea (id. at 64-65) is unreported.

(1)

The order of the district court for the District of North

Dakota entering a preliminary injunction prohibiting

the lowering of water levels in Lake Sakakawea (id. at

69-71) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

June 4, 2003. Petitions for rehearing en banc were

denied on September 30, 2003 (Pet. App. 82). The

petition for a writ of certiorari was filed on December

29, 2003. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

STATEMENT

This case involves a series of temporary restraining

orders (TROs) and preliminary injunctions issued by

the federal district courts of North Dakota, South

Dakota, and Nebraska involving the operation of dams

and reservoirs along the Missouri River controlled by

the United States Army Corps of Engineers (the

Corps). The TROs and preliminary injunctions issued

by the North Dakota and South Dakota district courts

prohibited the Corps from lowering water levels in

certain Missouri River reservoirs within those States.

The preliminary injunction issued by the Nebraska

district court required the Corps to maintain certain

minimum water flows in the Missouri River. The court

of appeals reversed the preliminary injunctions entered

by the North Dakota and South Dakota district courts

and remanded for further proceedings, but affirmed the

preliminary injunction issued by the Nebraska district

court. Pet. App. 1-34.

1. Congress enacted the Flood Control Act of 1944

(Flood Control Act or Act), ch. 665, 58 Stat. 887, to

provide for the comprehensive management of the

waters of the Missouri River Basin. The Act and other

legislation authorized the Corps to build and operate a

series of six dams and associated reservoirs comprising

the Missouri River Main Stem System of Reservoirs

(Main Stem System), which are situated in North

Dakota, South Dakota, Nebraska, and Montana.' The

Act authorizes the Corps to contract for the use of

surplus water available at the reservoirs, 33 U.S.C. 708,

and to “prescribe regulations for the use of storage

allocated for flood control or navigation at all reser-

voirs,” providing that “the operation of any such project

shall be in accordance with such regulations.” 33 U.S.C.

709. The Act and its legislative history identify pur-

poses that the Corps is to serve in operating the Main

Stem System, including flood control, the provision of

hydropower, irrigation, recreation, navigation, water

supply and water quality, recreation, and the pre-

servation of fish and wildlife. Pet. App. 4-5, 102.

The Corps has developed a water control plan for

operation of the Main Stem System that is designed to

serve the congressionally identified purposes of the

Act. The guidelines used in the execution of that water

control plan are embodied in the Missouri River Main

Stem Reservoir System Master Reservoir Regulation

Manual, commonly known as the “Master Manual.” Pet.

1 The six Main Stem System dams are as follows, with the as-

sociated reservoirs identified in parentheses: Garrison Dam (Lake

Sakakawea), Oahe Dam (Lake Oahe), Big Bend Dam (Lake

Sharpe), Fort Randall Dam (Lake Francis Case), Gavins Point

Dam (Lewis and Clark Lake), and Fort Peck Dam (Fort Peck

Lake). Congress authorized construction and operation of the Fort

Peck Dam in Montana in the earlier River and Harbor Act of 1935,

ch. 831, 49 Stat. 1028, for the purpose of flood control and naviga-

tion. Its authorization was amended in 1938 to add the purpose of

providing hydroelectric power. See Act of May 18, 1938, ch. 250, 52

Stat. 403.

App. 6. The Master Manual was first published in 1960,

and the current version was issued in 1979. Jd. at 37.

The 1979 Master Manual sets forth the Corps’ general

approach for operating the reservoirs, which calls for it

to consider the congressionally identified interests in

making operational decisions. /d. at 6. The 1979

Master Manual sets forth a “general approach” of

priorities for the interests served by the Main Stem

System. Master Manual § 9-3, pp. [X-1. It gives flood

control the highest priority, followed in order by irri-

gation (and “other upstream water uses for beneficial

consumptive purposes”), downstream water supply and

water quality requirements, navigation and power,

recreation, and fish and wildlife. Jd. at IX-1 to IX-2; see

Pet. App. 32. The Corps has for several years been pre-

paring an updated version of the Master Manual. In

addition, each year, the Corps promulgates an Annual

Operating Plan (AOP), which sets forth its plans on how

it will operate the Main Stem System for that coming

year. The Corps develops each year’s AOP in coopera-

tion with federal and state agencies, local governments,

and citizens in an effort to address the multiple

purposes for which it operates the Main Stem System.

Pet. App. 7. Because of limitations on long-term

weather forecasting, each year’s AOP lays out alterna-

tive plans for operation of the System depending on the

amount of carry-over storage in the reservoirs and the

precipitation the Missouri River Basin receives.

2. The dispute in this case arose out of the prolonged

drought conditions that the Missouri River Basin has

experienced over the last several years. The shortage

of water has required the Corps to make decisions

about the allocation of water among competing inter-

ests (Pet. App. 3, 7), and to design a plan of operations

that satisfied to the greatest extent the competing

purposes of the Flood Control Act. In drought years,

the Corps generally tries to maintain steady or rising

water levels in five of the six Main Stem System

reservoirs while drawing down water in one of the

three largest reservoirs (Lake Sakakawea, Lake Oahe,

and Fort Peck Lake) to ensure that enough water is in

the Missouri River to support downstream uses, in-

cluding navigation, water supply, and water quality (i.e.

sanitation) requirements. Jd. at 7, 29, 31. The Corps

generally attempts to shift the burden of supplying

downstream needs between reservoirs from year to

year during drought periods. Jd. at 7. In the 2002

AOP, the Corps decided to provide for downstream

uses by releasing water from Lake Oahe in South

Dakota, the second-largest reservoir in the System, see

id. at 5, because that reservoir’s water level had not

been reduced the previous year (indeed, it had in-

creased). /d. at 7.

a. South Dakota informed the Corps that it believed

that declining water levels at Lake Oahe would harm

the spawn of the rainbow smelt, a prey species that

provides an important source of food for walleye, a

popular trophy fish in the lake. Pet. App. 7-8. South

Dakota claimed that losses to smelt would in turn

inhibit the growth of walleye stocks, and would harm

economic interests by reducing recreational fishing on

the lake. Ibid. The Corps declined to alter its AOP

either by drawing down another reservoir or by

curtailing the navigation season on the Missouri River.

On May 2, 2002, South Dakota obtained a temporary

restraining order from the district court for the District

of South Dakota, which prohibited the Corps from

lowering water levels at Lake Oahe until May 11, 2002.

Id. at 35-48. The order emphasized that the TRO

affected only Lake Oahe and that “[iJf the Corps desires

to draw down other reservoirs, it is free to do so.” Id.

at 47. The Corps then began drawing down Lake

Francis Case, also in South Dakota, to provide for

downstream uses. /d. at 50.

On May 13, 2002, after a hearing, the court issued a

preliminary injunction prohibiting the Corps from

lowering the water levels of both Lake Oahe and Lake

Francis Case until May 25, 2002. Pet. App. 49-63. The

court concluded that South Dakota had shown a

likelihood of success on the merits on two arguments:

first, that judicial estoppel supported issuance of an

injunction, based on the argument that the Corps had

represented to the district court for the District of

Montana during litigation in the early 1990s that the

Corps would give equal weight to all water uses and not

favor navigation, and that in choosing to draw down

Lake Oahe and Lake Francis Case the Corps allegedly

had failed to abide by that representation (Pet. App. 56-

57); and second, that the Corps’ decision to provide for

“a full eight month [navigation] season” at the expense

of upstream fisheries of arguably greater economic

value “may well be arbitrary and capricious” (id. at 59)

and thus violative of the Administrative Procedure Act,

5 U.S.C. 706. The court stated that it believed the

Corps’ decision was “largely due to the Corps’ reliance

on out-dated and inaccurate information to guide its

operations,” specifically the 1979 Master Manual, which,

it observed, “has been for years in need of substantial

revision.”* Pet. App. 57-58.

b. The South Dakota TRO had a “cascading effect.”

Pet. App. 9. To provide for downstream uses in light of

2 Before the hearing on the preliminary injunction, the State of

Nebraska and several private entities had moved to intervene in

the case, but the district court denied intervention. Pet. App. 9.

restrictions on Lake Oahe, the Corps planned to draw

down Lake Sakakawea in North Dakota, the largest

reservoir in the Main Stem System. Pet. App. 5. The

State of North Dakota then brought suit in the district

court for the District of North Dakota seeking to enjoin

the Corps from lowering that reservoir. The district

court entered a TRO on May 12, 2002, requiring the

Corps to maintain that lake’s water level for a period of

ten days. Jd. at 64-65. When the TRO expired, the

court converted it, with the agreement of the parties

(who reserved the right to appeal), into a preliminary

injunction that would expire on May 25, 2002. Jd. at 66-

71. The Corps then planned to accommodate down-

stream interests by lowering Fort Peck Lake in

Montana, but the State of Montana, on May 13, 2002,

obtained a TRO from the district court for the District

of Montana prohibiting the Corps from increasing

releases of water from that reservoir for a period of ten

days.’ See id. at 9 n.2; id. at 72-74.

c. After the South Dakota district court denied the

State of Nebraska permission to intervene in the

lawsuit involving Lake Oahe and Lake Francis Case,

see note 2, supra, Nebraska sought injunctive relief

from the district court for the District of Nebraska in

an effort to ensure the maintenance of minimum water

flow rates in the Missouri River necessary for naviga-

tion. On May 18, 2002, that court issued a preliminary

injunction requiring the Corps to “maintain the

* Because of the great distances involved, it was unclear

whether water released from Fort Peck Lake could reach the

navigable part of the Missouri River before the North Dakota and

South Dakota injunctions expired. Accordingly, the Corps did not

appeal the preliminary injunction entered in Montana, and Mon-

tana did not further pursue its case against the Corps. Pet. App. 9

n.2.

minimum navigation flows below Gavins Point Dam,”

the most downsteam dam in the Main Stem System, “as

identified in the 1979 Master Manual and current

[AOP].” Pet. App. 80-81. The district court stated 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 water 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.” Jd. at 80. This series of injunctions and TROs

left the Corps able to use water from only the two

smallest reservoirs in the Main Stem System to

maintain water flows sufficient for navigation and other

downstream uses. See id. at 10.

3. Faced with the need to comply with potentially

conflicting injunctions, on May 17, 2002, the Corps filed

a motion for a stay of the North Dakota, South Dakota,

and Nebraska injunctions pending appeal. On May 22,

2002—three days before the South Dakota and North

Dakota injunctions were to, expire by their own

terms—the court of appeals granted the Corps’ motion.

Pet. App. 10.

4. The court of appeals reversed the South Dakota

and North Dakota injunctions and remanded those

eases for further proceedings, but it affirmed the

Nebraska injunction. Pet. App. 1-34. The court did not

address at length the irreparable injury, balance of

harms, or public interest considerations bearing on the

propriety of the preliminary injunctions, concluding

that “(t]he dispositive issue * * * is the likelihood that

each plaintiff would succeed on the merits.” Jd. at 20.

a. The court first rejected the Corps’ argument that

determinations about the operation of the Main Stem

System were committed to agency discretion by law

under 5 U.S.C. 701(a)(2) and therefore were not subject

to judicial review. Pet. App. 20-26. While agreeing

that the Flood Control Act “clearly gives a good deal of

discretion to the Corps in the management of the

River,” id. at 21, the court held that such “discretion is

not unconstrained” because the Act “lays out purposes

that the Corps is to consider in managing the River,”

ibid. Because the Flood Control Act “calls upon the

Corps to balance” the interests of “flood control,

navigation, recreation, and other interests,” the court of

appeals concluded that courts “can review the Corps’s

decisions to ensure that it considered each of these

interests before making a decision.” Jbid. The court

further concluded that the “minimal guidance provided

by the Flood Control Act,” id. at 22, does not provide “a

method of deciding whether the balance actually struck

by the Corps in a given case is correct or not,” zd. at 21.

But the court noted that the 1979 Master Manual “sets

out priorities and directs the Corps to take certain

actions in given situations.” Jd. at 22. The court held

that the 1979 “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.” Jbid. Because courts

could “review the Corps’s actions to ensure conformity”

with the 1979 Master Manual (id. at 26), the court of

appeals held that “there is sufficient law to apply” that

decisions about the operation of the Main Stem System

are not committed to agency discretion by law. Jbid.

b. The court of appeals next held (Pet. App. 26-31)

that the South Dakota district court erred in issuing the

preliminary injunction restraining the Corps from

lowering water levels in Lake Oahe and Lake Francis

Case because the State of South Dakota was unlikely to

succeed on the merits of its claims. The court rejected

South Dakota’s claim that the relevant standard in

reviewing the Corps’ decisions was whether it had

“maximize[d] the benefits to all interests” (id. at 27),

concluding that such a standard is inconsistent with

general administrative law principles because it would

afford Corps decisions “no deference” and would re-

quire review of agency decisions “no matter how

minute.” Jd. at 28. The court also rejected the State’s

reliance on the proposition that “judicial estoppel

require[d] the Corps to give equal consideration to

recreation and other interests including navigation”

because of representations the Corps allegedly had

made during previous litigation in the Montana district

court. Jbid. The court observed that, even assuming

that the elements of judicial estoppel were present in

this case, “the Corps’s decision to lower one reservoir

per year during a drought simply does not provide any

proof that the Corps was not giving recreation equal

consideration” (id. at 29-30), because “[e]qual considera-

tion does not mean” that interests in recreation would

necessarily prevail. Jd. at 29; see also ibid. (noting that

“South Dakota has presented no evidence that the

Corps did not give equal consideration to recreation”

and that “the Corps maintains that it considered the

interests of recreation equally”). Finally, the court

explained that the Corps’ decision was not arbitrary

and capricious under the APA:

The Corps provided a rational basis for its decision

to lower one reservoir per year during drought

conditions. The Corps had evidence that every res-

ervoir did not need to have a good spawn each year

to maintain the fish stocks. * * * 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.

Id. at 30-31.

For similar reasons, the court concluded that “the

North Dakota District Court erred in entering a

preliminary injunction” in favor of North Dakota, Pet.

App. 32, rejecting the “quite similar” (id. at 31) argu-

ments North Dakota had proffered in defense of that

injunction. The court remanded both the South Dakota

and North Dakota cases to their respective district

courts for further proceedings.’ Jd. at 31, 32.

c. Finally, the court of appeals held that the

Nebraska district court had properly concluded that the

1979 “Master Manual * * * binds the Corps” and that

Nebraska “was entitled to an order that the Corps

* The court of appeals erroneously stated that the Corps

rotated among all six reservoirs in the Main Ste-> System. As

explained above, see p. 5, supra, the Corps generally alternates

among only the three largest reservoirs in the system.

° The court concluded that the expiration of the South Dakota

and North Dakota preliminary injunctions did not render moot the

appeals of those injunctions, because the cases fell within the

exception to the mootness doctrine for questions “capable of repe-

tition, yet evading review,” Pet. App. 11 (quoting Weinstein v.

Bradford, 423 U.S. 147, 149 (1975)). The court reasoned that in-

junctions barring water releases during spawning periods would

“never last long enough to allow for full litigation because of the

brevity of spawning season,” id. at 12, and “the questions pre-

sented in this appeal are likely to recur” in light of continuing

drought conditions along the Missouri River. [bid. The court also

concluded that the South Dakota district court had erred in

denying the State of Nebraska and private entities intervention.

Id. at 12-18. Those determinations are not at issue before this

Court.

abide by its own formally adopted policies.” Pet. App.

32-33. Although it observed that “[p]robably the Corps

should be accorded some flexibility” to depart from the

1979 Master Manual “when unforeseen circumstances

arise,” id. at 33, the court “le[ft] such questions to the

District Court to decide on remand if necessary.” The

court vacated its stay of the Nebraska injunction and

remanded for further proceedings.

5. Shortly after the court of appeals issued its

opinion, the district court for the District of Columbia

issued an injunction limiting the Corps’ discharge of

water from the reservoirs into the lower Missouri

River. American Rivers v. U.S. Army Corps of Eng’rs,

271 F. Supp. 2d 230 (D.D.C. 2003). The court issued

that injunction because it had concluded that lower

discharges were needed to protect certain species of

fish and birds listed as threatened and endangered

under the Endangered Species Act. Jd. at 262-263.

That injunction appeared to conflict with the injunction

issued by the Nebraska district court, which required

higher water flows from the reservoirs to maintain

navigation in accordance with the 1979 Master Manual.

The Judicial Panel on Multidistrict Litigation

subsequently consolidated all of the district court cases

addressed by this petition and the American Rivers

litigation before a single district court in the District of

Minnesota for pretrial procedures. In re Operation of

the Missouri River Sys. Litig., 277 F. Supp. 2d 1378

(J.P.M.L. 2003). As part of that ongoing litigation, and

in order to ensure that any litigation over the Corps’

2004 AOP will be resolved in a timely manner, that

district court has ordered the Corps to produce its

revised Master Manual (and 2004 AOP) by March 19,

2004. See Memorandum and Order, In re Operation of

the Missouri River Sys. Litig., 083-MD-1555 (PAM), at 8

(D. Minn. Feb. 26, 2004). The Corps expects to meet

that deadline.

ARGUMENT

Petitioners contend that the court of appeals mis-

interpreted the Flood Control Act by concluding that it

“obligates the Corps to give priority to flood control

and navigation” (Pet. 25) at the expense of recreation,

and that the Corps has consistently and impermissibly

favored navigation at the expense of recréational

interests. Jbid. Petitioners also claim that “the 1979

Master Manual that the Corps uses to manage the

river is outdated and requires revision.” Pet. 20. Peti-

tioners argue that this Court should grant review “to

authoritatively define what priorities bind the Corps of

Engineers and the degree of flexibility that it has in

applying those priorities.” Pet. 27. None of those

contentions furnishes a basis for certiorari here. The

court of appeals’ decision reversing the North Dakota

and South Dakota injunctions is correct and does not

conflict with any decision of this Court or of any other

court of appeals. Review therefore is unwarranted,

particularly in view of the interlocutory posture of the

case and the Corps’ expected issuance of the revised

Master Manual addressing the operation of the Main

Stem System.

1. Petitioners err in contending that the court of

appeals held that “the 1944 Flood Control Act obligates

the Corps to give priority to flood control and naviga-

tion” (Pet. 25) and that “the Corps has a duty to

generally prefer navigation over recreation” (Pet. 21);

see also Pet. 19 (stating that the court of appeals’

decision “gives a preference to * * * navigation”).

The court of appeals’ decision does not establish

priorities among the interests recognized by the Act

that the Corps must follow in operating the Main Stem

System. While the court stated that “(t]he Act

recognizes what the Supreme Court has called the

dominant functions of the River’s reservoir system—

flood control and navigation,” Pet. App. 21 (citing ETS]

Pipeline Project v. Missouri, 484 U.S. 495, 512 (1988)),

see also id. at 5, 32, the court did not say that the Act

requires that those two functions be given priority at

the expense of other functions, including recreation.°

The court of appeals stated in the very next sentence

that “the Act also recognizes recreation and other

interests * * * that should be provided for,” id. at 21,

and the court noted that the Corps must “consider[]

each of these interests before making a decision.” [bid.

The court further stated that “the Flood Control Act

calls on the Corps to balance these various interests”

(ibid.), and did not suggest that the Act requires that

navigation be favored in that analysis. Indeed, the

court pointed out that the Flood Control Act provides

only “minimal guidance” (id. at 22) and “does not

provide * * * a method of deciding whether the

balance actually struck by the Corps in a given case is

correct or not.” /d. at 21.

6 As petitioners note (Pet. 26), in ETSI Pipeline, the Court

stated that the Sloan Plan proposed by the Corps before passage of

the Flood Control Act “recognized that the ‘dominant function’ of

Lake Oahe and the other main-stem reservoir projects would be

flood control and navigation.” 484 U.S. at 512. The Court’s

description of the “dominant function” of the reservoirs under the

Sloan plan was relevant in determining whether operation of the

Main Stem reservoirs would come within the jurisdiction of the

Corps or the Department of the Interior. See ibid. The Court did

not address the issues in this case concerning the Corps’ own

balancing of competing uses for water.

Although the court of appeals concluded that the

Corps had not acted “impermissibl[y]” (Pet. App. 32) in

the 1979 Master Manual by giving navigation priority

over recreation, there is no indication the court be-

lieved that priority was required by the Flood Control

Act. Rather, the court noted that “[t]he Flood Control

Act provides little guidance about what priority the

Corps can or must give to different interests.” Ibid.

While the court noted that “the sequential listing of

interests” in the Act, which “uniformly lists navigation

before recreation,” suggests that “the Corps’s primary

concerns should be flood control and navigation,” ibid.

(emphasis added), the court did not say that the Act

requires navigation to be given priority over recreation

as a general matter or in all respects much less that the

Act itself required the Corps to make the decision it did

in 2002 to lower water levels in Lake Oahe. Moreover,

the fact that the court noted that “South Dakota has

presented no evidence that the Corps did not give equal

consideration to recreation” (id. at 29; see also id. at 29-

30 (noting absence of “proof that the Corps was not

giving recreation equal consideration” with navigation,

and that “the Corps maintains that it considered the

interests of recreation equally”)) belies petitioners’

claim that the court considered the Corps bound under

the Act to give priority to navigation over recreation.’

7 Petitioners err in contending (Pet. 25) that the Corps con-

sistently favors navigation over upstream interests. Since the

early 1990s, the Corps has given equal consideration to all the

purposes outlined in the Flood Control Act and its legislative

history. Petitioners’ claim also overlooks the fact that the Corps

has, in the past, shortened the navigation season to protect up-

stream reservoirs during drought years. See, e.g., Missouri v.

Craig, 978 F. Supp. 902, 905 (W.D. Mo. 1997) (suit brought by

Missouri challenging Corps’ shortening of navigation season),

2. In addition, this Court ordinarily does not review

interlocutory decisions of the sort at issue here.

Brotherhood of Locomotive Firemen v. Bangor &

Aroostock R. R., 389 U.S. 327, 328 (1967) (per curiam);

Virginia Military Inst. v. United States, 508 U.S. 946

(1993) (opinion of Scalia, J., respecting denial of

certiorari); see generally Robert L. Stern, et al.,

Supreme Court Practice § 4.18, at 258 (8th ed. 2002).

Petitioners sought preliminary injunctions to prevent

harm to smelt spawns during the pendency of their

lawsuits challenging the Corps’ plan to lower the water

levels in certain reservoirs during the 2002 season. The

court of appeals did not render a final judgment on the

merits of their suits, which remain pending in district

court, but simply determined the propriety of the

granting of preliminary injunctions in light of its assess-

ment of petitioners’ likelihood of success, and remanded

for further proceedings. See Pet. App. 31, 32. See

generally University of Tex. v. Camenisch, 451 U.S.

390, 395 (1981) (noting difference between standard for

preliminary injunction and final judgment); Brown v.

Chote, 411 U.S. 452, 456 (1973) (same). Petitioners will

be able to seek review of any final judgment entered in

those cases. Because the injunctions issued to peti-

tioners have expired by their own terms (see Pet. 13-

14), there is no pressing need for this Court to review

the court of appeals’ decision. The lack of finality of the

judgment below is “of itself alone” a “sufficient ground

for the denial of the [writ].” Hamilton-Brown Shoe Co.

v. Wolf Bros. & Co., 240 U.S. 251, 258 (1916).

vacated as moot, 163 F.3d 482 (8th Cir. 1998); Missouri v.

Bornhoft, No. 92-4206-CV-C-9 (W.D. Mo. Aug. 28, 1992) (same; oral

ruling denying preliminary injunction).

3. An additional reason why review is not now

warranted is that events likely will substantially affect

the future course of legal proceedings concerning the

Corps’ operation of the Main Stem System. One of

petitioners’ basic claims is that the 1979 Master Manual

places too little emphasis on recreation and too much on

navigation. See, e.g., Pet. 20 (“the 1979 Master Manual

that the Corps uses to manage the river is outdated and

requires revision”). Indeed, the South Dakota district

court stated, in granting its preliminary injunction, that

“i]t is that [1979] Master Manual which * * * fuel[s]

the on-going controversy between the parties” by _

giving navigation a higher priority than recreation.

Pet. App. 37. In accordance with a scheduling order in

the consolidated Missouri River litigation of which this

case is a part, the Corps expects that it soon will release

a revised Master Manual that will supersede the 1979

version. See pp. 12-13, supra. The Corps anticipates

that the new Master Manual will make important

changes. For example, the Corps has proposed in a

draft of the new manual that, unlike the 1979 Master

Manual, the new manual will not list any specific

priorities among the interests recognized by the Flood

Control Act, but rather will embody the Corps’ current

policy of weighing all interests equally and maximizing

- to the extent possible all interests. That revision, if

adopted, would effectively give petitioners the relief

they have been seeking—an assurance that “the Corps

should ‘give all water uses equal consideration’” (id. at

15 (quoting First Amended Compl. para. 39, South

Dakota v. Ubbelohde, Civ. 02-3011 (D.S.D. filed Apr. 30,

2002))) in making decisions about the operation of the

Main Stem System reservoirs and dams.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.