Petition for Writ of Certiorari — North Dakota and South Dakota v. United States Army Corps of Engineers (No. 05-611)

5

Construction of Missouri River dams came at a price.

They 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. Re-

sources J. 477, 479 (1996). South Dakota lost 520,000

acres to the reservoirs and North Dakota sacrificed 584,060

acres. Id. Huge amounts of rich farm land as well as towns

were inundated. Flooding riparian lands upset “it/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, at 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’s cut banks erode at rates

as high as 19 feet a year. JA 07287. The Mandan, Hidatsa,

and Arikara Nation describes the erosion as “‘extensive.’”

Id. Thus, the loss of agricultural land in the upper basin

continues and unstable banks expose and destroy sacred

and cultural sites. JA 08421-22, 08434-44 (Tribal Stmts.).”

For their sacrifices, the upper basin states were to

receive massive irrigation projects. E.g., ETSI Pipeline

Project v. Missouri, 484 U.S. 495, 508 (1988); James River

Flood Control Ass'n v. Watt, 553 F.Supp. 1284, 1287

(D.S.D. 1982). This promise remains unfulfilled. E.g.,

ETSI Pipeline, 484 U.S. at 509, n.5; North Dakota, 270

* Citations to “JA” are to the Joint Appendix filed with the court

below. Unless otherwise noted, all Joint Appendix citations are to the

Corps’ 2004 Final Environmental Impact Statement. Citations to “ND

App.” are to the appendix North Dakota filed with the court below

F.Supp.2d at 1129. Without question, “the upper basin

states and ... tribes have been short-changed in the

management of the Missouri River.” Beck, supra, at 490.

Though the promised irrigation never occurred, up-

stream states developed the reservoirs into recreation

destinations. JA 07390; North Dakota, 270 F.Supp.2d at

1129. The primary attraction is fishing. JA 07392. The

reservoirs are world class sport fisheries. North Dakota, 270

F.Supp.2d at 1129; JA 07363. Anglers in turn support busi-

nesses near and on the road to the reservoirs. JA 07390.

The economic value provided by Missouri River recrea-

tion is significant, even though it has yet to fully develop.

The Corps sets the river’s annual recreation value at $87

million. JA 07198. South Dakota sets the annual value of its

Missouri River fishery at $51 milion. North Dakota, 270

F. Supp. 2d at 1130. North Dakota calculates the annual

value of Lake Sakakawea’s fishery to be at least $23 million.

Id. at 1129; JA 00133-35 (Schultz Aff.). Low elevations can

cost the states millions of dollars a year. Jd. at 00134-35.

Upstream facilities have other important purposes. For

example, the dams produce hydropower worth $674 million a

year. JA 07195-96. Hydropower generating capacity depends

on water elevations in the reservoirs, that is, the “head.” JA

07385. As the elevation declines the head decreases, drop-

ping generating capacity proportionally. Jd. The more water

retained in the reservoirs, the better able the Corps can

satisfy the Flood Control Act’s hydropower objectives. See,

e.g., JA 05081 (NAS Study); JA 00033 (GAO Report).

The lower basin’s attempt to develop a viable down-

stream navigation industry has failed. Despite the fact that

years ago the government built in the lower basin a naviga-

tion channel and continues to maintain it, navigation,

which requires “lavish amounts of water, [has] not devel-

oped into an enterprise of noticeable size or need.” John H.

Davidson & Thomas Ear! Geu, The Missouri River and

Adaptive Management: Protecting Ecological Function and

Legal Process, 80 Neb. L. Rev. 816, 836 (2001). Maintain-

ing a navigation channel costs the Corps about $7 million

a year, see JA 07274, while the navigation industry has an

annual value of only $9 million. JA 07195. Missouri River

commerce delivers less than 1% of the river’s economic

benefits. See JA 07193-98, 07859. The $7 million it costs

the public to maintain a navigation channel is near the

diminishing industrys $9 million value. Indeed, the

industry may have an annual value of only $1-2 million.

Thorson, supra, at 125 n.13.

The industry is not only small, it has been declining

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

little, if any, net economic value.” South Dakota v. Ubbe-

lohde, CIV No. 02-3011, Prelim. Inj. at 7-8 (D.S.D. May 14,

2002). Navigation tonnage peaked in 1977 at 3.3 million

tons. JA 07408. Less than two million tons of commercial

goods have been transported annually since 1988, and in

2002 and 2003 only 1.1 million tons were transported. JA

08701 (Master Manval). The Missouri, despite its volume

of water, its length, and the money spent on it, carries

much less commerce than many other rivers. JA 01351-52

(Stearns Report). For example, from 1940 to 1996 Missis-

sippi River commerce rose from 30 million to 520 million

tons. JA 07411.

A district court describes the economic value of down-

stream navigation as “rather meager.” South Dakota v.

Ubbelohde, CIV No. 02-3011, Prelim. Inj. at 7 (D.S.D. May

14, 2002). Commentators describe the industry as “mori-

bund,” “an experiment that has failed,” and “the army’s

8

bad joke.” 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, 935 (1992); Davidson &

Geu, supra, at 836; Lawson, supra, at 187. But under the

ruling below, relying on an incorrect reading of the 1944

Act, the Missouri River is to be managed largely for a

stagnant navigation industry, at the expense of other more

valuable and widespread uses.

D. Litigation History

While the allure of trophy walleye drives upstream

recreation, the walleye cannot survive without its primary

food source, the rainbow smelt. The smelt spawn occurs

each spring when the smelt lay their eggs near the sur-

face. South Dakota v. Ubbelohde, 330 F.3d 1014, 1021 (8th

Cir. 2003). If the water recedes the eggs will die after a few

minutes of exposure to the air. Jd. A successful smelt

spawn requires stable or rising water. In 2002 the Corps

threatened to destroy the smelt and sacrifice upstream

fisheries by sending water downstream for navigation. If

the smelt population crashed, the economic consequences

would be devastating. JA 00135 (Schultz Aff.); North

Dakota, 270 F.Supp.2d at 1130. The threat to the smelt

triggered litigation. App. at 6.

To protect its spawn, South Dakota obtained an

injunction prohibiting the Corps from drawing down South

Dakota reservoirs. /d. In response, the Corps intended to

draw down North Dakota's Lake Sakakawea and Mon-

tana’s Ft. Peck Reservoir. To protect their fisheries, these

two states obtained injunctions. Jd. A successful smelt

spawn, however, is not the Dakotas only concern. “Water

levels are a key factor in use of the lakes ... At low lake

9

levels, some boat ramps are unusable.... For aesthetic

reasons, some visitors are less likely to frequent lakes . . .

Certain kinds of fishing and hunting are dependent upon

lake levels.” JA 07390.*

After the upstream states sued, Nebraska filed an

action in the District of Nebraska. The State of Missouri

intervened. The Nebraska District Court ordered the

Corps to comply with its 1979 Missouri River Master

Manual. App. at 6. Faced with several injunctions, the

Corps appealed.

In 2003 and while the appeal was pending, Montana

dismissed its suit but new suits were filed. Private down-

stream interests, led by Blaske Marine, Inc., sued federal

agencies and the upper basin states. See App. at 36, 59-60,

65-68, 75-87. Among their claims were challenges to

walleye stocking programs in the upper basin and agency

decisions under the Endangered Species Act (“ESA”),

NEPA, and the 1944 Flood Control Act. North Dakota

brought a second suit. Lake Sakakawea’s draw down

* Low water has interrupted drinking water supplies. In November

of 2003 North Dakota communities on Lake Oahe lost their water.

About 10,000 Sioux County residents and the towns of Fort Yates,

Cannon Ball, and Porcupine were affected. M. Albrecht, Reserve

Supplies Are Running Dry, Bismarck Trib. 1A (Nov. 26, 2003). See also

JA 08430 (Tribal Stmt.) In 2003 a week-long dredging project protected

the city of Mandan’s intake. L. Donovan, Mandan Water In Jeopardy,

Bismarck Trib. 1A (Sept. 24, 2003); R. Hinton, Dredging Should Be

Finished Next Week, Bismarck Trib. 1 (Sept. 30, 2003). The small town

of Garrison spent $400,000 to secure its Lake Sakakawea water supply.

L. Donovan, Garrison's Water Supply Secure For Now, Bismarck Trib.

1B (Jan. 9, 2005). South Dakota's Cheyenne River Sioux Tribe’s water

intakes are threatened by low reservoir levels. JA 08397. The Corps

states that more water supply disruptions can be expected if water

levels decline further, “particularly” in the upper basin. ND Appx. at 28

(2004-05 AOP). See also JA 08409 (Tribal Stmt.).

10

removed so much water that the lake’s cold water habitat

— on which the walleye as well as the salmon depend — was

in jeopardy. As the lake dwindles, the temperature of

deeper water rises to a point that threatens the cold water

habitat and risks violating water quality standards

adopted by North Dakota under the federal Clean Water

Act. E.g., JA 07665-66; ND Appx. at 26 (2004-05 AOP).

North Dakota asserted that high releases from Lake

Sakakawea violated the state’s water quality standards.

The district court ultimately dismissed North Dakota’s

suit. North Dakota v. United States Army Corps of Engi-

neers, 320 F.Supp.2d 873 (D. Minn. 2004). The Eighth

Circuit affirmed. 418 F.3d 915. North Dakota intends to

file a petition for certiorari in that case. Also in 2003

environmental groups, led by American Rivers, filed suit

in the District of Columbia, asserting that the government

violated the ESA by failing to protect three species that

need Missouri River habitat for survival — the pallid

sturgeon, the piping plover, and the least tern. App. at 10-

11.

Thus, seven suits were filed in five different districts

over the Corps’ river management — the South Dakota,

North Dakota, Nebraska/Missouri, and Montana suits in

2002, and the 2003 Blaske Marine, No:th Dakota, and

American Rivers suits.’ Additional parties intervened in

some of the suits. For example, the Mandan, Hidatsa, and

Arikara Nation — a North Dakota Indian tribe — inter-

vened, as did the Missouri River Energy Services — a

coalition of Midwestern cities owning electric utilities. The

Nebraska Public Power District became a litigant.

* In the litigation below, federal jurisdiction was founded on 28

U.S.C. § 1331.

11

In the summer of 2003 the litigation was consolidated

in the District of Minnesota. App. at 11. Also that summer,

the Eighth Circuit issued a decision on the Corps’ appeal

of the 2002 injunctions. South Dakota v. Ubbelohde, 330

F.3d 1014 (8th Cir. 2003). Relying primarily on E7SI

Pipeline, the court ruled that while the 1944 Flood Control

Act requires the Corps to balance all uses, it gives naviga-

tion a priority. Jd. at 1019-20.

North Dakota and South Dakota filed a petition for

certiorari. The federal government opposed the petition.

North Dakota v. Ubbelohde, No. 03-935, Brief of the

Federal Respondents in Opposition (Mar. 2004). It argued

that the Dakotas misread Ubbelohde. Id. at 13-15. It

asserted that the court of appeals had not interpreted the

1944 Flood Control Act to give navigation a priority. Jd. at

14. The government also argued that the decision was

interlocutory. Ubbelohde reviewed injunctions and “did not

render a final judgment on the merits.” Jd. at 16. The

government next argued that the Corps would soon issue 4

revised Master Manual that would likely make “importanv

changes” in the Corps’ river management. Jd. at 17.

Missouri, Nebraska, and a downstream organization, MO-

ARK Association, also opposed the petition. The petition

was denied. 541 U.S. 987 (2004).

While the petition was pending litigation continued in

the lower courts. Summary judgment motions were filed

with the district court in Minnesota. It issued its decision

in June of 2004. App. at 89. (Earlier, it had ordered the

Corps to issue a new Missouri River Master Manual,

which the Corps did in March of 2004. App. at 35 n.1.) The

district court agreed that the Flood Control Act does not

set priorities. “The Missouri River cannot be operated in a

vacuum, but rather the Corps must consider, evaluate, and

12

balance all interests in its operation of the Missouri

River.” App. at 88. The “Pick’ Plan did not rank any river

interests above another,” and the “‘Sloan’ Plan does not

dictate a priority of river interests.” App. at 40. Further, it

ruled that the Flood Control Act itself “does not require a

particular outcome, but rather ... [ajll river interests

must be considered and evaluated to ‘secure the maximum

benefits’ to river interests.” App. at 41. The Corps is not

obligated to maintain any minimum water levels or

seasons for navigation. App. at 41-42. On appeal, however,

the Eighth Circuit gave downstream navigation a priority,

describing it as a “dominant function.” Ubbelohde, 330

F. 3d at 1019-20.

The litigation that began in 2002 was only the most

recent round. In 1990 the Upper Basin States sued the

Corps. South Dakota v. Hazen, 914 F.2d 147 (8th Cir.

1990). They sued again in 1991. JA 00267 (South Dakota v.

Bornhoft). Missouri and the MO-ARK Association sued the

Corps in 1997. Missouri v. Craig, 978 F.Supp. 902 (W.D.

Mo. 1997), vacated, 163 F.3d 482 (8th Cir. 1998). Missouri

nad also sued in 1992. Jd. at 906 (Missouri v. Bornhoft). In

1999 a tribe sued over the effects of fluctuating waters on

grave sites. Yankton Sioux Tribe v. U.S. Army Corps of

Engineers, 194 F.Supp.2d 977, 983 (D.S.D. 2002). Litiga-

tion over the Corps’ management and the Flood Control

Act’s proper interpretation has been protracted and

requires resolution by this Court.

s

13

REASONS FOR GRANTING THE PETITION

A. Introduction

The Court should grant certiorari for two reasons.

One, the court below, in ruling that navigation is a “domi-

nant function” rewrote the 1944 Flood Control Act. In

doing so it improperly relied on misleading dictum in ETS]

Pipeline Project v. Missouri, 484 U.S. 495 (1988), a case in

which competing water uses were not at issue. Given the

variety and importance of uses to which the Missouri is

put — municipal drinking water, commercial navigation,

recreation, farmland irrigation, industrial water supply,

and power generation — it is essential that the Court

clarify and confirm Congress’ direction for water alloca-

tions among the basin states. They and their citizens are

entitled to have the erroneous dictum in ETSI Pipeline

corrected so that the Corps can properly manage the river.

Two, the Court should grant certiorari because the court

below ignored the United States’ understanding of the Act.

The United States, through its Corps of Engineers — which

has considerable experience managing the river - has

concluded that the Act requires an equitable © alancing of

all uses. That fair, eminently sensible interpretation is

undermined by the court below and its misreading of the

Act.

At its heart, this matter is about allocating the Mis-

souri River among seven states. Errors by the court below

give the lower basin’s barge industry an inordinate

amount of the river’s water. This Court’s authority is

needed to interpret the statute at the source of the long-

standing dispute over one of America’s premier resources.

14

B. The court of appeals misread the Flood Control

Act

1. The 1344 Flood Control Act. The Act can be

readily reviewed to assess whether it sets priorities. Its

relevant provisions are not lengthy. App. at 90-112. No-

where in the Act does it relegate recreation or hydropower

or any other use to secondary status. Nowhere in the Act

does the phrase “dominant function” appear. Nowhere does

Congress state that navigation has f-“‘ority over other

uses. If it imposes any restriction, it restricts navigation.

Navigation works are to be “operated consistently” with

the “economic use of the waters ... by other users.” App.

at 90. The ruling below does not implement this require-

ment. It does the opposite, allowing the river to be oper-

ated inconsistently with other interests.

Further, the Act incorporates the Joint Report. App. at

97. The Joint Report states that developing the basin

under the two plans “will secure the maximum benefits for

flood control, irrigation, navigation, power, domestic and

sanitary purposes, wildlife, and recreation.” App. at 109.

The Report does not set priorities. Uses are not divided

into first class and second class, primary and secondary.

There is no hierarchy. As the United States asserts in the

brief it filed with the court below: “The text of the [Act]

nowhere gives priority to navigation over other uses.”

Brief of Federal Defendants-Appellees at 36 (Feb. 2005).

The district court agreed, finding that the Act “does not

require a particular outcome,” but rather that the “maxi-

mum benefits” for all river interests must be secured. App.

at 41. The Corps is not obligated to maintain “minimum

navigation flows or season lengths.” App. at 41.

15

Independent entities do not find a navigation priority

in the Act. The Government Accounting Service did not

find one, JA 00041 (GAO 2000 Report), nor did the Con-

gressional Research Service. JA 00002-03 (CRS 1992

Report). A Department of the Interior Regional Solicitor

concluded that the Act and its legislative history “lend no

support” for a navigation priority. JA 02198 (1992 Letter).

See also JA 05097 (NAS).

2. The Ubbelohde decision. The court below stated

that it did not need to consider arguments about the Act

because it had considered the statute in its 2003 Ubbe-

lohde decision. “In Ubbelohde, we relied on the Supreme

Court’s decision in ETSI Pipeline ... and the legislative

history ... to determine that ‘[t}he dominant functions of

the Flood Control Act were to avoid flooding and to main-

tain downstream navigation.’” App. at 15.

The analysis in Ubbelohde — upon which allocating

Missouri River water now rests — is but one paragraph.

330 F.3d at 1019-20. The first two sentences state: “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 downstream

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

(1988).” Id. There was, however, no analysis of ETS] and

its dictum. There was no effort to separate ETSI’s jurisdic-

tional dispute between two agencies from the present and

more fundamental question about allocating the Missouri.

Ubbelohde then discussed legislative history, but the

discussion does not support ETS/’s dictum.

The Act’s dominant functions were expressed re-

peatedly in three Congressional Documents:

Senate Documents 191 [the Sloan Plan] and 247

16

{the Joint Report] and House Document 475 [the

Pick Plan). See Flood Control Act Section 9, 58

Stat. at 891. House Document 475, which repre-

sented 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 secon-

dary uses of the River including irrigation, rec-

reation, fish, and wildlife. See Flood Control Act

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

[Sec. 6 of the Act); 43 U.S.C. § 390 (Sec. 8 of the

Act]. The House Document just cited noted that

the management plan “would also provide for the

most efficient utilization of waters of the Mis-

souri River Basin for all purposes, including irri-

gation, 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 ir-

rigation of 750,000 acres of land . . . as well as to

provide useful storage for flood control, naviga-

tion, the development of hydroelectric power, and

other purposes.” S. Doc. No. 247, 78th Cong., 2d

Sess. 3 (1944). Thus, the Flood Control Act pro-

vided the Corps with a wide array of interests to

consider in regulating the River.

Id. The court’s opening and conclusory citation to the Pick

Plan, Sloan Plan, and Joint Report makes it impossible to

know what the court relied on in these documents. And

neither the Pick Plan nor the Joint Report use the term

“dominant function” or anything like it. The court then

follows with a reference to “flood control,” which has no

bearing on a navigation priority. It next refers to “irriga-

tion, recreation, fish, and wildlife,” labeling them “secon-

dary” and citing several sections of the Act. None of the

17

sections, however, use the word “secondary” or anything

like it. App. at 94-97. The court then cites the Pick Plan

stating that its objective was to “‘provide for the most

efficient utilization uf waters of the Missouri River Basin

for all purposes, including ... power ... wildlife, and

recreation.’” This supports equitably balancing all uses,

not favoring one use. The court then cites the Joint Report

for the propos*tion that Lake Oahe is to be managed for

“flood control, navigation, the development of hydroelectric

power, and other purposes.” This doesn't present a hierar-

chy of uses. In fact, the Joint Report states that the river

is to be managed to “secure the maximum benefits” for all

uses. App. at 109.

3. The ETSI decision. The primary reason for the

Eighth Circuit’s finding that navigation has a priority is

this Court’s ETSI Pipeline decision. ETSI concerned a

contract signed by the Secretary of the Interior allowing

water withdrawals from Lake Oahe for a slurry pipeline to

move coal from Wyoming to the southeastern United

States. 484 U.S. at 497-98. Downstream states challenged

the Secretary's contracting authority. The case was about a

division of authority between the Corps and Interior. Jd. at

499. See also, id. at 503 (“The crucial provisions here ...

were the sections [in the Act] that set forth the specific

authority allotted to [the Departments of] War and Inte-

rior”). The Court stated that no issue is presented “as to

the relative interests of the United States and South

Dakota in Lake Oahe water.” Jd. at 498 n.2.

The Court ultimately ruled that the Secretary did not

have authority to authorize the withdrawal. /d. at 513-17.

Explicit language in the Flood Control Act supported this

conclusion. Because the Act “speaks directly to the dispute

... [t}]hat is ‘the end of the matter’” Jd. at 517 (citation

18

omitted). And that is where the Eighth Circuit should

have left ETSI; as a decision addressing the contracting

authority of federal agencies. ETSI should not be used to

decide a different issue, that is, whether the Corps, in

operating the river, must favor navigation.

While the “dominant function” language is in ETSI,

484 U.S. at 512, it was used in the context of discussing

only the Sloan Plan. Jd. The Court, however, also referred

to the Pick Plan. It stated that while the Pick Plan

stressed flood control, “its comprehensive list of projects

‘would also 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 500

(quoting the Pick Plan). The Eighth Circuit could have just

as well selected this statement as the “rule” of ETSI, as

this Court’s interpretation of the Flood Control Act. But

the Eighth Circuit arbitrarily ignored the comment about

the Pick Plan and chose the Sloan Plan comment. It is on

that unfounded selection that allocating the Missouri

River rests. And the Act, of course, is not based on just the

Sloan Plan; it is improper to rely on one plan and ignore

the other. Congress approved both plans, as coordinated by

the Joint Report. App. at 97. Assuming that a review of the

legislative history is even proper, the Eighth Circuit erred

by relying on ETSI’s Sloan Plan comment and ignoring the

Pick Plan reference. It further erred by not acknowledging

that Congress “revised and coordinated” the two plans in

the Joint Report. Jd. As the United States told the court

below:

[The “dominant functions” remark] was made in

the context of the Court’s determination of

whether operation of the Mainstem reservoirs

19

came within the jurisdiction of the Corps or the

Department of the Interior.... The Supreme

Court did not address the issues in this case con-

cerning the Corps’ balancing of competing uses of

water. Thus, the Court’s statement of the ‘domi-

nant function’ in ETSI Pipeline is not dispositive

of how the Corps must operate the Mainstem

System.

Brief of Federal Defendants-Appellees at 35, n.5 (Feb.

2005).

The Court should grant the petition for the same

reason it granted certiorari and reversed prior dictum in a

matter involving the 1928 Flood Control Act. 33 U.S.C.

702c. In Central Green Co. v. United States, 531 U.S. 425

(2001), the Court reconsidered dicta in United States v.

James, 478 U.S. 597 (1986). In James, the Court inter-

preted a section of the 1928 Act limiting the government's

liability for injuries caused by floodwater frou: federal

facilities, but in doing so included in James “confusing

dicta.” Central Green, 531 U.S. at 430. The Court recog-

nized that to correct the lower court's error, it needed to

“resort to the text of the statute,” rather than to dicta in

James. Id. at 431. In reviewing and rejecting its earlier

dictum, the Court revisited the statute’s text — the same

task the Dakotas ask that the Court undertake here — to

correct a lower court’s misreading of a flood contro! stat-

ute.

Also In Central Green, the Court ruled that “to char-

acterize every drop of water that flows through that

immense project as ‘flood water’ simply because flood

control is among the purposes served by the project unnec-

essarily dilutes the language of the statute.” Jd. at 434.

Similarly, the E7TS/ dictum and the Eighth Circuit’s

20

rulings make navigation a priority even though such a

status for navigation does not appear in the statute,

effectively diluting the broad objectives Congress sought to

promote. Once the ETSI dictum is corrected — as dictum

was corrected in Central Green - it is apparent that

Missouri River waters should be allocated on equity rather

than an unfounded priority.

4. The legislative history. The Eighth Circuit also

relied on legislative history. App. at 15. So too did ETSI in

citing the Sloan and Pick Plans. But as explained, the text

of the Flood Control Act does not set forth a priority. It is

clear on that point. A search for Congressional intent in

the legislative history would seem unnecessary. Indeed,

this Court has “repeatedly held” that the authoritative

statement is the statutory text, not legislative history or

other extrinsic material. Exxon Mobil Corp. v. Allapattah

Servs., 125 S.Ct. 2611, 2626 (2005). Legislative history can

be “murky, ambiguous, and contradictory.” Jd. But if the

Act’s legislative history — the Sloan and Pick Plans — is to

be examined, that history does not focus on just naviga-

tion.

The Pick Plan, for example, describes the facilities as

“multiple-purpose.” H.R. Doc. No. 78-475 at 3, 4, 18, 26,

28, 30 (1944). In addition to flood-control, the plan is to

provide for the most efficient use of Missouri River waters

“for all purposes, including irrigation, navigation, power,

domestic and sanitary purposes, wildlife, and recreation.”

Id. at 28-29. See also id. at 16. In transmitting the plan to

Congress, the Corps stated that the plan calls for the

“distribution of appropriate benefits over the entire val-

ley.” Id. at 3. Benef s were to be “great and widespread.”

Id. at 18.

21

Flexibility is emphasized. “Due allowance must be

made for any changed conditions.” Jd. at 3. Water use will

be adjusted to meet the basin’s “changing needs” and “new

economic situations.” Jd. The plan is “flexible.” Id. at 4.

“(P]reference can be given to the functions which contrib-

ute most significantly to the welfare and livelihood of the

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

below would turn this on its head and require that the

Corps feature navigation, the use that contributes the

least to the basin.

The Sloan Plan contains similiar statements. The

Secretary of the Interior stated that his agency’s plan

contemplates using the waters “beneficially for multiple

purposes [to stabilize] the agriculture and economy of this

vast basin.” S. Doc. No. 78-191 at 1 (1944). “Substantial

and material benefits would accrue through recreational

use of the waters and facilities proposed.” Jd. at 2. The

Department of the Interior’s Board of Review described

the plan as “comprehensive,” one that would further the

“recreational use of waters [and] conservation of fish and

wildlife,” and as one that will “create exceptional opportu-

nities for expanding the fish and wildlife programs.” Jd. at

10, 13. Significantly, the Sloan Plan, like the Pick Plan,

could be modified as “changes in physical and economic

conditions make necessary.” Jd. at 17. As the Bureau’s

Commissioner stated in a letter included in the Pick Plan,

the river must be managed for “a wide variety of functions,

including ... navigation, irrigation ... hydroelectric

generation ... fish and wildlife preservation and recrea-

tion,” and that the reservoirs should be operated to obtain

“the maximum benefits” for, among other things, fish,

wildlife preservation, and recreation. H.R. Doc. 475, supra

at 6-7.

22

In the brief it filed below, the United States accurately

states:

The legislative history simply does not provide a

basis for giving downstream uses priority over

upstream uses such as hydroelectric power gen-

eration, irrigation, recreation, and support of fish

and wildlife. The legislative history merely shows

that Congress intended that navigation be sup-

ported, a fact not in dispute.

Brief of Federal Defendants-Appellees at 38 (Feb. 2005).

And as the district court found, the Pick Plan “did not

rank any river interests above another,” and the Sloan

Plan “does not dictate a priority of river interests.” App. at

40. In sum, if legislative history is to be used, it contains

numerous passages promoting all interests; it refers to

“multi-purpose” facilities, and a duty to achieve “maxi-

mum benefits” and meet “changing needs.”

C. The United States’ interpretation of the Flood

Control Act

The Eighth Circuit’s ruling that navigation is pre-

ferred differs from the United States’ interpretation of the

Act. The United States agrees with the Dakotas, often

stating that the statute does not give navigation a priority.

In its brief below, the United States described the priority

argument as “extreme.” Brief of Federal Defendants-

Appellees at 32 (}'eb. 2005). The “argument fails because

... the Corps has the discretion to strike a balance among

the interests rec: gnized by the [Act],” a result of the Act’s

“plain language .. . and its legislative history.” Jd. at 28. In

a brief filed with the Eighth Circuit in the Ubbelohde case,

the United States stated: “There is no statement in the Act

or ... in ETSI that navigation is always entitled to a

23

priority over the needs of fish and wildlife.” Consol. Reply

Brief of Federal Defendants-Appellants at 10 (Sept. 2002).

The legislative history does not identify purposes “as

primary or secondary.” Jd. at 1. See also id. at 6, 8-9.

In early 1990's litigation the Department of Justice

wrote North Dakota: “Congress did not assign a priority to

these [project] purposes.” ND Appx. at 54 (Disheroon

Letter). This was confirmed by the Corps Chief of Opera-

tions; this view has “elways been the [Corps] official

position.” Jd. at 66 (Elmore Stmt.) Another Corps official

stated that the Corps must be flexible “‘to meet changing

conditions.’” Jd. at 73 (Sveum Stmt.). See also id. at 72.

The Department of Justice made the same point. Func-

tions must be balanced and “the priorities to be afforded

these project purposes may be revised to take into account

and to accommodate changing environmental and eco-

nomic needs and conditions.” Jd. at 54 (Disheroon Letter).

Thus, the United States has often expressed its

agreement with the Dakotas that there is not a navigation

priority. Its statements are considered and authoritative,

and have been made by Corps officials and the Depart-

ment of Justice. “[C]onsiderable weight should be accorded

to an executive department's construction of a statutory

scheme it is entrusted to administer.” Chevron USA, Inc. v.

Natural Resources Defense Council, 467 U.S. 837, 844

(1984). This rule was applied in ETSI. 484 U.S. at 516-17.

The court below failed to consider the way in which the

Corps interprets its governing statute. It ignored its

agency-deference responsibility.

D. Summary

The court below cited iis 2003 Ubbelohde decision for

finding a navigation priority. Ubbelohde in turn relied on

ETSI. But the Missouri River conflict is far too important

to be settled on such an unsound source. Unfortunately,

the court paid little attention to the Act itself. Had it, it

would have found no priorities or hierarchy. It would have

found that the Act incorporates the Joint Report, which

instructs that the river be managed to “secure the maxi-

mum benefits” for all uses. App. at 109.

Certiorari is warranted because this case, at its heart,

is an inter-state dispute over properly allocating water in

a major river. While this dispute was not brought to the

judiciary in a suit by one state against another, it is akin

to the equitable apportionment cases the Court often hears

under its original jurisdiction. E.g., Texas v. New Mexico,

462 U.S. 554 (1983); Wyoming v. Colorado, 298 U.S. 573

(1936). Controversies between states “present not infre-

quently questions of far-reaching import and of exceeding

difficulty.” Kansas v. Colorado, 206 U.S. 46, 80 (1907). This

dispute involves the Corps’ difficult mission to manage the

river and presents issues of far-reaching import for the

basin’s states and tribes. The “state versus state” nature of

the case should inform the Court’s review of the petition.

Two decades ago the Court deemed the 1944 Flood

Control Act worthy of its attention. In ETSI, the Court

considered an inter-agency dispute over contracting

authority. Today, a far more important Flood Control Act

issue is presented — a dispute among states over allocating

Missouri River waters.

25

CONCLUSION

The petition for a writ of certiorari should be granted.

State of South Dakota

LAWRENCE E. LONG

Attorney General

JOHN P. GUHIN

Counsel of Record

Assistant Attorney General

State Bar 10 No. 653

Office of the Attorney General

500 E. Capitol Avenue

Pierre, SD 57501

Telephone (605) 773-3215

Facsimile (605) 773-4106

Respectfully submitted,

State of North Dakota

WAYNE STENEHJEM

Attorney General

CHARLES M. CARVELL

Counsel of Record

Assistant Attorney General

State Bar ID No. 03560

Office of the Attorney General

500 North 9th Street

Bismarck, ND 58510-4509

Telephone (701) 328-3640

Facsimile (701) 328-4300

Counsel for Petitioners

NOVEMBER 2005

App. 1

421 F.3d 618

United States Court of Appeals,

For The Eighth Circuit

In re: Operation of the Missouri River System Litigation

American Rivers, Inc.; Environmental Defense;

National Wildlife Federation; lowa Wildlife

Federation; Kansas Wildlife Federation;

Montana Wildlife Federation; Nebraska Wildlife

Federation; North Dakota Wildlife Federation;

South Dakota Wildlife Federation; Izaak Walton

League of America, Inc., Appellants,

Vv.

United States Army Corps of Engineers; Les Brownlee,

Acting Secretary of the United States Army; United States

Fish and Wildlife Service; Gale Norton, Secretary of the

United States Department of Interior, Appellees. State of

Nebraska; Nebraska Public Power District; State of Mis-

souri; State of North Dakota; State of South Dakota; Blaske

Marine, Inc.; the Mandan, Hidatsa and Arikara Nation;

Conocophillips Company; Ergon Asphalt and Emulsions,

Inc.; Magnolia Marine Transport Company; Midwest Termi-

nal Warehouse Company, Inc.; Mo-ark Association; Missouri

River Keepers; Missouri River Energy Services Appellees.

State of Nebraska, Appellant,

v.

United States Army Corps of Engineers; Les Brownlee, Acting

Secretary of the United States Army, United States Fish and

Wildlife Service; Gale A. Norton, Secretary of the United States

Department of Interior, Appellees. American Rivers, Inc.; State

of Missouri; State of North Dakota; State of South Dakota;

Blaske Marine, Inc.; the Mandan, Hidatsa and Arikara Nation;

Conocophillips Company, Ergon Asphalt and Emulsions, Inc.;

Magnolia Marine Transport Company; Midwest Terminal

Warehouse Company, Inc.; Mo-ark Association; Missouri River

Keepers; Missouri River Energy Services, Appellees.

App. 2

Nebraska Public Power District, Appellant,

v.

United States Army Corps of Engineers; Les Brownlee,

Acting Secretary of the United States Army; United States

Fish and Wildlife Service; Gale Norton, Secretary of the

United States Department of Interior, Appellees. American

Rivers, Inc.; State of Missouri; State of North Dakota; State

of South Dakota; Blaske Marine, Inc.; the Mandan, Hidatsa

and Arikara Nation; Conocophillips Company, Ergon Asphalt

and Emulsions, Inc.; Magnolia Marine Transport Company;

Midwest Terminal Warehouse Company, Inc.; Mo-ark

Association; Missouri River Keepers; Missouri River

Energy Services, Appellees.

State of Missouri, Appellant,

v.

United States Army Corps of Engineers; Les Brownlee,

Acting Secretary of the United States Army; United

States Fish and Wildlife Service; Gale Norton, Secretary

of the United States Department of Interior, Appellees.

American Rivers, Inc.; State of Nebraska; Nebraska

Public Power District; State of North Dakota; State

of South Dakota; Blaske Marine, Inc.; the Mandan,

Hidatsa and Arikara Nation; Conocophillips Company;

Ergon Asphalt and Emulsions, Inc.; Magnolia Marine

Transport Company; Midwest Terminal Warehouse

Company, Inc.; Mo-ark Association; Missouri River

Keepers; Missouri River Energy Services, Appellees.

The Mandan, Hidatsa and Arikara Nation, Appellant,

v.

United States Army Corps of Engineers; Les Brownlee,

Acting Secretary of the United States Army; United States

Fish and Wildlife Service; Gale Norton, Secretary of the

United States Department of Interior, Appellees. American

Rivers, Inc.; Environmental Defense; National Wildlife

Federation; Iowa Wildlife Federation; Kansas Wildlife

Federation; Montana Wildlife Federation; Nebraska

App. 3

Wildlife Federation; North Dakota Wildlife Federation;

South Dakota Wildlife Federation; Izaak Walton League of

America, Inc.; State of Nebraska; Nebraska Public Power

District; State of Missouri; State of North Dakota; State of

South Dakota; Blaske Marine, [nc.; Conocophillips Com-

pany; Ergon Asphalt and Emulsions, Inc.; Magnolia

Marine Transport Company; Midwest Terminal Warehouse

Company, Inc.; Mo-ark Association; Missouri River Keep-

ers; Missouri River Energy Services, Appellees.

Blaske Marine, Inc.; Conocophillips Company;

Ergon Asphalt and Emulsions, Inc.; Magnolia

Marine Transport Company; Midwest Terminal

Warehouse Company, Inc.; Mo-ark Association;

Missouri River Keepers, Appellant,

Vv.

United States Army Corps of Engineers; Les Brownlee,

Acting Secretary of the United States Army; United

States Fish and Wildlife Service; Gale Norton, Secretary

of the United States Department of Interior, Appellees.

American Rivers, Inc.; Environmental Defense; National

Wildlife Federation; lowa Wildlife Federation; Kansas

Wildlife Federation; Montana Wildlife Federation;

Nebraska Wildlife Federation; North Dakota Wildlife

Federation; South Dakota Wildlife Federation; Izaak

Walton League of America, Inc.; State of Missouri;

State of North Dakota; State of South Dakota; the

Mandan, Hidatsa and Arikara Nation; Missouri

River Energy Services, Appellees.

Nos. 04-2737, 04-2774, 04-2785,

04-2794, 04-2878 and 04-2994.

Submitted: April 11, 2005.

Filed: Aug. 16, 2005.

Peter Hennigan, argued, Minneapolis, MN, for Appel-

lant American Rivers, et al.

App. 4

Thomas Wilmoth, argued, Lincoln, NE, for Appellants

State of Nebraska and NE Public Power District.

William Bryan, argued, Asst. Atty. Gen., Jefferson

City, MO, for Appellant State of Missouri.

Robert Vincze, argued, Denver, CO, for Appellant

Blaske Marine, et al.

Daniel Israel, argued, Boulder, CO, for Appellant The

Mandan, Hidatsa and Arikara Nation.

Rebert H. Oakley, argued, U.S. Dept. of Justice,

Washington, DC, for Federal defendants.

James A. Maysonett, argued, U.S. Dept. of Justice,

Washington, DC, for Wildlife and Marine Resources.

Charles M. Carvell, argued, Attorney General’s Office,

Bismarck, ND, for Appellee State of North Dakota.

Diane Best, argued, Pierre, SD, for Appellee State of

South Dakota.

Robert J. Vineze, argued, Denver, CO, for Appellee

Mo-ark.

Before WOLLMAN, BEAM, and GRUENDER, Circuit

Judges.

GRUENDER, Circuit Judge.

In these consolidated appeals, various parties chal.

lenge the operation of the Missouri River main stem

reservoir system by the United States Army Corps of

Engineers (“the Corps”) and associated wildlife assess-

ments produced by the United States Fish and Wildlife

App. 5

Service (“FWS”). The district court’ granted summary

judgment to the Corps and FWS and their named individ-

ual officers (collectively “the Federal Defendants”) on all

claims. For the reasons stated below, we dismiss three

claims as moot and affirm the judgment of the district

court on all remaining claims.

I. BACKGROUND

The Missouri River originates in Montana and runs

through North Dakota, South Dakota, Nebraska, Iowa,

Kansas and Missouri before emptying into the Mississippi

River. In its natural state, the river subjected the sur-

rounding basin to extensive flooding every spring. With

the Flood Control Act of 1944 (“FCA”), Congress author-

ized the construction of a dam and reservoir system on the

upper river to control the flooding. In addition to flood

control, the FCA envisioned that the reservoirs would

provide water for local irrigation projects, steady release

into the river during the summer months to support

downstream navigation, hydroelectric power generation

and lake recreation. The FCA delegated construction and

management of the main stem reservoir system to the

Corps.”

The current challenges to the Corps’ operation of the

system arise from two directions. First, a persistent drought

" The Honorable Paul A. Magnuson, United States District Judge

for the District of Minnesota.

* The main stem dams and reservoirs are Fort Peck Dam (Fort

Peck Lake) in Montana, Garrison Dam (Lake Sakakawea) in North

Dakota, and Oahe Dam (Lake Oahe), Big Bend Dam (Lake Sharpe),

Fort Randall Dam (Lake Francis Case) and Gavins Point Dam (Lewis

and Clark Lake) in South Dakota.

App. 6

in the Missouri River basin has led to a recurring conflict

between upstream and downstream water-use interests.

In 2002, the Corps planned to release water from Lake

Oahe into the river to maintain downstreaya navigation

throughout the summer. South Dakota, fearing a negative

impact on the seasonal fish spawn in Lake Oahe and

concordantly on the reservoir’s sport fishing industry,

obtained an injunction in federal district court preventing

the Corps from lowering any reservoir in South Dakota

until after spawning season. When the Corps decided to

lower Lake Sakakawea instead, North Dakota obtained a

similar injunction. Not to be outdone, Montana obtained

an injunction to prevent releases from Fort Peck Lake. In

response, Nebraska obtained an injunction ordering the

Corps to make the required releases to support navigation

as called for by the Corps’ Missouri River Main Stem

Reservoir System Master Water Control Manual (“1979

Master Manual”).

In a consolidated appeal of these injunctions, we ruled

that the FCA vested the Corps with discretion to balance

the competing water-use interests. South Dakota v. Ubbe-

lohde, 330 F.3d 1014, 1027 (8th Cir.2003). Because the

FCA’s legislative history and its interpretation by the

Supreme Court “indicate [] that the Corps’s primary

concerns should be flood control and navigation,” we

upheld the Corps’ decision to follow the 1979 Master

Manual and draw down the reservoirs to support down-

stream navigation. Jd. at 1032.

The second point of conflict has been that flood pre-

vention and steady summer flows for downstream naviga-

tion disrupt the natural habitat of protected bird and fish

species in the Missouri River ecosystem. In litigation initially

separate from the Ubbelohde cases, environmental groups

App. 7

have attempted to force the Corps to operate the system to

produce more “natural” river flows to benefit the protected

species. To understand the current stances of the parties

in this litigation, it is necessary to review in some detail

the Corps’ previous attempts to accommodate competing

interests while developing its operating procedures.

The Corps sets forth its general operational gui’ -iines

for the Missouri River reservoir system in a Master

Manual and the operational details for each year in an

Annual Operating Plan. The first Master Manual was

published in 1960 and revised in 1973, 1975 and 1979. The

year 1987 brought the onset of the first persistent drought

in the region since the reservoir system had become fully

operational. Because it found that the operational proce-

dures in the 1979 Master Manual were not well-tailored to

handle a persistent drought, the Corps began the revision

process for what would become the 2004 Master Manual.

The operation of the reservoir system also brings the

Corps within the provisions of the Endangered Species Act

(“ESA”). Under the ESA, if a government agency concludes

that a proposed action may “jeopardize the continued

existence” of any protected species or adversely affect its

critical habitat, the agency must prepare a Biological

Assessment and consult with the FWS. ESA § 7, 16 U.S.C.

§ 1536. The FWS then issues a Biological Opinion (“BiOp”)

describing how the action will affect the species, based on

the “best scientific and commercial data available.” Jd. at

§ 1536(aX(2). If the FWS concludes that the proposed

action would cause jeopardy to an endangered or threat-

ened species, the BiOp must include a Reasonable and

Prudent Alternative which would allow the agency to

implement the desired action while avoiding jeopardy to

the species. Id. at § 1536(b\(3XA). Finally, if it appears

App. 8

incidental “take” will occur even if the Reasonable and

Prudent Alternative is implemented, the BiOp must

include an Incidental Take Statement setting conditions

under which the agency may proceed while avoiding

Id. at § 1536(b)\4).

The Corps followed the above process with three

protected species in the Missouri River basin: the pallid

sturgeon, a fish listed as endangered since 1990; the least

tern, a migratory bird listed as endangered since 1985;

and the piping plover, a migratory bird listed as threat-

ened since 1985. The pallid sturgeon spends its entire life

tributaries, while the tern and plover both nest in the

summer on sparsely vegetated sandbars along the rivers.

In 2000, the FWS issued a Biological Opinion (“2000

BiOp”) finding that the Corps’ proposed operation of the

reservoir system was likely to jeopardize the continued

existence of the three species.

The FWS found that the harm to the species resulted

from the alteration of the river's natural hydrograph.“

Before the construction of the dams, the hydrograph had

two prominent components: the “spring rise” and “su™i:mer

low flow.” The “spring rise” refers to extremely high flows

rage nag eaten tutelage Decor According to

the 2000 BiOp, the spring rise provided a biological

* The ESA prohibits “taking” of endangered species. “The term

‘take’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap,

capture, or collect, or to attempt to engage in any such conduct.” ESA

§ 3(14), 16 U.S.C. § 1532(19).

* A river's “hydrograph” is the variation in water level at each

point along its channel! over the course of time.

App. 9

spawning cue for the pallid sturgeon and enabled the river

to capture protein-rich nutrients from the floodplain and

from wetland habitat not connected to the river channel

during other seasons. In concert with the summer low

flow, the spring rise also provided seasonal connectivity to

the off-channel wetland habitat, making calm, shallow

pools available to the pallid sturgeon for spawning, nurs-

ery and feeding areas. Lower elements of the food chain

also were forced to congregate in the remaining pools,

providing easy summer feeding for the protected species.

In addition, the spring rise scoured and flushed sandbars.

When the now-sparsely-vegetated sandbars were exposed

by the summer low flow, the resulting lack of cover for

concealed predators allowed terns and plovers to nest

there safely

The Corps’ operation of the reservoir system, gener-

ally capturing water in the upstream reservoirs to elimi-

nate spring flooding and releasing water throughout the

summer and fall as necessary to enable downstream

navigation and restore reservoir capacity for the following

spring, eliminated the spring rise and summer low flow

from the hydrograph. The Reasonable and Prudent Alter-

native included with the 2000 BiOp (“2000 BiOp RPA”)

stated that “higher spring and lower or declining summer

flows than now exist™ were “an integral component of the

* The 2000 BiOp presented data from Corps models showing that,

with the reservoirs and channel improvements in place, the “natural

hydrograph” today would be expected to produce a spring rise of 80 Kefs

(Kefs = thousand cubic feet per second) and a summer low flow of 10

Kefs at the Gavin's Point Dam, the final reservoir release point into the

lower river. Under the 1979 Master Manual, flow at that point was

typically maintained steadily between 30-35 Kefs from March through

November. The 2000 BiOp RPA called instead for a spring rise from

Gavin's Point totaling 50-55 Kefs to be implemented about once every

(Continued on following page)

App. 10

measures to avoid jeopardy” to the three protected species.

The 2000 BiOp RPA also mandated habitat restoration, a

' comprehensive species and habitat monitoring program,

and an adaptive management framework to “implement,

evaluate, and modify the components of the RPA in re-

sponse to variable river conditions, species responses, and

increasing knowledge base.”

In an attempt to support downstream water-use

interests despite the continuing drought in the basin, the

Corps released a draft Annual Operating Plan for 2003

that did not incorporate the flow changes from the 2000

BiOp RPA. Environmental interest groups filed suit under

the ESA in the United States District Court for the Dis-

trict of Columbia to enjoin operations under that plan. At

the Corps’ request, the FWS then issued a supplemental

biological opinion (“the 2003 Supplemental BiOp”) that

ratified the Corps’ plan to avoid the 2000 BiOp RPA flows

for the period of May 1 through August 15, 2003, with the

understanding that operations after 2003 would be consis-

tent with the 2000 BiOp. Before the district court, how-

ever, the Corps revealed that it had no intention of

ensuring that its future operations would so comply. Am.

Rivers v. United States Army Corps of Eng’rs, 271

F.Supp.2d 230, 253 (D.D.C.2003). In addition, the district

court held that it was improper for the FWS to focus on

the effects that the proposed action would have on the

protected species during 2003 only, rather than on all

future effects of the proposed action, and that the 2003

three years, and an annual summer low flow of 25 Kefs, ramped down

to 21 Kefs from mid-July through mid-August. The flow required for

minimum support of downstream navigation is about 28.5 Kefs,

depending upon the accompanying inflow from downstream tributaries.

App. 11

Supplemental BiOp failed to articulate a reasonable

explanation for its departure from the analysis in the 2000

BiOp. Id. at 254-57. Therefore, the district court granted

the injunction and ordered the Corps to comply with the

summer low flow provisions of the 2000 BiOp. Jd. at 263.

Citing a conflict with this Court’s Ubbelohde holding that

required operation consistent with the 1979 Master

Manual, the Corps initially failed to comply with the

injunction and was held in conditional contempt. See Am.

Rivers v. United States Army Corps of Eng’rs, 274

F.Supp.2d 62 (D.D.C.2003). Two days later, the Federal

Judicial Panel on Multi-District Litigation consolidated all

litigation regarding the operation of the Missouri River

main stem reservoir system, including new suits by the

parties involved in Ubbelohde, in the District of Minnesota

(“MDL court”). On the order of that court, the Corps

complied with the summer low flow provisions of the 2000

BiOp RPA for the brief remainder of the 2003 summer

period.

At that point, the Corps prepared a new Biological

Assessment with the goal of finding a way to avoid jeop-

ardy to the protected species without following the 2000

BiOp RPA flow requirements. In the fall of 2003, the Corps

presented the new Biological Assessiment to the FWS and

requested a new Biological Opinion. In response, the FWS

issued an Amendment to the 2000 BiOp (“the 2003

Amended BiOp”). The 2003 Amended BiOp RPA permitted

the Corps to avoid the summer low flow requirement on

the condition that it construct 1,200 additional acres of

shallow water habitat for the pallid sturgeon. In addition,

it gave the Corps two more years to experiment with

alternatives to a spring rise. If the Corps could not pro-

duce an acceptable alternative plan, the RPA imposed a

App. 12

default spring rise of reduced magnitude beginning in the

spring of 2006.

The Corps continued to develop the 2004 Master

Manual by complying with the provisions of the National

Environmental Policy Act (“NEPA”). See 42 U.S.C. §§ 4321

et seq. NEPA requires the preparation of a detailed Envi-

ronmental Impact Statement (“EIS”) for every major

federal action that will significantly affect the quality of

the environment. 42 U.S.C. § 4332(C). The EIS must also

evaluate alternatives to the proposed action. Jd. In this

case, the Corps compared five potential water control

plans in its EIS before adopting the Preferred Alternative,

a plan consistent with the 2003 Amended BiOp, as the

basis for the 2004 Master Manual. The MDL court trun-

cated the NEPA public-comment-and-review period and

ordered all plaintiffs in this litigation to amend their

complaints to address the 2004 Master Manual and 2004

Annual! Operating Plan.

After the issuance of the 2004 Master Manual and

2004 Annual Operating Plan, various parties filed motions

for summary judgment. The district court granted sum-

mary judgment to the Federal Defendants on all claims on

the bases that (1) the FCA does not create a non-

discretionary duty in the Corps to maintain minimum

navigation flows or a minimum length for the navigation

season, and (2) the discretionary decisions made by the

Federal Defendants in balancing water-use interests

under the FCA and in avoiding jeopardy to the protected

species were not arbitrary and capricious.

The parties now make various arguments on appeal.

The states of Missouri and Nebraska and the Nebraska

Public Power District (“NPPD”) argue that the 2004

App. 13

Master Manual violates a non-discretionary duty of the

Corps under the FCA to maintain river flow sufficient to

support uninterrupted downstream navigation throughout

the navigation season. Nebraska and NPPD also argue

that the 2003 Amended BiOp is in conflict with the pur-

ported FCA minimum-flow requirement, while Missouri

argues that the 2003 Amended BiOp violates the ESA

because it will eliminate some pallid sturgeon habitat in

the lower Missouri River. American Rivers, the National

Wildlife Federation, several state Wildlife Federations and

the Izaak Walton League of America (collectively “Ameri-

can Rivers”) argue that the 2003 Amended BiOp is arbi-

trary and capricious because it does not insure against

jeopardy to the three protected species. In addition,

American Rivers contends that the EIS was faulty because

the Corps failed to explain why the Preferred Alternative

was superior to another evaluated alternative. Blaske

Marine, ConocoPhillips Company, Ergon Asphalt & Emul-

sions, Inc., Magnolia Marine Transport Company, Midwest

Terminal Warehouse Company, Inc., MO-ARK Association

and Missouri River Keepers (collectively “Blaske Marine”)

argue that a supplemental EIS is required for a contingent

summer low flew that the Corps still has the discretion to

implement. Finally, the Mandan, Hidasta and Arikara

Nation (“the Nation”) contends that the Corps must

operate Lake Sakakawea (Garrison Dam) for the economic

benefit of the Nation’s members.

Il. DISCUSSION

“We review de novo a grant of summary judgment,

applying the same legal standards used by the district

court.” Voyageurs Nat'l Park Ass’n v. Norton, 381 F.3d 759,

763 (8th Cir.2004). We review the actions of the Corps and

App. 14

FWS under the Administrative Procedure Act “to deter-

mine whether they are ‘arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.’™

Ubbelohde, 330 F.3d at 1027 (quoting 5 U.S.C. § 706(2)(A)).

An arbitrary and capricious action is one in which:

the agency has relied on factors which Congress

has not intended it to consider, entirely failed to

consider an important aspect of the problem, of-

fered an explanation for its decision that runs

counter to the evidence before the agency, or is so

implausible that it could not be ascribed to a dif-

ference in view or the product of agency expertise.

Cent. S.D. Coop. Grazing Dist. v. Sec’y of the United States

Dep't. of Agric., 266 F.3d 889, 894 (8th Cir.2001) (quoting

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.

Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443

(1983)). “If an agency's determination is supportable on

any rational basis, we must uphold it.” Voyageurs Nat'l

Park Ass'n, 381 F.3d at 763. “When the resolution of the

dispute involves primarily issues of fact and analysis of

the relevant information ‘requires a high level of technical

expertise, we must defer to the informed discretion of the

responsible federal agencies.’” Friends of the Boundary

Waters Wilderness v. Dombeck, 164 F.3d 1115, 1128 (8th

Cir.1999) (quoting Marsh v. Oregon Natural Resources

* Nebraska and NPPD argue that the Corps has attempted to

evade judicial review under the Administrative Procedure Act by

stating in a letter that it did not intend for the 2004 Master Manual to

be considered a binding regulation. We established in Ubbelohde that

the 1979 Master Manual was binding and subject to judicial review. 330

F.3d at 1027-30. The Corps has conceded, both in district court and in

its briefs on appeal, that the 2004 Master Manual is stil] binding on the

Corps and subject to judicial review.

App. 15

Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 104 L.Ed.2d

377 (1989)).

A. The Corps’ FCA Duty to Support Down-

stream Navigation

Missouri, Nebraska and NPPD (collectively “the

downstream parties”) argue that the 2004 Master Manual

is not in accordance with law because, under certain

drought conditions, it calls for canceling the navigation

season in order to hold water in the reservoirs for the

benefit of recreation. The MDL court concluded that the

FCA imposes no duty to maintain a minimum level of

downstream navigation independent of consideration of

other interests. We agree.

This Court has already addressed thoroughly the

balance of interests under the FCA. In Ubbelohde, we

relied on the Supreme Court's decision in ETSI Pipeline

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

L.Ed.2d 898 (1988), and the legislative history of the FCA

to determine that “(t]he dominant functions of the Flood

Control Act were to avoid flooding and to maintain down-

stream navigation,” while “the Act recognizes secondary

uses of the River including irrigation, recreation, fish, and

wildlife.” Ubbelohde, 330 F.3d at 1019-20. However, the

FCA does not set forth what level of river flow or length of

navigation season is required to make navigation “domi-

nant” over a “secondary” interest such as recreation.

Instead, “the courts can review the Corps’s decisions to

ensure that it considered each of these interests before

making a decision,” but “the Act 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 1027.

App. 16

The downstream parties challenge the provisions of

the 2004 Master Manual referred to as “navigation pre-

cludes.” The amount of water stored in the entire reservoir

system is checked on March 15 and July 1 of each year. If

total system storage falls below the “volumes ... that

allow the System to function to meet authorized purposes

during significant multi-year drought periods,” navigation

support is reduced or eliminated for that year. 2004

Master Manual § 7-03. The EIS estimates, based on the

modeling of historical data from 1898 to 1997, that the

selected navigation-preclude volumes will lead to the

elimination of the entire navigation season only in the four

worst drought years out of every one hundred years, and

to a navigation season shortened from eight-plus months

to less than seven months only in the eight worst drought

years out of every one hundred. Under these circum-

stances, we cannot say that the Corps failed to consider

downstream navigation before making its decision.’

Appellees North Dakota and South Dakota argue that

because damage to the recreation industry would have a

" The Corps states in § 7-01 of the 2004 Master Manual that in the

FCA, “Congress did not assign a priority to these purposes” of “flood

control, navigation, irrigation, hydropower, . . . recreation, and fish and

wildlife. ...” To the contrary, as we clearly stated in Ubbelohde, the

FCA has been interpreted to hold flood control and navigation domi-

nant and recreation, fish and wildlife secondary. Ubbelohde, 330 F 3d at

1019-20. If, due to extreme conditions, the Corps is faced in the future

with the unhappy choice of abandoning flood control or navigation on

the one hand or recreation, fish and wildlife on the other, the priorities

established by the FCA would forbid the abandonment of flood control

or navigation. While we hold today that the 2004 Master Manual does

not “abandon” navigation, we do not rule out the possibility that some

more limited degree of support for flood control or navigation in the

future could be held to constitute “abandonment” of these dominant

functions. See also infra note 9.

App. 17

more dramatic negative economic impact than would

damage to the navigation industry, recreation should

receive special priority. Nothing in the text or legislative

history of the FCA suggests that Congress intended the

priority of interests under the FCA to shift according to

their relative economic value. Arguments based on the

wisdom of the priorities established by the FCA must be

addressed to Congress."

The Corps’ balancing of water-use interests in the

2004 Master Manual is in accordance with the FCA.

Because the 2004 Master Manual does not evidence a

failure to consider the support of downstream navigation,

it is not arbitrary and capricious. Therefore, we affirm the

grant of summary judgment to the Corps on this claim.

B. The Corps’ Duty to Consult with the FWS

under ESA § 7

Nebraska and NPPD argue that it was not in accor-

dance with law for the Corps to engage in the ESA § 7

consultation process with the FWS regarding the opera-

tion of the reservoir system. They contend that the ESA

* Appellee South Dakota also argues that the O’Mahoney-Millikin

Amendment, 33 U.S.C. § 701-1(b), prioritizes the retention of water in

the reservoirs over downstream navigation. The MDL court granted

summary judgment against South Dakota on this issue, and South

Dakota did not appeal. We, therefore, construe South Dakota’s argu-

ment in opposition to the appellant downstream parties to be that the

O’Mahoney-Millikin Amendment would forbid, for the purposes of

supporting navigation, any further lowering of the navigation-preclude

volumes beyond those implemented in the 2004 Master Manual.

Because we find against the appellant downstream parties on this issue

on other grounds, we need not address appellee South Dakota's

argument.

App. 18

does not apply to the operation of the reservoir system

because ESA compliance would interfere with downstream

navigation, a project purpose that is mandated by statute

such that the Corps has no discretion in meeting it. See 50

C.F.R. § 402.03 (“Section 7 [of the ESA] and the require-

ments of this part apply to all actions in which there is

discretionary Federal involvement or control.”) (emphasis

added).

Case law supports the contention that environmental

~- and wildlife-protection statutes do not apply where they

“would render an agency unable to fulfill a non-

discretionary statutory purpose or require it to exceed its

statutory authority. For example, in National Wildlife

Federation v. United States Army Corps of Engineers, 384

F.3d 1163 (9th Cir.2004), the Ninth Circuit held that the

Corps’ operation of four dams on the Snake River did not

violate the Clean Water Act. The challenged noncompli-

ance with water standards was caused by “the existence of

the dams and not any discretionary method of operating

the dams,” and the Clean Water Act could not be construed

to supersede “the Corps’s operation of the dams consistent

with the purposes stated by Congress.” Jd. at 1178-79.

Similarly, in Platte River Whooping Crane Critical Habitat

Maintenance Trust v. FERC, 962 F.2d 27 (D.C.Cir.1992), the

Federal Energy Regulatory Commission (FERC) was

authorized by statute to issue annual licenses to hydro-

power providers on the Platte River. The enabling statute

forbade alteration of the terms of an annual license with-

out agreement from the licensee. Environmental groups

sued FERC, arguing that the ESA required the imposition

of wildlife-protection terms in the licenses. The court held

that the ESA did not apply to the licenses because the ESA

did not authorize FERC to override the statutory prohibition

App. 19

on altering the licenses. Jd. at 32-34. In effect, Platte River

Whooping Crane affirmed that the ESA does not apply

where an agency has no statutory authority to act with

‘i

Cases such as National Wildlife Federation and Platte

River Whooping Crane are inapposite to the instant case,

however, because compliance with the ESA does not

prevent the Corps from meeting its statutory duty under

the FCA to support downstream navigation. As we stated

above, the FCA does not mandate a particular level of

river flow or length of navigation season, but rather allows

the Corps to decide how best to support the primary

interest of navigation in balance with other interests. The

2004 Master Manual demonstrates that the Corps can

comply with the elements of the 2003 Amended BiOp RPA

while continuing to operate the dams “consistent with the

purposes stated by Congress” in the FCA.” Natl Wildlife

Fed'n, 384 F.3d at 1179.

Because the Corps is able to exercise its discretion in

determining how best to fulfill the purposes of the reser-

voir system’s enabling statute, the operation of the reser-

voir system is subject to the requirements of the ESA. It

was therefore in accordance with law for the Corps to

consult with the FWS to produce the 2003 Amended BiOp.

We affirm the grant of summary judgment to the Federal

Defendants on this claim.

* It follows that if future circumstances should anse in which ESA

compliance would force the Corps to abandon the dominant FCA

purposes of flood control or downstream navigation, the ESA would not

apply. See supra note 7.

App. 20

C. Mootness of Claims Based on Summer

Low Flow

Several of the claims against the Federal Defendants

challenge the conditional summer low flow element of the

' 2003 Amended BiOp RPA. The Federal Defendants argue

that these claims are now moot because the Corps has

successfully completed the mechanical construction of

1,200 acres of shallow water habitat, which permits the

Corps to avoid the summer low flow requirement.” The

Corps has announced that it has no plans to implement

summer low flows in the foreseeable future. Missouri,

NPPD and Blaske Marine counter that because the Corps

retains the discretion to implement the summer low flow

in any given year under its adaptive management frame-

work, these claims fall within the “capable of repetition,

yet evading review” exception to mootness. Ubbelohde, 330

F.3d at 1023 (quoting Weinstein v. Bradford, 423 U.S. 147,

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

We conclude that the claims based on summer low

flow are moot. The “capable of repetition, yet evading

review” 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.’”

Id. (quoting Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct.

978, 140 L.Ed 2d 43 (1998)).

” American Rivers has challenged the successfu! completion of the

1,200 acres in the MDL court. The MDL court dismissed the suit

without prejudice for procedural reasons. That dismissal has been

separately appealed to this Court, Docket No. 06-1200, end is still

pending.

App. 21

In this case, it appears that the 30-day duration of a

summer low flow period, particularly if it is implemented

with little prior warning, is too short to be fully litigated

prior to expiration. However, there is no reasonable

expectation that the Corps will implement the 2003

Amended BiOp summer low flow in the future. Although a

“‘party need not show with certainty that the situation

will recur,’” a “speculative possibility is not a basis for

retaining jurisdiction over a moot case.” McCarthy v.

Ozark Sch. Dist., 359 F.3d 1029, 1036 (8th Cir.2004)

(quoting Van Bergen v. Minnesota, 59 F.3d 1541, 1547 (8th

Cir.1995)). We are aware that the 2003 Amended BiOp

requires the Corps to be ready to implement summer low

flows as low as 21 Kefs in the future if monitoring reveals

that the alternate measures are not benefitting the pro-

tected species as expected. Nevertheless, as we discuss

later in this opinion, at this point there is no reason to

doubt the utility of those alternate measures. Therefore,

“we find nothing to suggest a likelihood” that the Corps

will decide to implement a summer low flow in future

years. McCarthy, 359 F.3d at 1036.

Because there is no reasonable expectation at this

point in time that the Corps will implement the 2003

Amended BiOp summer low flow in the future, we con-

clude that the following claims are moot: (1) NPPD’s claim

that the FWS failed to consider the economic feasibility of

the summer low flow requirement in developing the 2003

Amended BiOp; (2) Missouri’s claim that the loss of shal-

low water habitat for larval and juvenile pallid sturgeon in

central Missouri state resulting from summer low flow

constitutes an impermissible “take” of the sturgeon under

ESA §9; and (3) Blaske Marine’s NEPA claim that a

supplemental EIS is required for the 2003 Amended BiOp

App. 22

summer low-flow requirement. We vacate the MDL court's

grant of summary judgment to the Federal Defendants on

these claims and instruct the MDL court to dismiss these

claims without prejudice.

D. The Validity of the 2003 Amended BiOp

NPPD argues that the 2003 Amended BiOp is invalid

because the FWS violated regulations applicable to Bio-

logical Opinions. American Rivers challenges the 2003

Amended BiOp on the grounds that the 2003 Amended

BiOp RPA contradicts its own factual findings and the

administrative record and does not insure against jeop-

ardy to the protected species.

1. The Environmental Baseline for tne 2003

Amended BiOp

NPPD contends that the FWS used an improper

environmental! baseline in producing the 2003 Amended

BiOp. “The environmental baseline includes the past and

present impacts of all Federal, State, or private actions

and other human activities in the action area....” 50

C.F.R. § 402.02. Jeopardy to the protected species result-

ing from the proposed action is measured relative to the

species’ status under the baseline. Jd. The FWS used a

“run-of-the-river” baseline in which the dams and physical

channel modifications are assumed to be in place, but all

floodgates are assumed to be wide open, with no flow

control. NPPD argues that normal operation under the

1979 Master Manual was the proper baseline because it is

a “past impact” of a separate federal action and would

continue to control operations absent the proposed action.

Because continued operation under the 1979 Master

App. 23

Manual would cause the protected species’ chances of

recovery to deteriorate, its inclusion in the baseline would

tend to eliminate a finding of jeopardy for any proposed

action.

According due deference to the FWS’ interpretation of

its own regulations, Friends of the Boundary Waters

Wilderness, 164 F.3d at 1121, we agree with the FWS that

hypothetical continued operation under the previous

version of the Master Manual in future years, as the

alternative to the proposed action of updating the Master

Manual, does not in any sense constitute a “past impact”

of federal action. As the district court recognized, this

argument is essentially a different twist on the argument

that the Corps has no discretion in operating the reservoir

system. If the FCA mandated that the Corps must manage

the system to enable, for example, a barge of specific size

riding a specific depth below the waterline to navigate the

river between Sioux City and the Mississippi River at all

times between April 1 and December 1, there would be

some merit to including that non-discretionary condition

in the environmental baseline along with the permanent

physical presence of the dams and channel modifications.

However, given that the FCA “clearly gives a good deal of

discretion to the Corps in the management of the River,”

Ubbelohde, 330 F.3d at 1027, we cannot say that it was

arbitrary and capricious for the FWS not to include a

specific operational profile in the environmental baseline.

Therefore, we affirm the grant of summary judgment to

the Federal Defendants on this claim.

App. 24

2. Use of the Best Scientific and Commercial

Data Available

NPPD argues that the FWS did not rely on the best

scientific data available in its efforts to create a “normal-

ized” hydrograph in the 2003 Amended BiOp RPA. “In

formulating its biological opinion, [and] any reasonable

and prudent alternatives ... the [FWS] wili use the best

scientific and commercial data available.” 50 C.FR.

§ 402.14(g)(8); see 16 U.S.C. § 1536(a)(2).

To create a normalized version of the summer low flow

portion of the natural hydrograph, the 2003 Amended

BiOp calls for low flows beginning in July. NPPD directs

our attention to a United States Geological Survey report

in the administrative record showing that, before con-

struction of the dams, the lowest summer flows usually

occurred between August and early October. NPPD con-

tends that this incongruity evidences a failure to use the

best scientific data available to formulate the 2003

Amended BiOp.

The administrative record as a whole shows that the

FWS did not ignore the best scientific data on the summer

low flow in formulating the 2003 Amended BiOp. For

example, in a document e-mailed by the FWS to new

members of the 2003 Amended BiOp development team in

November 2003, the FWS recognized that “/tjhe historic

hydrograph began to fall at Gavins Point in mid-June and

reached it’s [sic] lowest levels in the fall months,” but

indicated that the FWS proposal would end the low flow

period in August because higher releases in the fall were

necessary “to evacuate any excess water [from the reser-

voirs) prior to the next water year.” The FWS then stated

that, “[w]hile this approach is not a perfect fit to the

historic hydrograph, we believe that it sufficiently mimics

App. 25

... the natural hydrograph” to have the necessary benefi-

cial effect on the protected species.

The FWS has never found that an exact replication of

the natural hydrograph was necessary to avoid jeopardy to

the protected species, and the record shows “a rational

connection between the facts found and the decision made”

about the timing of the low flow period. Gifford Pinchot

Task Force v. United States Fish & Wildlife Serv., 378 F.3d

1059, 1065 (9th Cir.2004). Therefore, we affirm the grant

of summary judgment to the Federal Defendants on this

claim.

3. The Consistency of the 2003 Amended BiOp

Factual Findings and the RPA for the Pal-

lid Sturgeon

American Rivers argues, on the basis of the factual

findings in the 2003 Amended BiOp and the administra-

tive record underlying it, that the conditional replacement

of the 2000 BiOp RPA summer low flow requirement with

the mechanical construction of 1,200 additional acres of

artificial shallow water habitat for the pallid sturgeon is

arbitrary and capricious.

The 2003 Amended BiOp incorporated findings from

the 2000 BiOp and stated that “[uljntil a semblance of the

normalized hydrograph is restored and habitat is gener-

ated and maintained through reestablishment of these

[ecological] processes, listed species will continue to

decline.” In addition, the executive summary of the 2003

Amended BiOp summarizes, with regard to the pallid

sturgeon:

The proposed accelerated habitat restoration

program in the Lower Missouri River will have

App. 26

little benefit to the pallid sturgeon without a con-

current or subsequent change in operations to

provide a more normalized hydrograph to (1)

provide the spawning cues that are critical for

pallid sturgeon reproduction and (2) allow larvae

and juveniles to move into shallow water habitat.

American Rivers contends that the above statements,

and others like them in the administrative record, show

that the FWS was irrational in abandoning any semblance

of half of the natural hydrograph, the summer low flow, in

exchange solely for habitat construction. However, evi-

dence in the record adequately explains the decision made

by the FWS. First, Appendix A of the Corps’ 2003 Biologi-

cal Assessment, entitled “New Information Since the 2000

BiOp,” includes the results of extensive modeling of the

river showing that the proposed 2000 BiOp summer low

flow would be expected to increase suitable shallow water

habitat by 1,189 acres over that existing during regular

summer service flows. The creation of 1,200 acres of

habitat, therefore, provides the same total acreage of

accessible calm, shallow pools during regular summer

service flows as the 2000 BiOp summer low flow would

have produced. Second, the 2003 Amended BiOp RPA

retains a spring rise requirement, and the Corps must

tailor the spring rise to provide the necessary biological

spawning cues and floodplain connectivity with the shal-

low water habitat. Third, the 2003 Amended BiOp RPA

requires the Corps to monitor the pallid sturgeon popula-

tion and collaborate with the FWS to adjust these meas-

ures if necessary. Finally, the avoidance of summer low

flow preserves the existing Lisbon chute shallow water

habitat, the only site in the river where larval pallid

sturgeon occur naturally, from potential damage.

App. 27

American Rivers argues that the 2003 Amended BiOp

did not state that the mechanical construction of 1,200

acres was designed to replace the additional acreage that

would have resulted from summer low flow. American

Rivers contends that this rationale is therefore an imper-

missible post hoc rationalization by counsel. “[(C]ourts may

not accept appellate counsel's post hoc rationalizations for

agency action.” Motor Vehicle Mfrs., 463 U.S. at 50, 103

S.Ct. 2856. However, there is no requirement that every

detail of the agency’s decision be stated expressly in the

2003 Amended BiOp. The rationale is present in the

administrative record underlying the document, and this

is all that is required. Mo. Coalition for the Env't v. Corps

of Eng’rs of the United States Army, 866 F.2d 1025, 1031

(8th Cir.1989), overruled on other grounds, Goos v. ICC,

911 F.2d 1283 (8th Cir.1990). Therefore, the Federal

Defendants’ rationale is not an impermissible post hoc

rationalization.

We conclude that the Federal Defendants have dem-

onstrated a rational connection between the facts in the

record and the decision to substitute 1,200 mechanically

constructed acres of shallow water habitat for the 1,189

acres that would have been created by the 2000 BiOp

summer low flow. Therefore, we affirm the grant of sum-

mary judgment to the Federal Defendants on this claim.

4. The Consistency of the 2003 Amended BiOp

Factual Findings and the RPA for the Least

Tern and Piping Plover

American Rivers argues that the elimination of the

2000 BiOp RPA spring rise and summer low flow require-

ments for the benefit of the least tern and piping plover is

arbitrary and capricious. The 2000 BiOp flow requirements

App. 28

for the tern and plover were premised on factual findings

that a spring rise was necessary to scour vegetation from

sandbars, while the summer low flow would expose the

resulting sparsely vegetated sandbars for safe nesting.

The 2003 Amended BiOp RPA replaced the spring rise and

summer low flow requirements with increased focus on the

mechanical construction and clearing of sandbar habitat

for the birds and adjustment of flow levels during the

nesting season to minimize the potential for flooding nests.

In making these changes in the 2003 Amended BiOp,

the FWS had the benefit of a new Corps analysis of the

river’s geomorphological processes. The Corps’ computer

models indicated that, given the man-made alterations to

the river channel, a spring rise as envisioned in the 2000

BiOp would not produce scoured sandbar habitat for use

by the tern and plover. In fact, the models showed that

those flows were more likely to reduce the quality of

previously available habitat.

The 2003 Amended BiOp also included information

about tern and plover populations that was not available

for the 2000 BiOp. The updated information included the

fact that “recent counts of least terns (approximately

12,305 terns in 2003) exceed the overall recovery objective

of 7,000 birds,” although geographic distribution and

population stability goals were not yet satisfied. Regarding

the recovery goal for piping plovers, the 2003 Amended

BiOp stated that “[iJn 2001, the Missouri River exceeded

this recovery goal for the first time. It was also exceeded in

2002 and 2003.”

Based on this new information, it was rational for the

FWS to conclude that the 2000 BiOp spring rise and

summer low flow elements were not necessary to avoid

App. 29

jeopardy to the tern and plover, and to instruct the Corps

to focus its resources on the mechanical construction of

habitat, monitoring and adaptive management.

American Rivers cites the lack of conclusive proof in

the administrative record that the mechanically con-

structed sandbars will develop into an ecologically func-

tional habitat for the plover and tern. American Rivers

contends that, without such conclusive proof, the 2003

Amended BiOp RPA fails to satisfy the ESA § 7 require-

ment that the plan “insure” against jeopardy to the listed

species. This argument fails because, while the proposed

mitigation measures must insure against jeopardy to the

protected species if they work as injended, while there

must be a rational reason to expect them to work as

intended, and while they must in fact be possible to

implement, there is no requirement for the FWS to ensure

the overall success of the plan. See Southwest Ctr for

Biological Diversity v. United States Bureau of Reclama-

tion, 143 F.3d 515, 523-24 (9th Cir.1998). We also note that

the 2003 Amended BiOp requires the Corps to monitor

closely the performance of the mechanically constructed

sandbar habitat and test methods of improving the mix of

organic material in the sandbars.

Finally, American Rivers cites its own experts for the

contention that the higher-magnitude 2000 BiOp RPA

spring rise would be more beneficial to the protected

species than the default spring rise in the 2003 Amended

BiOp RPA. We need not address that contention:

(The FWS) was not required to pick the first rea-

sonable alternative [it] came up with in formulat-

ing the RPA. [It] was not even required to pick

the best alternative or the one that would most

effectively protect the [species] from jeopardy.

App. 30

The [FWS] need only have adopted a final RPA

which complied with the jeopardy standard and

which could be implemented by the agency.

Southwest Ctr. for Biological Diversity, 143 F.3d at 523

(quotation omitted).

“Because there was a rational connection between the

facts found in the [BiOp] and the choice made to adupt the

final RPA, and because we must defer to the special

expertise of the FWS in drafting RPAs that will suffi-

ciently protect endangered species,” the decision to elimi-

nate the 2000 BiOp flow changes from the 2003 Amended

BiOp RPA for the plover and tern was not arbitrary and

capricious. Jd. We affirm the grant of summary judgment

to the Federal Defendants on this claim.

E. Selection of the Preferred Alternative in

the EIS

American Rivers argues that the Corps’ selection of

the Preferred Alternative (“PA”) was arbitrary and capri-

cious because the Corps did not sufficiently explain why

the PA was superior to plan GP2021, favored by American

Rivers. Plan GP2021 included the spring rise and summer

low flow prescribed by the 2000 BiOp RPA, while the PA

became the 2004 Master Manual.

The EIS contains summary statements about the

selection of the PA, such as:

The Corps believes that the PA, when combined

with the other measures . . . , conserves more water

in the upper three lakes during extended droughts,

meets the needs of ESA-listed fish and wildlife spe-

cies, is consistent with the Corps’ responsibilities

App. 31

under environmental laws and tribal trust re-

sponsibilities, and provides for the Congression-

ally authorized uses of the System.

American Rivers argues that because plan GP2021 also

generally meets those same criteria and outperforms the

PA with respect to wildlife concerns, the Corps’ decision to

select the PA has not been sufficiently explained. “[A]n

agency must cogently explain why it has exercised its

discretion in a given manner.” Motor Vehicle Mfrs., 463

US. at 48, 103 S.Ct. 2856.

NEPA requires an agency to present the EIS alterna-

tives in comparative form, “sharply defining the issues and

providing a clear basis for choice among options by the

decision-maker and the public.” 40 C.F.R. § 1502.14. In

this case, the EIS included a detailed comparative analysis

of the effects of all five alternatives on a wide range of

interests including fish and wildlife resources, flood

control, water supply, hydropower, recreation and naviga-

tion. This analysis, presented in a series of tables, enables

the reader to compare the relative effectiveness of each of

the alternatives, as required by NEPA. For example, the

Federal Defendants point to tables showing the strong

superiority of the PA over plan GP2021 in maximizing

summer revenue from reservoir hydropower production

while creating far less risk of disruption for downstream

summer power generation. The tables also show that the

PA outperforms plan GP2021 in the areas of navigation,

groundwater damage and floodplain crop damage. “If the

adverse environmental effects of the proposed action are

adequately identified and evaluated, the agency is not

constrained by NEPA from deciding that other values

outweigh the environmental costs.” Robertson v. Methow

App. 32

Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835,

104 L.Ed.2d 351 (1989).

Contrary to what American Rivers seems to suggest,

there is no further NEPA or Administrative Procedure Act

requirement to repackage the information in the summary

tables into prose one-to-one comparisons of the PA with

each of the other alternatives. We conclude that the

comparisons provided in the EIS “cogently explain why

[the Corps] has exercised its discretion in a given manner.”

Motor Vehicle Mfrs., 463 U.S. at 48, 103 S.Ct. 2856. There-

fore, we affirm the grant of summary judgment to the

Federal Defendants on this claim.

F. Claim of the Mandan, Hidasta and Arikara

Nation Regarding the Management of

Lake Sakakawea

The Nation claims that the Corps has failed to choose

the FCA — and ESA-compliant reservoir management plan

that best spurs economic self-sufficiency for the Nation's

members and protects the Nation’s cultural resources. The

Nation seeks a court order to enjoin the Corps to correct

these “deficiencies.” The MDL court dismissed the Nation's

claim for lack of Article ITI standing.

To show Article III standing, a plaintiff must demon-

strate (1) an “injury in fact” that is both “concrete and

particularized” and “actual! or imminent, not conjectural or

hypothetical,” (2) “a causal connection between the injury

and the conduct complained of,” and (3) a likelihood, as

opposed to mere speculation, “that the injury will be

redressed by a favorable decision.” Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d

351 (1992) (quotations omitted).

App. 33

The Nation articulates its members’ general interest

in the operation of Lake Sakakawea, including an interest

in the economic health of the sport fishing industry located

there. However, the Nation does not articulate how reser-

voir operations under the 2004 Master Manual cause an

injury to the Nation that can be redressed by a favorable

court decision. There is nothing in the amended complaint,

for example, stating why reservoir operation under the

2004 Master Manual, which is more sensitive to reservoir

recreation needs during prolonged droughts than was the

1979 Master Manual, will damage the viability of Lake

Sakakawea’s sport-fishing industry. Furthermore, if we

were to do exactly as the Nation requests in its amended

complaint and order the Corps to re-formulate the 2004

Master Manual in a manner that, given FCA and ESA

constraints, would best “spur Tribal self sufficiency and

economic development and protect Indian trust assets,” it

is not at all clear what outcome could be adjudged to

comply with our order. The Nation simply has not set forth

a “concrete and particularized” injury that is likely to be

redressed by such an order. Lujan, 504 U.S. at 560-61, 112

S.Ct. 2130. Therefore, we affirm the dismissal of this claim

for lack of Article [II standing.

G. Extra Record Materials Offered by Ameri-

can Rivers

Nebraska challenges the submission of three declara-

tions by American Rivers that were not part of the admin-

istrative record. The MDL court apparently considered

Nebraska's motions to strike these declarations to be moot.

Because we affirm the grant of summary judgment to the

Federal Defendants on American Rivers’ claims, we also

find Nebraska's motions to strike to be moot.

App. 34

Ill, CONCLUSION

On the following three claims, we vacate the MDL

court’s grant of summary judgment to the Federal Defen-

dants and instruct the MDL court to dismiss without

prejudice: (1) NPPD’s claim that the FWS failed to con-

sider the economic feasibility of the summer low-flow

requirement in developing the 2003 Amended BiOp; (2)

Missouri's claim that the loss of shallow water habitat for

larval and juvenile pallid sturgeon in central Missouri

resulting from summer low flow constitutes an impermis-

sible “take” of the sturgeon under ESA § 9; and (3) Blaske

Marine’s NEPA claim that a supplemental EIS is required

for the 2003 Amended BiOp summer low-flow require-

ment. On all other claims, we affirm the judgment of the

MDL court.

App. 35

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

In re: Operation of the Missouri River

System Litigation 03-MD-1555 (PAM)

MEMORANDUM AND ORDER

This matter is before the Court on various Motions for

Summary Judgment. This case arises out of the manage-

ment of the Missouri River, which flows from Montana to

Missouri. Pursuant to the Flood Control Act of 1944

(“FCA”), the United States Army Corps of Engineers

(“Corps”) manages the river and its reservoirs. In conjunc-

tion with its responsibilities under the FCA, the Corps

developed a more detailed management plan, the “Mis-

souri River Main Stem Reservoir System Master Water

Control Manual” (“Master Manua]”). The Master Manual

was first developed forty years ago, and has been revised

three times, in 1973, 1975 and 1979. In the late 1980s, the

Corps began to revise the Master Manual again. Finally,

after fifteen years and repeated delays, the Corps issued a

revised Master Manual on March 19, 2004.’ The Corps

* Revision of the Master Manual is an extensive and lengthy

process that requires the Corps to consult with various agencies and

comply with various regulations and procedures. Prior to the issue of

the new Master Manual, the Corps must issue a Final Environmental

Impact Statement (“Final EIS”), and allow 30 days for public review

and comment as required by the National Environmental Policy Act

(“NEPA”). Here, the Court shortened the NEPA review period to two

weeks and required the Corps to issue a revised Master Manual on

March 19, 2004. On March 1, 2004, ine Corps requested a waiver of the

NEPA review period, which the Environmental Protection Agency

(“EPA”) granted “fo: compelling reasons of national policy.” From the

outset, the Court refuses to entertain any Motions attacking the

(Continued on following page)

App. 36

also issued the 2004 Annual Operating Plan (“AOP”) on

March 19, 2004.

Over the last several years, the Missouri River has

experienced prolonged drought conditions. The Corps has

been forced to make difficult decisions regarding the

allocation of water to the different interests in the basin.

As a result, interested parties filed lawsuits in various

districts, seeking to protect their interests. See American

Rivers v. U.S. Army Corps of Eng’rs, File No. 1:03-241

(D.D.C.); Nebraska v. Ubbelohde, 8:02-217 (D. Neb.)

Blaske Marine, Inc. et al. v. Norton, File No. 8:03-142 (D.

Neb.); North Dakota v. Ubbelohde, File No. 1:02-59 (D.

N.D.); South Dakota uv. Ubbelohde, File No. 3:02-3011 (D.

S.D.). In July 2003, the multi-district litigation panel

consolidated these actions and transferred them to this

Court. In re Operation of the Missouri River Litig., File No.

03-1555 (PAM). Pursuant to the Court's scheduling order

and as a result of the coordinated efforts of the parties, the

issues presented in these various cases are now before this

Court. This Memorandum and Order disposes of al! claims

before the Court.

BACKGROUND

A. The Parties

The parties involved in this action include: (1) the

states of North Dakota, South Dakota, Montana, Ne-

braska, and Missouri; (2) Blaske Marine, Coalition to

Protect the Missouri River, ConopcoPhillips Company,

sufficiency of the NEPA review period and dismisses al! claims pertain-

ing io this issue

App. 37

Ergon Asphalt & Emulsions, Inc., Magnolia Marine

Transport Company, Midwest Area River Coalition 2000,

and Midwest Terminal Warehouse Company, Inc. (collec-

tively “Blaske Marine”); (3) MO-ARK Association and

Missouri River Keepers (collectively “MO-ARK”); (4)

American Rivers, Environmental Defense, National

Wildlife Federation, various state Wildlife Federations,

and Izaak Walton League of America (collectively “Ameri-

can Rivers”); (5) Missouri River Energy Services (“MRES”);

(6) Nebraska Public Power District (“NPPD”); (7) the

Mandan, Hidasta and Arikara Nation (“the Nation”); and

(8) the Corps, Fish and Wildlife Service (““FWS”), and

various directors, secretaries and officers of these two

government agencies (collectively “Federal Defendants”).

Because of their competing interests, it is difficult to

classify each party as a Plaintiff, Defendant, or both.

Rather, the claims can be categorized into four different

topics: (1) Flood Control Act (“FCA”) claims; (2) Endan-

gered Species Act (“ESA”) claims; (3) NEPA claims; and (4)

collateral claims. The Court will address each topic in

turn.

B. The Revision of the Master Manual

In 1990, pursuant to the Endangered Species Act

(“ESA”), the Corps conducted its first consultation with

the FWS on the effects of its Missouri River operations on

endangered and threatened species.’ In 2000, the Corps

* An endangered species is “in danger of extinction throughout all

or a significant portion of its range.” 16 U.S.C. § 1532(6). A threatened

species is “likely to become an endangered species within the foresee-

able future throughout all or a significant portion of its range.” 16

U.S.C. § 1632(20).

App. 38

again consulted with the FWS. Following these consulta-

tions, the FWS issued the 2000 Biological Opinion (“2000

BiOp”), that concluded that the Corps’ proposed river

operations for 2000 were likely to jeopardize three species:

the endangered least tern, the threatened piping plover,

and the endangered pallid sturgeon. (Fish and Wildlife

Service Administrative Record (“FWS AR”) 1237 at 29216-

17.) The 2006 BiOp included a Reasonable and Prudent

Alternative (“RPA”), designed to avoid jeopardy to the

tern, plover and sturgeon. Specifically, this RPA recom-

mended a spring rise and low summer water flow regime,

in conjunction with habitat construction, to avoid jeopardy.

(Id. at 29229-32.)

In April 2003, the Corps consulted with the FWS

again on the Corps’ proposed operations for 2003. The

FWS then issued a supplemental Biological Opinion,

concluding that although the proposed operations for 2003

deviated from the RPA in the 2000 BiOp, the proposed

operations were justified. The District Court of the District

of Columbia disagreed, and granted a preliminary injunc-

tion ordering the Corps to comply with the 2000 BiOp. See

American Rivers v. U.S. Army Corps of Eng’rs, 271

F. Supp. 2d 230 (D.D.C. 2003). In November 2003, the

Corps again consulted with the FWS. The FWS then

amended the 2000 BiOp. (2003 Amended Biological Opin-

ion (hereinafter “2003 Amended BiOp”) at FWS AR 1457.)

The FWS again concluded that jeopardy would result to

the plover, tern and the sturgeon, and proposed a new

RPA. The 2003 RPA contained three separate parts, each

part applicable to a single species.

As noted above, the Corps issued the 2004 Master

Manual on March 19, 2004. The 2004 Master Manual,

along with the 2004 AOP, are based on the 2003 Amended

App. 39

BiOp. In accordance with NEPA, the Corps issued the

Final EIS for the 2004 Master Manual on March 5, 2004.

This Court truncated the public comment and review

period for the 2004 Master Manual. Therefore, on March

19, 2004, pursuant to Court Order, the Corps issued the

2004 AOP, 2004 Master Manual, and Record of Decision

(“ROD”). The issues in this litigation involve both the

substance of the 2004 Master Manual and the procedures

the Corps used to formulate the 2004 Master Manual.

DISCUSSION

This case involves the interplay of the Corps’ obliga-

tions under the FCA, ESA and NEPA. The FCA authorizes

the Corps to operate the Missouri River by balancing a

variety of river interests. The ESA seeks to protect and

conserve endangered and threatened species and their

habitats. NEPA requires agencies to consider and evaluate

the potential environmental consequences that may result

from an agency action. The Corps must consider both

competing river interests and its legal obligations in the

operation of the Missouri River.

A. The Flood Control Act of 1944

1. Navigation and Flood Control

The FCA provides for the management of the Missouri

River and its reservoirs. Pub. L. No. 78-534, 58 Stat. 887

(1944). The FCA is the product of the “Pick-Sloan” plan.

The “Pick” Plan, submitted to Congress by the Corps,

proposed the construction of reservoirs to effectively

control flooding, but also acknowledged that “|t/he devel-

opment of such a comprehensive plan involves adjustment

of many factors of flood control, navigation, irrigation,

App. 40

hydroelectric power production and numerous other

functions of water conservation and management.” H.R.

Doc. No. 78-475 at 6 (1944). The “Pick” Plan did not rank

any river interest above another, but rather seeks to

provide the “widest range of multiple benefits” and “to

contribute most significantly to the welfare and livelihood

of the largest number of people.” Jd. at 7. The “Sloan”

Plan, submitted to Congress by the Bureau of Reclama-

tion, proposed the construction of reservoirs “for the

purposes of storing water, and re. asing it during periods

of low flow ... [sjuch reservoirs will contribute to flood

control ... aid navigation ... enlarge the supply of water

generation of electrical energy.” S. Doc. No. 78-191 at 18

(1944). The “Sloan” Plan does not dictate a priority of river

interests, but rather seeks to provide a “basin-wide plan

most likely to yield the greatest good to the greatest

number of people.” Jd. at 17. The “Sloan” Plan declared

that any plan for operation of the river must “recognize all

beneficial uses of waters, weigh their relative values, and

make a compromise, from a basin-wide viewpoint, in each

instance of conflict.” Jd. at 21. These two plans combined

to develop one plan for the river's operation, the “Pick-

Sloan” Plan. S. Doc. No. 78-247 (1944). This “unified” plan

was intended to “secure the maximum benefits for flood

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

tary purposes, wildlife, and recreation” in the Missouri

River. Jd. at 5; See Id. at 2.

Courts acknowledge that the “dominant” functions of

the FCA include flood control and downstream navigation,

but they also acknowledge that other river interests

should similarly be provided for. ETSI Pipeline Project v.

Missouri, 484 U.S. 495, 512 (1988); See also South Dakota

App. 41

v. Ubbelohde, 330 F.3d 1014, 1019-20 (8th Cir. 2003). The

Eighth Circuit acknowledged that the FCA requires that

“the Corps must strike a balance among many interests,

including flood control, navigation and recreation.” Ubbe-

lohde, 330 F.3d at 1019, 1027. The Corps’ obligations

under the ESA are within the scope of these “many inter-

ests.” See American Rivers, 271 F. Supp. 2d at 252. Be-

cause of this balance, the Court may only review the

Corps’ actions to ensure that the Corps considered all river

interests when formulating a given plan. Jd. at 1027. The

language of the FCA does not require a particular out-

come, but rather that the Corps consider all interests in its

operations. Jd. There is no language in either caselaw or

legislative history that dictates that the Corps must

always maintain a particular water level or specific water

season in its river operations. All river interests must be

considered and evaluated to “secure the maximum bene-

fits” to river interests. The Court finds that the FCA does

not impose a non-discretionary duty to maintain minimum

navigation flows or season lengths. The Corps’ prioritiza-

tion of river interests is discretionary.

However, the Corps is not entitled to abandon these

interests; it must consider and balance river interests to

achieve maximum benefits. Some parties propose that

navigation is abandoned under the 2004 Master Manual,

because in the event that by March 15 total system stor-

age is below 31 million acre-feet, the 2004 Master Manual

provides that flows be reduced such that the navigation

season is eliminated for that particular water year. As the

Corps points out, however, the FCA requires it to defer to

upstream consumptive uses in the event these uses “con-

flict” with downstream navigation. See 33 U.S.C. § 701-

l(b). In the rare event that this condition presents itself,

App. 42

the 2004 Master Manual’s elimination of the navigation

season ensures that upstream consumptive uses are given

deference as required by law. The Court finds that the

2004 Master Manual complies with the FCA.

The priority that the Corps gives the competing river

interests is a discretionary function, and subject to the

ESA. If Congress intended to require that the Corps

always maintain minimum levels of navigation or a

specific navigation season, then Congress must amend the

FCA accordingly. Absent any evidence to the contrary, the

Court concludes that prioritization of river interests is

discretionary.

2. Ambiguity of the Master Manual

Ubbelohde declared that the 1979 Master Manual

limited the Corps’ discretion to operate the Missouri River.

330 F.3d at 1029. As a result, Ubbleohde found that judi-

cial review of the Corps’ decisions was appropriate. Jd. In

reaching that conclusion, the Eighth Circuit relied on a

combination of three considerations: (1) the language of

the manual itself; (2) the corresponding agency regulations

at 33 C.F.R. § 222.5; and (3) the Corps’ treatment of the

manual. Jd. (citing Northwest Nat'l Bank v. Dep't of the

Treasury, 917 F.2d 1111, 1116-17 (8th Cir. 1990)). Unlike

the 1979 Master Manual, the 2004 Master Manual ex-

pressly states that “the Master Manual! has been amended

to clearly reflect the Corps’ intent that it not be considered

a binding regulation.” (2004 Master Manual, at Introduc-

tion.) The Corps essentially is attempting to reserve the

right to vary operations from those set forth in the Master

Manual, in the event that changed conditions or unfore-

seen circumstances require it to do so. The Corps insists

App. 43

that the FCA, its regulations, and the Ubbelohde decision

permit it to retain such discretion in its operations. Mis-

souri, Nebraska, and the NPPD insist that this discretion

is expressly prohibited by Ubbelohde.

Missouri, Nebraska and NPPD misinterpret the

discretion the Corps seeks to retain. The Corps does not

intend to disregard the Master Manual and thus operate

the River with unfettered discretion. To the contrary, the

Corps seeks to retain the discretion to deviate from the

2004 Master Manual in the event that unforeseen circum-

stances arise. The Corps cannot anticipate and provide for

all possible circumstances affecting river operations.

Although historical patterns provide some insight into

future circumstances, the Corps simply cannot predict the

future. If the Corps was prohibited from varying its

operations from the Master Manual to adjust for unfore-

seen circumstances, and instead was required to conform

to a Master Manual that did not contemplate a given

situation, the Corps would arguably violate its obligations

under the FCA and Ubbelohde to properly balance river

interests.

However, the Court does not construe this discretion

to permit the Corps to perpetually evade judicial review.

The Eighth Circuit determined that the 1979 Master

Manual could serve as a basis for court review. Ubbelohde,

330 F.3d at 1929-30. Although the Eighth Circuit made

this determination in part by examining the language of

the 1979 Master Manual, it also relied on the regulations

governing the Corps’ promulgation of the Master Manual.

Particularly, these regulations “are not the types of proce-

dures one would expect in the promulgation of an internal,

non-binding agency guideline.” Jd. at 1029; 33 C.F.R.

§ 222.5. Therefore, pursuant to Ubbelohde, this Court

App. 44

determines that the 2004 Master Manual may likewise

serve as a basis for judicial review. The 2004 Master

Manual, like the 1979 Master Manual, is binding on the

Corps to the extent that the parties may seek judicial

review to ensure that the Corps’ operations conform to the

2004 Master Manual. The Corps acknowledges that it

must abide by the 2004 Master Manual, and that any

permanent amendment to the existing provisions of the

2004 Master Manual must go through the procedures

contained in 33 C.F.R. § 222.5. (Fed. Defs.’ Reply Mem. in

Supp. of Mot. on FCA and NEPA at 12.) The Court ac-

knowledges that the Corps must be permitted to vary its

operations in the event that changed circumstances

require it to do so, but similarly holds that this discretion

does not eliminate the propriety of judicial review of the

lawfulness of the agency action. Therefore, the 2004

Master Manual satisfies the procedural requirements of

Ubbelohde and the FCA.

3. Recreational Interests

South Dakota maintains that the FCA subordinates

navigation to upstream uses of irrigation and domestic

water supply. The “O’Mahoney- Millikin Amendment,” 33

U.S.C. § 701-1(b) states:

The use for navigation, in connection with the

operation and maintenance of such works herein

authorized for construction, of waters arising in

states lying wholly or partly west -f the ninety-

eighth meridian shal] be only such use as does

not conflict with any beneficial consumptive use,

present or future, in States lying wholly or partly

west of the ninety-eighth meridian, of such waters

App. 45

for domestic, municipal, stock water, irrigation,

mining or industrial purposes.

This provision requires that when a conflict between

upstream consumptive uses and downstream navigation

exists, upstream consumptive uses receive deference.

South Dakota does not argue that the 2004 Master Man-

ual does not serve these consumptive uses. Rather, South

Dakota argues that the 2004 Master Manual is in “con-

flict” with South Dakota’s consumptive beneficial uses,

because the 2004 Master Manual allows for lower levels in

reservoirs such that South Dakota may be required to

build extensions to irrigation lines or extend intake

structures for drinking water at these reservoirs.

South Dakota’s argument lacks merit. The statute is

not designed to pretect against these kind of difficulties,

but rather designed to “prohibit destruction of state-

created water rights without any compensation at all, by

the assertion of an overriding federal easement for naviga-

tion.” Turner v. Kings River Conservation Dist., 360 F.2d

184, 192 (9th Cir. 1966) (interpreting 33 U.S.C. § 701-1).

Moreover, requiring South Dakota to build extensions for

irrigation lines or drinking water is not in “conflict” with

South Dakota's consumptive beneficial uses, because there

is no destruction or denial of South Dakota's water rights.

Kansas v. United States, File No. 00-4153, 2000 WL

1665260 (D. Kan. Sept. 29, 2000) (finding that mere

“potential threat” that Corps’ drainage of water from three

reservoirs would deny adequate drinking water or inter-

fere with industrial purposes insufficient to constitute

“conflict” with Corps’ actions). In fact, the 2004 Master

Manual sets forth the minimum levels required to be

maintained in the upstream reservoirs, and a “sufety

cushion” that ensures that these reserveir levels are

App. 46

maintained even under drought conditions. (See 2004

Master Manual, §§ VII-10 to VII-11 & Treble VII-3.) The

2004 Master Manual complies with the FCA.

4. Conclusion

The Corps’ Motion for Summary Judgment on FCA

claims is granted. Moticns by South Dakota, Nebraska,

NPPD, Missouri and Blaske Marine Plaintiffs are denied.

B. The Endangered Species Act and Related

Claims

The ESA seeks “to provide a means whereby the

ecosystems upon which endangered species and threat-

ened species depend may be conserved,” and “to provide a

program for the conservation of such ... species.” 16

U.S.C. § 1531(b). The ESA prohibits any person, including

federal agencies, to “take” a listed endangered species. 16

U.S.C. § 1538 aX 1B). “Take” means to “harass, harm,

pursue, hunt, shoot, wound, kill, trap, capture, or collect.”

16 U.S.C. § 1532(19).

In the event that its proposed action may jeopardize a

listed species, the Corps must prepare a “biological as-

sessment” evaluating both the species in the action area as

well as the potentia) effects the proposed action may have

on the species in the action area. See 50 C.F.R. § 402.02

(defining biological assessment). A proposed action will

“jeopardize” the species if it “reasonably would be ex-

pected, directly or indirectly, to reduce appreciably the

likelihood of both the survival and recovery of a listed

species in the wild by reducing the reproduction, numbers,

or distribution of that species.” Jd. If the Corps concludes

that its proposed actions may adversely affect the listed

App. 47

species, then it must initiate consultation with the FWS.

This consultation is required to “insure” that the Corps’

proposed action “is not likely to jeopardize the continued

existence of any endangered or threatened species or

result in the destruction or adverse modification of habitat

of such species.” 16 U.S.C. § 1536(a)2).

After this consultation, the FWS must prepare and

issue a Biological Opinion (“BiOp”) to the Corps. 16 U.S.C.

§ 1536(bX3). The BiOp must set forth the FWS’s opinion,

with supporting information, detailing how the Corps’

proposed actions will affect the species. 16 U.S.C.

§ 1536(bX 3A). In the event that the FWS concludes that

jeopardy to the species will result, the FWS must also set

forth a RPA. Jd. A RPA is an alternative action “that can be

implemented in a manner consistent with the intended

purpose of the action,” within the Corps’ legal authority. 50

C.F.R. § 402.02. A RPA must also be economically and

technologically feasible for the Corps to implement. /d.

The RPA is designed to avoid the likelihood of jeopardizing

the continuing existence of the species. Jd. If the FWS

concludes that either the Corps’ proposed action or the

implementation of a RPA may still result in an incidental

take of the species, the FWS must also include an Inciden-

tal Take Statement (ITS") in the BiOp. 16 U.S.C.

§ 1536(b\4); 50 C.F.R. § 402.14(i) (setting forth require-

ments for ITS). An incidental take statement identifies the

impact that the take will have on the species, identifies

“reasonable and prudent measures” (“RPM”) considered

necessary to minimize the impact, and sets forth the terms

and conditions required to implement the RPMs. /d. If the

Corps’ action is otherwise in compliance with the terms

and conditions set forth in the ITS, any action that harms

App. 48

a listed species will not be considered a “take” under the

ESA. 16 U.S.C. § 1536(0).

Because the ESA makes no specific provision for

judicial review of final agency actions, the scope of the

review is governed by the Administrative Procedures Act

(“APA”), 5 U.S.C. § 701 et seq. The Court reviews an

agency action to determine if it was “arbitrary, capricious,

an abuse of discretion or otherwise not in accordance with

law.” 5 U.S.C. § 706(2XA). If the agency decision fails to

articulate a satisfactory explanation for its conclusions,

relies on factors which Congress did not intend for it to

consider, or fails to consider an important aspect of the

problem, that decision is arbitrary and capricious. Motor

Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463

U.S. 29, 43 (1983). Under this standard, the Court's review

is narrow, evaluating whether the decision was based on a

consideration of relevant factors and whether there has

been a clear error of judgment. Marsh v. Oregon Natural

Res. Council, 490 U.S. 360, 378 (1989). The Court should

defer to the agency so long as the agency's interpretation

of the evidence was reasonable. Jd. The Court may not

substitute its judgment for that of the agency. Citizens to

Preserve Overtone Park, Inc. v. Vole, 401 U.S. 402, 416

(1971).

* American Rivers and other parties argue that Federal Defen-

Peet map tee ner par pg ag Nl eee a

Amended BiOp is a “reversal” of the 2000 BiOp. The Court disagrees.

The law does not require that Federal Defendants provide extensive

justification for the Corps’ decision. Rather, the decision must be

“rational,” providing “permissible reasons” for the change American

Rivers v. U.S. Army Corps of Eng'rs, 271 F. Supp. 2d 230, 266-66

(D.D.C. 2003).

App. 49

1. Claims by American Rivers

American Rivers contends that the Corps should

maintain river operations pursuant to the 2000 BiOp. As a

result of the 2000 ESA consultations, the FWS issued the

2000 BiOp that concluded that the Corps’ proposed opera-

tions would cause jeopardy to the tern, plover and stur-

geon. The RPA in the 2000 BiOp recommended that the

Corps vtilize both water flows and habitat construction,

among other elements, to avoid jeopardy to the plover, tern

and sturgeon. (FWS AR 1237 at 29232.) In November

2003, the Corps and the FWS reinitiated consultation

under the ESA. The FWS then issued the 2003 Amended

BiOp, which again concluded that the Corps’ proposed

operations would cause jeopardy to the plover, tern and

sturgeon. The 2003 Amended BiOp recommended a multi-

ple species RPA to avoid such jeopardy. The RPA has

individual sections allocated to each one of the species. In

particular, the 2003 RPA no longer requires both flow

modification and habitat construction to avoid jeopardy to

the plover aud tern. The sturgeon RPA maintains both

flow changes and habitat construction, though modified

somewhat from the 2000 BiOp RPA.

American Rivers submits numerous arguments

challenging the validity of the 2003 Amended BiOp.

American Rivers contends that the FWS’s elimination of

flow changes in the 2003 RPA applicable to the plover and

tern is arbitrary and capricious, and that the changes

made to the sturgeon RPA are also arbitrary and capri-

cious in violation of the ESA. American Rivers also main-

tains that the 2003 Amended BiOp violates the ESA

because it does not “insure” against jeopardy. As a result,

because the Corps fails to follow the 2000 BiOp, American

App. 50

Rivers contends that the Corps’ actions “take” the plover,

tern and sturgeon in violation of the ESA.

a. Plover and Tern RPA

The 2000 BiOp recommended that a spring rise and

low summer flow were necessary to avoid jeopardy to all

three species. The 2003 Amended BiOp adopts many of the

findings and conclusions of the 2000 BiOp, including the

habitat construction will prevent jeopardy to the species.

(FWS AR 1457 at 33714, 33736.) However, unlike the 2000

RPA, the 2003 RPA eliminates the requirement that both

flow modifications and habitat construction are essential

to avoid jeopardy to the plover and the tern. Instead, the

2003 RPA contains additional elements, such as a drought

conservation plan, Gavins Point dam summer releases,

accelerated construction of shallow water habitat, and

adaptive management, that together avoid jeopardy to the

plover and tern. (FWS AR 1451 at 33187.)

The 2003 Amended BiOp relies on updated informa-

tion: (1) completion of a report by the National Academy of

Sciences’ National Research Council, “The Missouri River:

Exploring the Prospects for Recovery;” (2) analysis of the

reservoir releases pursuant to the 2000 RPA; (3) continued

monitoring and study of listed species; (4) use of a new

model to better analyze use of reservoir habitat by the tern

and plover; and (5) the critical habitat designation of the

plover in October 2002. (FWS AR 1291 at 31065.) Particu-

larly relevant to the plover and the tern is the new infor-

mation relating to the analysis of the 2000 RPA and the

continued monitoring of the species since the 2000 BiOp.

(Id.) Since the 2000 BiOp, both the plover and the tern

App. 51

populations have experienced some improvement. (FWS

AR 1457 at 33701, 33704.) Further, analysis of the imple-

mentation of the 2000 BiOp RPA indicated that intended

habitat objectives could not be achieved, and that in fact,

spring and summer flows specified in the 2000 BiOp RPA

actually impeded the development of sandbar habitat

essential to plover and tern survival. (FWS AR 1457 at

33545.)

Elimination and degradation of both plover and tern

habitat contribute to the declining status of the species.

The 2000 RPA proposed both spring and summer flows

and habitat construction to “restore, maintain, and create

sandbar habitat for terns and plovers.” (FWS AR 1290 at

31040; See FWS AR 1237 at 29230.) However, the Corps

sets forth, and the FWS adopts, that the “alluvial geomor-

phic process” indicated that spring and summer flows

would not create sandbar habitat but would potentially

destroy beneficial sandbar habitat. (FWS AR 1290 at

31040; FWS AR 1290 at 31067; FWS 1457 at 33545.)

Therefore, the Corps proposed, and the FWS agreed, that

the elimination of spring and summer flows coupled with

the addition of new RPA elements, would continue to avoid

jeopardy to the plover and the tern. American Rivers does

not point to any evidence that indicates that the only

possible way to avoid jeopardy to the plover and the tern is

to implement flow changes and habitat construction. The

FWS modified the RPA to prevent further degradation to

the plover and tern habitat. Although American Rivers

may disagree with the FWS’s conclusions, the FWS has

App. 52

articulated a rational basis for its decision to eliminate

spring and summer flow changes from the 2003 RPA.‘

American Rivers also argues that the FWS improperly

evaluated the effects on the plover and tern from the

Corps’ proposed operations. The Court disagrees. Although

the FWS utilized a “worst-case-scenario analysis” for both

the plover and the tern, the FWS also considered both the

historical effects and cumulative and indirect effects of the

Corps’ proposed operations on the plover and tern. (FWS

AR 1287; FWS AR 1540; FWS AR 1457 at 33608-30;

33634-42; 33683-85.) The baseline adopted by the FWS is

proper.

b. Sturgeon RPA

The sturgeon RPA retains both flow modifications and

habitat construction. The 2003 RPA proposes higher

summer flows than the summer flows required in the 2000

RPA. The 2000 RPA states that “(s}ummer flows shall be

decreased ... te an interim target of 25 Kcefs by June 21,

and held at 25 Kefs until July 15... on July 15, the flows

shall be stair-stepped down to a flow of 21 Kefs until

August 15.” (FWS AR 1237 at 29230.) The 2003 RPA

proposes that for 2004, “summer habitat flow[s) [shall be]

no greater than 25 Kcfs beginning no later than July 1,

* Even so, the 2003 RPA does not eliminate flow changes alto-

gether. Although it may not specifically require the implementation of

flow changes in order to preserve the plover and the tern, the RPA

requires the Corps to develop a water plan that includes e spring rise

and low summer flow. In the event the Corps fails to develop such a

by March 1, 2006, a default water plan that includes both a spring

rise and low summer flow must be implemented. (FWS AR 1457 at

3376 1-62.)

App. 53

2004 lasting for a minimum of 30 days at its lowest point.”

(FWS AR 1457 at 33760.) The 2003 RPA also allows the

Corps to develop its own water flow regime, no later than

March 1, 2006, but provides a default plan in the event the

Corps is unsuccessful. This default plan states that:

“(bleginning on or about June 15, 2006 but no later than

July 1, 2006 the Corps shall begin reducing flows to

provide a minimum 30 day summer low flow release of no

greater than 25 Kefs.” (Jd. at 33762.) The Court disagrees

with American Rivers’ assertion that this change in

summer flows is arbitrary and capricious. The 2003

Amended BiOp RPA prevents low summer flows from

exceeding 25 Kefs, and as the Corps points out, the effect

at operating at 25 Kefs instead of 2i Kefs is minimal.

Moreover, these modifications are further complemented

by the implementation of other elements in the 2003 RPA.

American Rivers also argues that the 2003 RPA delays

implementation of a spring rise, which was required by

the 2000 RPA. The Court disagrees. The 2000 RPA permit-

ted a spring rise only in the event that river conditions

allowed such a rise. (FWS AR 1237 at 29230.) The 2003

RPA similarly permits a spring rise provided water condi-

tions are favorable. (FWS AR 1457 at 33760-61.) In 2004,

because of unfavorable water conditions, there was no

spring rise. Whether a spring rise will occur in 2005

depends on the status of water conditions in 2005. The

2003 RPA does not delay spring rise, but rather requires it

under favorable conditions, similar to the requirements of

the 2000 RPA. Moreover, under the 2003 RPA, the Corps

“shall, if hydrologic conditions are suitable, initiate an

experimental spring pulse to assist and inform the process

for establishing a long-term flow plan.” (FWS AR 1457 at

33760-61.) Unlike the 2000 RPA, the 2003 RPA requires an

App. 54

annual spring rise, provided conditions are favorable.

American Rivers’ argument that the Corps has delayed a

spring rise is without merit.

American Rivers also complains that the magnitude of

the spring rise in the 2003 RPA is greatly reduced from the

2000 RPA. In the 2000 RPA, the spring rise was included

to provide a spawning cue for the sturgeon, and to create

and maintain sandbar habitat for the plover and the tern.

Although the 2003 RPA does not require a spring rise of

the same absolute magnitude as the 2000 RPA, it requires

a bimodal spring rise. Water flows do not effectively

construct habitat for the plover and the tern, and a bi-

modal spring pulse may provide greater spawning cues for

the sturgeon. (FWS AR 1457 at 33761, 33765; FWS AR

1291 at 31067-72.) Any change in flood plain connectivity

as a result of a lower absolute magnitude is also minimal.

(Corps AR 1332 at 45605.) Although the spring rise in the

2003 RPA may differ from that in the 2000 BiOp, it is not

unlawful.

American Rivers also contends that the accelerated

construction of shallow water habitat is improper. Both

the 2000 BiOp and the 2003 Amended BiOp recommend

that the Corps develop twenty to thirty acres of shallow

water habitat per mile of the Missouri River, in an effort to

sustain the continued survival of the sturgeon. Although

lower flows contribute to the creation of shallow water

habitat, such flows do not create enough shallow water

habitat to ensure the sturgeon’s viability. The 2003

Amended BiOp thus included a measure that requires the

Corps to artificially construct shallow water habitat in an

effort to meet habitat standards. The Corps is currently

operating to construct such artificial habitat, and intends

to continue such operations in the future. (FWS AR 1290

App. 55

at 31057.) This accelerated construction, in conjunction

with other RPA elements, is an appropriate measure.

c. “No Jeopardy” Finding

American Rivers submits that the 2003 Amended

BiOp is arbitrary and capricious because it does not insure

against jeopardy. American Rivers argues that it is not

“reasonably certain” that (1) required flow changes will

occur; (2) congressional funding will be sufficient to im-

plement artificial habitat construction; and (3) artificial

habitat construction will be effective. The FWS’s no

jeopardy finding need only rely on a plan that is reasona-

bly certain to be implemented. Nat Wildlife Fed’n v. Natl

Marine Fisheries Serv., 254 F. Supp. 2d 1196, 1213 (D. Ore.

2003).

American River argues that the 2003 Amended BiOp

proposes flow changes that are not “reasonably certain” to

occur. The 2003 Amended BiOp requires the Corps to

develop, over the next two years, an appropriate flow

regime that implements spring and summer flows to

protect the sturgeon. In the event the Corps fails to de-

velop this plan, the RPA sets forth a default flow plan that

implements both spring rise and lower summer flows.

Because the 2003 Amended BiOp requires that such

changes be implemented at the latest by March 1, 2006,

the Court finds that there is a reasonable certainty that

such flow changes will take effect.

American Rivers also argues that the artificial con-

struction of sandbar habitat for the plover and the tern is

an unproven mitigation measure, and thus reliance on

such construction was arbitrary and capricious. The record

reflects that the FWS knew, considered and evaluated both

App. 56

the negative and positive effects of artificial sandbar

habitat construction. There is no evidence to suggest that

the Corps will fail to implement the measures the FWS

recommends. The Corps is further required, in addition to

constructing habitat, to continuously monitor and evaluate

effects on the plover and the tern, and modify operations

as required. Though American Rivers disputes the ulti-

mate success of artificial sandbar habitat creation on

plover and tern populations, concerns of uncertainty are

inevitable in any action an agency may take. Such con-

cerns are insufficient to invalidate the 2003 Amended

BiOp. Reasonable certainty only applies to the possibility

of implementation, not to the overall success of the par-

ticular measure. The record supports that the FWS con-

sidered both the positive and negative effects of such

measures, and thus rationally concluded, in conjunction

with the other RPA elements, that this measure would

avoid jeopardy to the species. Nothing more is required by

the FWS.

American Rivers also argues that the Corps lacks

appropriate funding to complete this habitat construction.

By its nature, a RPA must be capable of implementation,

both economically and technologically. 50 C.F.R. § 402.02.

American Rivers points to no evidence to suggest that the

Corps will be economically prevented from implementing

this RPA. The speculative nature of congressional appro-

priations is insufficient to render the RPA arbitrary and

capricious.

The Court finds that the FWS’s 2003 Amended BiOp

and its RPA are not arbitrary and capricious. The FWS

has provided a rational connection between the facts and

the choice made. Motor Vehicles, 463 U.S. at 43. Therefore,

App. 57

the 2003 Amended BiOp and its RPA do not violate Section

7 of the ESA.

d. The Corps’ Actions Result in a Take

American Rivers also argues that the Corps’ adoption

of the 2003 RPA jeopardizes the species and results in a

“take” of the species, in violation of the ESA. After consult-

ing with the FWS, the Corps has an independent duty to

insure that its actions satisfy the ESA. 16 U.S.C.

§ 1536(a)(2). Essentially, the Corps’ decision to rely on the

2003 Amended BiOp must not be arbitrary and capricious.

Because the Court finds that the 2003 Amended BiOp is

valid, the Corps’ reliance on the 2003 Amended BiOp is

likewise valid.

Section 9 of the ESA prohibits a “take” of the endan-

gered or threatened species. 16 U.S.C. § 1538. American

Rivers argues that the 2003 Amended BiOp and RPA take

the plover, tern and the sturgeon. However, the ESA

permits that any taking, in compliance with the Incidental

Take Statement (“ITS”), “shall not be considered to be a

prohibited taking” of the species. 16 U.S.C. § 1536 (02).

The 2003 Amended BiOp includes an ITS for the plover,

tern, and sturgeon. (FWS AR 1457 at 33769-90.) The

Corps has an absolute defense to a Section 9 claim so long

as its operations are in accordance with the 2003 BiOp and

the terms and conditions of the ITS. American Rivers fails

to demonstrate that the Corps’ operations are contrary to

the 2003 Amended BiOp and its ITS, and therefore there

is no violation of the ESA.

App. 58

2. Claims by Nebraska and NPPD

Nebraska and NPPD (“Nebraska Parties”) claim that

the FWS and Corps improperly consulted under the ESA,

resulting in an improper 2003 Amended BiOp and RPA.

They contend that the environmental! baseline used in the

2003 Amended BiOp is improper because it fails to include

non-discretionary operations such as minimum flow levels.

They further assert that the 2003 RPA is invalid because

its proposed restoration of a natural hydrograph runs

contrary to the Corps’ obligations under the FCA. Because

the Court concludes that the Corps does not have a non-

discretionary duty to maintain minimum water flows, and

that the Corps’ operations are subject to the ESA, these

arguments fail.

The Nebraska Parties further argue that the 2003

RPA is not economically feasible, because it improperly

compromises both water supply and hydropower benefits

to the Nebraska Parties. However, the requirement that a

RPA be “economically and technologically feasible” only

requires that the Corps have the resources and technology

necessary to implement the RPA. See Kandra v. United

States, 145 F.Supp. 2d 1192, 1207 (D. Or. 2001). This

argument is likewise without merit.

The Nebraska Parties also argue that the 2003

Amended BiOp and RPA are arbitrary and capricious

because they are not based on the best scientific data

available. The 2003 Amended BiOp proposes to restore

some of the river’s natural hydrograph to water flows.

According to the Nebraska Parties, this proposal bears no

resemblance to the river’s natural hydrograph, as set forth

in the U.S. Geological Survey (“USGS”). (FWS AR 915 at

14687-885.) The 2003 Amended BiOp does not strictly

App. 59

require the natural hydrograph contained in the USGS,

but rather suggests that some “semblance” of the natural

hydrograph be restored. (FWS AR 1457 at 33551.) The

FWS need only recommend a RPA that prevents jeopardy,

and there is no evidence that an immediate and complete

restoration of pre-dam flows is the only way to prevent

such jeopardy. The fact that the FWS chose not to propose

a plan contained in one report is insufficient to render the

FWS’s decision arbitrary and capricious. The Nebraska

Parties’ Motions fail.

3. Claims by Blaske Marine Plaintiffs and Mi )

Blaske Marine and MO-ARK (collectively, “Blaske

Marine Plaintiffs”) and Missouri submit that the Corps

should operate the Missouri River as required by the 1979

Master Manual. Both Blaske Marine Plaintiffs and Mis-

souri argue that the Corps violates the ESA because the

low summer flows set out in the 2003 Amended BiOp

eliminate some areas of shallow water habitat for the

sturgeon in the lower Missouri River. They thus argue

that this removal of habitat constitutes a “take” under the

ESA. As noted above, however, because the Corps is

operating the River pursuant to the 2003 Amended BiOp

and the ITS, it has an absclute defense to any Section 9

claim. 16 U.S.C. § 1536(0). Blaske Marine Plaintiffs and

Missouri argue that the ITS does not apply to the elimina-

tion of habitat on the lower Missouri River, because the

ITS does not specifically reference and connect reduced

spawning to reduced downstream water flows, and there-

fore the Corps cannot use the ITS as a defense to a claim

based on this situation. The ITS anticipates a loss in

spawning and nursery habitat “because of significantly

reduced sediment transport and deposition.” (FWS AR

App. 60

1457 at 33784.) The complete language of the ITS, ow-

ever, establishes that the decrease in downstream water

flow affects the transport and deposition of sediment in

the lower Missouri River, thereby affecting the habitat of

the sturgeon in this point of the River. /d. Thus, the [TS

addresses the effect on the sturgeon in the lower Missouri

River, and provides an absolute defense to this ESA claim.

Even without this defense, however, there is no

violation of the ESA. Blaske Marine Plaintiffs and Mis-

souri fail to demonstrate that low summer water flows

result in a “take” of the sturgeon. They argue that the low

summer flows significantly modify or degrade the habitat,

which actually kills or injures the sturgeon. See Babbitt v.

Sweet Home Chapter of Communities for a Great Oregon,

515 U.S. 687, 697 (1995). Though the parties concede that

lower flows decrease shallow water habitat in this particu-

lar area of the river, Blaske Marine Plaintiffs and Missouri

fail to set forth any evidence that this habitat modification

actually causes any injury to the sturgeon. Blaske Marine

Plaintiffs and Missouri fail to acknowledge that the FWS

considered this argument in the 2003 Amended BiOp, and

concluded that although lower summer flows may result in

a reduction of shallow water habitat in the lower Missouri

River, there is no evidence that such action will actually

kill or injure the sturgeon. (FWS AR 1457 at 33784.)

Blaske Marine Plaintiffs and Missouri fail to consider the

effects on the sturgeon of increasing water flows on other

areas of the river. Moreover, the slight reduction in habitat

in the lower river does not negate the fact that the 2003

Amended BiOp results in am overall net gain in the

amount of shallow water habitat on the Missouri River. In

fact, lower flows in the 2003 RPA reduce habitat in the lower

Missouri River by approximately 200 acres compared to the

App. 61

1979 Master Manual RPA, while the overall increase of

shallow water habitat on the entire Missouri River under

the 2003 RPA compared to the 1979 Master Manual RPA is

approximately 1,189 acres. (FWS AR 1291 at 31077,

31079.) Absent some evidence that injury will result to the

sturgeon, Blaske Marine Plaintiffs and Missouri's Motions

on this point are denied.

Similar to the argument advanced by the Nebraska

Parties, Missouri also argues that the 2003 Amended BiOp

and RPA are invalid because the FWS and the Corps

improperly consulted under the ESA. Missouri also sub-

mits that the RPA is invalid because it requires the Corps

to violate the FCA by not maintaining minimum flows. As

the Court has previously indicated, the FCA does not

impose a non-discretionary duty to maintain minimum

naviga‘ion flows, so these arguments fail.

Missouri further claims that the mandatory language

in the 2003 RPA is an attempt by the FWS to supercede

the Corps’ authority and to “govern the way that the Corps

manages the River system.” The Court is unpersuaded by

this argument. Missouri fails to cite to any legal authority

that indicates that the existence of mandatory language in

a RPA invalidates it as a matter of law. Moreover, absent

any evidence that either the FWS intends to bind the

Corps to its RPA or that the Corps considers itself bound

by the FWS's RPA, this argument fails.

4. Conclusion

‘uhe Court finds that the 2003 Amended BiOp and

RPA are not arbitrary and capricious and thus are in

accord with the ESA. Likewise, the 2004 Master Manual,

2004 AOP, and ROD do not violate the ESA.

App. 62

C. National Environmental Policy Act Claims

NEPA requires that federal agencies prepare an

Environmental Impact Statement (“EIS”) for every “major

Federal action[] significantly affecting the quality of the

human environment.” 42 U.S.C. § 4332(2)(C); See 42

U.S.C. §§ 4321-4370r. An EIS must examine: (1) the

environmental impacts of the proposed action; (2) the

adverse environmental effects of the action that cannot be

avoided; (3) alternatives to the proposed action; (4) the

relationship between local, short-term uses of the envi-

ronment und the maintenance and enhancement of long-

term productivity; and (5) any irreversible and irretriev-

able commitment of resources that would be involved. 42

U.S.C. § 4332(2XC). Once the EIS is completed, the agency

must prepare a ROD. The Court reviews under NEPA “to

ensure that the agency has adequately considered and

disclosed the environmenta) impact of its actions and that

its decision is not arbitrary and capricious.” Baltimore Gas

& Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87,

97-98 (1983). NEPA ensures that the Corps’ actions are

procedurally valid.

The Corps originally corsidered the impacts of seven

alternatives submitted by different parties. (Final EIS at

4-3 to 4-11; 5-1 to 5-168.) Then, the Corps conducted a

detailed analysis of five different alternatives to the 1979

Master Manual: (1) the Modified Conservation Plan

(“MCP”), which includes increased drought conservation

measures, unbalanced storage among the three upper and

largest lakes in the Mainstem Reservoir System, and a

Fort Peck spring rise approximately every third year, (2)

App. 63

GP1528,° which includes a 15 Kefs spring rise release from

mid-May to mid-June followed by a minimum service flat

release of 28 Kefs that ends on September 1; (3) GP2021,

which has a 20 Kefs spring rise followed by a 25 Kefs

release to mid-July when the release drops to a low of 21

Kefs until mid-August, when it returns to 25 Kefs until

September 1; (4) GP1521, which has a 15 Kefs spring rise

release from mid-May to mid-June followed by a release of

21 Kefs; and (5) GP2028, which has a 20 Kefs spring rise

followed by a 28 Kefs release to mid-May to mid-June

followed by a release of 28 Kefs. (Final EIS at 6-3.) Out of

these five alternatives, the Corps eventually identified a

Preferred Alternative (“PA”) that included “more stringent

drought conservation measures, a more defined methodol-

ogy for unbalancing the upper three lakes, higher non-

navigation season flows, and a planned re-evaluation in 3

years.” (Id. at 8-1.) The 2004 Master Manual and 2004

AOP thus evolve from this PA.

1. Missouri

Missouri argues that Federal Defendants violated

NEPA because the adoption of “adaptive management”

process is improper, and the economic analysis used by the

Corps in choosing the PA is flawed and misleading. Mis-

souri fails to demonstrate that the Federal Defendants’

decisions were arbitrary and capricious.

The Final EIS and the 2004 Master Manual describe

the “adaptive management” process. Adaptive manage-

ment is an approact ‘» tural resources management, in

* “GP” means “Gavius Point” and the two numbers that follow

correspond to the spring release and summer release, respectively.

App. 64

which policy choices are made incrementally. As each

choice is made, data on the effects of these choices are

collected and analyzed in order to assess whether to

retain, reverse, or otherwise alter the policy choice. Mis-

souri maintains that this adaptive management approach

violates NEPA because it permits the Corps to circumvent

the NEPA process when policy choices are modified.

Missouri takes issue with the potential flow changes that

the Corps may undertake in the future. Missouri fails to

point to any evidence that indicates that the Corps intends

to avoid its NEPA obligations by implementing this adap-

tive management approach. To the contrary, the Corps

acknowledges that in the event a major policy change

results, the Corps will be required to comply with NEPA.

(Final EIS at D1-69; Corps AR 1970 at 3.) Absent evidence

that the adaptive management process actually results in

the Corps’ evasion of NEPA obligations, the Court declines

to declare this approach invalid.

Missouri also argues that the Final EIS is flawed

because it incorrectly calculated the value of benefits to

navigation and downstream water supply resulting from

the adoption of the RPA. Missouri essentially contends

that it is impossible for any increased economic benefit to

result to navigation and downstream water supply as a

result of lower downstream water flows. Missouri dis-

agrees with the Corps’ conclusions, but fails to demon-

strate why the Corps’ analysis is arbitrary and capricious.

The Corps comparatively evaluated the economic effects of

the PA to the 1979 Master Manual on a variety of different

river interests, including navigation and water supply.

(See Final EIS 8-10 to 8-49.) The Final EIS was based on

the previous draft EIS and its comments, as well as other

economic studies. Missouri may disagree with the Corps’

App. 65

conclusions and its rationale, but that is insufficient to

argue that the Corps failed to take a “hard look” at the

economic impact of its decision. Friends of the Boundary

Waters Wilderness v. Dombeck, 164 F.2d 1115, 1128 (8th

Cir. 1999) The Corps articulates a rational basis for its

conclusions. Missouri’s disagreement with the Corps’

conclusions is insufficient to render the Final EIS arbi-

trary and capricious.

2. Blaske Marine and MO-ARK

The 2004 AOP requires that the Corps restrict sum-

mer flows from Gavins Point to 25 Kcfs for a period of 30

days beginning July 1, 2004. If the Corps develops 1200

acres of shallow water habitat by July 1,° the Corps may

engage in another consultation with the FWS to determine

how much higher it can adjust summer flows.’ Blaske

Marine and MO-ARK (collectiveiy, “Blaske Marine Plain-

tiffs”) assert that the Corps must prepare a supplemental

EIS discussing the impacts of operating under such

conditions.’ Blaske Marine Plaintiffs also argue that the

* Federal Defendants represented to the Court at oral argument

on May 21, 2004, that the Corps fully intended to successfully complete

this habitat construction by July 1, and that the current stat- of the

construction was on track for such completion. On June 14, 2004,

Federal Defendants informed the Court that construction was complete

and that consultation between the FWS and Corps had begun. The

FWS anticipates that it will issue an opinion relating to 2004 summer

flows on June 22, 2004.

* Any claims relating to the outcome of this consultation between

the FWS and Corps are not ripe for review.

* Blaske Marine Plaintiffs failed to include this claim in their

Compiaint. Consistent with the Court’s oral rulin, «a May 21, 2004, the

Court permits Blaske Marine Plaintiffs to amend their Complaint to

include this claim.

App. 66

default water flow plan set for March 2006 contained in

the 2003 RPA requires a supplemental EIS.

The 2003 Amended BiOp proposes a flow of 25 Kcfs for

30 days beginning July 1, 2004. The 2004 AOP irnmplements

this alternative. The Final EIS issued on March 5, 2004,

evaluated the effects of summer flows at 21 Kefs and at

28.5 Kefs. (Final EIS Table 7-1.) The Final EIS does not

specifically evaluate the effects of flows at 25 Kcfs. How-

ever, flows at 25 Kefs are within the range of alternatives

evaluated by the Corps. The purpose of the Final EIS is to

ensure that the Corps takes a “hard look” at the environ-

mental consequences of a project before taking a major

action. Friends of the Boundary Waters Wilderness, 164

F.3d at1128. An EIS must discuss alternatives to the

proposed action, and the sufficiency of the range of alter-

natives evaluated is subject to the “rule of reason.” Id. The

“rule of reason” requires the Court to determine whether

the Corps has complied with the Final EIS in good faith,

and whether the Final EIS “sets forth sufficient informa-

tion to allow the decision-maker to consider alternatives

and make a reasoned decision after balancing the risks of

harm to the environment against the benefits of the

proposed action.” Jd. The Final EIS need not be exhaus-

tive. Id. The Court finds that although the Final EIS did

not specifically evaluate summer flows at 25 Kefs, the

range of alternatives discussed in the Final EIS encom-

passed such flows. Thus, the Final EIS sufficiently exam-

ined summer flows at 25 Kcfs.

In conjunction with these flow levels, the Corps

anticipates that it will complete construction of 1200 acres

of shallow water habitat by July 1, 2004. Blaske Marine

Plaintiffs contend that construction of this habitat re-

quires a supplemental EIS. In both the 2000 BiOp and the

App. 67

2003 Amended BiOp, the FWS set a goal to develop twenty

to thirty acres of shallow water habitat per mile of the

Missouri River. From years 2000 to 2020, 20,000 acres of

shallow water habitat must be developed. Low summer

flows help to develop shallow water habitat, but not at the

level required to protect the sturgeon. The FWS concluded

that a multi-faceted approach was necessary to achieve its

goals: reservoir operational changes, structural modifica-

tions, and non-structural modifications. The FWS deter-

mined that 4900 acres of shallow water habitat results

from flows at 21 Kefs for a period from mid-July to mid-

August, while 3,717 acres of shallow water habitat results

from full navigation flows of 34.5 Kcfs from mid-July to

mid-August. The difference between shallow water habitat

construction at low flows and at full navigation flows is

thus 1200 acres. If the Corps artificially constructs 1200

acres of shallow water habitat by July 1, depending on its

consultations with the FWS, it may operate at possibly full

navigation flows because the 1200 acres of artificial

habitat construction will compensate for the smaller levels

of shallow water habitat construction at full navigation

flows. Both the 2000 BiOp and the 2003 Amended BiOp

contemplate that artificial habitat construction is neces-

sary to maintain sufficient shallow water habitat. The

Final EIS also acknowledges that artificial shallow habitat

construction is needed to provide enough shallow water

habitat. (Final EIS 7-71.) Moreover, Blaske Marine Plain-

tiffs fail to demonstrate that this shallow water habitat

construction is a “major Federal action[] significantly

affecting the quality of the human environment,” or that a

categorical exclusion does not apply. 42 U.S.C. § 4332; 62

App. 68

Fed. Reg. 2375, 2381 (Jan. 16, 1997). This failure is fatal

to the claim that the FWS must issue a supplemental EIS.

Blaske Marine Plaintiffs also argue that the proposed

default water plan that may potentially take effect in

March 2006, requires a sunplemental EIS. The proposed

default water plan was not evaluated nor considered

under the Final EIS. This default plan takes effect in 2006

only if the Corps fails to develop “a flow management plan

... [that] providels] a spring rise and summer flow which

will provide for the life history needs of the pallid stur-

geon.” (FWS AR 1457 at 33761.) Because neither the

default plan nor any future plan were eveluated under any

of the alternatives contained in the Final EIS, further

NEPA analysis may be required.” 40 C.F.R. § 1502.9(c)(1)

(supplemental EIS required when the “agency makes

substantial changes in the proposed action that are rele-

vant to environmental concerns,” or when there “are

significant new circumstances or information relevant to

environmental concerns and bearing on the proposed

action or its impacts”). However, this issue is not yet ripe

for the Court’s review.

* The Court further notes, based on representations by the

Federal Defendants that 1200 acres have been created, that Blaske

Marine Plaintiffs’ claim on this point is likely moot. Norton v. Southern

Utah Wilderness Alliance, 542 U.S. __., 2004 WL 1301302 (June 14,

2004) (supplemental EIS not required if “major” federal action already

completed); (Sierra Club v. Penfold, 857 F.2d 1307, 1318 (9th Cir. 1988)

(dismissing plaintiffs’ NEPA claim because ordering compliance with

NEPA would have no effect on the already-completed agency action).

* The Court does not intend to make any finding regarding the

Corps’ obligations under NEPA for this potential future action.

App. 69

3. South Dakota

South Dakota argues that the Corps violated NEPA

because it failed to consider the modified “Governors’

Summit Proposal” (a.k.a. “Nebraska Proposal”) in its

analysis of drought conservation measures. South Dakota

also contends that the Corps improperly considered the

interests of the Mississippi River stakeholders in deter-

mining the preferred alternative 1ur drought conservation.

Finally, South Dakota contends that the Corps failed to

consider shortening the navigation season in the spring

rather than in the fall.

The Governors within the Missouri River basin held a

summit meeting in September 2003 to discuss the conflict

over river operations. A sumunit plan was created by those

in attendance. Although this report was not specifically

included in the Final EIS, the range of proposals consid-

ered by the Corps in the Final EIS encompassed the

proposals in the Governor’s Summit Proposal. For exam-

ple, the Governor’s Summit Proposal envisioned that

operations would include low summer flows at 25 Kefs. As

previously discussed, the Final EIS contained an analysis

of low summer flows of 21 Kefs to 28 Kefs, thus encom-

passing flows proposed in the Governor’s Summit Pro-

posal. The Corps is under no obligation to consider each

and every alternative, but rather it must evaluate a

considerable range of alternatives to allow it to “make a

reasoned decision.” Friends of Boundary Waters Wilder-

ness, 164 F.3d at 1128. South Dakota fails to demonstrate

that the Corps’ alleged failure to specifically consider this

report was arbitrary and capricious.

The Corps’ consideration of the impact of the PA on

the Mississippi River was not arbitrary or capricious.

App. 70

NEPA requires that the agency evaluate all foreseeable

impacts of a major federal action. The operation of the

Missouri River impacts the operation of the Mississippi

River. Moreover, South Dakota submits no legal authority

to support its claim that the Corps evaluated too many

considerations.

Finally, South Dakota’s submits that the Corps acted

arbitrarily and capriciously because it failed to adopt an

alternative that shortened the navigation season in the

spring, rather than the fall. According to South Dakota,

shortening the navigation period in the spring preserves

more water in the upstream reservoirs during the essen-

tial fish spawning period. However, the Corps points out

that the greatest infusion of water occurs in the spring. If

the Corps shortened the water season in the spring, it

would do so without considering the water infusions from

winter precipitation and spring flows. Failure to consider

the spring infusion of water flow may result in an unnec-

essary shortening of the navigation season. The decision to

shorten the fall navigation season is made by July 1 of

each navigation year, which allows affected parties to

adjust their operations and interests accordingly. If the

Corps shortens the spring navigation season in March, the

decision to shorten the spring season would have to be

made in December, when it is impossible to judge future

water conditions. South Dakota fails to establish that the

Corps’ alleged failure to consider this alternative is arbi-

trary or capricious. South Dakota’s claims fail.

’ 4. American Rivers

American Rivers asserts that the Corps violated NEPA

because it selected a PA without “adequate explanation.”

App. 71

(Am. Rivers Mem. in Opp’n to FCA/NEPA claims at 4.)

American Rivers contends that the Corps failed to explain

why the PA it selected was superior to the other evaluated

alternatives, in particular GP2021, and thus that the

Corps’ decision is arbitrary and capricious.

NEPA only requires that the Final EIS demonstrate

that the agency in good faith objectively has taken a “hard

look” at the environmental consequences of a proposed

action and alternatives. Friends of the Boundary Waters

Wilderness, 164 F.3d at 1128. The Final EIS must provide

sufficient detail to permit those who did not participate in

its preparation to understand and consider the relevant

environmental influences involved. Finally, an agency’s

consideration of alternatives need only be reasonable. Jd."

“ Under NEPA, the agency:

should present the environmental impacts of the proposal

and the alternatives in comparative form, thus sharply de-

fining the issues and providing a clear basis for choice

among options by the decision maker and the public. ...

[Algencies shall: (a) rigorously explore and objectively

evaluate all reasonable alternatives, and for alternatives

which were eliminated from detailed study, briefly discuss

the reasons for their having been eliminated; (b) devote sub-

stantial treatment to each alternative considered in detail

including the preposed action so that reviewers may evalu-

ate their comparative merits; (c) include reasonable alterna-

tives not within the jurisdiction of the lead agency; (d)

include the alternative of no action; (e) identify the agency’s

preferred alternative or alternatives, if one or more exists,

in the draft statement nd identify such alternative in the

final statement unless another law prohibits the expression

of such a preference; and (f) include appropriate mitigation

measures not already included in the proposed action or al-

ternatives.

40 C-F.R. § 1502.14.

App. 72

The Corps evaluated the five alternatives under four

objectives, to select the PA that:

(1) serve[d] the contemporary needs of the Mis-

souri River Basin and the Nation; (2) complie([d]

with environmental laws, including the [ESA];

(3) serve[d] Congressionally authorized project

purposes; and (4) fulfill[ed) the Corps’ responsi-

bilities to Federally recognized Tribes.

(Final EIS at 8-1.) The Corps ultimately selected a PA that

best met these objectives:

The rationale for selecting the PA is a composite

of analyses, information briefings, technical ex-

pertise, and comments concerning the resources

evaluated as part of the Study. The Corps be-

lieves that the PA, when combined with other

measures ... conserves more water in the upper

three lakes during extended droughts, meets the

needs of ESA-listed fish and wildlife species, is

consistent with the Corps’ responsibilities under

environmental laws and Tribal trust responsibili-

ties, and provides for the Congressionally author-

ized uses of the system.

(Id. at 8-4.) In selecting this PA, the Corps conducted a

detailed analysis of all five alternatives and the

This text is long and has been trimmed here. Open the source document for the complete record.