Amicus Curiae Brief — North Dakota and South Dakota v. United States Army Corps of Engineers (No. 05-611)

9

residents of the Missouri River Basin on notice that a clear

purpose of the Flood Control Program includes the crea-

tion and preservation of lake recreation, Congress inserted

the following directive in Section 4 of the Flood Control Act

of 1944.

The water areas of all such reservoirs shall be

open to public use generally, without charge, for

boating, swimming, bathing, fishing, and other

recreation purposes, and ready access to and exit

from such water areas along the shores of such

reservoirs shall be maintained for general public

use, when such use is determined by the Secre-

tary of War not to be contrary to the public inter-

est, all under such rules and regulations as the

Secretary of War may deem necessary.

Flood Control Act of 1944, 58 Stat. 889-890 (1944); Cert.

Pet. at App. 94-95.

In understanding the Act then, it is important to

distinguish between River uses which pre-existed the 1944

Flood Control Act and those uses which would be created

by facilities constructed under the Act. Navigation pre-

existed the dams constructed, while reservoir recreation

did not as there were no reservoirs. As to the former,

Congress was willing to spend public funds only if such

navigation became, subsequent to 1944, substantial. As to

the newly created reservoirs, Congress contemplated that

new uses created by the reservoirs would be “preserved

and protected.” 33 U.S.C. § 701-1.

This understanding of the Flood Control Act of 1944

was turned upside down by the Court of Appeals when it

stated, “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

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and wildlife on the other, the priorities established by the

FCA would forbid the abandonment of flood control or

navigation.” 421 F.3d at 629.

In order to ensure that newly created reservoirs are

maintained for ready access by the public, the United

States Corps of Engineers continues to take appropriate

steps to secure recreation access, subject to protection of

Tribal treaty rights and compliance with other federal

laws. 36 C.F.R. § 327.1 (2005).

Over the years, the Tribes have invested some of their

limited resources in enhancing the Lake Sakakawea and

Lake Oahe fisheries and water access to expand lake

recreation. These efforts include construction of a boat

ramp at Cheyenne River that is currently thirty feet out of

the water. They have contributed to a river recreation and

fisheries economy that has an annual value of $87 million

and is expanding, while downstream navigation peaked in

1977 and since then has continuously declined to an

annual value that could be as low as $1-2 million. Cert.

Pet. at 6-7.

The longer the Courts wait to give a thorough and

complete construction as to how Missouri River waters are

to be allocated under the Flood Control Act, the greater

the pain for the Tribes who depend almost exclusively on

the Missouri River, out of necessity, for clean drinking

water, and who have invested so much in what they and

the United States understand as a plan set forth by

Congress to allocate Missouri River waters without rigidly

favoring any one river use.

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2. In lieu of conforming to Congress’ plan, The

Court of Appeals eliminated these two Congres-

sional limitations on Upper Basin releases to

support down river navigation, relying on erro-

neous dictum in Etsi Pipeline Project v. Missouri

and in so erring, rendered a crippling blow to

low-income Indian and non-Indian residents of

the Dakotas who lost their most valuable land to

Missouri River dams.

The Court’s holding in ETSI Pipeline Project v. Mis-

souri, 484 U.S. 495 (1988), never addressed the Tribes’

rights to water supply, water access and recreation. It

never addressed the appropriate allocation of water in the

Missouri River between the Upper Basin citizens and

governments, Indian and non-Indian, who were forced to

sacrifice hundreds of thousands of acres of their best lands

to largeiy benefit the Lower Basin.

ETSI’s “navigation priority” comment relied on by the

Eighth Circuit is dictum. The Supreme Court has fre-

quently held that dictum is entitled to only the weight of

its own persuasion. E.g., Central Green Co. v. United

States, 531 U.S. 425, 430 (2001) (“The sentence that we

have italicized and, in particular, the phrase ‘related to

flood control’ has generated conflicting opinions among the

Courts of Appeais. In an attempt to make sense of what is

admittedly confusing dicta...”); Lebron v. Natl R.R.

Passenger Corp., 513 U.S. 374, 393 (1995) (“The quoted

characterization ... was merely set forth at the beginning

of the opinion, in describing the factual background of the

case. It is hard to imagine weaker dictum”); United States

Nat'l Bank of Oregon v. Independent Ins. Agents of Amer-

ica, 508 U.S. 439, 463 n.11 (1991) (“[O]ur remark ... is

obviously not controlling, coming as it did in an opinion

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that did not present the question we decide in these

cases”),

As North and South Dakota have shown, the Court of

Appeals chose not to analyze the Flood Control Act of 1944

by reference to the actual words used by Congress, nor by

reference by the Corps of Engineers’ understanding, the

agency that built the dams and has managed the River for

over 50 years. See Cert. Pet. at 22-23 (explaining the

United States’ consistent view that the Act did not set

priorities and that navigation is not a preferred use).

Instead the Court of Appeals relied, without analysis, on

this Court’s dictum in ETSI Pipeline. The Tribes have

never understood ETS/, a dispute between the competing

management functions of two federal agencies, to have

constituted final and unequivocal notice to pursue lake

recreation, subsistence fishing, and consumptive beneficial

uses, at their own risk. They and other rural residents of

what is an economically disadvantaged area of this coun-

try have reasonably relied on Congress’ own words.

Accordingly, the Court should give a full and careful

hearing on the actual language of the Flood Control Act of

1944, and how Congress intended to advance Upper Basin

economic activities as a central component of the Missouri

River dam construction program. The Court of Appeals

never reached that question and this Court, having in

ETSI unintentionally limited the inquiry of the lower

courts, should undertake a careful examination of the

statutory language of the 1944 flood Controi Act as

amended and Congress’ plan for the Missouri River.

At a 1945 Senate hearing, George Gillette, Chairman

from Fort Berthold, stated: ““We will gain nothing from

this dam but our own destruction.’” VanDevelder, supra,

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at 118. He was prophetic. But the Tribes have now sought

to rebuild something from that which caused so much

harm. They seek to recover from Missouri River fisheries

some vestige of economic self-sufficiency. By developing

the lakes for tourism and securing leng term domestic

water supplies from the River, they seek to regain some

economic vitality the River once provided. Their efforts to

recover from the economic destruction wrought by the dam

construction and operations to date will be fruitless if the

Corps is required, under a static and erroneous reading of

the Flood Control Act by the Court of Appeals, to operate

the River forever to preserve a downstream barge industry

which never provided substantial economic benefits and

today is rapidly vanishing in importance.

.

CONCLUSION

The Amici Indian Tribes respectfully request that the

Court grant the Petition.

Respectfully submitted,

DANIEL H. ISRAEL

Counsel of Record

February 14, 2006

in the

SUPREME COURT OF THE UNITED STATES

State of North Dakota and

State of South Dakota

Petitioners.

U.S. Army Corps of Engineers, et al..

Respondents

On Petition for a Writ of Certiorari

to the Laited States Court of Appeals

for the Eighth Circuit

BRIEF OF THE STATE OF MISSOURI IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

/EREMIAH W. (JAY) NLXON

\ttorneyv General of Missouri

JAMES R. LAYTON, State Solicitor

Counsel of Record

WILLIAM J. BRYAN,

Deputy Chief Counsel

H. TODD IVESON.

Assistant Attorney Gencral

8" Floor, Broadway Building

letferson City. MO 65102

(573) 751-332)

Counsel for Respondent State of Missouri

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTRODUCTION AND STATEMENT]

REASONS TO DENY THE WRIT

CONCLUSION

TABLE OF AUTHORITIES

CASES

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

3. $.6

in re Operation of the Missouri River System Litigation. 421 F.3d

618 (8" Cir. 2005) 3.4

In re Operation of the Missouri River System Litigation. 277 F.

Supp. 2d 1378 (J.P.M.L. 2003) > 3

in re Operation of the Missouri River Svstem Litigation, 363 F

Supp 2d 1145 (2004) 2

South Dakota. v. Ubbelohde, 330 F.3d 1014 (8 Cir. 2003). cert

denied, North Dakota v Ubbelohde, $14 U.S. 987 (2004) . . passim

STATUTORY AUTHORITIES

33 U.S.C. § 701-1 (1944) 5

Flood Control Act of 1944, Pub. L. No. 78-534, 58 Stat. 887

(1944) | ... 168

INTRODUCTION AND STATEMENT

Missouri and petitioners North and South Dakota (“the

Dakotas”) have very different views of the Flood Comrol Act of

1944 and the substantive meaning of the Missoun River Master

Water Control Manual (“Master Manual”), the rulc that sets out the

manner in which the United States Army Corps of Engineers

(“Corps”) is to manage the water system that a series of dams created

from the formerly free-flowing Missouri River. The views are

largely the result of the dramatically different approaches that Dakota

and Missouri citizens have taken to life on the River.

In Missouri. agriculture has flourished along the River.

Farmers rely on the dams to prevent flooding of their land and to

provide the continuous flows that make it possible to transport bulk

materials — including fertilizers and crops - inexpensively. Farmers

and shippers make long-term investments premised on the Master

Manual, published by the Corps to satisfy the congressiona] mandate

embodied in the Flood Control Aci. Each vear. in late winter.

shippers, warehousemen, and navigators enter into contracts for the

delivery of goods on the Missouri River — contracts that necessarily

depend on the river flows promised by the Master Manual.

While farming has flourished in Missouri, under the

management of the Corps and pursuant to the Master Manual a

recreation industry has flourished in the upstream states. Instead of

corn and soybeans, the product is tourism revenue. produced in part

by fishing for walleve, a nonnative game fish that feeds on a small

forage fish, the rainbow smelt. The smelt spawns in water only

inches deep along the shores of the big lakes. The Dakotas tell this

Court that a multimillion dollar recreation industry hinges on this

tiny munnow. Like farmers in Missouri. those establishing

businesses based on walleye fishing in the Dakotas proceed with full

know ledge of the Master Manual! and the manner in which it requires

the Corps to manage the river. And despite some recent difficulties.

the Dakota businesses have obviously thrived under the Master

Manual regime.

Management under that regime and the “ orps’ recer.. process

to update the Master Manual have resulted in a torrent of litigation

among Missouri. the Dakotas. other states. and interested panies

The issue raised by thes petition was first considered in litigation

commenced by the Dakotas against the Corps that ultimately

involved Nebraska, Missouri. and many others. Those cases arose

out of the Corps’ management under the prior Master Manual.’ The

Dakotas obtained injunctions trom their respective federal district

courts prohibiting releases from dams situated in the Dakotas, while

Nebraska obtained an injunction from its federal district court

requiring the Corps to maintain downstream river flows. The Eighth

Circuit consolidated those cases for review and addressed the precise

issue the Dakotas present in their petition. in South Dakota. \.

U'bbelohde, 330 F.3d 1014 (8" Cir. 2003). cert. denied, North Dakota

v Ubbelohde, 514 U.S. 987, 124 S. Ct. 2015 (2004).

To address the claims before it in Ubbelohde. the Eighth

Circuit first had to construe the Flood Control Act of 1944, which

granted the Corps the authority to manage the Missouri River system.

The court held that flood control and navigation were the dominant

functions of the Flood Control Act, and ruled against the Dakotas.

This Court denied the Dakotas" petition for writ of certioran. /d. at

1019-20.

Subsequent to the Eighth Circuit's decision in Ubhelohde. a

number of different panies commenced more litigation. This

litigation focused primarily on the development by the Corps of the

updated 2004 Master Manual. The Judicial Panel on Multidistrict

Litigation consolidated these cases in the District of Minnesota. /n

re Operation of the Missouri River Svstem Litigation, 277 F. Supp.

2d 1378 (J.P.M.L. 2003). Ultimately. the Corps and other federal

defendants moved for summary judgment. which the district court

granted. /n re Operation of the Missouri River System Litigation.

363 F. Supp. 2d 1145 (2004) (Petition Appendix (Pet. App.”’) at 35).

That decision led to an appeal to the Eighth Circuit and the decision

'The Corps has since updated the Master Manual, giving rise

to the current litigation over the 2004 Master Manual.

5

-

by the Eighth Circumn targeted bv this petition. Although the Dakotas

attempted to revisit the issuc of the proper construction of the Flood

Control Act that had been decided in L bheloid.. neither the district

court nor court of appeals saw fit to reconsider U bhelohde. Petition

at 15. Instead. both courts reaffirmed the holding in Uhhelohde. 42)

F.3d at 624 (Pet. App. at 15): 363 F. Supp. 2d at 1153 (Pet App. at

42-43)

REASONS TO DENY THE WRIT

The Dakotas ask this Court to consider whether the Eighth

Circuit in Uhbelohde correctly held. consistent with this Court's

decision in ETS/ Pipeline Project v. Missouri, 484 U.S. 495 (1988).

that flood contro! and navigation are the “domunant functions” of the

Missouri River reservoirs and that those congressional project

purposes are entitled to preferential treatmem over recreation. a

subordinate and ancillary project purpose, in the management of the

Missouri River under the Flood Control Act of 1944. This Court

already declined to consider this question when it denied certiorari

in Ubbelohde. Petitioners do not identify anything that would

change the analysis or otherwise make this issue more appropriate for

review now

While the Eighth Circuit in this case reaffirmed the validits

of Ubbelohde. i did so in the context of denying the motions of

Nebraska. Missouri, and another party for summary judgment. 421

F.3d at 629 (Pet. App. at 15). None of these parties seek review of

that decision. The court did not consider the issue in the context of

any claim made by petitioners. (Pet. at 15) Nevertheless. petitioners

ask this court to consider the ( hhvlohde decision. but do not explain

why that is necessary in the context of this case. There are two

reasons petitioners’ request should be denied

Firs. even if the Court were to grant this petition and

consider the holding in L'bhe/ohde. 1 would not change the outcome

in this case. The petitioners do not argue in their petition that the

Corps’ balancing of interests in developing the Master Manual was

improper, nor de they suggest that overruling Ubhelohde would

VW

cause the Corps to revise the Master Manual or its management of

the system. Any decision on this petition would be advisory onl

Second. Pettnoners do not make a serious attempt to find a

conflict between the decision of the Eighth Circun and any decision

by this or any lower court. Rather. the Dakotas treat this as if it were

an original jurisdiction action for equitable apportionment of the

Missouri River. Petition at 24; sex also Response of Envirommenta!

Defense and National W iidlife Federation in Suppor of Petition tor

Writ of Cernorari (“Response”) at 1-2. hk is not

1. Even if the holding in Ubdclohde were set aside. it

would not change the outcome im this case. The Master Manual

would stil] be a binding rule constraining the Corps’ discretion. The

petition does not challenge the Corps” balancing of interests in

adopung the revised Master Manua.. but only the court's holding in

Lbbelohde. See Petition at). The Eighth Circuit in this case held

that the revised Master Manual was not arbitrary and capricious

because “{t}he Corps’ balancing of water-use interests in the 2004

Master Manual is in accordance with the [Flood Control Act].” 421

F.3d at 630 (Pet. App. at 15). There is nothing im the record to

sugyest - and petitioners do not argve - that the balance struck by the

Corps would be any different if L bbelohde were overruled. Indeed.

the Eighth Circuit recognized that the impact of Ubbe/ohde on the

Master Manual, if any, was prospective and hypothetical - entirely

dependent on the occurrence of circumstances that might never come

to pass. See /n re Operation of the Missouri River Svstem Litigation.

42) F.3d 618, 629 n.7 (8" Cir. 2005) (Pet. App. at 16). Therefore.

even if this Court were to revisit Ubbelohde in response to this

petition. the 2004 Master Manual! would still govern management of

the system.

Even assuming that Congress did not assign relative

prioriuces among conflicting uses in the Flood Control] Act. the

Dakotas pornt to nothing that suggests the Eighth Circuit was wrong

in leaving the balancing of competing int< ests to the Corps. In fact.

in support of their petition, the Dakotas argue that the Corps and the

Master Manual have already adopted petitioners interpretation of the

Flood Control Act. Petition at 22-23. In other words, petitioners

nave as much as admitted that this Court would be providing only an

advisory opimion were this petition granted.

The State of Missouri does not concede. of course. that the

Dakotas are right. and all uses of the River must be treated equally

Besides being impractical or impossibic, that approach iwnores the

overal! structure of the Flood Control Act. It assigned the Corps to

build and operate projects the “dominant functions” of which were

flood contro! and navigation. Projects for which the “dominant

functions” would be irmgation or power production would be built

and operated by the Department of Interior. On this point. both the

Department of the Interior and the Corps were in complete agreement

in ETS] Pipeline. 484 U.S. at 512, n.6-7. Of course. the system at

issue is controlled by the Corps - not Interior. Consequently. the

“dominant functions” of the system are flood control and navigation.

That 1s confirmed by the declaration of policy of the Flood Control

Act, where Congress explained why it was authorizing the building

of these dams:

In connection with the exercise of jurisdiction over the rivers

of the Nation through the construction of works of

improvement, for navigation or flood control. as herein

authorized... .

33 U.S.C. § 701-1 (1944) (emphasis added).

The Dakotas” real complaint - since they are seeking to

protect a recreation industry based on a fish imtroduced only after the

reservoirs were completed - must be that the Corps does not manage

the reservoirs to meet what they perceive to be the contemporary

needs of the basin. If that is a valid criticism (and the State of

Missouri does not suggest that it ts). it 1s a criticism to be taken into

accoumt by the Corps as it exercises its discretion to manage the

For this same reason. the arguments made by Environmental

Defense and the National Wildlife Federation at pages 4-10 of their

Response in support of this petition must be rcjected.

$

svstem under the constraints imposed by the 2004 Master Manuai. or

bv Congress

The court below proper, applied routrne admurustrative law

It would be judicia! activism at its worst to use this petition to revisit

the holding in a prior case as a means of usurping the proper exercise

of the Corps’ discretion granted by Congressional act

2. The Petition does not suggest any conflict between

the decision of the Eighth Circus and any decision of this Court

Indeed, the petition tries to distinguish this case from E7S/ Pipeline.

the case on which the Erghth Circuit predicated its decision on this

issue. See Petition at |3, 17-19. Therefore, petitioners cannot argue

that their petition should be granted because the Eighth Circuit

decision conflicts with this Court's precedents

The petition also makes no attempt to find a conflict among

circuit court decisions. Indeed. there is none. No circuit other than

the Eighth has addressed the setting of priorities under the Flood

Control Act

In the event that some other circuit eventually takes up the

management of the Missouri River and disagrees with the Eighth

Circuit. then the Dakotas or another party may seek a writ of

certioran. But until) that ume. this Court need not take up

controversial and complex Missouri River management questions

merely because the nver crosses state and district lines

‘In fact, the Response of Environmental Defense and

National Wildlife Federation makes manifest the desire to have this

Court substitute its judgment for that of Congress and the Corps

They ask this Court to declare the Flood Control Act a living

document to be imterpreted based on “modern economic and

environmental conditions” (Response at 3). rather than on the intent

of the Congress that passed the legislation. compare Response at 10

6

CONCLUSION

ror all the foregoing reasons. the C our! should dens the wri

Respectfully submitted

IFREMIAH W. WAY) NINON

Attorney Cenecra!

JAMES R. LAYTON

State Solicitor

WILLIAM J. BRYAN

Deputy Chief Counse!

H. TODD [VESON

Assistant Attorneys Crenera!

&th Floor, Broadway Buiiding

PO Box 899

Jefferson City. MO 65102

Telephone: £73-751-332)

Fax No. (573) 751-8796

February 14. 2006