Petition for Writ of Certiorari — North Dakota v. United States Army Corps of Engineers (No. 05-628)

Supreme Court brief2005

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Text

and lakes are listed in appendix I and appendix

II, respectively.

a. Class | streams. The quality of the waters in

this class shall be suitable for the propagation or

protection, or both, of resident fish species and

other aquatic biota and for swimming, boating,

and other water recreation. The quality of the

waters shall be suitable for irrigation, stock wa-

tering, and wildlife without injurious effects. Af-

ter treatment consisting of coagulation, settling,

filtration, and chlorination, or equivalent treat-

ment processes, the water quality shal) meet te

bacteriological, physical, and chemical requ:re-

ments of the department for municipal or domes-

tic use.

f. Lakes. The type of fishery a lake may be ca-

pable of supporting is based on the lake’s geo-

physical characteristics. However, the capability

of the lake to support a fishery may be affected

by seasonal variations or other natural occur-

rences which may alter the lake characteristics.

Class Characteristics

1 Cold water fishery. Waters capable of sup-

porting growth of Salmonid fishes and asso-

ciated aquatic biota.

2 Cool water fishery. Waters capable of sup-

porting growth and Propagation of non-

salmonid fishes and marginal growth of

salmonid fishes and associated aquatic biota.

3 Warm water fishery. Waters capable o! sup-

porting growth and propagation of nonsal-

monid fishes and associated aquatic biota.

4 Marginal fishery. Waters capable of support-

ing a fishery on a seasonal basis.

5 Not capable of supporting a fishery due to

high salinity.

N.D. Admin. Code § 33-16-02.1-0%1)(a) & (f). See Appen-

dix 108-111 for full text.

APPENDIX II

Lakes are classified according to the water qual-

ity characteristics which are to be maintained in

the specified lakes. The beneficial uses and

parameter limitations designated for class 1

streams shall! apply to all classified lakes.

County Lake Classification

Sakakawea 1

N.D. Admin. Code chapter 33-16-02.1 (Appendix I).

(Sakakawea located in several counties.) Appendix 112-119.

PETITION FOR A WRIT OF CERTIORARI

Statement of the Case

A. Basis for Federal Jurisdiction in Court of First

Instance.

The State filed its action in state district court as

allowed by CWA § 313(aXC), 33 U.S.C. §1323(aX(C), to

enforce its water quality standards established under

CWA § 303(c). The Corps removed this case as allowed by

CWA § 313(a), 33 U.S.C. § 1323(a), “in accordance with

section 1441 et seq. of Title 28.” Federal issues and federal

statutes are involved, so federal questions are presented.

B. Procedural History of the Case.

On several occasions in years prior to 2003, the North

Dakota Department of Health, the North Dakota agency

responsible for implementing and enforcing the Clean

Water Act, sent enforcement letters to the Corps when the

Corps dropped surface levels of Lake Sakakawea close to

1825 msl (feet above “mean sea level”) — a surface level

where the volume of cold-water fish habitat in Lake

Sakakawea becomes very low, and the ability of the lake to

support its “designated use” as a cold-water fishery (mean-

ing enough cold water exists throughout the summer to

support a small but viable cold-water ecosystem) becomes

marginal to non-existent (depending on the amount of

wind, sunny days, and days with hot temperatures to

warm up the lake that particular summer). See Appendix

141-155 (describing the lake dynamics that create and

sustain cold water conditions that support a cold-water

fishery).

In February 2003, the Department of Health served a

notice of violation on the Corps when levels of Lake

Sakakawea fell below 1825 msl, and other conditions were

present that made it unlikely that enough snow melt and

spring run-off would occur to provide a sufficient “spring

rise” to sustain a cold-water fishery in Lake Sakakawea

through the critical late summer period when it is most

vulnerable without a change in Corps management.

When the Corps indicated that it would not change its

operating plan that summer to attempt to comply with

North Dakota’s water quality standards, the Department

filed a complaint for declaratory relief, and a motion for a

temporary restraining order (TRO) and order to show

cause for a preliminary injunction which was granted

when it was filed.

Before this preliminary injunction hearing occurred,

the Corps removed the case to federal district court as

allowed under CWA § 313(a), 33 U.S.C. § 1323(a), and filed

a motion to dissolve the TRO. On May 7, the district court

extended the state court TRO, “nunc pro tunc,” and sched-

uled a hearing on the motion to dissolve. After hearing, on

May 16 the district court issued an order modifying the

TRO. On May 29, 2003, the district court dissolved the

TRO, and set a hearing on North Dakota’s motion for a

preliminary injunction for June 4, 2003.

On June 4, 2003, the district court heard eviderce on

North Dakota’s motion for a preliminary injunction. On

July 14, 2003, the district court issued an order denying

North Dakota’s motion for a preliminary injunction.

In June 2003, the Corps also filed a motion to dismiss,

claiming that the language of CWA § 511(a)(2)(A) should

be construed to mean that there had been no waiver of

sovereign immunity under the Act as it relates to the

Corps. Before the motion was decided, a multi-district

order combining this case with other Missouri River cases

was issued. Further motions and briefing were a!lowed to

all parties, and on October 31, 2003, North Dakota filed a

cross-motion for partial summary judgment, asserting that

the “to maintain navigation” language of Section 511(a) of

the Clean Water Act (33 U.S.C. § 1371(a)) does not exempt,

or make the Corps immune, from complying with other

relevant federal statutes, including water quality stan-

dards established by states under the Clean Water Act as

required by 33 U.S.C. § 1313(c). On April 12, 2004, the

district court issued an order denying North Dakota's

motion for partial summary judgment and granting the

Corps motion to dismiss on the grounds of sovereign

immunity and federal preemption. North Dakota appealed

this determination to the Eighth Circuit Court of Appeals

on May 10, 2004. Oral argument occurred in April, 2005,

and the Court of Appeals issued its decision on August 16,

2005.

C. Factual Background.

1. Why this case matters to North Dakota.

When the Missouri River’s full length is combined

with the Mississippi below its confluence, “[t/he combined

Mississippi-Missouri system is approximately 3,870 miles

long, making it the third-longest river system in the

world.” It drains one-sixth of the United States as well as

a small] part of Canada.”

Because of differences in precipitation, and the West's

high mountains, major differences exist between rivers

lying east of, and rivers lying west of, the 100th meridian

(a line that runs north-south almost directly through

Bismarck, North Dakota):

[Wlestern rivers are not neat and tidy. Whereas

rivers east of the 100th meridian are fed by reli-

able springs and rainfall, nearly all rivers of the

arid West depend mainly on the melting of the

mountain snowpacks. Most of their flow comes in

a rush during the runoff of April, May, and June.

In addition, the annua! snowfalls fluctuate, often

dramatically. The result is that western rivers

* Robert Kelley Schneiders, Big Shy Rivers: The Yellowstone and

Upper Missourt, 264 (University Press of Kansas 2003).

* See lodged exhibit served with this brief containing “Summary,

Missouri River Environmental Impact Statement - Master Water

Control! Manual, Revised Draft (August 2001),” “Missouri River Dams &

Lakes,” page 6.

are wildly inconsistent, both month to month and

year to year.

The upper Missouri River basin states of North

Dakota, South Dakota, and Montana are in the transition

zone between east and west, between where there is

enough water, and where there is not. But too often the

rains don’t come. Much of North Dakota’s present way of

life, and much of the State’s future, depends on the Mis-

souri River and the water it brings.

Consequently, the court’s decision in this case that the

State has no right to enforce its water quality standards,

and the beneficial uses they protect, when just a possibil-

ity exists that navigation “may be affected” — if that is the

standard that preempts the State’s authority under the

Clean Water Act — then the State has suffered a devastat-

ing blow to its future.

By volume, the Mississippi is the largest river in

the United States, with a daily average discharge

past New Orleans of 470,000 cubic feet per sec-

ond (cfs). In comparison, the Upper Missouri's

daily average discharge past Omaha is close to

30,000 cfs. The Mississippi's daily flow volume is

[on average] fifteen times greater than the Upper

Missouri.’

A river is a shared resource. There is an obligation to

keep it clean for those down stream. And there is an

obligation to use it wisely, and in a way that is fair for

everybody. That is, essentially, the good neighbor policy

that underlies the Clean Water Act. But North Dakota will

* Charles F. Wilkinson, Crossing the Next Meridian: Land, Water,

and the Future of the West, 219-22 (Island Press 1992).

* Schneiders, supra footnote 2 at 264 (University Press of Kansas

2003).

never have the volume of water that flows past New

Orleans or Omaha. The farther up the river you go, the

more precious the water becomes.

In PUD No. 1 of Jefferson County v. Washington Dep't

of Ecology,’ this Court rejected the assertion that the

Clean Water Act is only concerned with water “quality,”

and does not allow the regulation of water “quantity.”

“This is an artificial distinction,” this Court said. “In many

cases, water quantity is closely related to water quality; a

sufficient lowering of the water quantity in a body of water

could destroy all of its designated uses, be it for drinking

water, recreation, navigation or, as here, as a fishery.”

Thus, “there is recognition in the Clean Water Act itself

that reduced stream flow, i.e., diminishment of water

quantity, can constitute water pollution.”

The issue in this case is the same as in PUD No.1 -

diminishing of water quality because of diminishing water

quantity. But the decision of the court below says that

PUD No. 1 is not the law when navigation — as controlled

by the Corps of Engineers — may “be affected.” Since the

Corps, under the Clean Water Act, has authority that

extends over all navigable waters of the United Stutes,

this is, indeed, a significant exception. It affects much

more than walleye, salmon, and rainbow smelt in North

Dakota's largest deep water reservoir — Lake Sakakawea.

The district court, in dismissing the State’s complaint,

said that the Corps was in an impossible “either/or”

* 511 U.S. 700 (1994).

" Id. at 719.

* Id.

situation (Appendix 17). Instead of addressing Nerth

Dakota's request for relief - that the Corps be required to

comply with the State’s water quality standards when

practicable (a position clarified in North Dakota’s brief to

the district court) — the district court ruled as if the State

were requesting that its standards “always” trumped all

other system uses (Appendix 17). North Dakota was

aggressive in its initial TRO motion. There is only a small

window of a couple weeks each spring for the smelt spawn

- which requires level or rising water for the fertilized

eggs to survive. Why was this important? Because young-

of-the-year smelt (i.e., smelt hatched that spring) are not

temperature-sensitive like adults (who die in prolonged

conditions of warm water). So if the adult smelt population

suffered a massive die-off, as North Dakota expected when

it filed its TRO motion, at least some smelt would survive

to the next year.

What about the initial reduction of 2,350 cfs the state

district court ordered? (Appendix 86-87) By its own terms

the order was to be re-considered in eight days (Appendix

87), and, based on projections, all other things being equal,

releases over the summer from Gavins Point, the most

southern of the six main stem dams controlled by the

Corps, would have been about the same as the year before

— a level that caused impacts to all areas of the Missouri

Basin in 2002, but was devastating to none. (In 2002, an

average of about 28,000 cfs was released over the sum-

mer; in 2003, the Corps planned to release an average of

about 30,000 cfs; so a reduction of 2,350 cfs would have

put everyone about where they were in 2002 based on

April Corps’ projections.) Then heavy rains fell through-

out the Upper Missouri basin in May. So that by the time

of the June 4, 2003, preliminary injunction hearing in

federal court, the reduction in flow necessary to preserve

a minimum level of cold-water habitat was minimal — a

few hundred cfs. So when the preliminary injunction was

denied, the State did not appeal. The imminent danger for

the year had passed. The underlying issue of the Corps’

responsibility towards the State’s water quality standards

could be addressed in the declaratory judgment part of the

case.

How was the minimum level of cold-water habitat

determined? There was a 90% loss of the cold-water smelt

biomass from 2001, when the volume of cold-water habitat

in Lake Sakakawea stayed above 800,000 acre-feet, to

2002, when the volume of cold-water habitat in Lake

Sakakawea fell below 200,000 acre-feet. Given the severe

losses the year before, in the spring of 2003 it was the best

evidence available. It was not a standard. It was a fac’

alleged in the complaint necessary to sustain Sakakawea's

designated beneficial use.

If Lake Sakakawea had been allowed to keep a higher

level to preserve cold-water habitat, would that have

caused the other reservoirs to demand the same relief?

Perhaps, but they are not in the same position factually.

The six main stem dams subject to the C _ ps jurisdiction

have a maximum storage capacity of over 73 million acre-

feet. But only three of those dams -— Oahe in South

Dakota, Sakakawea in North Dakota, and Fort Peck in

Montana — account for more than 65 million acre-feet of

that capacity. Sakakawea is the largest, with over 23.8

million acre-feet, and Fort Peck is the deepest, being 220

feet deep at its face when it is full. But all of them are

large, cold-water reservoirs. (See generally information

” See footnote 3 above.

about the main-stem dams at Appendix 162 [chart found

in pocket of back cover].)

But one factor distinguishes Sakakawea from Oahe

and Fort Peck. Fort Peck’s outtake draws its water from a

structure that is 65 feet above the bottom of the lake.

Oahe’s outtake draws its water from a structure that is 99

feet above the bottom of the lake. Sakakawea’s outtake is

at the bottom of the lake. When the reservoirs are low,

some cold-water habitat remains .» Oahe and Fort Peck.

But Sakakawea loses virtually all of its cold-water habitat

when the lake drops too low, which, if sustained, means

the loss, for all practical purposes, of the entire cold-water

fishery. Is it fair to allow Sakakawea to keep enough water

to sustain its designated use as a cold-water fishery? It

depends on the severity of the impact on other system

uses. They are identified in CWA § 303(c)." The State does

not say that its standards trump all other system uses.

Only that they are standards the Corps must comply with

if feasible to do so without compromising other system

uses. Short-term, it is fair to take special steps to address

a special problem; long-term, a technology alternative

must be identified that puts Sakakawea in a position

where the entire cold-water fishery is not always endan-

gered when the Lake is low. Drought cycles are part of the

weather cycles on the plains. And as long as there are deep

reservoirs that are primarily cold-water habitat for most of

the year, they should be managed so that cold-water

species can thrive in them.

Was the Corps in an “either/or” situation? The State’s

witnesses at the June 4, 2003 hearing suggested technol-

ogy options that would not necessarily impact navigation.

" 33 U.S.C. § 131K%c).

What has happened since? The Corps has on its own, and

working with state engineers, conducted studies and

experimented with options. For example, they have found

that higher volume releases draw more warmer water

from higher up in the reservoir. So by releasing water in a

different pattern, but with the same daily average flow,

more cold water can be preserved. (Aad more electricity

can be generated at high demand times.) This summer the

Corps conducted a study in which plywood was attached to

two of the five outtakes. Just this step saved hundreds of

thousands of acre-feet this summer. The cost? Less than

$100,000 in actual expenses.” Does this solve the problem?

No, but it is promising. Does this make the State's claim

moot? No, the Corps still does not concede that it must

comply with the § 303(c) standard. Technology forcing is,

in most cases, the most important outcome from environ-

mental standards. Take away the standard, and the

engine that drives the system is gone.

What happens if the Corps balances system uses in a

way a state does not agree with? As long as its discretion

is reasoned and rationally based, the Administrative

Practices Act protects the Corps in the exercise of their

discretion. If an either/or situation truly exists, and the

Corps makes a reasoned choice, they are protected. On the

other hand, agencies do not have unlimited discretion. The

Corps must comply with a standard if they are reasonably

able to do so.

The Court of Appeals determined that the State's

Complaint, on its face, interferes with navigation. The

State’s complaint does not mention navigation, or ask for

“ Lauren Donovan, “Plywood is Worth Its Weight,” Bismarck

Tribune, October 7, 2005

any relief relating to navigation.” Relief that involves

reduced flows from the dam may impact navigation, but

there are usually options that minimize that impact. The

Master Manuai itself limits navigation, and eventually

curtails it completely, when system levels drop below a

certain point. Electricity generation, for example, requires

a certain amount of “head” to turn the turbines. Instead of

the tens of millions of dollars potentially lost by recreation

to support navigation, electricity generates hundreds of

millions of benefits each year that would be lost if the

turbines have to be shut down because of insufficient

“head.” The point is, there are lots of alternatives that

would have little or no impact on navigation. Several of

them are summarized above.

The Court of Appeals claims that if each state is

allowed to use its authority to establish water quality

standards as the Clean Water Act requires, that the Corps’

ability to control navigation would be “obviously” affected.

For the reasons discussed above, this is not necessarily the

case. In fact, the alternative is just as likely. For example,

seven of the eight states who are members of the Missouri

River Basin Association (a group of governor-appointed

representatives) agreed to a flow management plan in

1999 that unfortunately was not adopted, although por-

tions of it were." The CWA allows States to form compacts

and develop standards to be administered by an interstate

agency.” For regional issues and regional problems, a

regional regulatory body is a rational choice. Congress

" Appendix 123-140

“ Appendix 156-159 and Lodged Exhibit (August 2001 EIS draft

summary) at p. 8.

* CWA § 103, 33 U.S.C. § 1253.

must approve these and EPA has its usual oversighi role.”

Such standards have not had great impact on the Corps in

their dredge and fill activities. There is no reason to think

it would be any different ere.

In fact, the revised draft of the Environmental Impact

Statement completed in August 2001 (which formed the

basis of the State’s testimony at the June 3, 2003 hearing

of economic impacts) identifies economic values for differ-

ent system options that are for the most part uncontrover-

sial:”

* Flood Control — annual system benefits all over

$400 million under every option;

¢ Navigation — system benefits ranging from $1

million to $6.97 million;

* Hydropower — all options more than $741 Million

annually;

¢ Water Supply — all options over $608 million an-

nually; and

* Recreation - all options benefit system over

$84.7 million annually.

The report also identifies cold-water and warm-water

habitats for fish in its lakes and river reaches using

criteria similar to the ones used by the State, and dis-

cusses other human and wildlife impacts.

In sum, navigation is the dominant issue on the

Missouri not because it is an important system use or

" Id.

" See lodged exhibit served with this brief containing “Summary,

Missouri River Environmental Impact Statement - Master Water

Control Manual, Revised Draft (August 2001),” “Missouri River Dams &

Lakes,” pp. 13-19.

because it has a priority under federal law, but because it

requires the release of more water than is needed to

support other downstream uses than would otherwise be

necessary. This makes downstream states happy, and

upstream states angry. This is especially true during a

drought, when allocation of the impacts are disproportion-

ably borne by upstream states because of this uneconomic

release to support navigation. Will subjecting the Corps to

state water quality standards stop it from supporting

navigation? No, as long as its choices would pass muster

under the standards of reasoned decision-making under

the Administrative Practices Act.

REASONS FOR GRANTING THE PETITION

1.0 The decision of the Court below is of national

significance for two reasons: First, it deprives

states of authority to enforce their water qual-

ity standards under § 303(c) whenever, in the

Corps’ judgment, navigation may be impacted.

Since the Corps has jurisdiction over all “navi-

gable waters” under the CWA, this is an excep-

tion that swallows the whole. Second, it

deprives states of their only tool for technol-

ogy-forcing against the federal agency that has

more impact on water quality than any other

federal agency.

In this case, the court below begins its analysis where

statutory analysis should always begin — with the plain

meaning of the statute. But its analysis of the particular

phrase and clause of CWA § 511(a) it identifies as control-

ling fails for several reasons discussed below, the principle

one being a failure to construe the plain meaning of

§ 511(a) in the context of the Act of the whole, including

the plain meaning of the waiver language added to

§ 313(a) in 1977.

Not one of the sections of the Clean Water Act in

question — § 303(c), § 510, § 511(a), or § 313(a) — is a model

for clarity. The “plain-meaning” rule of construction often

conflicts with the fact a statute is neither plain nor clear.

But when a statute is less than clear, the answer is not to

cherry-pick a phrase or clause out of context, and assign to

it the meaning of the whole. This is especially true when

the Act in question is the Clean Water Act — perhaps the

most effective and successful environmental law ever

drafted.” And it is even more important when the inter-

pretation given to the out-of-context clause undermines

the basic federalist structure of the Act — under which

states are given primary responsibility for developing

water quality standards for all water bodies within their

jurisdictions, regulating all entities that cause pollution of

those waters, and enforcing standards against the respon-

sible parties when pollution occurs.

The decision in this case, if allowed to stand, means

that the state of North Dakota has no way ‘o enforce its

water quality standards — and the designated beneficial

uses those standards protect — against the federal agency

that controls the largest and most important river in the

state and the two most important bodies of water in the

state: Lake Sakakawea, the largest main stem reservoir

on the Missouri River system (a body of water that lies

entirely in North Dakota), and Lake Oahe, the second

largest main stem reservoir on the Missouri River system

(a body of water that, when Lake Oahe is full, extends

" See, eg., Gregg Easterbrook, A Moment on Earth: the Coming

Age of Environmental Optimism, chapter 33 (Viking Penguin 1995).

from near the city of Pierre, South Dakota, across the

southern border of North Dakota to near the city of Bis-

marck, about 70 miles north of the border).

But the holding in this case affects more than just the

Missouri River and the system of six main stem dams in

North Dakota, South Dakota, and Montana controlled by

the Corps of Engineers. It holds that § 1371(a) “[o)n its

face ... exempts the Corps ... from complying with the

CWA when its authority to maintain navigation would be

affected.”” Since the definition of “navigable waters” at

CWA § 502(7) (§ 1362(7))” gives the Corps sweeping

jurisdiction over “waters of the United States” when it

involves either navigation or dredge-and-fill operations

involving navigable waters,” exempting the Corps “from

complying with the CWA when its authority to maintain

navigation would be affected™ is, on its face, a broad

exemption that potentiaily applies to all navigable waters

within a state’s borders, and that potentially nullifies any

* Appendix 5.

* 33 U.S.C. § 1362(7) (CWA definition of “navigable waters” as “the

waters of the United States, including the territorial waters”). Since

this brief refers to the legislative enactments that use Congress’

sections of the Act, it will cite the section of the CWA followed by the

citation to the same section of “33 U.S.C.” that applies.

" See, e.g., Solid Waste Agency of Northern Cook County v. US.,

531 U.S. 159, 162, and dissent (Stevens) 175 (2001) (limiting the Corps’

jurisdiction to “navigable waters”); and U.S. vu. Riverside Bayview

Homes, Inc., 474 U.S. 121, 123-126 (1985) (interpreting the Corps

jurisdiction over “adjacent wetlands” under CWA §§ 301, 404 & 502

(§§ 1311, 1344 & 1362)).

” Appendix 5. This case deals with a different issue than the issue

raised in Carabell v. U.S. Army Corps of Engineers, 04-1384, that this

Court recently granted certiorari, albeit one that may have significant

impact on whatever the decision is in Carabell if the Court of Appeals

decision ir this case is not overruled.

state water quality standard if it in any way impinges on

“the authority” of the Corps “to maintain navigation.”

CWA § 303(c) (§ 1313(c)) requires that states adopt

“water quality standards” for “navigable waters” within

their borders, and that states review and revise those

standards every three years. Those standards must

include “the designated uses” for each of those “navigable

waters” and “water quality criteria” that define and

support the designated use identified for those waters,

after taking into consideration a number of statutorily

defined factors, including the “use and value” of those

waters “for navigation”:

Such revised or new water quality standard shall

consist of the designated uses of the navigable

waters involved and the water quality criteria for

such waters based upon such uses. Such stan-

dards shall be such as to protect the public

health or welfare, enhance the quality of water

and serve the purposes of this chapter. Such

standards shall be established taking into con-

sideration their use and value for public water

supplies, propagation of fish and wildlife, recrea-

tional purposes, and agricultural, industrial, and

other purposes, and also taking into considera-

tion their use and value for navigation.”

Under § 303(c), North Dakota has designated uses for

each reservoir, lake, and river — including Lake Sa-

kakawea.“ North Dakota’s § 303(c) “water quality stan-

dards” classify Lake Sakakawea as a “Class 1” lake”

* CWA § 303(c(2KA), 33 U.S.C. § 1313(¢X2)(A).

* North Dakota’s § 303 standards are at N.D. Admin. Code ch. 33-

16-02.1. Relevant portions are in the Appendix 108-119.

* Appendix 119.

whose “designated use” is a “(clold water fishery.™ A “cold

water fishery” is defined by the following water quality

criteria: “Waters capable of supporting growth of salmonid

fishes and associated aquatic biota.” The Court of Ap-

peals held that this designated use of Lake Sakakawea as

a cold-water fishery under § 303(c) could not be enforced

against the Corps on the grounds noted above: CWA

§ 511(a) (§ 1371(a)) “[o}n its face . .. exempts the Corps...

from complying with the CWA when its authority to

maintain navigation would be affected.™

The question presented in this petition is primarily

one of statutory construction. In addition to § 303(c)

quoted above, three other provisions of the CWA are

especially relevant:

¢ CWA § 510 (§ 1370) — addressing state authority

under the CWA;

¢ CWA § 511(a) (§ 1371(a)) — creating, essentially, a

rule of statutory construction that addresses,

primarily, impairment of federal agency author-

ity by the exercise of state authority under § 510

and other provisions of the CWA that give states

primary authority for establishing and enforcing

water quality standards within their jurisdic-

tions (including the special rule of construction

for the Corps’ responsibilities under the CWA re-

lating to navigation and dredge and fill activities

on navigable waters relied on by the court below

in this case); and

¢ CWA § 313(a) (§ 1323(a)) — waiving the immunity

federal agencies ordinarily have from state and

* Appendix 109.

” Id.

* Appendix 5.

local laws when state and local water pollution

laws are applied to them.

The court below held, essentially, that the Corps is

exempt from the clear waiver of federal immunity that

applies to all federal agencies under § 313(a) when state

(and local) water pollution laws are applied to them in this

nearly all-inclusive circumstance: whenever “the author-

ity” of the Corps “to maintain navigation” (and here is that

no-one-is-responsible passive voice of the administrative

bureaucracy) “would be affected.” This holding creates a

subjective standard — under which the Corps is immune

from state and local water quality standards whenever the

standard “affects” its “authority” to “maintain navigation.”

In doing so, the court below implicitly continues to rely on

the false dilemma relied on by the district court in this

case — that the Corps must choose between either comply-

ing with the State’s water quality criteria for Lake Sa-

kakawea or releasing enough water to continue to support

navigation below the six main stem dams in the upper

basin of the Missouri River” - when in fact there are

numerous management alternatives that allow the Corps

to continue to both support navigation and comply with

North Dakota’s water quality standards for Lake Sa-

kakawea as promulgated under § 303(c).

The court below also asserts that “[iJt is also clear

from the face of North Dakota’s Complaint” that the State

“is attempting to use its state water-quality standards to

* There are also dozens of smaller dams (137 in fact) on the upper

branches of the Missouri River — as well as one smaller main stem dam,

Canyon Ferry near Helena, Montana (built as part of the various

compromises that resulted in passage of Pick-Sloan Flood Control Act) -

controlled by the Bureau of Reclamation. See Schneiders, supra, at 292-

294.

affect the Corps’ authority to release water from Lake

Sakakawea to support navigation” -: but cites no evidence

nor any documentation to suppert this claim. The Com-

plaint speaks for itself: it contains no reference to, and no

request for, any relief relating to navigation.” Its primary

claims for relief are for a declaratory judgment that would

require the Corps to comply with the designated use the

State has established for the reservoir under § 303(c). This

does not necessarily have to affect navigation. In fact,

studies and experiments conducted by the Corps in the

summers of 2004 and 2005 show relatively inexpensive

operational and technological changes will go a long way

towards preserving Lake Sakakawea's designated benefi-

cial use as a cold-water fishery without impacting navi-

gation — by changing how it reieases water from the

reservoir (in larger, shorter bursts that draw warmer

water from higher in the reservoir) and by attaching

plywood to two of the five dam outtakes so that not only

the coldest water at the bottom of the dam is released,

but also, again, warmer water from higher up in the

reservoir’s water column.” This illustrates one of the

underlying principles of environmental regulation and

environmental economics: “The first and most important

point of environmental economics is that so far nearly all

forms of conservation have cost less than expected, owing

to unanticipated technical discoveries and free-market

* Appendix 5.

" See the Complaint, Appendix 123-140.

” Lauren Donovan, “Plywood is Worth Its Weight,” Bismarck

Tribune, October 7, 2005.

innovations.” One of the purposes of environmental laws

is to have this technology-forcing effect.’ But as Bruce La

Pierre noted in 1977 (and this case illustrates), political

pressure and bureaucratic delays can cause the theoretical

incentive for major innovation to evaporate.” Nothing

works like a requirement and a deadline to force innova-

tion and cause action. In this case, the requirement — the

designated beneficial use of Lake Sakakawea as a cold-

water fishery under § 303(c) — drives the solution: realistic

and cost-effective management techniques and technology

innovations. But the decision of the court below removes

that requirement and takes away the Corps’ technology-

forcing incentive.

2.0 Reading preemption into § 1371(a) significantly

undermines the federalism that makes the

Clean Water Act function, and sets a precedent.

this Court should not allow.

The Clean Water Act reserves to states the primary

authority to regulate pollution under the federalist struc-

ture that has made it the effective law that it is: “It is the

policy of the Congress to recognize, preserve, and protect

the primary responsibilities and rights of States to pre-

vent, reduce, and eliminate pollution, to plan the develop-

ment and use (including restoration, preservation, and

enhancement) of land and water resources, and to consult

” Easterbrook, supra, at 318. See also, e.g., id. 178: “(O|nce utilities

finally had no choice but to reduce acid rain, they discovered the task

could be accomplished more cheaply than anticipated.”

* See generally, D. Bruce La Pierre, “Technology-Forcing and

Federal] Environmental Protection Statutes,” 62 lowa L.Rev. 771 (1977).

* Id. at 837-38.

with the Administrator in the exercise of his authority

under this chapter.” CWA § 101(b), 33 U.S.C. § 1251(b).

States have primary authority for regulating pollutants

discharged from point sources under § 301 (§ 1311) and for

establishing water quality standards and protecting

beneficial uses under § 303. Reading preemption into

§ 313’s waiver of immunity would set a precedent that

undermines state authority to protect the health and

safety of its citizens against the entity that has more

impact on water quality through its activities than, per-

haps, all other federal agencies combined.

Although federal law can supplant state authority,

“(clonsideration under the Supremacy Clause starts with

the basic assumption that Congress did not intend to

displace state law.”” This presumption is at its zenith

when federal law impinges upon core state police powers.

States have long possessed primary responsibility in our

federal system to protect the health, welfare, safety, and

morals of their citizens. The Supreme Court has indicated

“that when a State’s exercise of its police power is chal-

lenged under the Supremacy Clause, ‘we start with the

assumption that the historic police powers of the States

were not to be superseded by the Federal Act unless that

was the clear and manifest purpose of Congress.’”” This

“approach is consistent with both federalism concerns and

the historic primacy of state regulation of matters of

health and safety.” Restrictions aimed at promoting the

“ Maryland v. Louisiana, 451 U.S. 725, 746 (1981); see also Worm

v. American Cyanamid Co., 970 F.2d 1301, 1305 (4th Cir. 1992)

" Ray v. Atlantic Richfield Co., 435 U.S. 151, 157 (1978) (quoting

. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)); see also Reid

v. Colorado, 187 U.S. 137, 148 (1902).

* Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996).

welfare, safety, and morals represent a well-recognized

exercise of state police power.”

State provisions are invalidated only where there was

an actual conflict between state and federal law. Where

there is no such conflict, the Court has steadfastly refused

to infer preemption in the field of environmental protec-

tion, an area that lies at the core of the states’ police

powers. See Ray, 435 U.S. at 157 (“[W)hen a State’s exer-

cise of its police power is challenged under the Supremacy

Clause, ‘we start with the assumption that the historic

police powers of the States [are] not to be superseded by

the Federal Act unless that was the clear and manifest

purpose of Congress.’”) (quoting Rice, 331 U.S. at 239).

3.0 The interpretation given to §5ll(a) by the

Court below is not internally consistent.

The court below finds that the language of

§ 511(a\(2A) underlined below exempts the Corps from

the waiver of federal immunity in §313(a) “when its

authority to maintain navigation would be affected.” But

the court below also determined that this provision does

not exempt the Corps for its § 404 dredge-and-fill respon-

sibilities under the CWA. Appendix 6 (implying that the

1977 CWA amendments were limited to “channel-dredging

operations’).

This chapter [the CWA] shall not be construed as

(1) limiting the authority or functions of any offi-

cer or agency of the United States under any

other law or regulation not inconsistent with this

chapter; (2) ting or i iring the authorit

” Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478

U.S. 328, 341 (1986).

of the Secretary of the Army (A) to maintain

navigation” or (B) under the Act of March 3,

1899 (30 Stat. 1112 (sic.)). ...

33 U.S.C. § 1371(a). (Language quoted and found control-

ling by the court below underlined. See Appendix 6.)

On its face, § 511(a) appears to be a rule of construc-

tion that qualifies a waiver, not an exemption that ex-

empts the Corps from the unqualified waiver in § 313(a),

(§ 1323(a)).

It is critical to note what the second half the disjunc-

tive in § 511(a)(2) — referring to “the Act of March 3, 1899”

— is a reference to the Corps’ “channel-dredging” authority:

The Act of March 3, 1899, referred to in subsec.

(a), is Act Mar. 3, 1899, c. 425, 30 Stat. 1121, as

amended, which enacted sections 401, 403, 404,

406, 407, 408, 409, 411 to 416, 418, 502, 549, and

687 of this title and amended section 686 of this

title. For complete classification of this Act to the

Code, see Tables.

See Appendix 107. Again, these references refer to the

Corps’ § 404 dredge-and-fill responsibilities under the

CWA. The first half of this disjunction ~ (2A) — cannot

mean one thing (the Corp is exempt for navigation), and

“ See 33 U.S.C. §§ 401-430 (relating to navigation and navigable

waters). Compare, e.g., Solid Waste Agency of Northern Cook County v.

U.S., 531 U.S. 159, 175 (2001) (dissent Stevens: “In § 13 of the Rivers

and Harbors Appropriation Act of 1899 (RHA), 30 Stat. 1152, as

amended, 33 U.S.C. § 407, Congress had assigned to the Army Corps of

Engineers (Corps) the mission of regulating discharges into certain

waters in order to protect their use as highways for the transportation

of interstate and foreign commerce; the scope of the Corps’ jurisdiction

under the RHA accordingly extended only to waters that were ‘naviga-

ble.””)

the second half — (2B) — another (the Corp is not exempt

for dredge-and-fill).

4.0 CWA§ 313(a) by its plain meaning provides an

unqualified waiver of immunity.

The court below ignored the two sentences that the

1977 CWA amendments added to § 31K a) after the lan-

guage of § 313(a) that the court quoted at Appendix 4-5.

The underlined language below is the language quoted by

the court below, followed by the two sentences added in the

1977 amendments to the Act:

Each department, agency, or instrumentality of

the executive, legislative, and judicial branches

” the Federal G Ayres

tion over any property or facility, or (2) engaged vit Iti hick oe

the discharge or runoff of pollutants,” and each

officer, agent, or employee thereof in the per-

formance of his official duties, shall be subject to,

manner, and t_as any nongov-

ernmental entity including the payment of rea-

sonable service charges. The preceding sentence

shall apply (A) to any requirement whether sub-

stantive or procedural (including any recordkeep-

ing or reporting requirement, any requirement

respecting permits and any other requirement,

whatsoever), (B) to the exercise of any Federal,

” All language after this comma was added by the CWA amend-

ments of 1977. Appendix at 101-102 and 120-121. The language of § 313

before these amendments is also in the Appendix 100-101

State, or local administrative authority, and (C)

to any process and sanction, whether enforced in

Federal, State, or local courts or in any other

manner. This subsection shall apply notwith-

standing any immunity of such agencies, officers,

agents, or employees under any law or rule of

law.

Congress added the amendatory language to this

section in 1977 as illustrated in the Appendix document

referenced in footnote 42 in response to the Eighth Cir-

cuit’s holding in Minnesota v. Hoffman, 543 F.2d 1198,

1208 (8th Cir. 1976), cert. denied, Minnesota v. Alexander,

430 U.S. 977 (1977) (Holding “what is asserted to be the

literal meaning of s 313 must be interpreted to give effect

to the intent of Congress that the Corps is not to be ham-

pered in maintaining navigation.”).

Congress amended § 313 in 1977 (Appendix 100-104

and 120-122) to make clear that it applied to the Corps of

Engineers, and the amending waiver language Congress

added to §313(a) in 1977 was clear and unconditional:

“This subsection shall apply notwithstanding any immu-

nity of such agencies, officers, agents, or employees under

any law or rule of law.” The court below ignored that

Congress added this unconditional waiver language to

§ 313 and the reason it was added — because of the holding

of the Eighth Circuit in Hoffman that had held that

§ 511(a) exempted the Corps from the pre-1977 version of

§ 313 (Appendix 100-101). Although the legislative history

to the 1977 CWA amendments often does refer to the

Corps’ dredge-and-fill authority - because that is what the

Hoffman case that prompted the amendment to § 313(a)

was about — the amendatory language was not limited to

the Corps’ dredge-and-fill authority. Rather, the 1977

amendment to § 313 made clear that it was a waiver that

applied “notwithstanding any immunity of such agencies

... under any law or rule of law” — including, but not

limited to, the Corps’ dredge-and-fill activities under the

CWA that had prompted the amendment.

It is true that a waiver of federal immunity must be

explicit, not implicit. But the unqualified nature of the

waiver added in the 1977 amendments italicized above is

plain. And if the plain meaning of the last sentence above

does not satisfy this strict requirement, then it is unlikely

any language ever could: “This subsection shall apply

notwithstanding any immunity of such agencies, officers,

agents, or employees under any law or rule of law.”

5.0 The holding of the Court below is inconsistent

with the mandate of this Court in PUD No. 1 of

Jefferson County v. Washington Dep't of Ecology.”

The reasons this is so were noted at the beginning of

this petition. Again, in PUD No. 1, this Court rejected the

assertion that the Clean Water Act is only concerned with

water “quality,” and does not allow the regulation of water

“quantity.” “This is an artificial distinction,” this Court

said. “In many cases, water quantity is closely related to

water quality; a sufficient lowering of the water quantity

in a body of water could destroy all of its designated uses,

be it for drinking water, recreation, navigation or, as here,

as a fishery.”

In this case, water quantity is also closely related to

water quality: In fact, the protection of the designated use

* 511 US. 700 (1994).

“ Id. at 719.

* Id.

of Lake Sakakawea as a cold-water fishery ur ser § 303(c)

depends on it. The only difference betweer. the cases is

that in PUD No. 1 the beneficial use being protected

involved a stream and in this case it involves a lake.

CONCLUSION

The petition for a writ of certiorari should be granted.

November 2005

Respectfully submitted,

State of North Dakota

WAYNE STENEHJEM

Attorney General

LYLE G. WITHAM

Counsel of Record

Assistant Attorney General

State Bar ID No. 04118

OFFICE OF THE ATTORNEY GENERAL

500 North 9th Street

Bismarck, ND 58510-4509

Telephone (701) 328-3640

Facsimile (701) 328-4300

App. 1

418 F.3d 915

United States Court of Appeals,

Eighth Circuit.

In re: OPERATION OF THE MISSOURI RIVER

SYSTEM LITIGATION

State of North Dakota, through the North Dakota

Department of Health, an Agency

of the State of North Dakota; John Hoeven,

Governor, Wayne Stenehjem, North

Dakota Attorney General, Ex. Rel. State of North

Dakota; North Dakota

Department of Health, Appellants,

United States Department of the Army, the Corps of

Engineers, a Federal

Agency; David Fastabend, Genera! Commander, Nw

Division, Portland, Oregon,

United States Army Corps of Engineers; Kurt F.

Ubbelohde, Lt. Colonel,

District Engineer, Omaha District, Appellees,

State of Nebraska, Appellee,

State of Missouri, Intervenor on Appeal.

State of South Dakota, Amicus on

Behalf of Appellant,

The Mandan, Hidatsa and Arikara Nation, Amicus on

Behalf of Appellant.

No. 04-2204.

Submitted: April 11, 2005.

Filed: Aug. 16, 2005.

Lyle G. Witham, argued, Assistant Attorney General,

Bismarck, ND, for appellants.

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

Environment & Natural Resources Division, Washington,

DC, (Fred R. Disheroon and Danile W. Pinkston of the

Environment & Natural Resources Division, on brief), for

App. 2

appellees Ubbelohde, Fastabend and U.S. Dept. of the

Army, et al.

Before WOLLMAN, BEAM, and GRUENDER, Circuit

Judges.

GRUENDER, Circuit Judge.

North Dakota appeals the district court’s’ dismissal of

its suit to enjoin the United States Army Corps of Engi-

neers (“the Corps”) from releasing water from Lake Sak-

akawea to support downstream navigation on the Missouri

River. North Dakota’s complaint alleges that the releases

violate water quality standards for Lake Sakakawea

established pursuant to the Clean Water Act. For the

reasons discussed below, we affirm.

I. BACKGROUND

Lake Sakakawea is a reservoir in North Dakota

formed by the enclosure of the Garrison Dam, part of the

Missouri River main stem reservoir system established by

the Flood Control Act of 1944 (“FCA”). The FCA assigns to

the Corps the task of managing the main stem reservoir

system. The Corps releases water from Lake Sakakawea

into the Missouri River to support downstream navigation

im accord with the goals of the FCA.’ North Dakota filed

suit to enjoin the releases from Lake Sakakawea on the

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

for the District of Minnesota.

* For more background on the operation of the Missouri River main

stem reservoir system, see our related opinion in /n re. Operation of the

Missouri: River System Litigation, Nos. 04-2737/04-2774/04-2785/04-

2794/04-2878/04-2994, also released today.

App. 3

grounds that lowering the level of the lake would violate

state-law water-quality standards established pursuant to

the Clean Water Act, 33 U.S.C. §§ 1251 et seg. (“CWA”).

The states of Nebraska and South Dakota also filed

complaints as intervenors.

The CWA is a federal law that directs the states to

adopt state-law water-quality standards. Jd. at § 1313.

The state water-quality standards must incorporate a

designated use for each navigable body of water, as well as

water-quality criteria based on the designated use. Jd. at

§ 1313(c2MA). “Such standards shall be established

taking into consideration their use and value for public

water supplies, propagation of fish and wildlife, recrea-

tional purposes, and agricultural, industrial, and other

purposes, and also taking into consideration their use and

value for navigation.” Jd. Pursuant to the CWA, North

Dakota designated Lake Sakakawea as a “cold water

fishery,” requiring the water to support the growth of

salmonid fishes and associated water life. In accord with

that designation, North Dakota instituted certain water-

quality standards. North Dakota contends that the Corps’

releases of water from Lake Sakakawea violate these

water-quality standards because they reduce the volume of

cold-water habitat in the lake below that needed to sup-

port a viable cold-water fishery ecosystem.

The district court dismissed the North Dakota com-

plaint under Fed.R.Civ.P. 12(b)(6), holding that the CWA

preserves sovereign immunity from suit for the Corps

when the Corps’ authority to maintain navigation is at

issue. The district court also dismissed the appeals of the

intervenors as moot. North Dakota appeals, arguing that

the CWA waives the Corps’ sovereign immunity in this

case.

App. 4

Il. DISCUSSION

“We review de novo a district court's order granting a

motion to dismiss, viewing the allegations in the complaint

in the light most favorable to the plaintiff.” Casazza v.

Kiser, 313 F.3d 414, 418 (8th Cir.2002). “Like the District

Court, we must accept the allegations of the complaint as

true and dismiss the case only when ‘it appears beyond

doubt that the plaintiff can prove no set of facts in support

of [its] claim which would entitle [it) to relief.’” Id. (quot-

ing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2

L.Ed.2d 80 (1957)). The district court's interpretation of

the CWA is reviewed de novo. United States v. Templeton,

378 F.3d 845, 849 (8th Cir.2004).

North Dakota cannot enforce its state water quality

standards against the Corps, a federal agency, unless

Congress has unequivocally waived the federal govern-

ment’s sovereign immunity from suit. United States Dep't

of Energy v. Ohio, 503 U.S. 607, 615, 112 S.Ct. 1627, 118

L.Ed.2d 255 (1992). “Waivers of immunity must be con-

strued strictly in favor of the sovereign... .” Jd. (quota-

tions omitted). The CWA contains a limited waiver of

sovereign immunity:

Each department, agency, or instrumentality of

the executive, legislative, and judicial branches

of the Federal Government (1) having jurisdic-

tion over any property or facility, or (2) engaged

in any activity resulting, or which may result, in

the discharge or runoff of pollutants .. . shall be

subject to, and comply with, all Federal, State,

interstate, and local rec sirements, administra-

tive authority, and process and sanctions respect-

ing the control and abatement of water pollution

in the same manner, and to the same extent as

any nongovernmental! entity... .

App. 5

33 U.S.C. § 1323(a). This waiver of sovereign immunity is

further limited by 33 U.S.C. § 1371(a), which states: “[The

CWA] shall not be construed as .. . affecting or impairing

the authority of the Secretary of the Army .. . to maintain

navigation.”

“Unless exceptional circumstances dictate otherwise,

when we find the terms of a statute unambiguous, judicial

inquiry is complete.” Neosho R-V Sch. Dist. v. Clark, 315

F.3d 1022, 1032 (8th Cir.2003) (quoting Burlington North-

ern Railroad Co. v. Okla. Tax Comm'n, 481 U.S. 454, 461,

107 S.Ct. 1855, 95 L.Ed.2d 404 (1987)). On its face,

§ 137l(a) exempts the Corps, which operates under the

authority of the Secretary of the Army, from complying

with the CWA when its authority to maintain navigation

would be affected. It is also clear from the face of North

Dakota’s complaint that North Dakota is attempting to

use its state water-quality standards to affect the Corps’

authority to release water from Lake Sakakawea to

support navigation. There are no exceptional circum-

stances here to indicate that Congress would not have

intended the §1371l(a) “navigation exception” to the

waiver of sovereign immunity to apply in this case.”

* The Corps argues that § 1323(a) can be read as not waiving

sovereign immunity in this case because the Corps merely is releasing

water from the reservoir, not discharging pollutants. Because we find

§ 1371(a) independently preserves the Corps’ sovereign immunity in

this case, we do not address the Corps’ argument concerning the

interpretation of § 1323(a).

We note that in National Wildlife Federation v. United States Army

Corps of Engineers, 384 F.3d 1163 (9th Cir 2004), the Ninth Circuit held

that § 1323(a) waived sovereign immunity with respect to the Corps’

discretionary operation of dams on the Snake River Nevertheless, the

Ninth Circuit held that the CWA could not be enforced against the

Corps where state-law water-quality violations were due to “the

(Continued on following page)

App. 6

The CWA was amended in 1977 to emphasize that it

applies to discharges from the Corps’ channel-dredging

operations. North Dakota argues that the legislative

history from the 1977 amendment evidences Congress’

intent for the Corps to comply with the CWA in all its

operations, in spite of the navigation-based limitation in

§ 1371(a). This argument fails because the 1977 amend-

ment, while emphasizing that the limited waiver of sover-

eign immunity in § 1323(a) applied to the Corps, left the

clearly worded navigation exception in § 1371(a) intact.

“Absent some ambiguity in the statute, we have no occa-

sion to look to legislative history.” Clark, 315 F.3d at 1032.

There is nothing ambiguous abcat the admonition of

§ 1371(a) that the CWA “shall not be construed as ...

affecting or impairing the authority of the Secretary of the

Army ... to maintain navigation.” As a result, we do not

reach the legislative history in this case."

existence of the dems and not any discretionary method of operating

the dams.” /d. at 1./8. The Corps’ authority to maintain navigation was

not at issue in that case.

* In any event, the legislative history from the 1977 amendment

would not support North Dakota's argument. The legislative history

indicates that Congress’ intent in enacting the 1977 amendments was

to subject the Corps’ channel-dredging activities to state water-quality

standards promulgated pursuant to the CWA, while preserving its

authority to maintain navigation. The relevant passages from the

legislative history of the 1977 amendments are as follows:

The amendment is prompted by varying legal interpre-

tations of the applicability of (CWA) sections 313 (33 U.S.C.

§ 1323) and 404 [33 U.S.C. § 1344) to dredging activities. In

1975, the U.S. District Court in Minnesota fheld) that sec-

tion 313 and legislative history of the (CWAj required the

Corps of Engineers to comply with State water quality stan-

dards in dredging activities carried out in the State of Minne-

sota. .. This judgment was reversed in 1976 by the Eighth

Cireuit Court of Appeals, which found that the legislative

(Continued on following page)

App. 7

North Dakota also argues that whether compliance

with its CWA water-quality standards would affect the

Corps’ authority to maintain navigation is a factual

question. For example, Lake Sakakawea was constructed

so that water releases siphon water from near the bottom

of the lake. North Dakota suggests that the construction of

new outflow structures at Garrison Dam to siphon warmer

water from the top of Lake Sakakawea, rather than colder

water from the bottom, might allow the Corps to comply with

North Dakota’s water-quality standards for a cold-water

history of the (CWA! conveyed an intent on the part of Con-

gress to exempt the Corps of Engineers, operating under

section 404 [governing permits for dredging), from State en-

vironmental! law despite the language of section 313. [Min-

nesota v. Hoffman, 543 F.2d 1198 (8th Cir.1976), cert.

denied, Minnesota v. Alexander, 430 U.S. 977, 97 S.Ct. 1672,

52 L.Ed.2d 373 (1977).]

By this amendment, the committee clarifies that corps

dredging activities are not exempt from State pollution

abatement requirements. In spite of language on section 313

in the Senate report on the 1972 act, .. . the Supreme Court

ruling in the Minnesota case would otherwise free corps-

conducted dredging from compliance with State water qual-

ity standards. The intention of the 1972 act was not to ex-

empt the corps or any other public or private agency from

State water quality standards and the interpretation of sec-

tion 404 by the courts is at variance with the intent of Con-

gress. In fact, Congress intended that section 404 in the

1972 act would in its initial implementation end the open

water disposal of dredge spoil. Quite the contrary has been

the case.

This amendment to section 404 is neither intended nor

expected to result in compromising the ability of the corps to

maintain navigation.

S. Rep. No. 95-370, at 68-69 (1977), reprinted in 1977 U.S.C.C.A.N.

4326, 4393-94.

App. 8

fishery while still providing the requisite water releases to

maintain navigation. If we allowed North Dakota to

enforce its water-quality standards on this basis, there is

no discernible limit to the new structures and new opera-

tional] plans that other states with main-stem reservoirs

could demand to force the Corps to comply with their own

water-quality standards. If each state is allowed to use its

reservoir water-quality standards as a tool to control how

the Corps must release water from the main stem reser-

voirs, the “authority of the Secretary of the Army ... to

maintain navigation” will obviously be affected, in viola-

tion of § 1371(a).

As the district court noted, the above result is also

supported by the principles of preemption. Implied conflict

preemption arises “where state law stands as an obstacle

to the accomplishment and execution of the full purposes

and objectives of Congress.” Nordgren v. Burlington

Northern Railroad Co., \01 F.3d 1246, 1248 (8th Cir.1996)

(quoting Freightliner Corp. v. Myrick, 514 U.S. 280, 287,

115 S.Ct. 1483, 131 L.Ed.2d 385 (1995) (internal citations

omitted)). “In determining whether state law ‘stands as an

obstacle’ to the full implementation of a federal law, ‘it is

not enough to say that the ultimate goal f both federal

and state law’ is the same.” Forest Park Il v. Hadley, 336

F.3d 724, 733 (8th Cir.2003) (quoting Int'l Paper Co. v.

Ouellette, 479 U.S. 481, 494, 107 S.Ct. 805, 93 L.Ed.2d 883

(1987)). “A state law alse is pre-empted if it interferes with

the methods by which the federal statute was designed to

reach that goal.” Jd. (quoting Int'l Paper Co., 479 U.S. at

494, 107 S.Ct. 805). “Thus, ‘where a state statute conflicts

with, or frustrates, federal law, the former must give

way.” Id. (quoting CSX Transp., Inc. v. Easterwood, 507

U.S. 658, 663, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993)).

App. 9

Congress established the goals for the Missouri River

main stem reservoir system in the FCA. The dominant

functions of the project are flood control and downstream

navigation, and secondary interests include irrigation,

recreation, fish and wildlife. South Dakota v. Ubbelohde,

330 F.3d 1014, 1019-20 (8th Cir.2003). Congress also set

forth the method by which the federal statute was de-

signed to reach those goals — the FCA vests the Corps with

the duty to balance navigation with other water-use

interests, including the interests of the reservoir states.

Ubbelohde, 330 F.3d at 1027. Allowing individual states to

use their water-quality standards to control how the Corps

balances water-use interests would frustrate the design of

the FCA. Accordingly, the enforcement of state water-

quality standards against the Corps’ release of water from

Lake Sakakawea is preempted.

The CWA’'s preservation of sovereign immunity where

the Cerps’ authority to maintain navigation would be

affected and the principles of preemption preclude the

enforcement of North Dakota's state water-quality stan-

dards against the Corps’ releases of water from Lake

Sakakawea. Therefore, the district court did not err in

dismissing North Dakota's complaint.

Ill. CONCLUSION

For the reasons discussed above, we affirm the dis-

missal of North Dakota’s complaint.

App. 10

320 F.Supp.2d 873

United States District Court,

D. Minnesota.

In re: OPERATION OF THE MISSOURI

RIVER SYSTEM LITIGATION

North Dakota et al.,

U.S. Army Corps of Engineers,

Nos. 03-MD-1555(PAM), 03-4288(PAM).

April 12, 2004.

Daniel H. Israel, Boulder, CO, Lisbeth Jane Nudell,

Nudell Law Office, Mpls, MN, David D. Cookson, Jon C.

Bruning, Nebraska Atty General’s Office, Donald G.

Blankenau, Thomas R. Wilmoth, Fennemore Craig PC,

Lincoln, NE, for Intervenor Plaintiffs.

Anne E. Mahle, Brian Boru O’Neill, Peter C. Henni-

gan, Richard A. Duncan, Faegre & Benson, Mpls, MN,

Cassandra Sturkie, David A. Becker, David J. Hayes,

Janice M. Schneider, Julia A. Hatcher, Latham & Watkins,

Sam Kalen, Van Ness Feldman PC, Timothy D. Search-

inger, Environmental Defense, Washington, DC, for

Intervenor.

James A. Maysonett, US Dept of Justice, Environment

and Natural Resources, Washington, DC, for Cross Defen-

dant.

MEMORANDUM AND ORDER

MAGNUSON, District Judge.

This matter is before the Court on Defendants US.

Army Corps of Engineers, Brigadier General William T.

Fasoli, and Colonel Kurt F. Ubbelohde’s Motions to Dism.ss

App. 11

Plaintiffs’ Complaint and the Complaints of Intervenors

Nebraska and South Dakota. In October 2003, Plaintiffs’

filed their opposition to the Motion to Dismiss and filed a

cross-Motion for Partial Summary Judgment. In Novem-

ber 2003, Nebraska filed a Motion for Summary Judg-

ment. Pursuant to the Court's March 9, 2004, Amended

Scheduling Order, all parties were permitted to file sup-

plemental memoranda. On April 1, 2004, Plaintiffs’ filed a

Motion to File an Amended Complaint. For the following

reasons, the Court grants the Motions to Dismiss Plain-

tiffs’ Complaint and the Complaints of Intervenors Ne-

braska and South Dakota and denies the remaining

motions as moot without prejudice.

BACKGROUND

The Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq.,

was enacted “to restore and maintain the chemical, physi-

cal and biological integrity of the Nation's waters.” 33

U.S.C. § 1251(a). In order to achieve this objective, the

CWA directs the states to promulgate water quality

standards. 33 U.S.C. § 1313(a). Water quality standards

are specific to a particular body of water, and must satisfy

certain procedural and substantive requirements to be

valid. Jd. § 1313(c). In particular, the CWA requires that

state water quality standards be established “taking into

consideration their use and value for public water sup-

plies, propagation of fish and wildlife, recreational pur-

poses, and agricultural, industrial and other purposes, and

also taking into consideration their use and value for

navigation.” Id. § 1313%(cX2XA). Water quality standards

must consist of both a designated use for the navigable

body of water at issue, and a wate~ quality criteria for this

body of water based on such use. /d. § 1332(2)(A).

App. 12

North Dakota enacted water quality standards under

the CWA. N.D. Admin. Code, Ch. 33-16-02.1 et seg. Lake

Sakakawea, the reservoir created by the Garrison Dam, is

located in North Dakota on the Missouri River. Lake

Sakakawea has a designated use as a “cold water fishery,”

requiring that the water must be “capable of supporting

growth of salmonid fishes and associated aquatic biota.”

Id. § 33-16-02.1-0%1\f). The water quality criteria for

Lake Sakakawea requires that the water not exceed

temperatures of 85 degrees fahrenheit, and maintain a

dissolved oxygen content of at least 5 mg/l. /d. at Table 1.

These regulations also contain narrative standards.

In February 2003, the North Dakota Department of

Health issued a “Notice of Violation” of North Dakota's

water quality standards against Defendants U.S. Army

Corps of Engineers, Brigadier General William T. Fasoli,

and Colonel Kurt F. Ubbelohde (collectively, “the Corps”),

with respect to their operation of the Garrison Dam and

Lake Sakakawea. In April 2003, the State of North Da-

kota, Governor John Hoeven, and Attorney General Wayne

Stenehjem (collectively, “North Dakota”), filed their

Complaint in state court, seeking a declaration that the

Corps’ management of the river in 2003 violated North

Dakota's water quality standards, and injunctive relief

requiring that the Corps comply with such standards. On

April 30, 2003, the Corps removed the case to the United

States District Court for the District of North Dakota.’ In

* Nebraska and South Dakota intervened in this action. South

Dakota seeks an order that water elevations in other main stem

reservoirs not be lowered in order to raise the water in Lake Sa-

kakawea, and Nebraska requests that the Corps maintain downstream

interests by drawing from the upper reservoirs. (Defs.'. Mem. in Supp of

Mot. to Dismiss.) In addition to this case, Nebraska and South Dakota

(Continued on following page)

App. 13

July 2003, Judge Hovland denied North Dakota’s Motion

for a Preliminary Injunction. North Dakota v. U.S. Army

Corps of Engrs, 270 F Supp.2d 1115 (D.N.D.2003).

In June 2003, the Corps filed this Motion to Dismiss

the Complaint, claiming that there had been no waiver by

the Government of its sovereign immunity. In response,

North Dakota's Motion for Partial Summary Judgment

asserts that the CWA waives immunity for the Corps. In

response to this Motion for Summary Judgment, the Corps

further argues that the Court lacks jurisdiction, on the

basis that North Dakota's claims are moot and no longer

ripe for review. The supplemental memoranda filed the

parties asserts the same arguments.

DISCUSSION

A. Standard of Review

For the purposes of the Motion to Dismiss, the Court

takes all facts alleged in the Complaint as true. Westcott v.

Omaha, 901 F.2d 1486, 1488 (8th Cir.1990). The Court

must construe the allegations in the Complaint and

reasonable inferences arising from the Complaint favora-

bly to Plaintiff. Morton v. Becker, 793 F.2d 185, 187 (8th

Cir. 1986). A motion to dismiss will be granted only if “it

appears beyond doubt that the Plaintiff can prove no set of

facts which would entitle him to relief.” Jd.; see also Conley

v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80

(1957).

have brought their own individual lawsuits against the Corps. These

suits are pending before this Court.

App. 14

B. Sovereign Immunity

North Dakota seeks a declaration that the Corps must

comply with its state water quality standards. (Compl. at

16-17.) In denying North Dakota’s Motion for a Prelimi-

nary Injunction, Judge Hovland iterated North Dakota’s

most significant obstacle:

Although the Corps of Engineers has been held

liable for non-compliance with state water qual-

ity laws in one other reported decision, the courts

have yet to see one state along a major river sys-

tem comprised of several dams and reservoirs

spread over many states succeed in a state water

quality standards enforcement action.

North Dakota v. U.S. Army Corps of Eng’rs, 270 F.Supp.2d

1115, 1128 (D.N.D.2003) (North Dakota I) (distinguishing

Nat'l Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 132

F.Supp.2d 876 (D.Or.2001) (determining that § 1323(a)

requires federal facilities and activities to comply with

state water quality standards)). In particular, Judge

Hovland noted that “the issue of sovereign immunity

looms large in this case.” North Dakota I, 270 F.Supp.2d at

1128. ,

Sovereign immunity protects the federal government

and its agencies from suit. This immunity must be un-

equivocally waived by an act of Congress. U.S. Dep't of

Energy v. Ohio, 503 U.S. 607, 615, 112 S.Ct. 1627, 118

L.Ed.2d 255 (1992). “Waivers of immunity must be con-

strued strictly in favor of the sovereign.” Id. (citations

omitted). Therefore, in order for North Dakota to maintain

this suit, the CWA must waive immunity for the Corps.

App. 15

1. 33 U.S.C. § 1323(a) Waiver of Sovereign Immunity

33 U.S.C. § 1323(a) states in relevant part:

Each department, agency, or instrumentality of

the executive, legislative, and judicial branches

of the Federal Government (1) having jurisdic-

tion over any property or facility, or (2) engaged

in any activity resulting, or which may result, in

the discharge or runoff of pollutants .. . shall be

subject to, and comply with, all Federal, State,

interstate and local requirements, administrative

authority, and process and sanctions respecting

the control and abatement of water pollution ..

in the same manner, and to the same extent as

any nongovernmental! entity.

To claim sovereign immunity, the Corps must show that

this statute does not apply. The Corps argues that this

statute only constitutes a waiver in “discharge or runoff”

cases, which North Dakota concedes this case is not. The

Corps relies heavily on the Eighth Circuit’s limited inter-

pretation of the statute:

The district court held that the [CWA) subjects

the Corps of Engineers to state water quality

laws only if it were causing “the discharge or

runoff of pollutants.” The district court concluded

[that] the [Missouri State Clean Water Act) did

not apply because soil erosion and reduction of

oxygen did not constitute a “discharge” or “run-

off” of pollutants ... [wie cannot say that the

district court erred in n finding [that] the [Missouri

State Clean Water Act} did not apply.

Missouri ex rel. Ashcroft v. Dep't of the Army, 672 F.2d

1297, 1304 (8th Cir.1982). According to the Corps, Ashcroft

limits the waiver of immunity to discharge or runoff cases

only. 33 U.S.C. § 1323(a)2). However, it likewise clear

App. 16

from Ashcroft that the Eighth Circuit did not consider the

possibility that immunity could be waived if the Govern-

ment had jurisdiction over the particular property or

facility. See 33 U.S.C. § 1323(a)(1). This statute is disjunc-

tive, in that immunity can be waived either because the

Government has jurisdiction over the particular property

or facility, or because the Government has engaged in

activities that result in the runoff or discharge of pollut-

ants. 33 U.S.C. § 1323(a). Because there is no dispute that

the Corps has jurisdiction over the Garrison Dam and

Lake Sakakawea, it is possible that this statute may waive

sovereign immunity for the Corps. 33 U.S.C. § 1323(aX1).

2. 33 U.S.C. § 1371 Waiver of Sovereign Immunity

However, even if § 1323(a) constituted a waiver of

sovereign immunity in this particular case, it would not be

a complete waiver of sovereign immunity. See North

Dakota I, 270 F.Supp.2d at 1123. The CWA further pro-

vides:

[The CWA) shall not be construed as (1) limiting

the authority or functions of any officer or agency

of the United States under any other law or regu-

lation not inconsistent with this chapter; (2) af-

fecting or impairing the authority of the

Secretary of the Army (A) to maintain navigation

33 U.S.C. § 1371. Thus, § 1371 provides sovereign immu-

nity for the Corps when compliance with North Dakota's

water quality standards might affect or impair the author-

ity of the Corps to maintain navigation.

The Corps must operate the Missouri River to control

flooding and maintain downstream navigation. ETS/

App. 17

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

805, 98 L.Ed.2d 898 (1988); see 33 U.S.C. § 701 et seq.

(Flood Control Act (“FCA”)); see also H.R. Doc. No. 475,

78th Corg., 2d Sess. 28-29 (1944); S. Doc. No. 247, 78th

Cong., 2d Sess. 3 (1944). North Dakota’s current water

quality laws require that the levels of Lake Sakakawea

remain at certain height and gas levels to maintain the

reservoir as a cold water fishery. Here, the Corps is faced

with an either-or situation: it can either comply with

North Dakota’s water quality standards and potentially

violate its statutory obligation under the FCA to maintain

navigation, or it can operate as required under the FCA

and potentially violate North Dakota’s water quality

standards. Although it is possible that the Corps may be

able to simultaneously meet both its obligations to main-

tain navigation and the water quality standards estab-

lished by North Dakota, the Court simply cannot require

the Corps to always do both.’ In this instance, water

quality standards that require specific water levels and

gas compositions in a reservoir that segments a major

river system that traverses multiple states affects the

Corps’ ability to maintain navigation. Therefore, in this

instance, the Court finds that the CWA does not provide

for a complete waiver of sovereign immunity.’

* This same theory applies to all of the states along the Missouri

River basin. The Court simply cannot order that the Corps always

comply with the water quality standards of each state, in the Corps’

operation of an interstate river system. Although it may be possible for

the Corps to successfully comply with all of the states’ water quality

laws, an order of absolute compliance disregards the Corps’ other

obligations under federal] law.

* The Court declines to determine whether the FCA trumps the

CWA in a)! instances. Rather, the Court narrowly holds that North

Dakota cannot maintain a state water quality enforcement action that

(Continued on following page)

App. 18

Plaintiffs attempt to present a genuine issue of

material fact on whether North Dakota's water quality

standards actually affect or impair “navigation.” Plaintiffs

submit that maintaining navigation simply requires that

the Missouri river have “enough water flowing down the

river to at least float a canoe.” (Pis.’ Mem. Mar. 26, 2004 at

17.) Plaintiffs also submit that “(njavigation under the

CWA does not mean navigation as the Corps interprets

navigational requirements under the FCA,” but provides

no authority for this proposition. (/d.) As Plaintiffs admit,

the phrase “to maintain navigation” in 33 U.S.C.

§ 1371(a)(2)(A) has not been construed by the courts. If the

Court were to construe “navigation” as Plaintiffs propose,

the force and effect of the FCA and the power it confers on

the Corps in its operation of the Missouri River would be

nonexistent. There is no evidence that Congress intended

such a result. In fact, it appears that Congress failed to

envision this exact situation, of a state water quality

enforcement action against the Government, in its opera-

tion of a major interstate river system. Therefore, the

Court declines to accept Plaintiffs’ proposition, and instead

construes the FCA and the CWA consistently.

C. Other Considerations

The Court is also persuaded by the principles of

preemption. When federal and state laws conflict, the

Supremacy Clause requires that the federal law prevail.

Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S.

132, 143, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963). Even

requires absolute compliance by the Corps, in the controlled operation

of a major river system that runs through many states.

App. 19

though North Dakota enacted its state water quality

standards pursuant to federal law, its state laws must

comport with federal law. “Preemption . . . will arise when

state law stands as an obstacle to the accomplishment and

execution of the full purposes and objective of Congress.”

Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85

L.Ed. 581 (1941) (citations omitted). Requiring the Corps

to comply with North Dakota's water quality standards

irrespective of the Corps’ other obligations and existing

river conditions circumvents the intention of Congress in

its enactment of the FCA and the CWA. The Court cannot

order that the Corps to violate its federal statutory obliga-

tions to comply with a state water quality standard.

The Missouri River basin has been plagued by a

prolonged drought, and as evidenced by this litigation, the

Corps’ ability to fully provide for all of the competing basin

interests has been difficult. North Dakota is attempting to

put its interest above the other interests in the Missouri

River basin. Common sense, above all else, cannot permit

such litigation to succeed. Permitting this litigation would

undoubtedly result in each state along the Missouri River

seeking to enforce its own water quality standards. The

Court is not in the position to determine which state's

water quality standards prevail over the other. The opera-

tion of the Missouri River cannot be controlled by state

water quality standards alone. The Corps’ operation of the

Missouri River must be examined in its entirety, together

with all of the competing interests. As the parties are well

aware, that issue is currently before the Court. Requiring

that the Corps always comply with North Dakota's state

water quality laws in its operation of the Missouri River

impairs the Corps’ ability to maintain navigation, and its

ability to comply with the FCA. Therefore, the Court

App. 20

grants the Corps’ Motion to Dismiss North Dakota’s

Complaint.

Additionally, because there remains no case or contro-

versy for the Complaints in Intervention, the Coniplaints

of South Dakota and Nebraska are also dismissed. The

Court believes that the claims filed by South Dakota and

Nebraska in the related cases will sufficiently provide an

avenue for relief. Nebraska’s Motion for Summary Judg-

ment is thus moot. Finally, although North Dakota filed a

Motion to Amend its Complaint in this action, based on the

foregoing, this Motion is also moot.

Accordingly, based on all the files, records, and pro-

ceedings herein, IT IS HEREBY ORDERED that:

1. The Corps’ Motion to Dismiss North Dakota’s

Complaint (Clerk Doc. No. 60) is GRANTED;

2. The Corps’ Motions to Dismiss the Complaint

of Intervenors Nebraska and South Dakota

(Clerk Doc. No. 49) are GRANTED;

3. Nebraska’s Motion for Summary Judgment

(Clerk Doc. No. 76) is DENIED as moot;

4. North Dakota’s Motion for Partial Summary

Judgment (Clerk Doc. No. 79) is DENIED as

moot; and

5. North Dakota’s Motion to Amend its Com-

plaint (Clerk Doc. No. 99) is DENIED as moot.

LET JUDGMENT BE ENTERED ACCORDINGLY.

App. 21

270 F.Supp.2d 1115

United States District Court,

D. North Dakota,

Southwestern Division.

State of NORTH DAKOTA, et al., Plaintiffs,

and

State of South Dakota, and State of Nebraska, et al.,

Plaintiffs/Intervenors,

The UNITED STATES ARMY CORPS OF ENGINEERS,

et. al., Defendants.

No. Al-03-050.

July 14, 2003.

Dean J. Haas, Lyle Gregory Witham, Attorney Gen-

eral’s Office, Civil Litigation, Bismarck, ND, for plaintiffs.

Daniel W. Pinkston, U.S. Department of Justice,

Environmental Defense Section, Denver, CO, Cameron W.

Hayden, U.S. Attorney's Office, Bismarck, ND, Fred R.

Disheroon, U.S. Department of Justice, Environment and

Natural Resources, Washington, DC, for defendants.

Daniel H. Israel, Boulder, CO, for amicus.

Clark Jay Bormann, Bormann Law Office, Bismarck,

ND, David D. Cookson, Nebraska Atty Gen’s Office,

Lincoln, NE, John P. Guhin, Attorney General’s Office,

Pierre, SD, for intervenor.

MEMORANDUM AND ORDER DENYING

NORTH DAKOTA’S MOTION FOR A

PRELIMINARY INJUNCTION

HOVLAND, Chief Judge.

App. 22

I. PROCEDURAL HISTORY

This case arises out of the management and operation

of the Missouri River and its attendant reservoirs. The

matter before the Court is the State of North Dakota's

Motion for a Preliminary Injunction. North Dakota seeks a

preliminary injunction order stating:

that the Corps maintain a minimum cold water

habitat in Lake Sakakawea of 200,000 acre-feet

through September 30, 2003. The particular way

to achieve the minimum 200,000 acre-feet should

be left, however, to the Corps’ management and

discretion.

That a Special Master be appointed by the Court

to monitor compliance with the order throughout

the summer, and to make recommendations to

the Court to address any changes or adjustments

that may be needed based on higher or lower

flows than anticipated in the Corps’ June 1, 2003

forecast, or to address any unanticipated down-

stream impacts.

On May 7, 2003, the Court extended an Ex Parte

Temporary Restraining Order entered on April 29, 2003,

by state district court Judge Gail Hagerty. On May 16,

2003, the Court again extended the Ex Parte Temporary

Restraining Order until the end of May based on the

consent of the Corps of Engineers, modified the Order to

allow a maximum daily average release of 21,500 cfs from

Garrison Dam, and suspended the requirement that the

Corps of Engineers submit a compliance plan by May 19,

2003. On May 29, 2003, the Court granted the Corps of

Engineers’ Motion to Dissolve the Ex Part Temporary

Restraining Order. On June 4, 2003, the Court held a

hearing on both North Dakota's and South Dakota's

App. 23

Motions for Preliminary Injunctions, at which the parties

submitted additional evidence and the Court heard testi-

mony from several witnesses. The same day, June 4, 2003,

the Eighth Circuit released its opinion in South Dakota v.

Ubbelohde, 330 F.3d 1014 (8th Cir.2003).'

This matter comes before the Court with a complex

and lengthy history involving the dispute between the

Corps of Engineers and the various Missouri River Basin

states regarding the management of the Missouri River. A

more extensive review of the background of the case is set

forth in the Court’s Orders of May 16, 2003, and May 29,

2003. However, a brief summary is necessary te provide

the backdrop to North Dakota’s Motion for a Preliminary

Injunction.’

Il. BACKGROUND

On February 20, 2003, the North Dakota Department

of Health issued a “Notice of Violation” to the Corps of

Engineers alleging continuing violations and actions that

threatened to violate North Dakota’s water quality stan-

dards applicable to Garrison Dam and Lake Sakakawea.

The Notice of Violation indicated that the North Dakota

Department of Health may file suit against the Corps of

' The Eighth Circuit combined several appeals involving the

Missouri River and issued one opinion resolving the following cases:

State of South Dakota, et al. v. Ubbelohde, et al., No. 01-2133SD, State

of South Dakota, et al. v. Ubbelohde, No. 02-2144SD; State of South

Dakota, et al. v. Ubbelohde, et al., No. 02-2185SD; State of South

Dakota, et al. v. Ubbelohde, et al., No. 02-2187SD, State of Nebraska, et

al. v. Ubbelohde, et al., No. 02-2191 NE; State of North Dakota, et al. v.

Ubbelohde, et ai., No. 02-2305ND.

* A Motion for Preliminary Injunction has also been made by South

Dakota, and it will be the subject of a separete order.

App. 24

Engineers. In essence, the Notice of Violation asserted

that the Corps’ management of Lake Sakakawea consti-

tutes a form of “pollution” under state law which would

threaten the lake’s cold water fishery by decreasing the

lake’s water elevation.

The State of North Dakota filed a complaint in state

district court on April 29, 2003. In its complaint, the State

alleged that the Corps of Engineers violated North Da-

kota’s water quality standards in Lake Sakakawea

through its operation of the Garrison Dam. It is alleged in

the complaint, and the state district court found in its

TRO, that Section 313(a) of the federal Clean Water Act

constitutes a waiver of sovereign immunity, thus allowing

states to sue federal entities for alleged violations of state

water quality standards. See 33 U.S.C. §1323(a). In

essence, the State of North Dakota alleges that the Corps

management of water levels in Lake Sakakawea during

the summer months will violate North Dakota’s water

quality standards as it relates to the maintenance of a cold

water fishery in Lake Sakakawea.

The State of North Dakota contends that the Corps of

Engineers’ management of the Missouri River Mainstem

Reservoir System, and particularly the management of the

release of waters from Garrison Dam, constitutes a form of

“pollution” because it is a “man-made or man-induced”

change that has altered the physical, chemical, and

biological integrity of Lake Sakakawea. According to the

State, adherence to the Corps of Engineers’ April 1, 2003,

and May 1, 2003, projected forecast and its current Annual

Operating Plan will result in no cold water fish habitat

remaining in Lake Sakakawea by the end of the summer

of 2003. However, based on the June 1, 2003, forecast,

approximately 173,340 acre-feet of cold water habitat

App. 25

would remain at the end of September 2003. /t is undis-

puted that at the present time, no specific violations of

North Dakota law or of water quality regulations have

occurred.’

The State of North Dakota is seeking injunctive relief

to (1) maintain a minimum cold water habitat in Lake

Sakakawea of 200,000 acre-feet through September 30,

2003; and (2) to appoint a Special Master to monitor

compliance with the preliminary injunction throughout

the summer. North Dakota contends that the survival of

the cold water fishery in Lake Sakakawea this summer is

dependent upon (1) the average elevation of Lake Sa-

kakawea in May before it stratifies; and (2) the amount

that inflow into the lake exceeds outflow during the

months of June, July, and August. The first factor is now

moot because the State's initial concern about maintaining

the average elevation of Lake Sakakawea in May before it

stratified has been addressed. Thus, the issue of whether

to grant a preliminary injunction focuses on the amount of

inflow and outflow at Lake Sakakawea for the remainder

of the summer months.

Since the origina! filing in North Dakota state district

court, the case was removed to federal district court, and

the Steves of Nebraska and South Dakota have been

allowed tw intervene. To summarize the current litigation,

* Although the State of North Dakota characterizes the Corps’

actions as constituting “apparent continuing violations,” in its Notice of

Violation the State uses language that refers to future violations rather

than current violations; for example “will likely cause,” “likely to

cause,” and “will likely occur.” At the June 4, 2003, hearing Mike Saver

of the North Dakota Department of Health conceded that the Corps was

not currently violating North Dakota water quality standards

App. 26

North Dakota seeks injunctive relief that would limit

releases from Garrison Dam throughout the summer of

2003. South Dakota wants the Court to order that water

elevations in other mainstem reservoirs not be lowered in

order to raise the elevation of Lake Sakakawea and specifi-

cally wants to prevent the lowering of water elevations in

Lake Oahe. The State of Nebraska wants the Corps of

Engineers to comply with the 2003 Annual Operating Plan

forecast which means drawing down the water levels from

the upper reservoirs throughout the summer to support the

Endangered Species Act, navigation, and other downstream

needs. The diverse interests of the states and their needs

for adequate water levels in the Missouri River and its

reservoirs come at a time when this region of the country

is experiencing its fourth year of drought conditions.

Ill. LEGAL DISCUSSION

In determining whether preliminary injunctive relief

should issue, the Court is required to consider the factors

set forth in Dataphase Systems, Inc. v. C.L. Sys. Inc., 640

F.2d 109, 114 (8th Cir.1981) (en banc). The Eighth Circuit

summarized those factors as follows:

When considering a motion for a preliminary in-

junction, a district court weighs the movant’s

probability of success on the merits, the threat of

irreparable harm to the movant absent the in-

junction, the balance between harm and the in-

jury that the injunction’s issuance would inflict

on other interested parties, and the public inter-

est. Dataphase Systems, Inc. v. C.L. Sys, Inc., 640

F.2d 109, 114 (8th Cir.1981) (en banc). We reverse

the issuance of a preliminary injunction only if

the issuance “is the product of an abuse of discre-

tion or misplaced reliance on an erroneous legal

App. 27

premise.” City of Timber Lake v. Cheyenne River

Sioux Tribe, 10 F.3d 554, 556 (8th Cir.1993) cert.

denied 512 U.S. 1236, 114 S.Ct. 2741, 129

L.Ed.2d 861 (1994).

Pottgen v. Missouri State High School Activities Associa-

tion, 40 F.3d 926, 929 (8th Cir. 1994).

The burden of establishing the necessity of a prelimi-

nary injunction is on the movant. Baker Electric Co-op.

Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir.1994); Modern

Computer Systems, Inc. v. Modern Banking Systems, Inc.,

871 F.2d 734, 737 (8th Cir.1989) (en banc). “No single

factor in itself is dispositive; in each case all of the factors

must be considered to determine whether on balance they

weigh towards granting the injunction.” Baker Electric Co-

op, 28 F.3d at 1472 (quoting Calvin Klein Cosmetics Corp.

v. Lenox Labs., Inc., 815 F.2d 500, 503 (8th Cir.1987)). The

granting of a preliminary injunction is an extraordinary

remedy and the right to such relief must be clearly estab-

lished by the movant. Brookins v. Wissota Promoters Ass'n,

Inc., 142 FSupp.2d 1149, 1151 (D.N.D.2000). The Court

will address each of the Dataphase factors.

A. PROBABILITY OF SUCCESS ON THE MER-

ITS

To succeed on the merits, North Dakota must clear

several hurdles including issues pertaining to the avail-

ability of judicial review, sovereign immunity, and the

application of water quality standards.

App. 28

1. AVAILABILITY OF JUDICIAL REVIEW

In prior litigation between various Misseuri River

Basin states and the Corp of Engineers, the Corps has

argued that federal district courts lacked jurisdiction to

review management decisions of the Corps because these

decision were “committed to agency discretion by law”

under 5 U.S.C. § 701(a)(2). See e.g., Brief of Appellant, p.

23, State of North Dakota v. Ubbelohde, No. 02-2305. This

very issue was recently resolved by the Eighth Circuit

Court of Appeals in the case of South Dakota v. Ubbelohde,

330 F.3d 1014 (8th Cir.2003), a decision issued on June 4,

2003.

In South Dakota v. Ubbelohde, the Eighth Circuit

directly addressed the issue of whether the Corps of

Engineers’ actions are subject to judicial review. The

Eighth Circuit rejected the Corps of Engineers’ argument

that its actions are not subject to judicial review and held

that the Corps’ actions are constrained both by the Flood

Control Act of 1944 and the Master Manual. 330 F.3d

1014, 1027-1029. The Eighth Circuit concluded that courts

could (1) review the Corps of Engineers’ compliance with

the Flood Control Act which mandates the Corps must

consider the various interests (flood control, navigation,

recreations, and other interests) before making a decision,

and (2) review the Corps’ compliance with the Master

Manual which directs the operation of the Missouri River.

Here, the State of North Dakoia’s claim is based on a

different theory and body of law than its previous claim,

although the relief the State seeks appears to be nearly

identical. North Dakota’s current claim is based on the

Corps’ alleged violation of the federal Clean Water Act and

North Dakota water quality standards rather than on the

App. 29

Corps’ alleged violation of the Flood Control Act or the

Master Manual. Thus, although it provides substantial

guidance, the South Dakota v. Ubbelohde decision is not

dispositive as to the issue of availability of judicial review.

The Ninth Circuit has held that “[ulnder the Clean

Water Act, all federal agencies must comply with state

water quality standards... . 33 U.S.C. § 1323(a). Judicial

review of this requirement is available under the Adminis-

trative Procedure Act.” Oregon Natural Resources Council

v. United States Forest Service, 834 F.2d 842, 852 (9th

Cir.1987), see also National Wildlife Federation v. United

States Army Corps of Engineers, 132 F. Supp 2d 876, 878

Water Act by not complying with the water quality stan-

dards of the State of Washington”).‘ Thus, it appears the

Corps’ compliance with the Clean Water Act is subject to

judicial review.

* The contrary conclusion was reached by « a

forth

general directive that “environmental protection (shall be included) as

one of the primary missions of the Corps of Engineers in planning,

designing. constructing, operating, and maintaining water resources

projects.” See Raymond Proffitt Foundation vu. U.S. Army Corps of

Engineers, 175 FP Supp.2d 755, (E.D Pa.2001) (holding that because

“[t]he text of § 2316 provides only a genera! statement that established

environmenta! protection as one of the Corps’ primary missions [and]

Se ee ae ee ee ee eee . $2316

falls under the § 701(a) exception for cases where ‘agency action is

committed to agency discretion by law’ land thus, is not capable of

review by a court!”)

App. 30

2. SOVEREIGN IMMUNITY

The next hurdle the State of North Dakota must clear

involves the Corps of Engineers’ claim of sovereign immu-

nity. North Dakota argues that Section 313 of the Clean

Water Act [33 U.S.C. $1323) constitutes a waiver of

sovereign immunity. Section 313 of the Clean Water Act

provides, as follows:

(a) Each department, agency, or instrumertality

of the executive, legislative, and judicial

branches of the Federal Government (1) having

jurisdiction over any property or facility, or (2)

engaged in any activity resulting, or which may

result, in the discharge or runoff of pollutants,

and each officer, agent or employee thereof in the

performance of his official duties, shal] be subject

to, and comply with, all Federal, State, inter-

state, and local requirements, administrative au-

thority, and process and sanctions respecting the

control and abatement of water pollution in the

same manner, and to the same extent as any

nongovernmental! entity including the payment

of reasonable service charges.

For additional support, North Dakota cites to Na-

tional Wildlife Federation v. United States Army Corps of

Engineers, 92 F Supp.2d 1072, 1081 (D.Or.2000), where the

court found that “jujnder the Clean Water Act, all federal

agencies must comply with state water quality standards”

and to Executive Order 12088, 43 Fed.Reg. 27,707 (Oct.

12, 1978), where President Carter ordered executive

agencies to comply with the Clean Water Act as well as

other federal environmental standards.

North Dakota also refers the Court to the legislative

history of Section 313 of the Clean Water Act. The Clean

App. 31

Water Act was amended in 1977 in response to an Eighth

Circuit decision, Minnesota v. Hoffman, 543 F.2d 1198 (8th

Cir.1976), cert. denied, 430 U.S. 977, 97 S.Ct. 1672, 52

L.Ed.2d 373 (1977), which heid that the Corps of Engi-

neers was exempt from Sections 313 and 404 of the Clean

Water Act when conducting dredging activities. A portion

of the Clean Water Act’s legislative history states:

The act has been amended to indicate unequivo-

cally that all Federal facilities and activities are

subject to all of the provisions of State and local

pollution laws. Though this was the intent of

Congress in passing the 1972 Federal Water Pol-

lution Control Act Amendments, the Supreme

Court, encouraged by Federal agencies, has mis-

construed the original intent.

Since the substantive requirements of the act

and of State and local law would be unenforce-

able unless procedural provision were also met,

section 313 is amended to specify that, as in the

case of air pollution, a Federal facility is subject

to any Federal, State, and local requirement re-

specting the control or abatement of water pollu-

tion, both substantive and procedural, to the

same extent as any person is subject to these re-

quirements. This includes, but is not limited to,

requirements to obtain operating and construc-

tion permits, reporting and monitoring require-

ments, any provisions for injunctive relief and

such sanctions imposed by a court to enforce such

relief, and the payment of reasonable service

charges ..

The amendment to section 404 clarifies the in-

tent of Congress relative to the dredging activi-

ties of the U.S. Army Corps of Engineers to

maintain navigation on the Nation’s waterways

App. 32

is in the national interest. However, Corps dredg-

ing activities, like any municipal or industrial

discharge to the Nation’s waters, or any private

dredging activities, should be conducted in com-

pliance with applicable State water quality stan-

dards. The Corps, like other Federal agencies,

should be bound by the same requirements as

any other discharger into public waters.

By this amendment, the committee clarifies that

Corps dredging activities are not exempt from

State pollution abatement requirements. In spite

of language in section 313 in the Senate report

on the 1972 act, that “requires every Federal

agency with control over any activity or real

property, to provide national leadership in the

control of water pollution in such operations”, the

Supreme Court ruling in the Minnesota case

would otherwise free corps-conducted dredging

from compliance with State water quality stan-

dards. The intention of the 1972 act was not to

exempt the Corps or any other public or private

agency from State water quality standards and

the interpretation of section 404 by the courts is

at variance with the intent of Congress ....

This amendment to section 404 is neither in-

tended nor expected to result in compromising

the ability of the Corps to maintain navigation.

The States that have taken administrative and

judicial action to seek Corps compliance with wa-

ter quality standards have a comparable interest

in the movement of commerce on waterways

maintained by corps dredging. The committee

expects that such States wil! act both to insure

compliance with water quality standards and

continued corps dredging activities.

App. 33

S.Rep. No. 95-370, at 68-69 (1977), reprinted in 1977

US.C.CAN. 4326, 4393. North Dakota argues that

Section 313 when read in conjunction with the 1977

amendments, shows that the Corps of Engineers must

comply with state water quality standards. Finally, North

Dakota contends that the Corps should be able to operate

the Missouri River Mainstem Reservoir System in a

manner that complies with both the Clean Water Act and

the Master Manual.

The Corps of Engineers argues that the waiver of

sovereign immunity set forth in Section 313 is not a

complete waiver and specifically points to Section 511 [33

U.S.C. § 1371) which provides as follows:

This chapter shall not be construed as

(1) limiting the authority or functions of any of-

ficer or agency of the United States under any

other law or regulation not inconsistent with this

chapter,

(2) affecting or impairing the authority of the

Secretary of the Army

(A) to maintain navigation or

(B) under the Act of March 3, 1899 (30 Stat.

1122); except that any permit issued under sec-

tion 1344 of this title shail be conclusive as to the

effect on water quality of any discharge resulting

from any activity subject to section 403 of this

title, or

(3) affecting or impairing the provision of any

treaty of the United States.

(emphasis added). The Corps of Engineers asserts that an

injunction precluding necessary releases of water would

App. 34

not be sufficient to provide minimum service to navigation.

The Corps also characterizes the current situation as the

precise type of fact pattern that Section 511 was enacted to

address. The Corps acknowledges that its obligation to

“maintain navigation” does not always trump the Clean

Water Act. However, the Corps contends that when it is

faced with what it calls an “either-or-situation,” the Corps

ability to maintain navigation is not subject to state water

quality standards.

The Corps of Engineers also contends that the Eighth

Circuit decision in State of Missouri ex rel. Ashcroft v.

Dep't of the Army, 672 F.2d 1297 (8th Cir.1982) bars North

Dakota’s claims. In the Missouri case, the plaintiffs argued

that the Corps was discharging pollutants into the Sac

River through its construction and operation of a dam and

power generator, and that this constituted a violation of

the Clean Water Act and Missouri state water quality

laws. The Eighth Circuit held that the federal Clean Water

Act “subjects the Corps of Engineers to state water quality

laws only if it were causing ‘the discharge or runoff of

pollutants.’” Jd. at 1304. Although the Missouri decision

may be helpful to the Corps’ other arguments, the decision

did not touch on issues of sovereign immunity and does

not bolster the Corps’ sovereign immunity argument.

While there is no question that Section 313 of the

Clean Water Act [33 U.S.C. § 1323] constitutes a partial

waiver of sovereign immunity, there is also no question

that Section 511 (33 U.S.C. § 1371) provides sovereign

immunity protection for the Corps of Engineers when

compliance with the Clean Water Act may “affect or

impair” the authority of the Corps of Engineers to “main-

tain navigation.” Thus, the issue becomes whether compli-

ance with North Dakota’s water quality standards would

App. 35

“affect or impair” the Corps of Engineers’ ability to main-

tain navigation.’ Even though the Corps has not specified

how or why the relief North Dakota seeks would “affect or

impair” the Corps’ ability to “maintain navigation,” the

fact that the Corps of Engineers may be able to success-

fully argue it is immune from suit is a factor which weighs

heavily against North Dakota’s probability of success on

the merits. This finding is further supported by the recent

pronouncement of the Eighth Circuit Court of Appeals in

South Dakota v. Ubbelohde.

3. WATER QUALITY STANDARDS

North Dakota’s complaint alleges that the Corps of

Engineers Annual Operating Plan (AOP) for 2003 creates

violations of North Dakota’s water quality laws. North

Dakota’s ability to enact and enforce water quality stan-

dards is outlined by the Federal Water and Pollution

Control Act.

The Federal Water and Pollution Control Act, com-

monly referred to as the Clean Water Act, 33 U.S.C. § 1251

et. seq. was designed to “restore and maintain the chemi-

cal, physical, and biological integrity of the nation’s wa-

ters.” 33 U.S.C. § 1251(a). The Clean Water Act provides

for two primary sets of water quality measures: effluent

limitations, found in 33 U.S.C. § 1311, and water quality

standards, found in 33 U.S.C. § 1313.

* The issue of sovereign immunity was not addressed in the Oregon

case cited by North Dakota, and it is unclear whether the river system

in question there was used for navigation. National Wildlife Federation

v. United States Army Corps of Engineers, 132 F.Supp.2d 876

(D.Or.2001); National Wildlife Federation v. United States Army Corps

of Engineers, 92 F Supp.2d 1072 (D.Or.2000).

App. 36

The effluent limitations section focuses on the control

of individual discharges from “point sources” into the

navigable waters. A “point source” is defined as “any

discernable, confined, and discrete conveyance” such as a

pipe, ditch, or conduit from which “pollutants” may be

discharged in navigable waters. See 33 U.S.C. § 1362(14).

The Clean Water Act provides that the discharge of any

“pollutant” by any person shall be unlawful. The term

“pollutant” is defined as “dredged spoil, solid waste,

incinerator residue, sewage, garbage, sewage sludge,

munitions, chemica] wastes, biological materials, radioac-

tive materials, heat, wrecked or discarded equipment,

rock, sand, cellar dirt and industrial, municipal, and

agricultural waste discharged into water.” See 33 U.S.C.

§ 1362(6). The term “pollution” as opposed to “pollutant”

has a broader definition under federal law and means the

“man-made or man-induced alteration of the chemical,

physical, biological, and radiological integrity of the

water.” See 33 U.S.C. § 1362(19). The courts have deter-

mined that the release of water from dams does not equate

with the addition of “pollutants” to navigable waters. See

National Wildlife Federation v. Gorsuch, 693 F.2d 156

(D.C.Cir.1982); Missouri ex rei. Ashcroft v. Dept. of the

Army, 672 F.2d 1297, 1303-1304 (8th Cir.1982). However,

few courts have tackled the issue of whether the operation

of dams may create “pollution.”

North Daketa has not alleged that the Corps of

Engineers is discharging pollutants into the Missouri

River in violation of Sections 301 (33 U.S.C. § 1311] and

402 (33 U.S.C. § 1342] of the Clean Water Act. In fact,

North Dakota has specifically stated that its cause of

action does not arise under the Clean Water Act's permit-

ting system, which regulates the discharge of pollutants

App. 37

into navigable waters. See 33 U.S.C. §§ 1311, 1342.

Although previous decisions regarding the Corps of Engi-

neers activities as it relates to the discharge of pollutants

may be somewhat analogous to North Dokota’s claims,

they do not resolve the question of whether the Corps of

Engineers is subject to state water quality standards

under Section 303 of the Clean Water Act which regulates

pollution rather than the discharge of pollutants. See e.z.,

State of Missouri ex rel. Ashcroft v. Dept of the Army, 672

F.2d 1297 (8th Cir.1982) (holding discharges from dams

could not be classified as the runoff of a pollutant); Na-

tional Wildlife Federation v. Gorsuch, 693 F.2d 156

(D.C.Cir.1982) (holding dam-induced water quality

changes do not constitute “discharge of a pollutant” under

33 U.S.C. § 1362(12)).

Under Section 303, the Clean Water Act directs each

state to establish its own water quality tandards subject

to the procedures set forth in federal statutes and regula-

tions. See 33 U.S.C. § 1313. State water quality standards

must contain three elements, (1) designated uses, (2)

numeric or narrative water quality criteria, and (3)

antidegradation rules. 40 C.F.R. § 131.6(a), 136.11(a\1),

131.11(bM1) and (bX2), 131.6(d), 131.12. There is no

mechanism in the Clean Water Act for the enforcement of

water quality standards adopted by the staius; rather the

enforcement is left to the states.

On March 27, 2003, North Dakota Governor John

Hoeven signed an emergency bill amending North Da-

kota’s water quality statute which enabled this action to

be brought by the State. Section 61-28-06(1) of the North

Dakota Century Code as amended states in relevant part

as follows:

App. 38

1. It shall be unlawful for any person:

a. To cause pollution of any waters of the state

or to place or cause to be placed any wastes in a

location where they are likely to cause pollution

of any waters of the state; and

b. To discharge any wastes into any waters of

the state or to otherwise cause pollution which

reduces the quality of such waters below the wa-

ter quality standards established therefor by the

department.

The statute also provides that:

3. Notwithstanding any other provisions of this

chapter, and except as in compliance with the

provisions of this chapter, and any rules and

regulations promulgated hereunder, the dis-

charge of any wastes or the violation of any water

quality standards, by any person shall be unlaw-

ful. The department may seek injunctive relief for

a threatened or continuing violation of a water

quality standard, including any violations of the

narrative standards, if the department deter-

mines that the violation will substantially inter-

fere with or cause or threaten to cause long-term

or irreparable harm to waters of this state that

the department determines has statewide or re-

gional significance or has a substantial impact to

a local community. The authority to seek injunc-

tive relief for a violation of the water quality

standards, including violations of the narrative

standards, is limited to the department, after ob-

taining written approval of the governor, and may

not be enforced by any other person.

N.D.C.C. § 61-28-06(3) (amending language underlined).

“Person” is defined in the statute to include “any state or

App. 39

federal agency or entity responsible for managing a state or

federal facility.” N.D.C.C. §61-28-02(5). “Pollution” is

defined as “the manmade or man-induced alteration of the

physical, chemical, biological, or radiological integrity of

any waters of the state.” N.D.C.C. § 61-28-02(7). This is

virtually the same definition of “pollution” found in the

federal Clean Water Act. North Dakota's regulatory

schemes are also similar to the anti-pollution laws and

regulations of each of the states that border the Missouri

River.

A review of litigation involving the Corps of Engineers

and its operations of dams reveals few situations where

states have attempted to enforce their water quality

standards, but at least one other federal district court has

grappled with an alleged violation of state water quality

standards by the Corps of Engineers." In National Wildlife

_ Federation v. United States Army Corps of Engineers, 132

F.Supp.2d 876, 878 (D.Or.2001), the Federal District Court

for the District of Oregon found it had jurisdiction to

review claims that the Corps of Engineers was “violating

the Clean Water Act by not complying with the water

quality standards of the State of Washington” and cited to

a line of Ninth Circuit opinions to supports its conclusion.

Id. at 889 (citing Idaho Sporting Congress v. Thomas, 137

* The concept that state water quality standards should apply to

the activities of the Corps of Engineers was noted in National Wildlife

Federation v. Gorsuch, 693 F.2d 156, 182 (D C.Cir 1982), where the

court stated that statewide water quality plan may be the better

regulatory tool to address “dam-caused pollution” The court also noted

that new dams cannot be built unless they comply with state water

quality standards and cited to an example in South Carolina where the

Corps of Engineers agreed to meet state water quality standards and

include a method to remedy anticipated low dissolved oxygen problems

in its construction plan for a new dam /d at 183 n. 78

App 40

F.3d 1146, 1153 (9th Cir.1998); Oregon Natural Resources

Council v. Lyng, 882 F.2d 1417, 1424 (9th Cir.1989),

Oregon Natural Resources Council v. United States Forest

Service, 834 F.2d 842, 848 (9th Cir. 1987)).

In National Wildlife Federation, various environ-

mental groups from Oregon and Washington filed suit

against the Corps of Engineers alleging that the actions of

the Corps in operating four dams on the Lower Snake

River violated the Clean Water Act. The Lower Snake

River runs through the southeast corner of the State of

Washington, and empties into the Columbia River near

Kennewick, Washington. The Corps of Engineers owns and

operates four power projects and dams — Ice Harbor,

Lower Monumental, Little Goose, and Lower Granite — as

part of the Federal Columbia River Power System. Na-

tional Wildlife Federction v. United States Army Corps of

Engineers, 92 F.Supp.2d 1072, 1074 (D.Or.2000). The

plaintiffs alleged that the water quality standard viola-

tions constituted “serious, long-standing, and ongoing

violations of federal law that have degraded water quality,

and steelhead species to the brink of extinction.” Jd. The

Corps responded by arguing that (1) it attempted to

comply with state water quality standards, (2) its deci-

sions regarding compliance with water quality standards

were reasonable, and (3) any temperature exceedences

were not caused by the Corps of Engineers’ operation of

the dams, but rather were caused by the fact that the

dams existed. 132 F Supp.2d 876, 888-92.

The court stated it must determine whether the

actions of the Corps of Engineers were arbitrary, capricious,

an abuse of discretion or otherwise nct in accordance with

law. 132 F.Supp.2d 876, 878-79. “In determining whether

App. 41

the Corps’ decision .. . regarding the operation of the dams

were arbitrary and capricious, the court must ‘consider

whether the decision was based on a consideration of the

relevant factors and whether there has been a clear error

of judgment.’” Jd. at 879. The court reviewed portions of

the administrative record available and found that it was

“not possible to conclude that the Corps complied with its

legal obligations under the Clean Water Act when it made

the decisions ... based upon a review of the decisions

themselves.” /d. at 890.

The court rejected an argument by the Corps of

Engineers that it was not able to comply with Washington

water quality standards because of the Endangered

Species Act and stated “the Endangered Species Act and

the Clean Water Act ‘should be read together, so that

compliance with one statute does not come at the expense

of the other.’” Jd. at 891. The court ultimately found that

the Corps had not complied with its legal obligations

under the Clean Water Act because it had not considered

all the relevant factors. Jd. at 895. The court concluded by

stating that since the claim was not an enforcement action

under the Clean Water Act, the proper remedy was to

remand the matter back to the agency for additional

investigation and explanation. /d. at 895.

North Dakota's claims are similar to those asserted by

the plaintiffs in National Wildlife Federation. North

Dakota asserts that the Corps of Engineers must comply

with the Clean Water Act and state water quality stan-

dards. Just as in National Wildlife Federation, North

Dakota contends the Corps of Engineers’ management

decisions have resulted in alleged violations of North

Dakota water cuality standards. At the outset, it appears

the National Wildlife Federation decision would support

App. 42

North Dakota’s motion for a preliminary injunction, but a

closer look reveals that North Dakota has failed to set

forth a case that is likely to succeed on the merits.

Although this action is in the early stages of litigation,

North Dakota has not attempted to show whether the

Corps of Engineers sought to comply with the Clean Water

Act and state water quality standards or whether the

Corps of Engineers considered. the effect its 2003 Annual

Operating Plan would have on the Clean Water Act and

state water quality standards. Instead, North Dakota has

alieged future violations of the Clean Water Act and state

water quality standards. North Dakota’s failure to show

either how the Corps of Engineers failed to “consider the

relevant factors” when making its operational decisions for

2003 or how the Corps of Engineers is currently in viola-

tion of the Clean Water Act or state water quality stan-

dards weighs aguinst its success on the merits because

North Dakota has not set forth sufficient evidence to show

the Corps of Engineers acted in an arbitrary or capricious

manner — the standard for such an action.

In addition, the enforcement of North Dakota’s water

quality standards cannot be considered in a vacuum. One

significant difference between the National Wildlife

Federation case and the current litigation is that the

National * Wildlife /Federation case involved a series of

dams which weye all located in the same state, thus

requiring the erf-rcement of only one set of water quality

standards. In the present action, when the Corps of

Engineers allegedly causes violations of North Dakota's

water quality standards, and water levels are held back to

protect the cold water fishery and the biological integrity

of Lake Sakakawea, then other downstream states may

assert signilay violations of their respective water quality

App. 43

standards. Nebraske and South Dakota have already

intervened in this action to protect their own interests,

which to this point have not proven to be completely

congruent with North Dakota's. Thus, the complexity of

the issues present in North Dakota's claim to enforce its

water quality standards appears to lessen the probability

of North Dakota's success on the merits.

Finally, the Corps of Engineers asserts North Dakota

has not properly promulgated the standards it has used to

calculate the harm to Lake Sakakawea's cold water fishery

~ namely the use of a 15 degree Celsius and 5 milligrams

per liter of dissolved oxygen criteria in calculating the size

of the cold water fish habitat. The Corps contends that the

800,000 acre-feet long-term harm threshold and the

200,000 acre-feet irreversible harm threshold advanced by

North Dakota are not based on administratively estab-

lished criteria and do not constitute requirements within

the meaning of Section 313(a) of the Clean Water Act. The

Corps contends that North Dakota has not adopted the

specific temperature and dissolved oxygen levels it used to

calculate the 800,000 and 200,000 acre-feet thresholds. As

a result, the Corps argues that it had no way of knowing

that its operations could potentially violate North Dakota

water quality standards.

North Dakota responds by stating that Lake Sa-

kakawea is classified as a Class 1 Lake under North

Dakota Administrative Code provisions. N.D Admin. Code

§ 33-16-02.1, App. I. The characteristics of a Class 1 Lake

include “waters capable of supporting growth of salmonid

fishes and associated aquatic biota” and “cold water

fishery.” N.D. Admin. Code § 33-16-02.1-09(1\f). North

Dakota correctly asserts that narrative standards are just

as enforceable as numeric standards and cites to PUD No.

App. 44

1 of Jefferson County v. Washington Dep't of Ecology, 511

U.S. 700, 716, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994).

North Dakota also contends it is absurd for the Corps to

argue that it had no knowledge that a cold water fishery

thrives at water temperatures below 15 degrees Celsius

with a dissolved oxygen content of 5 milligrams per liter.

North Dakota submitted several Corps publications

discussing precisely such parameters for a cold water

fishery.

The Court acknowledges thai there are some ques-

tions surrounding the sufficiency of North Dakota’s pub-

lished water quality standards, including whether the

Corps received proper notice of what North Dakota consid-

ered the specific numeric standards necessary for “waters

capable of supporting growth of salmonid fishes and

associated aquatic biota.” However, the Corps of Engi-

neers’ argument that it had no idea what the parameters

are necessary to sustain a cold water fishery is not credi-

ble. Clearly, the Corps of Engineers knew that a cold water

fishery needs a water temperature of somewhere between

15 to 20 degrees Celsius and a dissolved oxygen content of

near 5 milligrams per liter — the Corps itself has published

materials referencing such standards. What is not clear is

whether the Corps attempted to comply with North

Dakota water quality standards or whether the Corps

even considered North Dakota’s water quality standards

when deciding how to operate the Missouri River Main-

stem Reservoir System. Again, the uncertainty surround-

ing such issues does not weigh in North Dakota’s favor

when considering its success on the merits of the underly-

App. 45

In summary, North Dakota’s probability of success on

the merits appears unlikely. Although some of the jurisdic-

tional issues raised in prior Missouri River litigation have

been resolved by the recent Eighth Circuit opinion, the

issue of sovereign immunity looms large in this case. To be

successful on its claim that the Corps of Engineers vio-

lated the Clean Water Act, North Dakota must show that

the Corps acted in an “arbitrary and capricious” manner

when deciding how to operate the Missouri River Main-

stem Reservoir System. Although the Corps of Engineers

has been held liable for non-compliance with state water

quality laws in one other reported decision, the courts

have yet to see one state along a major river system

comprised of several dams and reservoirs spread over

many states succeed in a state water quality standards

enforcement action. The Court finds that this particular

Dataphase factor, i.e. “the likelihood of success on the

merits,” does not weigh in North Dakota’s favor.

B. THE THREAT OF IRREPARABLE HARM

The State of North Dakota alleges that the Corps of

Engineers management of water levels in Lake Sa-

kakawea during the next several months will violate

North Dakota’s water quality standards and harm the cold

water fishery in Lake Sakakawea. According to North

Dakota, adherence to the Corps of Engineers’ April 1,

2003, projected forecast and its current Annual Operating

Plan will result in no cold water fish habitat remaining in

Lake Sakakawea by the end of the summer of 2003.

North Dakota contends that if the volume of cold

water fish habitat in Lake Sakakawea falls below 800,000

acre feet, the Corps of Engineers would violate North

App. 46

Dakota’s water quality standards. North Dakota also

argues that if the volume of the cold water fish habitat in

lake Sakakawea fails below 200,000 acre feet the survival

of the cold water fishery is threatened. North Dakota

acknowledges that “this does not mean that a major

coldwater fishery die-off will occur at 200,000 acre-feet,

but it is possible, and the possibility grows as the volume

of cold water fish habitat continues to fall below this

level.” North Dakota suggests that by maintaining 200,000

acre-feet of cold water habitat, the irreparable harm North

Dakota will suffer would be avoided. North Dakota also

submits that this remedy could be achieved with adequate

support for al] system uses except navigation.

The Corps of Engineers responds by contending that

none of the plaintiffs have made any factual showing of an

actual violation of a water quality standard. Thus, the

Corps argues that it is inappropriate to provide injunctive

relief before a violation of any water quality standards has

been established. The Corps of Engineers concludes by

noting that increased precipitation or other events could

lead to a situation in which North Dakota could concede

that its water quality standards have not been violated.

As the Eighth Circuit Court of Appeals noted last

month in South Dakota v. Ubbelohde, and this Court

specifically finds, all sides to this dispute seem to agree

that each of the states can show that they will suffer

irreparable harm absent the injunctions sought. It has

become clear that protecting one state's interests from

irreparable harm appears to ensure another state’s inter-

ests will suffer irreparable harm. Nevertheless, North

Dakota has shown it will suffer the threat of irreparable

harm, and the Court finds that this Dataphase factor

weighs in North Dakota's favor.

App. 47

C. BALANCE OF PARTIES’ INTERESTS AND

PUBLIC INTEREST

For purposes of this case where all of the parties are

governmental entities, the balancing of harms between the

parties and the consideration of the public interest are

essentially the same and will be discussed together. North

Dakota, Swuth Dakota, Nebraska, and the Corps of Engi-

neers have provided the Court with extensive evidence

and documentation showing the varying interests each has

in the Missouri River. Each is summarized below.

1. NORTH DAKOTA'S INTERESTS

Garrison Dam was completed in 1954 and is the

largest dam in the mainstem system. Lake Sakakawea is

the reservoir created by Garrison Dam. Garrison Dam has

a storage capacity of 23.8 million acre feet (MAF), or

approximately 33% of the total storage of the Missouri

River Mainstem Reservoir System, 1,300 miles of shore-

line, and is approximately 178 miles long. Lake Oahe,

which extends into North Dakota from a dam located in

South Dakota, has a storage capacity of approximately

23.1 million acre-feet of water, or approximately 31% of

the total storage capacity of the Mainstem Reservoir.

North Dakota surrendered 550,000 acres of land for

the construction of Garrison Dam and Lake Sakakawea.

in return, North Dakota was promised hydro-electric

power, most of which goes out of state, water for irrigation,

which has gone largely unfunded by Congress, and the

Garrison Diversion Project, which was scrapped. As one

writer has noted, the “consolation prize” North Dakota

received was a world class sport fishery. Brian Morris,

Unanswered Prayers: The Upper Missouri River Basin

App. 48

States Take on the U.S. Army Corps of Engineers, 68 N.D.

L.Rev. 897 (1992). This sport fishing industry was largely

developed through the fish stocking efforts of the North

Dakota Game and Fish Department. Garricon Dam

National Fish Hatchery located at the base of the dam is

the largest walleye and northern pike producing facility in

the world.

The State of North Dakota contends that the Corps of

Engineers has continually favored a dwindling down-

stream navigation industry over the growing upstream

recreational industry, which in turn has threatened North

Dakota’s fishery. North Dakota officials contend that the

economic benefits of downstream navigation have a value

of $1-2 million as compared to a $65 million fishing and

tourism industry upstream in North Dakota. (Docket No.

2, Schultz Aff., at 2-3). The economic value of Lake Sa-

kakawea as a fishery alone is calculated to be at least $23

million a year. (Docket No. 2, Hendrickson Aff., at 2)

In 2000, 750,000 walleye were caught and 500,000

were harvested from Lake Sakakawea. Lake Sakakawea’s

salmon fishery generated approximately 95,600 angler

hours and a catch of 17,600 salmon in 2000. (Docket No.

17, Power Aff., at 3; Docket No. 2, Lee Aff., at 2). The

salmon fishery is the only source of disease free salmon in

North America. North Dakota argues that if this salmon

fishery is lost it would be impossible to replace. (Docket

No. 2, Lee Aff., at 2). Three state parks located near the

shores of Lake Sakakawea hosted 494,000 visitors in 2000.

(Docket No. 2, Testimony of North Dakota Governor John

Hoeven, October 23, 2002, hearing before the Corps of

Engineers). A crash in the fish population is expected to

result in a 73% decrease in anglers which correspond to a

App. 49

$17.3 million yearly economic loss until the fishery can be

restored. (Docket No. 2, Schultz Aff., at 6).

2. SOUTH DAKOTA’S INTERESTS

South Dakota’s interests and its position in this

litigation are very similar to North Dakota’s. South Da-

kota maintains that the Corps manages the Missouri

River in a fashion that favors navigation at the expense of

upstream fisheries. South Dakota attacks the barge

industry by alleging that it operates at only 12.5% of 1939

predictions. South Dakota also points out, as did North

Dakota, that the barge industry is responsible for only $1-

2 million in yearly economic production. (Docket No. 40,

Exhibit L, Testimony of Dr. C. Phillip Baume)).

South Dakota’s reservoirs are also nationally recog-

nized walleye fisheries. Recreational fishing on these lakes

and the Missouri River in South Dakota generate up to

$51 million in revenue each year. (Docket No. 26, Cooper

Aff., at 4). The favoring of navigation has severely im-

pacted Lake Oahe. Lake Oahe generates $20 million a

year in revenues when lake levels are normal. (Docket No.

26, Cooper Aff., at 3). In 2000, Lake Oahe generated only

$8.2 million in revenues. (Docket No. 26, Cooper Aff., at 7).

The Corps drew down Lakes Oahe in 2002 and as a result

50% of the smelt eggs were lost. With few forage fish

available the walleye population in Lake Oahe has de-

clined and average catch weights have dropped markedly.

(Docket No. 27, Nelson-Stastny Aff., at 12). Lakes Sharpe,

Francis Case, and Lewis and Clark are threatened with a

similar fate if the Corps continues its current management

policies and the drought persists. (Docket No. 27, Nelson-

Stastny Aff., at 14).

App. 50

3. NEBRASKA’S INTERESTS

The State of Nebraska has also asserted it has a

number of industries that will be seriously impacted by

reduced water flows in the Missouri River this summer.

These industries are estimated to provide over $424

million annual economic benefit to Nebraska. (Docket Nos.

45 and 46 Appendices, Wade Ail., at 340-43). In their

pleadings on file in this dispute, Nebraska contends it has

power plants that rely on the Missouri River to operate

within federal standards, and unless water is available at

certain minimum levels, four nuclear power plants may

not be able to operate. (Docket No. 11, Patterson, Aff., at 4-

5). Nebraska also argues there will be significant harm to

the water supplies of municipalities and a resulting

increase in treatment costs with reduced flows. Nebraska

has a vibrant fishing and recreational industry which will

be impacted by reduced flows this summer. (Docket No. 11,

Patterson Aff., at 6). Nebraska contends there will be

reduced economic activity associated with low flow condi-

tions that may result in lost tax revenues in excess of

millions of dollars. Nebraska has its own regulatory

schemes for water quality and anti-pollution laws and

regulations and with diminished water flows, there will be

an increase in water temperature which will alter the

chemical and biological characteristics of the water with

resulting violations of Nebraska's laws and regulatory

schemes. (Docket No. 9, Esseks Aff., at 2-3). The City of

Omaha relies om the Missouri River for water and recrea-

tion, as do other large cities in bordering lowa and Mis-

souri. Finally, Nebraska states there are 71 recreational

areas located between Sioux City, lowa, and the mouth of

the Missouri River that will be significantly impacted by

App. 51

reduced flows this summer. (Docket No. 11, Patterson Aff.,

at 6).

4. CORPS OF ENGINEERS’ INTEREST

The Corps of Engineers argues its interests are

similar to the public interest. The Corps asserts that the

public interest is best met if the Missouri River Mainstem

Reservoir System is operated in accordance with a consid-

ered and carefully developed plan. The Corps dismisses

the interests of each states as “parochial.”

Just as the irreparable harm analysis revealed, each

state has significant economic, environmental, and recrea-

tiona] interests in the Missouri River. For each compelling

argument advanced by a particular state, there is an

equally compelling argument presented by another state.

As the Court has stated before, this matter cannot simply

be resolved by tallying the alleged economic impact and

favoring the state with the largest investment. Because of

the complexity of each state’s interests, no state’s interests

clearly outweigh the others. The Court finds the Data-

phase factors of balancing the parties interests and con-

sideration of the public interest do not weigh in favor of

any particular party to this litigation.

IV. CONCLUSION

This Court is very cognizant of the importance of Lake

Sakakawea to the State of North Dakota, and particularly

the importance to the fishing, recreation, and tourism

industries. Garrison Dam, Lake Sakakawea, and the

Missouri River are of vital importance to the State of

North Dakota. Unfortunately, Mother Nature has not been

App. 52

kind and we are now experiencing the fourth year of a

significant drought in the Missouri River Basin. Hopefully,

the last month of rain, combined with increased snow melt

from the mountains in Montana, signals an end to the

drought. The sharply divergent interests of the many

states that are affected by the Corps of Engineers’ plans

for operation of the Missouri River Mainstem Reservoir

System have again resulted in a multitude of lawsuits

filed in federal courts throughout the region.

The operation of the Missouri River Mainstem Reser-

voir System is a complex task. The Corps of Engineers is

charged with the responsibility of managing the river and

its attendant reservoirs. The Corps must attempt to strike

a balance among many interests, including flood control,

navigation, and recreation. As the Eighth Circuit recently

noted, during the good times the Corps of Engineers can’

accommodate all such interests, but in drought conditions,

the Corps is forced to make difficult choices. Those hard

choices have led to, and will continue to lead to, litigation

seeking injunctions by the states which border the Mis-

souri River from Montana to Missouri.

The operation of the Missouri River is significantly

effected by natural forces as well as by the Corps of Engi-

neers in the manipulations of the available water. The

recent pronouncement from the Eighth Circuit makes it

expressly clear that the Corps is required to follow the

Master Manual and its Annual Operating Plan. The Corps

is not free to ignore the Master Manual and federal courts

can review the Corps of Engineers’ actions to ensure

conformity with the Master Manual. Thus, the Eighth

Circuit has established a standard for the activities and

operations of the Corps of Engineers in operating the

App. 53

Missouri River Mainstem Reservoir System that this

Court is obligated to follow.

The June 4, 2003, decision of the Eighth Circuit in

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

seems to refute the notion that North Dakota's water

quality standards should control the management and

operations on the Missouri River. The Eighth Circuit has

granted considerable discretion to the Corps and this

Court is reluctant to interfere with the exercise of that

discretion at this stage of the litigation. The Eighth

Circuit’s position of giving deference to the Corps’ actions

is revealed in the following language from the decision

issued on June 4, 2003:

Courts are simply not empowered to review every

decision of the Corps to ensure that it maximizes

the benefits of the River for all interests. Indeed,

such a standard would be impossible to meet,

anyway. In times of drought it is not possible for

both navigation and fishery benefits to be maxi-

mized. Something has to give.

South Dakota v. Ubbelohde, 330 F.3d 1014, 1031.

The testimony presented at the hearing on June 4,

2003, revealed that the latest forecasts project that ‘he

levels on Lake Sakakawea are expected to remain fairly

constant throughout the summer due to increased precipi-

tation and favorable conditions for runoff. In the event that

such conditions change and the Corps of Engineers alters

its operational plans for 2003, this Court may be forced to

intervene. In the event that other court orders entered in

other federal or state jurisdictions strip the Corps of Engi-

neers of its ability to objectively function as a steward of the

Missouri River water flows, and the interests of upstream

App. 54

water users are placed in harms way, this Court will be

forced to intervene. However, after carefully considering

the equitable factors that this Court is required to con-

sider in ruling on North Dakota’s Motion for Preliminary

Injunction, the Court does not believe that a preliminary

injunction is warranted at this stage of the litigation. The

granting of a preliminary injunction is an extraordinary

remedy and the right to such relief must be clearly estab-

lished by the movant. It has not been clearly established

in this case.

Although the irreparable harm factor weighs in North

Dakota’s favor, and the balance-of-harms and public

interest criteria present close questions, the dispositive

factor is the likelihood of success of the merits. This issue

weighs against North Dakota based on the likelihood that

the Corps of Engineers will be able to successfully argue it

is immune from suit under Section 511 (33 U.S.C. § 1371)

of the Clean Water Act. This factor also weighs against

North Da’wta as a result of the June 4, 2003, decision of

the Eighth Circuit Court of Appeals in South Dakota v.

Ubbelohde, 330 F.3d 1014 (8th Cir.2003). North Dakota is

not entitled to a preliminary injunction at this state of the

litigation.

The State of North Dakota’s Motion for a Preliminary

Injunction is DENIED. (Docket No. 2).

IT IS SO ORDERED.

App. 55

264 F.Supp.2d 871

United States District Court,

D. North Dakota,

Southwestern Division.

State of NORTH DAKOTA, et al., Plaintiffs,

and

State of South Dakota, and State of Nebraska,

et al., Plaintiffs/Intervenors,

The UNITED STATES ARMY CORPS OF

ENGINEERS, et. al., Defendants.

No. Al-03-050.

May 29, 2003.

Lyle Gregory Witham, Dean J. Haas, Bismarck, ND,

for Plaintiffs/Intervenors.

Daniel W. Pinkston, U.S. Dept. of Justice, Denver, CO,

Cameron W. Hayden, U.S. Attorney’s Office, Bismarck,

ND, Fred R. Disheroon, U.S. Dept. of Justice, Washington,

DC, for U.S. Army Corps of Engineers.

Cameron W. Hayden, U.S. Attorney's Office, Bis-

marck, ND, Fred R. Disheroon, U.S. Dept. of Justice,

Washington, DC, for David A Factabend, Kurt F. Ubbe-

lohde.

Daniel H. Israel, Boulder, CO, for Three Affiliated

Tribes of Fort Berthold Reservation.

Clark Jay Bormann, Bormann Law Office, Bismarck,

ND,David D. Cookson, Lincoln, NE, for State of Nebraska.

John P Guhin, Attorney General’s Office, Pierre, SD,

for State of South Dakota.

App. 56

ORDER DISSOLVING EX PARTE

TEMPORARY RESTRAINING ORDER

HOVLAND, Chief Judge.

I. PROCEDURAL HISTORY

The matter before the Court is the Defendants’ (the

“Corps of Engineers”) Motion to Dissolve the Ex Parte

Temporary Restraining Order entered by state district

court Judge Gail Hagerty, on April 29, 2003, and extended

by this Court on May 7, 2003. On May 16, 2003, the Court

modified the Ex Parte Temporary Restraining Order with

the consent of the parties. The Ex Parte Temporary Re-

straining Order (“TRO”) enjoined the Corps of Engineers

from exceeding specified discharge rates at Garrison Dam

and lowering elevation levels of Lake Sakakawea and

Lake Oahe.

The State of North Dakota filed a complaint in state

district court on April 29, 2003. In its complaint, the State

alleges that the Corps of Engineers violated North Da-

kota’s water quality standards in Lake Sakakawea

through its operation of the Garrison Dam. See N.D.C.C.

§ 61-28-06(1)(b); N.D. Admin. Code § 33-16-02.1. It is

alleged in the complaint, and the state district court found

in its TRO, that Section 313(a) of the federal Clean Water

Act constitutes a waiver of sovereign immunity which

allows states to sue fede .“ entities for alleged violations of

state water quality sti m urds. See 33 U.S.C. § 1323(a). In

essence, the State of '!. -th Dakota alleges that the Corps

of Engineers’ management of water levels in Lake Sa-

kakawea during the next five (5) months will violate North

Dakota’s water quality standards as it relates to the

maintenance of a cold water fishery in Lake Sakakawea.

App. 57

The April 29, 2003, Ex Parte Temporary Restraining

Order (a) enjoined the Corps of Engineers from releasing

water from Garrison Dam during May 2003 in excess of a

daily average of 17,450 cfs and establishes specific release

amounis for June August 2003; (b) ordered the Corps to

submit a plan to the North Dakota state court within

twenty days to achieve and maintain compliance with all

North Dakota water pollution laws and water quality

standards; (c) required the Corps to submit to the state

court an implementation schedule for the Corps te come

into compliance with North Dakota water pollution laws

and water quality standards as soon as practicable; (d)

prohibited the Corps from lowering the water elevation at

Lake Oahe prior to a show cause hearing; and (e) ordered

the Corps to show cause why the state court should not

issue a preliminary injunction which specifies the amount

of water which may be released by the Corps from Garri-

son Dam for the months of May through September 2003.

On April 30, 2003, the day following the issuance of

the TRO, the Defendants removed the case to federal

court. On May 6, 2003, the Corps of Engineers filed a

Motion to Dissolve the Ex Parte Temporary Restraining

Order. On May 6, 2003, the State of Nebraska filed a

Motion to Intervene pursuant to Rule 24(a\(2) of the

Federal Rules of Civil Procedure. South Dakota filed an

identical motion on May 8, 2003. The Court granted the

Motions to Intervene on May 9, 2003.

South Dakota also seeks injunctive relief to (1) pre-

ve:.t the Corps of Engineers from lowering water levels in

other main stem reservoirs to increase the elevation in

Lake Sakakawea; (2) to prevent irreparable harm under

the 1944 Flood Control Act and the Administrative Proce-

dure Act to fisheries of main stem reservoirs when the

App. 58

harm is inflicted to benefit downstream navigation; and (3)

to prevent lowering the elevation of Lake Oahe to the

extent that it will impair the designated cold water fishery

in that lake. On May 23, 2003, South Dakota filed a

Motion for a Preliminary Injunctior.

Nebraska has also filed a complaint against the same

Defendants for alleged violations of the 1944 Flood Control

Act. Nebraska asserts that the Flood Control Act

“... established the hierarchy of authorized uses

of the Main Stem Missouri River reservoirs.

Flood contro] and navigation are the dominant

functions of the Corps’ reservoirs. Secondary uses

are authorized by the FCA, provided they do not

interfere with these dominant functions and law-

ful uses existing at the time the FCA was en-

acted. See Nebraska Complaint, { 2”.

In its prayer for relief, Nebraska seeks an order

requiring the Corps of Engineers to operate Garrison Dam

and all other federal reservoirs within this Court’s juris-

diction in accordance with the Flood Control Act, the

Master Manual ani the Corps’ Annual Operating Plan for

2003. See Nebraska Complaint, | 9. Nebraska has also

filed notice that it is requesting the Eighth Circuit stay

this proceeding until a decision is issued in a pending

Eighth Circuit case. Nebraska also requested an Order of

Transfer from the Multidistrict Litigation Panel.

In summary, North Dakota seeks injunctive relief that

would limit releases from Garrison Dam throughout the

summer of 2003. South Dakota wants the Court to order

that water elevations in other main em reservoirs not be

lowered in order to raise the elevation of Lake Sakakawea

and specifically wants to prevent the lowering of water

App. 59

elevations in Lake Oahe. The State of Nebraska wants the

Corps of Engineers to comply with the 2003 Annual

Operaziting Plan forecast which means drawing down the

water levels from the upper reservoirs throughout the

summer to support the Endangered Species Act, naviga-

tion, and other downstream needs. The diverse interests of

the states and their needs for adequate water levels in the

Missouri River and its reservoirs come at a time when this

region of the country is again experiencing drought condi-

tions.

II. BACKGROUND

A. THE MISSOURI RIVER MAIN STEM DAM

SYSTEM.

The Commerce Clause confers upon Congress com-

plete authority with regard to the regulation of navigable

waters. U.S. v. Rands, 389 U.S. 121, 88 S.Ct. 265, 19

L.Ed.2d 329 (1967). Congress has the constitutional

authority to regulate the nation’s waters and it may

delegate that power to a federal executive agency as it has

done with the Corps of Engineers under the Flood Control

Act of 1944.

Pursuant to Section 9 of the Flood Control Act of 1944,

Congress authorized the construction of all but one of the

Missouri River main stem dams in accordance with the

“Pick Plan,” a Corps of Engineers’ planning document

which proposed navigational improvements and flood

control, and the “Sloan Plan,” a Bureau of Reclamation

planning document which emphasized the use of water

resources for irrigation in the upper basin states. The.

combined plans are commonly referred to as the “Pick-

Sloan Plan.” The plans set forth broad goals and objectives

App. 60

including flood control, hydro power, irrigation, naviga-

tion, wildlife, and recreation.

Congress authorized the Missouri River Main Stem

Dam System hy adopting the “Pick-Sloan Plan” in the

Flood Control Act of 1944. Pursuant to this Congressional

authorization, the following six (6) dams and reservoirs

were constructed:

1) Fort Peck Dam (Montana) and Fort Peck

Lake;

2) Garrison Dam (North Dakota) and Lake Sa-

kakawea;

3) Oahe Dam (South Dakota) and Lake Oahe

locatd in both South Dakota and North Dakota;

4) Big Bend Dam (South Dakota) and Lake

Sharpe; '

5) Fort Randall Dam (South Dakota) and Lake

Francis Case;

6) Gavins Point Dam (border of South Dakota

and Nebraska) and Lewis & Clark Lake.

The Missouri River is America’s longest river. The

Missouri River Main Stem Dam System is North America’s

largest reservoir system with the capacity to store 73.4

million acre-feet of water. Garrison Dam was constructed

from 1947-1954. The dam is located on the Missouri River

between Mercer and McLean Counties. Garrison Dam is

the fifth largest dam in the United States and Lake

Sakakawea, its reservoir, is the third largest man-made

lake in the United States. Garrison Dam National Fish

Hatchery, located at the base of the dam, is the largest

walleye and northern pike producing facility in the world.

App. 61

Lake Sakakawea extends approximately 178 miles

and at normal operating pool (1850 feet mean sea level)

the lake covers 368,000 acres and has approximately 1,300

miles of shoreline. It is the largest dam in the system with

a storage capacity of approximately 23.8 million acre-feet

of water, or approximately 32% of the total storage capac-

ity of 73.4 million acre-feet of water in the Missouri River

system. Lake Oahe, which extends into North Dakota from

a dam located in South Dakota, has a storage capacity of

approximately 23.1 million acre-feet of water, or approxi-

mately 31% of the total storage capacity of the Main Stem

Dam System.

The Corps of Engineers has developed a water control

plan for the operation of the Missouri River Main Stem

Dam System that is designed to serve the congressionally

authorized project purposes. The guidelines used in the

execution of the water control plan are documented in the

Missouri River Main Stem Reservoir System Master

Reservoir Regulation Manual commonly referred to as the

“Master Manual.” The Master Manual was first published

in 1960 and was last revised in 1979.

In developing annual projections concerning the

operation of the main stem system, the Corps of Engineers

attempts to work with federal and state agencies, local

governments, and citizens to produce a plan each year

known as the “Annual Operating Plan” (AOP). The Annual

Operating Plan is designed to allow for public input and to

inform interested river users about river operations for the

upcoming year. Because it is impossible to predict with

‘certainty how much water the Missouri River will receive

in any given year, the Annual Operating Plan sets forth

various scenarios as to how the Main Stem Dam System

will be operated depending upon the timing and quality of

App. 62

runoff. The current Annual Operating Plan was issued in

its final form in January 2003.

B. THE CLEAN WATER ACT

The Federal Water and Pollution Control Act, com-

monly referred to as the Clea:. “ater Act, 33 U.S.C. § 1251

et. seq. was designed to “restore and maintain the chemi-

cal, physical, and biological integrity of the nation’s wa-

ters.” 33 U.S.C. § 1251(a). The Clean Water Act provides

for two primary sets of water quality measures: effluent

limitations, found in 33 U.S.C. § 1311, and water quality

standards, found in 33 U.S.C. § 1313.

The effluent limitations section fecuses on the control

of individual discharges from “point sources” into the

navigable waters. A “point source” is defined as “any

discernable, confined, and discrete conveyance” such as a

pipe, ditch, or conduit from which “pollutants” may be

discharged in navigable waters. See 33 U.S.C. § 1362(14).

The Clean Water Act provides that the discharge of any

“pollutant” by any person shall be unlawful. The term

“pollutant” is defined as “dredged spoil, solid waste,

incinerator residue, sewage, garbage, sewage sludge,

munitions, chemical wastes, biological materials, radioac-

tive materials, heat, wrecked or discarded equipment,

rock, sand, cellar dirt and industrial, municipal, and

agricultural waste discharged into water.” See 33 U.S.C.

§ 1362(6). The term “pollution” as opposed to “pollutant”

has a broader definition under federal law anc means the

“man-made or man-induced alteration of the chemical,

physical, biological, and radiological integrity of the

water.” See 33 U.S.C. § 1362/19). The courts have deter-

mined that the release of water from dams does not equate

App. 63

with the addition of “pollutants” to navigable waters. See

Missouri ex rel. Ashcroft v. Dept. of the Army, 672 F.2d

1297, 1303-1304 (8th Cir.1982); National Wildlife Federa-

tion v. Gorsuch, 693 F.2d 156 (D.C.Cir.1982).

North Dakota has not alleged that the Corps of

Engineers is discharging pollutants into the Missouri

River in violation of Sections 301 [33 U.S.C. § 1311] and

402 [33 U.S.C. § 1342] of the Clean Water Act. In fact,

North Dakota has specifically stated its cause of action

does not arise under the Clean Water Act’s permitting

system, which regulates the discharge of pollutants into

navigable waters. See 33 U.S.C. §§ 1311, 1342. Although

previous decisions regarding the Corps of Engineers

activities as it relates to the discharge of pollutants may

be somewhat analagous to North Dakota’s claims, they are

not controlling.

Under Section 303, the Clean Water Act directs each

state to establish its own water quality standards, subject

to the procedures set forth in federal statutes and regula-

tions. See 33 U.S.C. § 1313. State water quality standards

must contain three elements, (1) designated uses, (2)

numeric or narrative water quality criteria, and (3)

antidegradation rules. 40 C.F.R. § 131.6(a), 136.11(a)(1),

131.11(b)(1) and (bX2), 131.6(d), 131.12. There is no

mechanism in the Clean Water Act for the enforcement of

water quality standards adopted by the states; rather the

enforcement is left to the states.

C. NORTH DAKOTA WATER POLLUTION LAW

AND WATER QUALITY STANDARDS

On March 27, 2003, North Dakota Governor John

Hoeven signed an emergency bill amending North Dakota’s

App. 64

water quality statute which enabled this action to '«

brought by the State. Section 61-28-06(1) of the North

Dakota Century Code states in relevant part as follows:

1. It shall be unlawful for any person:

a. To cause pollution of any waters of the state

or to place or cause to be placed any wastes in a

location where they are likely to cause pollution

of any waters of the state; and

b. To discharge any wastes into any waters of

the state which reduce the quality of such waters

below the water quality standards established

therefor by the department.

The statute also provides that:

3. Notwithstanding any other provisions of this

chapter, and except as in compliance with the

provisions of this chapter, and any rules and

regulations promulgated hereunder, the dis-

charge of any wastes by any person shall be

unlawful. The department may seek injunctive

relief for a threatened or continuing violation of a

water quality standard, including any violations

of the narrative standards, if the department de-

termines that the violation will substantially in-

terfere with or cause or threaten to cause long-

term or irreparable harm to waters of this state

that the department determines has statewide or

regional significance or has a substantial impact

to a local community. The authority to seek in-

junctive relief for a violation of the water quality

standards, including violations of the narrative

standards, is limited to the department, after ob-

taining written approval of the governor, and

may not be enforced by any other person.

App. 65

N.D.C.C. § 61-28-06(3). “Person” is defined in the statute

to include “any state or federal agency or entity responsible

for managing a state or federal facility.” N.D.C.C. § 61-28-

02(5). “Pollution” is defined as “the manmade or man-

induced alteration of the physical, chemical, biological, or

radiological integrity of any waters of the state.” N.D.C.C.

§ 61-28-02(7). This is virtually the same definition of

“pollution” found in the federal Clean Water Act.

D. HISTORY OF THIS LITIGATION

On February 20, 2003, the North Dakota Department

of Health issued a “Notice of Violation” to the Corps of

Engineers alleging apparent continuing violations and

actions that threaten to violate North Dakota’s water

quality standards applicable to Garrison Dam and Lake

Sakakawea. The Notice of Violation indicated that the

North Dakota Department of Health may file suit against

the Corps of Engineers. In essence, the Notice of Violation

asserted that the Corps’ management of Lake Sakakawea

constitutes a form of “pollution” under state law which

would threaten the lake’s cold water fishery by decreasing

the lake’s water elevation."

Without prior notice to the Corps of Engineers, the

State of North Dakota filed a complaint and a 60-page

Motion for Ex Parte Temporary Restraining Order and

* As previously noted, the definition of “pollution” under North

Dakota law and under the federal Clean Water Act is virtually the

same. The North Dakota Department of Health may not adopt rules

more stringent than corresponding federal regulations unless it makes

written findings after public comment and hearing that the correspond-

ing federal regulations are not adequate to protect the environment of

the state. See N.D.C.C. § 23-01-04.1(2).

App. 66

Order % .ow Cause for Preliminary Injunction on April

29, 2003. The state district court signed the TRO without

a hearing. The complaint seeks a declaratory judgment

that the Corps of Engineers’ management of Lake Sa-

kakawea and Garrison Dam violates North Dakota’s water

pollution laws and water quality standards. In essence,

the State of North Dakota alleges that the Corps’ man-

agement of water levels in Lake Sakakawea during the

next five “5) months will violate North Dakota water

quality standards relating to the maintenance of a cold

water fishery in Lake Sakakawea. The Corps of Engineers

now seeks to dissolve the Ex Parte Temporary Restraining

Order.

There is no dispute that the Missouri River Basin is

now in the fourth year of a serious drought. The State of

North Dakota is contending that the Corps of Engineers’

management of the Main Stem Dam System, and particu-

larly the management of the release of waters from Garri-

son Dam, constitutes a form of “pollution” because it is a

“man-made or man-induced” change that has altered the

physical, chemical, and biological integrity of Lake Sa-

kakawea. According to the State, adherence to the Corps of

Engineers’ April 1, 2003, projected forecast and its current

Annual! Operating Plan, will result in no cold water fish

habitat remaining in Lake Sakakawea by the end of the

summer of 2003 if the Corps follows its projected releases.

It is undisputed that at the present time, no specific

violations of North Dakota law or of any water quality

regulations have occurred.

The State of North Dakota is seeking injunctive relief

to (1) ensure that the average elevation of Lake Sa-

kakawea remains above the threshold of 800,000 acre-feet

of cold water fish habitat during the 2003 summer

App. 67

~-months; and (2) to avoid the irreparable harm threshold

by reducing forecast releases from Garrison Dam by an

average of 2,350 cfs throughout the summer. The evidence

presented in the affidavits of Deutschman, Sando, and

Power seek to demonstrate that the survival of the cold

water fishery in Lake Sakakawea this summer is depend-

ent upon the average elevation of Lake Sakakawea in May

before it stratifies; and the amount that inflow into the

lake exceeds outflow during the months of June, July, and

August.

III. LEGAL ANALYSIS

It is well-established that after the removal of an

action from state court, the federal court acquires exclu-

sive subject matter jurisdiction over the litigation. See

Ward v. Resolution Trust Corp., 972 F.2d 196, 198 (Sth

Cir.1992). The litigation proceeds as if it had originally

been brought in federal court rather than in state court.

Nissho-Iwai Amer. Corp. v. Kline, 845 F.2d 1300, 1303 (5th

Cir.1988). Pursuant to 28 U.S.C. § 1450, “[A]l] injunctions,

orders, and other proceedings had in such action prior to

its removal shall remain in full force and effect until

dissolved or modified by the district court.” 28 U.S.C.

§ 1450 is designed to promote j idicial economy by making

it unnecessary to duplicate in federal court the pleadings

previously filed in state court and to ensure that interlocu-

tory orders entered by the state court to protect various

rights of the parties will not lapse upon removal to federa!

court. It is clear that once a case has been removed to

federal court, federal law rather than state law governs

the course of proceedings.

App. 68

Rule 65(b) of the Federal Rules of Civil Procedure

addresses the subject of temporary restraining orders and

provides in relevant part as follows:

A temporary restraining order may be granted

without written or oral notice to the adverse

party or that party's attorney only if (1) it clearly

appears from specific facts shown by affidavit or

by the verified complaint that immediate and ir-

reparable injury, loss, or damuge will result to

the applicant before the adverse party or that

party's attorney can be heard in opposition, and

(2) the applicant’s attorney certifies to the court

in writing the efforts, if any, which have been

made to give the notice and the reasons support-

ing the claim that notice should not be required.

(emphasis added)

This Court is cognizant of the federal aversion to

granting ex parte temporary restraining orders. In this

ease, the Ex Parte Temporary Restraining Order was

entered on April 29, 2003, with

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