Petition for Writ of Certiorari — Environmental Defense v. U.S. Army Corps of Engineers (No. 05-631)

5

mitigation without restoring the natural hydrograph would

not work and would not avoid jeopardizing the three listed

species.

Because of the significance of the new Eighth Circuit

rule, because it conflicts with the rule followed by other

Courts of Appeals, and because of the underlying

environmental significance of this case, this Court should

grant certiorari.

STATEMENT OF THE CASE

A. Changes to the Missouri River

The Missouri River traveled by Lewis and Clark was an

unruly river with multiple channels, extensive shallow water,

wetlands and sandbars. The amount of water flowing down

the river varied by time of year according to a regular pattern,

known as the “natural hydrograph,” and which “had two

prominent components: the ‘spring rise’ and ‘summer low

flow.” In re: Operation of the Missouri River System

Litigation, 421 F. 3d 618, 625-26 (8 Cir. 1005). High

flows in the spring built sandbars and overflowed regularly

into a vast floodplain, where fish reproduced. /d. Low

summer flows also exposed sandbar habitat, and created

excellent conditions for juvenile fish to survive and birds and

larger fish to find food. Jd. Together, the variety of aquatic

habitats and “the natural hydrograph” supported hundreds of

species of fish and wildlife. American Rivers v. U.S. Army

Corps of Engineers, 271 F. Supp. 2d 230, 236 (D.D.C. 2003).

Over the course of the twentieth century, the U.S. Army

Corps of Engineers reengineered the river. It constructed six

large dams that transformed most of the Upper River into six

large reservoirs, and it narrowed the lower river to a third of

its usual width, which eliminated vast areas of wetlands, side

channels and sandbars. See id. at 239 (general description);

6

J.A. XIII: 9985-9987 (2000 Biological Opinion). Despite

these changes, some potentially valuable habitat remains.

But the Corps’ system for releasing water from the dams,

reflected in a “Master Manual,” continues to degrade this

habitat because it “climinate[s) the spring rise and summer

low flow from the hydrograph” and replaces it with a

constant medium release of water from the dams from early

spring through late fall to support a small number of barges

on the lower river. 421 F.3d at 626. According to a 2001

report of the National Academy of Sciences (“NAS”), 51 of

67 native river fish are now rare, uncommon and/or declining

as a result of these changes, and 84 species that use the river

are listed under federal or state lists of rare, threatened or

endangered species. J.A. at VII: 5034, 5117-18.

B. ESA Consultations from 1990 through 2000

The species protected by the Endangered Species Act

include the least tern and piping plover, birds that nest on

river sandbars, and the pallid sturgeon, an ancient large fish.

271 F. Supp. at 242. Under § 7 of the Endangered Species

Act, 16 U.S.C. § 1536(a)(2), the Corps of Engineers is

prohibited from taking any action that jeopardizes the

continued existence of one of these species. If the FWS finds

that a government action will cause jeopardy, it can set forth

a Reasonable and Prudent Alternative that establishes

conditions the agency can follow to avoid jeopardy. 271 F.

Supp. 2d at 241 (summarizing statutory framework).

In a series of formal and informal biological opinions

since 1990, the U.S. Fish & Wildlife Service has repeatedly

found that the Corps” operation of the dams to eliminate the

natural hydrograph jeopardizes the tern, plover and sturgeon.

Id. at 242; J.A. XIIT:9865-9889 (2000 BiOp detailing

consultation history). For terns and plovers, the elimination

of the natural hydrograph degrades the sandbar habitat they

need, directly floods nests and chicks in the summer, and

7

reduces food supply. For sturgeon, it fails to provide

spawning cues, reduces food supply, and flushes juvenile

sturgeon downstream during the summer. See 421 F.3d at

625-26;. 271 F. Supp. 2d at 237; J.A. XI: 10099-10103

(2000 BiOp). The plight of the sturgeon is particularly dire

since “fewer than 2000 wild pallid sturgeon remain alive,”

primarily in the Missouri River, and they no longer appear to

be reproducing in the wild because of the absence of a

natural hydrograph. 271 F. Supp. at 259.

In response to the first biological opinion in 1990, the

Corps made no changes to its flow regime but indicated that

it would evaluate how to comply through a review of its

Missouri River Master Manual. 271 F. Supp. at 243. But

this review dragged on for years, and throughout most of the

1990's, the Corps violated the 1990 Biological Opinion. /d.

Finally, in 2000, after years of urging by the FWS, the Corps

consulted with it again about compliance with the ESA. /d.

See also JA XIII:9865-9889 (2000 BiOP summary of

consultation history.)

The central issue in the consultation was whether the

Corps could avoid any changes to its dam releases and

comply with the ESA instead by using mechanical habitat

mitigation alone to create habitat for terns, plovers and

sturgeon. The FWS concluded that such mechanical habitat

efforts could play a partial role. The 2000 BiOp set forth a

Reasonable and Prudent Alternative for the Corps that

included 19,565 acres of habitat creation on a set schedule,

along with a variety of secondary requirements, such as

monitoring. 271 F. Supp. at 243; J.A. XII: 10124 (2000

BiOP). But a “central premise” of the BiOP was that the

Corps could only avoid jeopardy by also restoring a

semblance of the natural hydrograph. 271 F. Supp. at 237,

243; J.A. XID: 10111-10115. The word semblance meant

that while the RPA required both a spring rise, and lower

summer flows, the amount of the rise and flow were

relatively modest compared to those that would occur under

natural conditions.’ The 2000 BiOp required that these

changes occur by 2003.

This conclusion was “based on literally decades of data

and supported by multiple scientific panels.” 271 F. Supp.

2d at 256. A panel of seven scientists jointly chosen by the

FWS and the Corps — the Missouri River Peer Review Panel

— unanimously concluded that physical habitat efforts alone

were not adequate and that restoring at least a somewhat

more natural hydrograph was critical to the survival of the

sturgeon, tern and plover. 271 F. Supp. 2d at 243; J.A. XUL

10244-48. In addition, the National Academy of Sciences

issued a report in 2001 concluding that “degradation of the

Missouri River ecosystem” including “the prospect of

irreversible extinction of species,” “will continue unless

some portion of the hydrologic and geomorphic processes

that sustained the pre-regulation Missouri River . . . are

restored — including flow pulses that emulate the natural

hydrograph.” J.A. at VII: 5034-35 (discussed at 271 F. supp.

2d at 243-44). The NAS also found, “Simply constructing

man-made habitat to satisfy the life-requirements of complex

organisms, without changes in fundamental physical

processes, is not likely to yield substantial ecological

improvements.” J.A. VII: 5090. The Corps of Engineers

further found in its Master Manual review that the partial

? Flows are measured by thousands of cubic feet per second. or

“kefs.” The Master Manual today calls for normal navigation flows in

the spring from 30 to 35 kefs, while under natural conditions those

flows would rise to 80 Kefs. In the summer, the Master Manual

typically calls for flow around 28.5 kcfs, while under natural

conditions, those flows would decline to 10 kcefs. Under the 2000

BiOp, the spring rise must, once every three years, reach 50 to 55

kcfs, and the low summer flow must decline to 21 kcfs every year.

421 F.3d at 625 n.5.

9

restoration of the natural hydrograph required by the 2000

BiOp would actually increase overall cconomic benefits by

$8.8 million. 271 F. Supp. 2d at 261.

C. Corps 2003 Refusal to Implement Flow Changes

Despite this economic validation of the 2000 BiOp, the

Corps announced in January of 2003 that it would not

implement the flow changes required that flow year. /d. at

244. The Plaintiffs in this case, national and state

conservation organizations, then filed suit in the United

States District Court for the District of Columbia under the

ESA and the Administrative Procedure Act, 5 U.S.C. § 701

et seq., against the Corps and the FWS. Id. The states of

Nebraska and Missouri intervened as defendants, and the

state of North Dakota intervened as a Plaintiff. /d. at 236 n.2.

The Corps responded by yet again asking the FWS to

change its views on the need for flow changes in an

application submitted on April 4. Only two weeks later,

without seeking public comment, the FWS issued a

Supplemental BiOp that gave the Corps another year to make

flow changes. /d. at 245. This April 2003 Supplemental

BiOp emphatically reaffirmed the science and central

findings of the 2000 BiOp on the need to restore the natural

hydrograph,’ but was based on the theory that a one-year

extension would not cause irreparable harm so long as the

Corps made the flow changes by 2004. /d.; J.A. IX: 6990-

7105 (Spring 2003 Supplemental BiOP).

> ‘The spring 2003 Supplemental BiOp included an entire appendix

setting forth the scientific literature supporting the validity of the

requirement for flow changes. J.A. TX:7080-7084.

10

D. 2003 Preliminary Injunction

In a thorough and lengthy preliminary injunction

opinion, the D.C. District Court held the Supplemental BiOp

to be arbitrary and capricious and ordered the Corps to

comply with the 2000 BiOP. American Rivers v. U.S. Army

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

After summarizing the long consultation history between the

agencies, the Court struck down the Supplemental BiOp in

part because its central premise that the Corps would make

flow changes in 2004 conflicted with the Corps’ absolute

refusal to make such a commitment. /d. at 253. The Court

also held that the FWS had failed to adequately explain its

“total abandonment of the need for low flow targeted as

absolutely necessary in the 20000 BiOp.” /d. at 256. In

entering the preliminary injunction, the Court found that the

“pallid sturgeon is on the brink of extinction.” Id. at 259-61.

The Corps refused to comply with this injunction and

was held in conditional contempt. American Rivers, v. Army

Corps of Engineers, 274 F. Supp. 2d 62 (D.D.C. 2003).

However that very summer, the panel on multi-district

litigation transferred the case to the District of Minnesota to

be consolidated with litigation between the states in the basin

regarding the Corps’ dam management responsibilities under

the Flood Control Act of 1944. The Corps took advantage of

the resulting confusion to defy the prelimiziary injunction and

only instituted the required low summer flow for a short

time. 421 F.3d at 627.

E. 2003 Amended BiOp and New Master Manual

In November 2003, the Corps again initiated

consultation with the FWS and sought permission to avoid

any restoration of high spring or low summer flows. In

response, the FWS summarily replaced the team of scientists

who had worked on the River for over a decade with a new

11

self-referenced “SWAT” team headed by a lawyer and FWS

regional director from the southwest. J.A. at VIII: 06232,

06230. The additional scientific materials in the record

considered by this team continued to call unanimously for

some restoration of the natural hydrograph, including

comments by the fish and game agencies of the states within

the basin, and their joint association.‘ But the FWS

hurriedly issued an amended Biological Opinion (“BiOp”) in

December 2003 that reversed its long-standing position

requiring flow changes.

The central feature of this Amended Biologicai Opinion

was the unexplained contradiction between its ultimate result

and the scientific findings set forth throughout the opinion.

The Amended BiOp did not alter the finding of the 2000

BiOp that ongoing management of the Missouri River dams

jeopardized the three species. 421 F.3d at 627; J.A. IX:6791;

Am Rivers Supp App 6. The Amended BiOp also

repeatedly reiterated that in addition to mechanical habitat

creation, at least some restoration of the natural hydrograph

was necessary to avoid jeopardy (all cmphases supplicd):

. “Continued survival of listed species depends on

restoration of riverine form and functions, as we.l as

a

See generally J.A. at IX: 6266-337. These materials stressed

that “physical habitat is ecologically inseparable from the hydrograph

which serves as a catalyst for driving the entire river ecosystem,” id.

at 6310, that “flows that are a semblance of the historic hydrograph

are necessary for the long-term ability of these populations,” id, at

06284, and that “in virtually all instances of successful rehabilitation

of large rivers, it is essential to retain or reestablish some semblance

of the natural hydrological cycle,” id. at 6268. For comments of the

various state fish and wildlife agencies from both the upper and lower

basins, see J.A. [X:6362, 6395, 6399-405, 6422-75, 6476-90.

12

some semblance of the pre-development or natural

hydrograph.” J.A. [X:6802, 6824.

‘Until_a_semblance of the normalized hydrograph is

restored and habitat is generated and maintained through

re-establishment of these processes, listed species will

continue to decline and their capability to achieve

recovery will continue to diminish.” J.A.IX: 6639.

“The primary elements necessary to avoid jeopardy to

listed species have not changed substantially since they

were first outlined in the 1990 Biological Opinion, and

later refined in the 2000 Biological Opinion.

Information gained from experience during the last 13

years reinforces the need for immediate adoption of

those elements.” J.A. IX: 6835.

The Amended BiOp at several points also explicitly rejected

the Corps’ request to rely entirely on the mechanical habitat

creation requirements set out in the 2000 BiOp, finding that

mechanical habitat mitigation alone would not work.

“The proposed accelerated habitat restoration program

in the Lower Missouri River will have little benefit to

the pallid sturgeon without a concurrent or subsequent

' “ lized

hydrograph to (1) provide the spawning cues that are

critical for pallid sturgeon reproduction and (2) allow

larvae and juveniles to move into shallow water habitat.”

Am. Rivers’ Supp. Appx. At 5 (emphasis supplied); see

also J.A. IX: 6795 (almost identical statement).

“The Service has determined restoration of a normalized

river hydrograph below Gavins Point Dam [the lowest

river dam} is still necessary to avoid jcopardizing the

continued existence of the pallid sturgeon.” JA. IX:

6847.

13

“Tt is the Service’s opinion that, to the extent that

{mechanically engineered] habitat is developed . . . the

level of benefit will largely be determined based on the

design location and diversity of the habitat developed

coupled with a cha i ae |

6783.

Despite these findings reaffirming the 2000 BiOp, the

new Reasonable and Prudent Alternative did the opposite. It

first completely deleted any requirement for flow changes to

avoid jeopardy to the tern and plover. For terns and plovers,

the Amended BiOp did at least offer some brief explanation -

- although that discussion contradicted the repeated findings

quoted above.*

For the pallid sturgeon, the Amended BiOp had much of

the same effect on the natural hydrograph but without any

explanation whatsoever. Although the Amended BiOp

explicitly rejected Corps’ arguments for a delay for further

* The Eighth Circuit discussed these rationales. -21 F.2d at 635-

36. The main rationale ~ mentioned in passing by the FWS early in

its opinion -- was that new Corps computer modeling allegedly

showed that flow changes would not benefit tern and plover sandbar

habitat. The Court did not address Plaintiffs’ contention that there

was no such modeling, and that the Corps final EIS directly

contradicted this assertion and found that the flows required by the

2000 BiOp would increase tern and plover sandbar habitat by 74%.

J.A. X:7708 (comparing GP2021, the 2000 BiOp alternative, with

CWCP, the current water management). But the more dramatic

contradiction was that between the result of the Amended BiOp and

the explicit, repeated findings throughout it that restoration of a

normalized hydrograph was necessary to avoid jeopardy to terns and

plovers. For pallid sturgeon, there is no explanation for the basic

changes to the RPA at all. But for terns and plovers, it is the

legitimacy of upholding such a contradictory agency decision that is

fairly encompassed in the question presented.

14

study,° it eliminated the requirement to implement the 2000

BiOp’s spring rise immediately, and gave the Corps instead

until 2006 to develop a new plan. Even more significantly,

the Amended BiOp effectively eliminated the summer low

flow by allowing the Corps to cancel it once the Corps had

fulfilled a small part of its long-standing obligation to

construct habitat mechanically, dating to the 2000 BiOp. In

particular, the 2003 Amended BiOp now indicated that once

the Corps had constructed 1,200 of those acres — just six per

cent of the total habitat mitigation alw»dy required -- the

Corps could ask the FWS to eliminate the low flow

requirement. This was apparently a last minute addition, as

drafts of the RPA dated less than one week before the

releases of the Amended BiOp do not contain this

cancellation provision. J.A. [X:6601-04; Am Rivers Supp.

App. at 44-45. The Corps then sought, and the FWS granted,

the elimination of a summer low flow that forthcoming June.

In short, even while the Amended BiOp continued to

find that mechanical habitat mitigation would not work

unless coupled with restoration of the natural hydrograph, the

FWS eliminated altogether the requirement to restore at least

half of that hydrograph, the low summer flow.

F. New Missouri River Master Manual

In March 2004, the Corps followed up this Amended

BiOp by issuing a Final EIS and a Record of Decision for a

new Master Manual. This EIS again found that the flows

required by the 2000 BiOP would produce a net economic

gain over previous management, would continue to mect all

6

In two places, the Amended BiOp explicitly rejected the Corp's

request to delay flow changes for further study on the grounds that a

delay would provide no useful information and failed to reflect the

imminent threat of the pallid sturgeon’s extinction. J.A. IX: 6639-41,

06781.

15

project purposes, and would have only modest adverse

effects on any one purpose.’ At the same time, the EIS found

that the flow changes would have enormous environmental

benefits for endangered species, including large increases in

tern and plover habitat, and in spawning cues and shallow

water habitat for sturgeon.*

Despite these findings, the plan adopted by the new

Master Manual included no restoration of the natural

hydrograph. Instead the Corps adopted a flow plan that

largely maintained the status quo with some new drought

restrictions. In selecting this alternative, the Corps offered an

extremely cursory explanation of why that option was

preferable to the previous water control plan. 363 F. Supp.

2d at 1167-68 (quoting language); J.A. X:7923. But the

Corps never explained why it chose its preferred alternative

over the more natural flow plan set forth in the 2000 BiOp.

G. Opinions of District Court and Court of Appeals

Because the Amended BiOp and Master Manual dropped

any restoration of the natural hydrograph without explanation

and in contrast to a unanimous scientific record, Plaintiffs

amended their complaint and pressed their suit. The focal

point of their claim was that the agency decisions were

7 JA. at X: 07859, 07877 (Tables 7.13-1 & 7.15-3) (finding that

the 2000 BiOp, modeled by the code GP2021 would have $5.3 million

in benefits on the Missouri River over the Current Water Control Plan

and an additional $7.3 million in benefits (expressed as reduced costs)

from improved navigation on the Mississippi River); J.A. X: 7914

(Table 7-20-1 finding minimal, no, or positive effects on other

economic uses); J.A. X:7986-97 (finding final alternatives “ali within

the broad discretionary delegation provided by Congress to the Corps

in Operating the Mainstem Reservomw System.")

* JA. X: 07730 (large gain in shallow water habitat); J.A

X:07932-34 (large increase in spawning cues for sturgeon); J.A.

X:07708 (large increase in sandbar habitat for terns and plovers).

16

arbitrary and capricious wader the Administrative Procedure

Act, 5 U.S.C. § 706(2), because of this lack of explanation,

and the contradiction with actual agency findings of the

importance of flow changes. In defending these claims, the

federal defendants never pointed to any explanatory language

by either agency, but instead offered post hoc rationalizations

of counsel that wove novel explanations out of facts in the

record.

In June 2004, the District Court for the District of

Minnesota granted summary judgment for the Defendants in

a consolidated opinion that also addressed claims brought in

related cases involving the Missouri River by the various

basin states and other parties. Jn re: Operation of the

Missouri River System Litigation, 363 F. Supp. 2d 1145 (D.

Minn. 2004). This decision credited these explanations of

counsel, id. at 1158-59, but never addressed Plaintiffs’ claims

that the FWS and Corps never offered the explanations

themselves, and in fact set forth contradictory findings.

On appeal, the U.S. Court of Appeals for the Eighth

Circuit affirmed. In Re: Operation of the Missouri River

System Litigation, 421 F.3d 618 (8° Cir. 2005). This

decision acknowledged that the Amended BiOp itself offered

no explanation for the elimination of the low summer flow.

It further acknowledged that the Amended BiOp included

statements contradicting the claim that mechanical habitat

restoration efforts would benefit sturgeon in the absence of a

“more normalized hydrograph.” 421 F.3d at 634. But

relying on a series of facts highlighted for the first time in

judicial briefs, the Court held that “evidence in the record

adequately explains the decision made by the FWS.” /d.

For similar reasons, the Eighth Circuit rejected

Plaintiffs’ claim that the Corps had not explained why it

selected its Master Manual over the natural hydrograph set

forth in the 2000 BiOP. 381 F.3d at 636-37. Although the

17

Court acknowledged that the Corps offered no “prose”

explanation for this choice, it explained that the final EIS

included tables that compared the results of different

alternatives. 421 F.3d at 637. According to the Court, the

Corps’ rationale was clear because the “preferred alternative”

scored better than the 2000 BiOp according to a few of the

economic criteria set forth in those tables. In fact, the FEIS

contains scores of tables that compare alternatives using

scores of criteria, with different alternatives doing better on

some and not on others. At no point in prose or through any

other met! od did the Corps point particularly to any of the

criteria relied upon by the Corps lawyers and by the Court.

REASONS FOR GRANTING THE WRIT

1. The principle of agency review announced below

would make APA review effectively meaningless.

The opinions below reveal a swirl of competing Icgal

claims regarding the Endangered Species Act, and the Corps’

obligations under the Flood Control] Act of 1944. But the

most important, and decisive legal principle at issue in this

case is the well established principle that an agency must

“articulate a satisfactory explanation for its action including a

rational connection between the facts found and the choice

made,” Motor Vehicle Mfrs Ass'n v. State Farm Mut. Auto

Ins. Co, 463 U.S. 29, 43 (1983) (citations omitted), and a

decision challenged under the Administrative Procedure Act,

5 U.S.C. § 706, “must be upheld, if at all, on the basis

articulated by the agency itself.” Id. at 50. This is arguably

the most fundamental principle of administrative law and

dates to this Court’s opinion SEC v. Chenery Corp., 332 U.S.

194, 196 (1947). According to this principle, a reviewing

court examines the evidence in the record not to discern a

rationale, but instead to determine if the rationale actually

offered by the agency “runs counter to the evidence before

the agency, or is so implausible that it could not be ascribed

18

to a difference in view or the product of agency expertise.”

State Farm, 463 U.S. at 43.°

In addition, “an agency changing its course,” as the FWS

did here, is particularly “obligated to supply a reasoned

analysis for the change beyond that which may be required

when an agency does not act in the first instance.” State

Farm, 463 U.S. at 42. This is so because “a settled course of

behavior embodies the agency’s informed judgment that, by

pursuing that course, it will carry out the policies committed

to it by Congress.” Jd. at 41-42. (internal quotation marks

and citation omitted). In State Farm, this Court overturned a

change im agency position precisely because the change in

course was not adequately explained, and this Court refused

to credit explanations given for the first time in court.

Since that case, this Court has continued to endorse and

cite this principle. See, e.g., Allentown Mack Sales and

Service v. NLRB, 522 U.S. 359, 374-75 (1998) (explaining

why “reasoned decisionmaking” and “sound results” are

promoted when courts reverse agency decisions “which,

though well within the agencies’ scope of authority, are not

supported by the reasons that the agencies adduce”); Marsh

v. Oregon Natural Resources Council, 490 U.S. 360, 378

(1989) (reaffirming that review in NEPA case is based on

agency rationale and support for it in the record); Bowen v.

American Hospital Association, 476 U.S. 610, 643 (1986)

(reversing agency decision because record evidence did not

support agency’s “own chosen rationale”). '°

* — This Court confirmed in Bennett v. Spear, 520 U.S. 154, 177-78

(1997), that a biological opinion is reviewable under the APA as final

agency action.

10

To be sure, there is some tension between this Court's instruction

that an agency “must cogently explain why it has exercised its

discretion in a given manner,” State Farm, 463 U.S. at 48, and its

acknowledgement that it will ‘uphold a decision of less than ideal

clarity if the agency's path may reasonably be discerned,’” id. at 43.

19

Instead of reviewing the FWS and Corps decisions in

this case according to the rationales they actually provided,

the Eighth Circuit instead formulated a rule that an agency

decision should be upheld if the “evidence in the record

adequately explains the decision.” 421 F.3d at 634

(emphasis supplied). The Court similarly held that even if a

court's decision does not explain the rationale, the law only

requires that the “rationale is present in the administrative

record underlying the document.” /d. (citation omitted).

While this formulation sounds similar to State Farm, it is in

fact the converse. Under the proper standard of review, a

court first examines the rationale offered by the agency, and

then examines whether the evidence in the record provides

reasonable support for that rationale. See, e.g., Bowen, 476

U.S. at 643. But under the Eighth Circuit’s new approach, a

court, relying on defense counsel, may formulate a rationale

to fit the evidence. That is the quintessence of improper

reliance on post-hoc rationalizations. State Farm, 463 U.S.

at 50; Burlington Truck Lines, Inc. v. United States, 371 U.S.

156, 168-69 (1962) ("The courts may not accept appellate

counsel's post hoc rationalizations for agency action;

Chenery requires that an agency's discretionary order be

upheld, if at all, on the same basis articulated in the order by

the agency itself") (emphasis supplied).

The error by the Eighth Circuit below is traceable in part

to its reliance on and quotation of that court’s earlier,

incorrect formulation of the standard of review in Voyageurs

National Park Ass'n v. Norton, 381 F.3d 759, 763 (8” Cir.

But this latter formulation, quoting Bowman Transportation, Inc., v.

Arkansas —Best Freight System, Inc., 419 U.S. 281 (1974), has not

allowed a court to make up a rationale out of the record. Instead, it

has referred to the clarity with which an actual and explicit agency

rationale demonstrates its “treatment of the evidence.” 419 U.S. at

290. One reason to grant the writ is to provide additional clarity so

that future lower courts do not repeat the Eighth Circuit's mistake.

20

2004). There the Court held, “If an agency determination is

supportable on any rational basis, we must uphold it.” /d.

(quoted below at 421 F.3d at 628). That formulation is

incorrect because a court must only uphold agency action on

the rational basis articulated by the agency. The Eighth

Circuit has, in effect, confused APA review with the much

more permissive review of legislative action subject only to

arbitrariness or rational basis scrutiny under Substantive Due

Process or Equal Protection.

As this Court explained in Marsh, the alternative

approach now followed by the Eighth Circuit would “not

simply render judicial review generally meaningless, but

would be contrary to the demand that courts ensure that

agency decisions are founded on a reasoned evaluation ‘of

the relevant factors."” 490 U.S. at 395 (citation omitted).

The approach has a particularly large effect in a case with a

voluminous record, such as this one. In such a case, there

will always be large numbers of facts that taken out of their

true scientific context, or emphasized beyond their true

significance, could be cited to justify a decision. But that

does not show the agency relied on those facts or that agency

experts considered such reliance to he reasonable.

Because the Eighth Circuit ruling governs the basic

standard of review for agency action, it will have enormous

ramifications for a wide range of cases. This Court should

grant certiorari first and foremost because of the vast legal

significance of the principle enunciated below.

2. Conflicts among the courts of appeals.

This Court should also grant certiorari because the

Fighth Circuit's decision creates a split between the circuits

on whether a court should uphold an agency decision only on

the rationale artic jated explicitly in its decision. Just last

month, the Court of Appeals for the Ninth Circuit overturned

21

a biological opinion under the ESA on the grounds that it did

not provide a reasoned explanation for its result and rejected

the argument that the decision could be held based on

“implicit” reasoning. Even while noting that an agency

decision may be upheld on a reason expressed with less than

“ideal clarity,” the Court rejected reliance on “unstated

assumptions” in favor of a focus on what the agency actually

said in the biological opinion itself. Pacific Coast

Federation of Fishermen’s Association v. United States

Bureau of Reclamation, 426 F.3d 1082 (9" Cir. 2005). .

Citing the same rule, the Ninth Circuit has also reversed a

decision to list a species for protection under the ESA

because the FWS’s listing decision was “devoid” of

discussion on a critical issue, and a court cannot “be

compelled to guess at the theory underlying the agency’s

action.” Nat'l Ass’n of Home Builders v. Norton, 340 F.3d

835, 848-49 (9th Cir. 2003) (quoting Chenery).

The Third Circuit has also rejected the Eighth Circuit’s

view that a court may discern a rationale from underlying

evidence in the record. “Even if the evidence in the record,

combined with the reviewing court's understanding of the

law, is enough to support the order, the court may not uphold

the order unless it is sustainable on the agency’s findings and

for the reasons stated by the agency.” W.R. Grace & Co. v.

United States EPA, 261 F.3d 330, 338(3d Cir. 2001)

(citations and quotations omitted). In that case, the Court

rejected an order under the Safe Drinking Water Act because

the Environmental Protection Agency had failed to provide a

satisfactory rationale in the order itself. The court refused to

consider one study in the record that might provide support

for the order because none of the agency analysis “purports

to rely upon the recommendation in that report.” Jd. at342 -

Similarly, the DC Circuit has consistently held that

“[t]he agency must make clear the ‘basic data and the whys

and wherefores’ of its conclusion,” so the court is not “left to

22

guess as to the agency’s findings or reasons.” American

Municipal Power-Ohio, Inc. v. FERC, 863 F.2d 70, 73 (D.C.

Cir. 1988). See also State of New York v. EPA, 413 F.3d 3

(D.C, Cir. 2005) (reversing regulation because of EPA’s

failure to explain rationale); Sierra Club v. Browner, 167

F.3d 658, 665 (D.C. Cir. 1999) (reversing two features of

agency regulation for lack of adequate explanation even

where “potential rationale for EPA’s method was made clear

in the briefs for the agency”); JSG Trading Corps v. USDA,

176 F.3d 536, 546 (D.C. Cir. 1999) (rejecting decision

because there is no basis “in the explanations offered by the

agency” for it, and the court “cannot sift through the record

evidence to find support for the result’).

The Fifth Circuit has also rejected the Eighth Circuit

approach. In Chemical Mfrs Ass'n v. EPA, 899 F.2d 344,

359 (Sth Cir. 1990), it vacated and remanded a regulation

under the Toxic Substances Control Act because EPA had

not articulated a proper rationale for the decision and rejected

a rationale offered for the first time by counsel because

“agency action must be sustained, if at all, on the basis

articulated by the agency itself.”

As Judge Luttig has explained, the rule is founded in the

separation of powers, and “it is as unacceptable for a court to

generate its own reasons for agency action, as it is to

substitute its own views for those of the agency as to the

propriety of particular action.” McDaniels v. United States,

300 F.3d 407, 415 (4th Cir. 2002)(J. Luttig, dissenting). [If

the Eighth Circuit rule stands, challenges to federal agency

actions, which may often be brought in a variety of forums,

will be rejected if brought there but not if brought elsewhere.

This Court should grant certiorari to resolve this circuit split.

23

3. This case highlights why courts should review agency

decisions based on actual agency explanations.

The facts of this case highlight the impropriety of the

new principle of review enunciated by the Eighth Circuit.

The rationale found by that court for the FWS’ dramatic

change in position not only takes selective pieces of evidence

irrationally out of context but also contradicts the FWS’

actual findings.

For example, in upholding the abandonment of the low

summer flow, the Court noted that onc of the cffects of the

low summer flow would be lower water levels that by

themselves created almost 1,200 acres of shallow water

habitat. To the Court, this fact implied that creating the

1,200 acres through mechanical means could “substitute” for

the low summer flow. 421 F.3d at 633-34.

But the essential point of the whole thirteen year history

of consultation between the FWS and the Corps — and the

explicit findings by the NAS, other independent peer review,

and all the biological testimony in the record — was that

mechanical habitat creation cannot substitute for more

natural flows because that habitat would not work except in

conjunction with a more natural hydrograph. Thus, the 2003

Amended BiOp itself found “accelerated habitat restoration

in the Lower Missouri River will have little benefit to the

pallid sturgeon without a concurrent or subsequent change in

operations to provide a more normalized hydrograph.” J.A.

IX:6795 (quoted 421 F.3d at 634). That is why the 2000

BiOp already required both. 271 F. Supp. 2d at 243.'' That

is why the 2003 Amended BiOp also found that “[uJntil a

'' Among other reasons, the 2000 BiOp explained that high flows

kept river velocities high and prevented juvenile sturgeon from

finding their way through the river to slack water areas. J.A. at XII:

10088, 10111, 10135.

24

semblance of the normalized hydrograph is restored and

habitat is generated and maintained through re-establisment

of these processes, listed species wi'l continue to decline and

their capability to achieve recovery will continue to

diminish.” J.A. IX: 6639.

Furthermore, the Z000 BiOp already obligated the Corps

to construct far more than 1,200 acres of habitat in addition

to flow changes. See supra at 5. Logically, the sheer

retention of this requirement could not by itself provide “a

reasoned analysis” for the FWS to change its position and

now treat the 1,200 acres as a substitute for flow changes.

State Farm, 463 U.S. at 42.”

The Court of Appeals followed the same, misguided

principle of administrative law in upholding the Corps choice

of a new Master Manual. Atl parties agree that the Corps has

substantial discretion under 1944 Flood Control Act to

balance the competing interests on the river in formulating a

Master Manual. South Dakota v. Ubbehlohde, 330 F.3d

"2 That same basic logical problem applies to the other factors cited

by the Court of Appeals, but not by the FWS itself, to justify the

abandonment of the low summer flow. The Court noted that the

Amended BiOp retains a spring rise requirement (albeit a vague one

to be based on a new Corps plan for 2006) to provide spawning cues

to the sturgeon, and requires that the Corps monitor pallid sturgeon

populations. But these requirements were also a part of the 2000

BiOp, 271 F. Supp. 2d at 243, and therefore by themselves cannot

logically offer any justification for amending the 2000 BiOp to delete

the requirement for low summer flows. The Court also noted that low

summer flows would harm one particular chute in Missouri where a

juvenile pallid sturgeon was once found. But there is nothing in the

Amended BiOp or any other FWS document, and the Court pointed to

no such language, placing special emphasis on this one chute at the

expense of overall river habitat. To the contrary, the Amended BiOp

held that another river arca, the “reach below Gavins Point is critical

for pallid sturgeon reproduction,” but needed more natural flows to

help sturgeon. Am. Rivers. Supp. App. 5 (Exec. Summ.).

25

1014, 1019-20, 1027 (8" Cir. 2003). But Plaintiffs

challenged the Corps’ release of the new Master Manual in

April, 2004 because the Corps never explained why its

“preferred alternative,” which did not restore any part of the

natural hydrograph, was preferable to the alternatives that

did, including the specific flow regime required by the 2000

BiOp. Instead, the Corps’ only brief explanation focused

solely on why the preferred alternative was an advance over

the Corps’ previous management plan, and was set forth in a

final chapter devoted only to that limited comparison.'?

The Court of Appeals agreed with Plaintiffs that the

Corps never offered an explanation in “prose” why its chosen

alternative was preferable to the natural hydrograph

alternative expressed by the 2000 BiOp. 421 F.3d at 637.

But following its principle that the Court could try to discern

a rationale from facts in the record, the Court burrowed into

the EIS itself and found it in a few out of hundreds of tables,

which showed the Corps’ alternative superior to the 2000

BiOP for a few economic factors.

This ruling was not only again erroneous as a matter of

law because the Corps itself never placed greater weight on

those particular factors or tables over others, but it was also

irrational. For example, while the Court noted that the

Corps’ chosen alternative produced more summer revenue

‘3 The Corps’ sole explanation was that the Preferred Alternative,

compared to current management, “conserves more water in the upper

three lakes during extended droughts, meets the needs of ESA-listed

fish and wildlife species, is consistent with the Corps’ responsibilities

under environmental laws, and Tribal Trust responsibilities, and

provides for the Congressionally authorized uses of the system.” In

re: Missouri River System Litigation, 363 F. Supp. 2d at 1168

(quoting J.A. X: 7923). The federal government does not dispute that

these explanations apply equally to the 2000 BiOp alternative and

therefore do nothing to explain why the chosen alternative was

preferable to it.

26

from hydropower production than the 2000 BiOp’s flow

plan, 421 F.3d at 636, the EIS also showed that the 2000

BiOP plan produced more total economic benefits from

hydropower when all seasons were counted.’ The Court

also relied on a table showing that the Corps alternative had

slightly higher benefits for Missouri River navigation, 421

F.3d at 636-37, but the EIS also showed that the more natural

hydrograph precisely offset those effects with higher benefits

for Mississippi River navigation compared to the Corps

alternative. '

In fact, the final EIS presents dozens of criteria, and

evaluates the impact of different alternatives on many criteria

for multiple river segments and different seasons.'” It was

'* The flows required by the 2000 BiOp were modeled by the code

term GP2021. The final EIS showed that this alternative produced a

total of $4.43 million more in hydropower revenue than the Corps’

preferred alternative. Compare J.A. X:7821, Table 7.10(1) (GP2021

produces $678.75 million in economic benefits) with J.A. X: 7938,

Table 8.3-15 (Corps preferred alternative produces $674.32 million in

hydropower benefits).

'S Even in tables, the final EIS never directly compares the flow

management required by the 2000 BiOp (coded GP2021) with the

Corps’ Preferred Alternative. But through diligent effort, it is .

possible to compare the two options from different parts of the EIS.

Comparing different tables shows that the 2000 BiOp has $3.73

million more in Mississippi River benefits compared to the Preferred

alternative. Compare J.A. X:7877, Table 7-15 ($7.29 million in

Mississippi River navigation benefits for GP2021 over CWCP, the

previous water management) with J.A. X:07938, Table 8.3-21

(showing $3.56 more in navigation benefits for the preferred

alternative than CWCP). By contrast, the Preferred Alternative has

$3.73 million more benefits for Missouri River navigation than the

2000 BiOp. Compare J.A. X:7853 (Table 7.12.1) ($5.62 million) with

J.A. 7940 (Table 8-3-18) (9.35).

‘© The lists of figures and tables show more than 100 figures and 50

tables that compare different alternatives on the basis of different

criteria. J.A. X:7227-7235

27

incumbent on the Corps, not the Court, to articulate a rational

basis for weighing these criteria and balancing competing

interests. Nothing in the EIS or any other Corps document

explains why the decision should turn on the few particular

factors highlighted by the Court rather than the aggregate

economic and environmental effects, by which the more

natural flow alternative did extremely well. See 271 F. Supp.

2d at 260.

Indeed, while the Corps claimed that it chose the

preferred alternative over previous water management in part

because it “‘meets the needs of ESA-listed fish and wildlife

species,’” 363 F. Supp. 2d at 1168 (quoting EIS), the Corps

alternative did not include any kind of spring rise for the

period beyond 2006, which the 2003 Amended BiOp still

required. For this reason, the Corps admitted elsewhere in

the EIS that its plan did not comply with the ESA and would

only do so if the FWS again changed its mind or the Corps

obtained an ESA exemption under the strenuous terms for

that exemption. J.A. X: 7650.'7 The FWS therefore also

commented that the preferred alternative “is not consistent

with the ... Amended 2003 BiOp, does not include the flow

provisions of the RPA elements, and does not achieve the

desired goal of avoiding jeopardy to listed species.” J.A. XII:

08869. Because the flows required by the 2000 BiOp

unquestionably did comply with the ESA, the Corps’ failure

to explain why it chose the PA over the 2000 BiOP

alternative takes on special significance.

The essential holding of the Eighth Circuit below was

that so long as the Corps set forth factual data in the EIS by

which the different alternatives could be compared by a third

party, it met its legal obligations. 431 F.2d at 636-37. But in

'7 The EIS at J.A. X:7650 refers to an alternative called MCP. The

Preferred Alternative was a variation of MCP, and like it, does not

include a spring rise. J.A. X:7921.

28

doing so, the courts ignored the Corps’ obligation to

articulate “a rational connection between the facts found and

the choice made.” State Farm, 463 U.S. at 43. This is

particularly harmful in a case involving an EIS since an EIS

will typically include large quantities of data by which a third

party can compare alternatives, and according to these courts,

that alone would replace the agency’s obligation to make a

reasoned decision.

4. The importance of the Missouri River ecosystem

Finally, this Court should grant certiorari in this case

because of the great importance of the Missouri River

ecosystem in the United States. The Missouri River and its

floodplain supported a productive, diverse and unique

assemblage of fish and wildlife, but the changes at issue in

this case have led to conditions under which fully eighty-five

of the species that use it are listed under federal or state

endangered species lists according to the NAS. J.A. at VII:

- 5117-18. The NAS has warned that this “degradation,”

including the “prospect of irreversible extinction of species”

will continue unless “flow pulses that emulate the natural

hydrograph” are restored. J.A. at VII: 05034-35. In the 2003

Amended BiOp itself, the FWS warned that the “need to

protect other species in the Missouri River is increasing,” and

that many of these species would benefit from the same

actions needed to protect the pallid sturgeon. J.A. [IX:6639.

Meanwhile the analyses of the Corps of Engineers itself

— despite that agency’s strong resistance to change -- show

that these changes would come without any overall economic

cost and while continuing to support all project purposes.

That support would continue with only modest impacts even

for navigation on the lower Missouri River, which the Corps

estimated as generating only one half of one per cent of the

Missouri River’s economic benefits. J.A. X:7859 (Tabie 7

13-1 showing roughly $9 million in navigation benefits out

29

of roughly $1,800 million total). Indeed, just prior to the

Corps’ release of its Master Manual, the last two commercial

barge haulers on the river announced that they would no

longer use it because market demand had shifted — the end of

a long and steady decline. J.A. Il: 1342-56 (Report of Dr.

Robert Stearns); see also J.A. 1271-330 (economic reports

discussing decline of Missouri navigation). While the main

purpose of high river flows during the summer months is to

support barging, there are now almost no barges to support.

In short, the agency findings show that rational decisjon-

makers could avert a serious environmental crisis while

simultaneously making modest economic improvements and

meeting all other statutory goals. This is therefore precisely

a case in which normal principles of judicial review are

important to assure that agencies base their decisions on

sound science applied to the appropriate criteria instead of

inertia or impermissible favoritism.

CONCLUSION

For the foregoing reasons, this Court should grant the

petition for certiorari.

Respectfully submitted,

TIMOTHY D. SEARCHINGER

MICHAEL BEAN*

ENVIRONMENTAL DEFENSE

1875 Connecticut Avenue, N.W.

Washington, D.C. 20009

(202) 387-3500

November 14, 2005 * Counsel of Record

la

APPENDIX A

PRIOR OPINIONS

In re: Operation of the Missouri River System Litigation.

No. 04-2737, American Rivers, Inc.; et al, v. United States

Army Corps of Engineers; et al. No. 04-2774, State of

Nebraska, Appellant, v. United States Army Corps of

Engineers; et al. No. 04-2785, Nebraska Public Power

District, Appellant, v. United States Army Corps of

Engineers; et al. No. 04-2794, State of Missouri,

Appellant, v. United States Army Corps of Engineers; et

al. No, 04-2878, The Mandan, Hidatsa and Arikara

Nation, Appellant, v. United States Army Corps of

Engineers; et al. No. 04-2994, Blaske Marine, Inc.; et al,

v. United States Army Corps of Engineers; et al.

No. 04-2737, No. 04-2774, No. 04-

2785, No. 04-2794, No. 04-2878,

No. 04-2994

UNITED STATES COURT OF

APPEALS FOR THE EIGHTH

CIRCUIT

421 F.3d 618; 2005 U.S. App.

LEXIS 17224; 61 ERC (BNA) 1038

April 11, 2005, Submitted

August 16, 2005, Filed

JUDGES: Before WOLLMAN, BEAM, and GRUENDER,

Circuit Judges.

OPINION: GRUENDER, Circuit Judge.

2a

In these consolidated appeals, various parties challenge

the operation of the Missouri River main stem reservoir

system by the United States Army Corps of Engineers ("the

Corps”) and associated wildlife assessments produced by the

United States Fish and Wildlife Service ("FWS"). The

district court nl granted summary judgment to the Corps and

FWS and their named individual officers (collectively "the

Federal Defendants") on all claims. For the reasons stated

below, we dismiss three claims as moot and affirm the

judgment of the district court on all remaining claims.

nl The Honorable Paul A. Magnuson, United States

District Judge for the District of Minnesota.

I. BACKGROUND

The Missouri River originates in Montana and runs

through North Dakota, South Dakota, Nebraska, Iowa,

Kansas and Missouri before emptying into the Mississippi

River. In its natural state, the river subjected the surrounding

basin to extensive flooding every spring. With the Flood

Control Act of 1944 ("FCA"), Congress authorized the

construction of a dam and reservo.~ system on the upper river

to control the flooding. In iddition to flood control, the FCA

envisioned that the reservoirs would provide water for local

irrigation projects, steady release into the river during the

summer months to support downstream navigation,

hydroelectric power generation and lake recreation. The FCA

delegated construction and management of the main stem

reservoir system to the Corps. n2

n2 The main stem dams and reservoirs are Fort Peck

Dam (Fort Peck Lake) in Montana, Garrison Dam (Lake

Sakakawea) in North Dakota, and Oahe Dam (Lake Oahe),

Big Bend Dam (Lake Sharpe), Fort Randall Dam (Lake

Francis Case) and Gavins Point Dam (Lewis and Clark

Lake) in South Dakota.

3a

The current challenges to the Corps’ operation of the

system arise from two directions. First, a persistent drought

in the Missouri River basin has led to a recurring conflict

between upstream and downstream water-use interests. In

2002, the Corps planned to release water f om Lake Oahe

into the river to maintain downstream nav’ ,ation throughout

the summer. South Dakota, fearing a négztive impact on the

seasonal fish spawn in Lake Oahe and concordantly on the

reservoir's sport fishing industry, obtained an injunction in

federal district court preventing the Corps from lowering any

reservoir in South Dakota until after spawning season. When

the Corps decided to lower Lake Sakakawea instead, North

Dakota obtained a similar injunction. Not to be outdone,

Montana obtained an injunction to prevent releases from Fort

Peck Lake. In response, Nebraska obtained an injunction

ordering the Corps to make the required releases to support

navigation as called for by the Corps' Missouri River Main

Stem Reservoir System Master Water Contro] Manual ("1979

Master Manual").

In a consolidated appeal of these injunctions, we ruled

that the FCA vested the Corps with discretion to balance the

competing water-use interests. South Dakota v. Ubbelohde,

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

legislative history and its interpretation by the Supreme

Court "indicate[] that the Corps's primary concerns should be

flood control and navigation,” we upheld the Corps’ decision

to follow the 1979 Master Manual and draw down the

reservoirs to support downstream navigation. /d. at 1032.

The second point of conflict has been that flood

prevention and steady summer flows for downstrearn

navigation disrupt the natural habitat of protected bird and

fish species in the Missouri River ecosystem. In litigation

initially separate from the Ubbelohde cases, environmental

groups have attempted to force the Corps to operate the

system to produce more “natural” river flows to benefit the

protected species. To understand the current stances of the

4a

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

detail the Corps’ previous attempts to accommodate

competing interests while developing its operating

procedures.

The Corps sets forth its general operational guidelines for

the Missouri River reservoir system in a Master Manual and

the operational details for each year in an Annual Operating

Plan. The first Master Manual was published in 1960 and

revised in 1973, 1975 and 1979. The year 1987 brought the

onset of the first persistent drought in the region since the

reservoir system had become fully operational. Because it

found that the operational procediifes in the 1979 Master

Manual were not weill-tailored to handle a persistent drought,

the Corps began the revision process for what would become

the 2004 Master Manual.

The operation of the reservoir system also brings the

Corps within the provisions of the Endangered Species Act

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

that a proposed action may “jeopardize the continued

existence” of any protected species or adversely affect its

critical habitat, the agency must prepare a Biological

Assessment and consult with the FWS. ESA § 7, /6 U.S.C. §

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

describing how the action will affect the species, based on

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

1536(a)(2). If the FWS concludes that the proposed action

would cause jeopardy to an endangered or threatened species,

the BiOp must include a Reasonable and Prudent Alternative

which would allow the agency to implement the desired

action while avoiding jeopardy to the species. Jd. at §

1536(b)( 3A). Finally, if it appears incidental “take” n3 will

occur even if the Reasonable and Prudent Alternative is

implemented, the BiOp must include an Incidental Take

Statement setting conditions under which the agency may

proceed while avoiding liability for the incidental harm to the

protected species. Id. at § 1536/b\4).

5a

n3 The ESA prohibits “taking” of endangered species.

term ‘take’ means to harass, harm, pursue, hunt, shoot,

wound, kill, trap, capture, or collect, or to attempt to engage

in any such conduct.” ESA § 3(14), 16 U.S.C. § 1532(19).

The Corps followed the above process with three

protected species in the Missouri River basin: the pallid

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

tern, a migratory bird listed as endangered since 1985; and

the piping plover, a migratory bird listed as threatened since

1985. The pallid sturgeon spends its entire life cycle in the

Missouri and Mississippi Rivers and their tributaries, while

the tern and plover both nest in the summer on sparsely

vegetated sandbars along the rivers. In 2000, the FWS issued

a Biological Opinion ("2000 BiOp”") finding that the Corps’

proposed operation of the reservoir system was likely to

jeopardize the continued existence of the three species.

The FWS found that the harm to the species resulted from

the alteration of the river's natural hydrograph. n4 Before the

construction of the dams, the hydrograph had two prominent

components: the “spring rise” and “summer low flow.” The

“spring rise” refers to extremely high flows in late spring

resulting from the spring thaw. According to the 2000 BiOp,

the spring rise provided a biological spawning cuc for the

pallid sturgeon and enabled the river to capture protein-rich

nutrients from the floodplain and from wetland habitat not

connected to the river channel during other seasons. In

concert with the summer low flow, the spring rise also

provided seasonal connectivity to the off-channel wetland

habitat, making calm, shallow pools available to the pallid

sturgeon for spawning, nursery and feeding areas. Lower

clements of the food chain also were forced to congregate in

the remaining pools, providing casy summer feeding for the

protected species. In addition, the spring rise scoured and

flushed sandbars. When the now-sparsely-vegetated sandbars

were exposed by the summer low flow, the resulting lack of

6a

cover for concealed predators allowed terns and plovers to

nest there safely.

n4 A river's “hydrograph" is the variation in water level at

each point along its channel over the course of time.

The Corps’ operation of the reservoir system, generally

capturing water in the upstream reservoirs to eliminate spring

flooding and releasing water throughout the summer and fall

as necessary to enable downstream navigation and restore

reservoir capacity for the following spring, eliminated the

spring rise and summer low flow from the hydrograph. The

Reasonable and Prudent Alternative included with the 2000

BiOp ("2000 BiOp RPA") stated that “higher spring and

lower or declining summer flows than now exist" n5 were

"an integral component of the measures to avoid jeopardy” to

the three protected species. The 2000 BiOp RPA also

mandated habitat restoration, a comprehensive species and

habitat monitoring program, and an adaptive management

framework to “implement, evaluate, and modify the

components of the RPA in response to vanable river

conditions, species responses, and increasing knowledge

base.”

nS The 2000 BiOp presented data from Corps models

showing that, with the reservoirs and channel improvements

in place, the “natural hydrograph” today would be expected

to produce a spring rise of 80 Kcfs (Kefs = thousand cubic

feet per second) and a summer low flow of 10 Kefs at the

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

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

point was typically maintained steadily between 30-35 Kcfs

from March through November. The 2000 BiOp RPA called

instead for a spring rise from Gavin's Point totaling 50-55

Kefs to be implemented about once every three years, and

an annual summer low flow of 25 Kcfs, ramped down to 21

Kefs from mid-July through mid-August. The flow required

for minimum support of downstream navigation is about

7a

28.5 Kefs, depending upon the accompanying inflow from

downstream tributaries.

In an attempt to support downstream water-use interests

despite the continuing drought in the basin, the Corps

released a draft Annual Operating Pian for 2003 that did not

incorporate the flow changes from the 2000 BiOp RPA.

Environmental interest groups filed suit under the ESA in the

United States District Court for the District of Columbia to

enjoin operations under that plan. At the Corps’ request, the

FWS then issued a supplemental biological opinion (“the

2003 Supplemental BiOp") that ratified the Corps’ plan to

avoid the 2000 BiOp RPA flows for the period of May 1

through August 15, 2003, with the understanding that

operations after 2003 would be consistent with the 2000

BiOp. Before the district court, however, the Corps revealed

that it had no intention of ensuring that its future operations

would so comply. Am. Rivers v. United States Army Corps of

Eng'rs, 271 F. Supp. 2d 230, 253 (D.D.C. 2003). In addition,

the district court held that it was improper for the FWS to

focus on the effects that the proposed action would have on

the protected species during 2003 only, rather than on all

future effects of the proposed action, and that the 2003

Supplemental BiOp failed to articulate a reasonable

explanation for its departure from the analysis in the 2000

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

injunction and ordered the Corps to comply with the summer

low flow provisions of the 2000 BiOUp. /d. at 263. Citing a

conflict with this Court's Ubbelohde holding that required

Operation consistent with the 1979 Master Manual, the Corps

initially failed to comply with the injunction and was held in

conditional contempt. See Am. Rivers v. United States Army

Corps of Eng'rs, 274 F. Supp. 2d 62 (D.D.C. 2003). Two

days later, the Federal Judicial Panel on Miulti-District

Litigation consolidated all litigation regarding the operation

of the Missouri River main stem reservoir system, including

new suits by the parties involved in Ubbelohde, in the

8a

District of Minnesota ("MDL court"). On the order of that

court, the Corps complied with the summer low flow

provisions of the 2000 BiOp RPA for the bricf remainder of

the 2003 summer period.

At that point, the Corps prepared a new Biological

Assessment with the goal of finding a way to avoid jeopardy

to the protected species without following the 2000 BiOp

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

presented the new Biological Assessment to the FWS and

requested a new Biological Opinion. In response, the FWS

issued an Amendment to the 2000 BiOp ("the 2003 Amended

BiOp"). The 2003 Amended BiOp RPA permitted the Corps

to avoid the summer low flow requirement on the condition

that it construct 1,200 additional acres of shallow water

habitat for the pallid sturgeon. In addition, it gave the Corps

two more years to experiment with alternatives to a spring

rise. If the Corps could not produce an acceptable alternative

plan, the RPA imposed a default spring rise of reduced

magnitude beginning in the spring of 2006.

The Corps continued to develop the 2004 Master Manual

by complying with the provisions of the National

Environmental Policy Act ("NEPA"). See 42 U.S.C. § §

4321 et seq. NEPA requires the preparation of a detailed

Environmental Impact Statement ("EIS") for every major

federal action that will significantly affect the quality of the

environment. 42 U.S.C. § 4332(2)C). The EIS must also

evaluate alternatives to the proposed action. Jd. In this case,

the Corps compared five potential water contro] plans in its

EIS before adopting the Preferred Alternative, a plan

consistent with the 2003 Amended BiOp, as the basis for the

2004 Master Manual. fhe MDL court truncated the NEPA

public-comment-and-review period and ordered all plaintiffs

in this litigation to amend their complaints to address the

2004 Master Manual and 2004 Annual Operating Plan.

After the issuance of the 2004 Master Manual and 2004

Annual Operating Plan, various parties filed motions for

9a

summary judgment. The district court granted summary

judgment to the Federal Defendants on all claims on the

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

duty in the Corps to maintain minimum navigation flows or a

minimum length-for the navigation season, and (2) the

discretionary decisions made by the Federal Defendants in

balancing water-use interests under the FCA and in avoiding

jeopardy to the protected species were not arbitrary and

Capricious.

The parties now make various arguments on appeal. The

states of Missouri and Nebraska and the Nebraska Public

Power District ("NPPD") argue that th: 2004 Master Manual

violates a non-discretionary duty of the Corps under the FCA

to maintain river flow sufficient to support uninterrupted

downstream navigation throughout the navigation season.

Nebraska and NPPD also argue that the 203 Amended BiOp

is in conflict with the purported FCA minimum-flow

requirement, while Missouri argues that the 2003 Amended

BiOp violates the ESA because it will eliminate some pallid

sturgeon habitat in the lower Missouri River. American

Rivers, the National Wildlife Federation, several state

Wildlife Federations and the Izaak Walton League of

America (collectively “American Rivers") argue that the

2003 Amended BiOp is arbitrary and capricious because it

does not insure against jeopardy to the three protected

species. In addition, American Rivers contends that the EIS

was faulty because the Corps failed to explain why the

Preferred Alternative was superior to another evaluated

alternative. Blaske Marine, ConocoPhillips Company, Ergon

Asphalt & Emulsions, Inc., Magnolia Marine Transport

Company, Midwest Terminal Warehouse Company, Inc.,

MO-ARK Association and Missouri River Keepers

(collectively “Blaske Marine") argue that a supplemental EIS

is required for a contingent summer low flow that the Corps

still has the discretion to implement. Finally, the Mandan,

Hidasta and Arikara Nation ("the Nation") contends that the

10a

Corps must operate Lake Sakakawea (Garrison Dam) for the

economic benefit of the Nation's members.

Il. DISCUSSION

"We review de novo a grant of summary judgment,

applying the same legal standards used by the district court."

Voyageurs Nat'l Park Ass'n v. Norton, 381 F.3d 759, 763

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

under the Administrative Procedure Act “to determine

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

or otherwise not in accordance with law." n6 Ubbelohde,

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

arbitrary and capricious action is one in which:

the agency has relied on factors which Congress

has not intended it to consider, entirely failed to

consider an important aspect of the problem,

offered an explanation for its decision that runs

counter to the evidence before the agency, or is

so implausible that it could not be ascribed to a

difference in view or the product of agency

expertise. ,

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

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

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

463 U.S. 29, 43, 77 L. Ed. 2d 443, 103 S. Ct. 2856 (1983)).

"Lf an agency's determination is supportable on any rational

basis, we must uphold it." Voyageurs Nat'l Park Ass'n, 381

F.3d at 763. “When the resolution of the dispute involves

primarily issues of fact and analysis of the relevant

information ‘requires a high level of technical expertise, we

must defer to the informed discretion of the responsible

federal agencies.” Friends of the Boundary Waters

Wilderness v. Dombeck, 164 F.3d 1115, 1128 (8th Cir. 1999)

(quoting Marsh v. Oregon Natural Resources Council, 490

U.S. 360, 377, 104 L. Ed. 2d 377, 109 §. Ct. 1851 (1989)).

lla

n6 Nebraska and NPPD argue that the Corps has

attempted to evade judicial review under the Administrative

Procedure Act by stating in a letter that it did not intend for

the 2004 Master Manual to be considered a binding

regulation. We established in Ubbelohde that the 1979

Master Manual was binding and subject to judicial review.

330 F.3d at 1027-30. The Corps has conceded, both in

district court and in its briefs on appeal, that the 2004

Master Manual is still binding on the Corps and subject to

judicial review.

A. The Corps’ FCA Duty to Support Downstream

Navigation

Missouri, Nebraska and NPPD (collectively “the

downstream parties") argue that the 2004 Master Manual is

not in accordance with law because, under certain drought

conditions, it calls for canceling the navigation season in

order to hold water in the reservoirs for the benefit of

recreation. The MDL court concluded that the FCA imposes

no duty to maintain a minimum level of downstream

navigation independent of consideration of other interests.

We agree.

This Court has already addressed thoroughly the balance

of interests under the FCA. In Ubbelohde, we relied on the

Supreme Court's decisicn in ETS/ Pipeline Project v.

Missouri, 484 U.S. 495, 98 L. Ed. 2d 898, 108 S. Ct. 805

(1988), and the legislative history of the FCA to determine

that “the dominant functions of the Flood Control Act were

to avoid flooding ard to maintain downstream navigation,”

while “the Act recognizes secondary uses of the River

including irrigation, recreation, fish, and _ wildlife.”

Ubbelohde, 330 F.3d at 1019-20. However, the FCA does

not set forth what level of river fiow or length of navigation

season is required to make navigation “dominant” over a

“secondary” interest such as recreation. Instead, “the courts

can review the Corps's decisions to ensure that it considered

12a

each of these interests before making a decision,” but "the

Act does not provide . . . a method of deciding whether the

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

or not.” Jd. at 1027.

The downstream parties challenge the provisions of the

2004 Master Manual referred to as “navigation precludes.”

The amount of water stored in the entire reservoir system is

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

storage falls below the “volumes .. . that allow the System to

function to meet authorized purposes during significant

multi-year drought periods,” navigation support is reduced or

eliminated for that year. 2004 Master Manual § 7-03. The

EIS estimates, based on the modeling of historical data from

1898 to 1997, that the selected navigation-preclude volumes

will lead to the elimination of the entire navigation season

only in the four worst drought years out of every one hundred

years, and to a navigation season shortened from eight-plus

months to less than seven months only in the eight worst

drought years out of every one hundred. Under these

circumstances, we cannot say that the Corps failed to

consider downstream navigation before making its decision.

n7

n7 The Corps states in § 7-01 of the 2004 Master

Manuai that in the FCA, "Congress did not assign a priority

to these purposcs” of “flood control, navigation, irrigation,

hydropower, . . . recreation, and fish and wildlife. .. .” To

the contrary, as we clearly stated in Ubbelohde, the FCA

has been interpreted to hold flood control and navigation

dominant and recreation, fish and wildlife secondary.

Ubbelohde, 330 F.3d at 1019-20. If, due to extreme

conditions, the Corps is faced in the future with the unhappy

choice of abandoning flood control or navigation on the one

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

priorities established by the FCA would forbid the

abandonment of flood control or navigation. While we hold

today that the 2004 Master Manual does not “abandon”

13a

navigation, we do not rule out the possibility that some

more limited degree of support for flood control or

navigation in the future could be held to constitute

“abandonment” of these dominant functions. See also infra

note 9.

Appellees North Dakota and South Dakota argue that

because damage to the recreation industry would have a more

dramatic negative economic impact than would damage to

the navigation industry, recreation should receive special

priority. Nothing in the text or legislative history of the FCA

suggests that Congress intended the priority of interests

under the FCA to shift according to their relative economic

value. Arguments based on the wisdom of the priorities

established by the FCA must be addressed to Congress. n8

n8 Appellee South Dakota also argues that the

O’Mahoney-Millikin Amendment, 33 U.S.C. § 701-1(b),

prioritizes the retention of water in the reservoirs over

downstream navigation. The MDL court granted summary

judgment against South Dakota on this issue, and South

Dakota did not appeal. We, therefore, construe South

Dakota's argument in opposition to the appellant

downstream parties to be that the O'Mahoney-Millikin

Amendment would forbid, for the purposes of supporting

navigation, any further lowering of the navigation-preclude

volumes beyond those implemented in the 2004 Master

Manual. Because we find against the appellant downstream

parties on this issue on other grounds, we need not address

appellee South Dakota's argument.

The Corps’ balancing of water-use interests in the 2004

Master Manval is in accordance with the FCA. Because the

2004 Master Manual does not evidence a failure to consider

the support of downstream navigation, it is not arbitrary and

capricious. Therefore, we affirm the grant of summary

judgment to the Corps on this claim.

14a

B. The Corps’ Duty to Consult with the FWS under

ESA § 7

Nebraska and NPPD argue that it was not in accordance

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

process with the FWS regarding the operation of the

reservoir system. They contend that the ESA does not apply

to the operation of the reservoir system because ESA

compliance would interfere with downstream navigation, a

project purpose that is mandated by statute such that the

Corps has no discretion in meeting it. See 50 C.F.R. §

402.03 ("Section 7 (of the ESA) and the requirements of this

part apply to all actions in which there is discretionary

Federal involvement or control.") (emphasis added).

Case law supports the contention that environmental- and

wildlife-protection statutes do not apply where they would

render an agency unable to fulfill a non-discretionary

statutory purpose or require it to exceed its statutory

authority. For example, in National Wildlife Federation v.

United States Army Corps of Engineers, 384 F.3d 1163 (9th

Cir. 2004), the Ninth Circuit held that the Corps’ operation of

four dams on the Snake River did not violate the Clean

Water Act. The challenged noncompliance with water

standards was caused by “the cxistence of the dams and not

any discretionary method of operating the dams,” and the

Clean Water Act could not be construed to supersede “the

Corps's operation of the dams consistent with the purposes

stated by Congress.” /d. at 1178-79.

Similarly, in Plante River Whooping Crane Critical

Habitat Maintenance Trust v. FERC, 295 U.S. App. D.C.

218, 962 F.2d 27 (D.C. Cir. 1992), the Federal Energy

Regulatory Commission (FERC) was authorized by statute to

issue annual licenses to hydropower providers on the Platte

River. The enabling statute forbade alteration of the terms of

an annual license without agreement from the licensee.

Environmental groups sued FERC, arguing that the ESA

required the imposition of wildlife-protection terms in the

15a

licenses. The court held that the ESA did not apply to the

licenses because the ESA did not authorize FERC to override

the statutory prohibition on altering the licenses. Jd. at 32-34.

In effect, Platte River Whooping Crane affirmed that the

ESA does not apply where an agency has no statutory

authority to act with discretion.

Cases such as National Wildlife Federation and Pla*te

River Whooping Crane are inapposite to the instant cass,

however, because compliance with the ESA does not prevent

the Corps from meeting its statutory duty under the FCA to

support downstream navigation. As we stated above, the

FCA does not mandate a particular level of river flow or

length of navigation season, but rather allows the Corps to

decide how best to support the primary interest of navigation

in balance with other interests. The 2004 Master Manual

demonstrates that the Corps can comply with the elements of

the 2003 Amended BiOp RPA while continuing to operate

the dams “consistent with the purposes stated by Congress"

in the FCA. n9 Nat'l Wildlife Fed'n, 384 F.3d at 1179.

n9 It follows that if future circumstances should arise in

which ESA compliance would force the Corps to abandon

the dominant FCA purposes of flood control or downstream

navigation, the ESA would not apply. See supra note 7.

Because the Corps is able to exercise its discretion in

determining how best to fulfill the purposes of the reservoir

system's enabling statute, the operation of the reservoir

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

therefore in accordance with law for the Corps to consult

with the FWS to produce the 2003 Amended BiOp. We

affirm the grant of summary judgment to the Federal

Defendants on this claim.

C. Mootness of Claims Based on Summer Low Flow

Several of the claims against the Federal Defendants

challenge the conditional summer low flow element of the

2003 Amended BiOp RPA. The Federal Defendants argue

16a

that these claims are now moot because the Corps has

successfully completed the mechanical construction of 1,200

acres of shallow water habitat, which permits the Corps to

avoid the summer low flow requirement. n10 The Corps has

announced that it has no plans to implement summer low

flows in the foreseeable future. Missouri, NPPD and Blaske

Marine counter that because the Corps retains the discretion

to implement the summer low flow in any given year under

its adaptive management framework, these claims fall within

the "capable of repetition, yet evading review" exception to

mootness. Ubbelohde, 330 F.3d at 1023 (quoting Weinstein

v. Bradford, 423 U.S. 147, 149, 46 L. Ed. 2d 350, 96 S. Ct.

347 (1975)).

nlO American Rivers has challenged the successful

completion of the 1,200 acres in the MDL court. The MDL

court dismissed the suit without prejudice for procedural

reasons. That dismissal has been separately appealed to this

Court, Docket No. 05-1200, and is still pending.

We conclude that the claims based on summer low flow

are moot. The “capable of repetition, yet evading review"

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

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

litigated prior to cessation or expiration, and (2) there [is] a

reasonable expectation that the same complaining party [will]

be subject to the same action again.” Jd. (quoting Spencer v.

Kemna, 523 U.S. 1, 17, 140 L. Ed. 2d 43, 118 S. Ct. 978

(1998)).

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

summer low flow period, particularly if it is implemented

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

to expiration. However, there is no reasonable expectation

that the Corps will implement the 2003 Amended BiOp

summer low flow in the future. Although a “party need not

show with certainty that the situation will recur,” a

“speculative possibility is not a basis for retaining

17a

jurisdiction over a moot case." McCarthy v. Ozark Sch. Dist.,

359 F.3d 1029, 1036 (8th Cir. 2004) (quoting Van Bergen v.

Minnesota, 59 F.3d 1541, 1547 (8th Cir. 1995)). We are

aware that the 2003 Amended BiOp requires the Corps to be

ready to implement summer low flows as low as 21 Kefs in

the future if monitoring reveals that the alternate measures

are not benefitting the protected species as expected.

Nevertheless, as we discuss later in this opinion, at this point

there is no reason to doubt the utility of those alternate

measures. Therefore, "we find nothing to suggest a

likelihood” that the Corps will decide to implement a summer

low flow in future years. McCarthy, 359 F.3d at 1036.

Because there is no reasonable expectation at this point in

time that the Corps will implement the 2003 Amended BiOp

summer low flow in the future, we conclude that the

following claims are moot: (1) NPPD's claim that the FWS

failed to consider the economic feasibility of the summer low

flow requirement in developing the 2003 Amended BiOp; (2)

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

larval and juvenile pallid sturgeon in central Missouri state

resulting from summer low flow constitutes an impermissible

"take" of the sturgeon under ESA § 9; and (3) Blaske

Marine's NEPA claim that a supplemental EIS is required for

the 2003 Amended BiOp summer low-flow requirement. We

vacate the MDL court's grant of summary judgment to the

Federal Defendants on these claims and instruct the MDL

court to dismiss these claims without prejudice.

D. The Validity of the 2003 Amended BiOp

NPPD argues that the 2003 Amended BiOp is invalid

because the FWS violated regulations applicable to

Biological Opinions. American Rivers challenges the 2003

Amended BiOp on the grounds that the 2003 Amended BiOp

RPA contradicts its own factual findings and the

administrative record and does not insure against jeopardy to

the protected species.

18a

1. The Environmental Baseline for the 2003

Amended BiOp

NPPD contends that the FWS used an improper

environmental baseline in producing the 2003 Amended

BiOp. “The environmental baseline includes the past and

present impacts of al) Federal, State, or private actions and

other human activities in the action area... ." 50 C.F.R. §

402.02. Jeopardy to the protected species resulting from the

proposed action is measured relative to the species’ status

under the baseline. Jd. The FWS used a “run-of-the-river"

baseline in which the dams and physical channel

modifications are assumed to be in place, but al] floodgates

are assumed to be wide open, with no flow control. NPPD

argues that normal operation under the 1979 Master Manual

was the proper baseline because it is a “past impact" of a

separate federal action and would continue to control

operations absent the proposed action. Because continued

Operation under the 1979 Master Manual would cause the

protected species’ chances of recovery to deteriorate, its

inclusion in the baseline would tend to eliminate a finding of

jeopardy for any proposed action.

According due deference to the FWS' interpretation of its

own regulations, Friends of the Boundary Waters

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

hypothetical continued operation under the previous version

of the Master Manual in future years, as the alternative to the

proposed action of updating the Master Manual, does not in

any sense constitute a "past impact” of federal action. As the

district court recognized, this argument is essentially a

different twist on the argument that the Corps has no

discretion in operating the reservoir system. If the FCA

mandated that the Corps must manage the system to enable,

for example, a barge of specific size riding a specific depth

below the waterline to navigate the river between Sioux City

and the Mississippi River at all times between April | and

December 1, there would be some merit to including that

19a

non-discretionary condition in the environmental baseline

along with the permanent physical presence of the dams and

channel modifications. However, given that the FCA "clearly

gives a good deal of discretion to the Corps in the

management of the River,” Ubbelohde, 330 F.3d at 1027, we

cannot say that it was arbitrary and capricious for the FWS

not to include a specific operational profile in the

environmental baseline. Therefore, we affirm the grant of

summary judgment to the Federal Defendants on this claim.

2. Use of the Best Scientific and Commercial

Data Available

NPPD argues that the FWS did not rely on the best

scientific data available in its efforts to create a "normalized"

hydrograph in the 2003 Amended BiOp RPA. “In

formulating its biological opinion, [and] any reasonable and

prudent alternatives . . . the [FWS] will use the best scientific

and commercial data available.” 50 C.F.R. § 402.14(g)(8);

see 16 U.S.C. § 1536(a}{2).

To create a normalized version of the summer low flow

portion of the natural hydrograph, the 2003 Amended BiOp

calls for low flows beginning in July. NPPD directs our

attention to a United States Geological Survey report in the

administrative record showing that, before construction of the

dams, the lowest summer flows usualiy occurred between

August and early October. NPPD contends that this

incongruity cvidences a failure to use the best scientific data

available to formulate the 2003 Amended BiOp.

The administrative record as a whole shows that the FWS

did not ignore the best scientific data on the summer low

flow in formulating the 2003 Amended BiOp. For example,

in a document e-mailed by the FWS to new members of the

2003 Amended BiOp development team in November 2003,

the FWS recognized that “the historic hydrograph began to

fall at Gavins Point in mid-June and reached it's [sic] lowest

levels in the fall months,” but indicated that the FWS

20a

proposal would end the low flow period in August because

higher releases in the fall were necessary “to evacuate any

excess water (from the reservoirs] prior to the next water

year." The FWS then stated that, “while this approach is not a

perfect fit to the historic hydrograph, we believe that it

sufficiently mimics . . . the natural hydrograph” to have the

necessary beneficial effect on the protected species.

The FWS has never found that an exact replication of the

natural hydrograph was necessary to avoid jeopardy to the

protected species, and the record shows “a rational

connection between the facts found and the decision made"

about the timing of the low flow period. Giford Pinchot Task

Force v. United States Fish & Wildlife Serv., 378 F.3d 1059,

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

summary judgment to the Federal Defendants on this claim.

3. The Consistency of the 2003 Amended BiOp

Factual Findings and the RPA for the Pallid

Sturgeon

American Rivers argucs, on the basis of the factual

findings in the 2003 Amended BiOp and the administrative

record underlying it, that the conditional replacement of the

2000 BiOp RPA summer low flow requirement with the

mechanical construction of 1,200 additional acres of artificial

shallow water habitat for the pallid sturgeon is arbitrary and

Capricious.

The 2003 Amended BiOp incorporated findings from the

2000 BiOp and stated that “until a semblance of the

normalized hydrograph is restored and habitat is generated

and maintained through re-establishment of these

[ecological] processes, listed species will continue to

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

Amended BiOp summarizes, with regard to the pallid

sturgeon:

2la

The proposed accelerated habitat restoration

program in the Lower Missoun River will have

little benefit to the pallid sturgeon without a

concurrent or subsequent change in operations to

provide a more normalized hydrograph to (1)

provide the spawning cues that are critical for

pallid sturgeon reproduction and (2) allow larvae

and juveniles to move into shallow water habitat.

American Rivers contends that the above statements, and

others like them in the administrative record, show that the

FWS was irrational in abandoning any semblance of half of

the natural hydrograph, the summer low flow, in exchange

solely for habitat construction. However, evidence in the

record adequately explains the decision made by the FWS.

.First, Appendix A oi the Corps’ 2003 Biological Assessment,

entitled "New Information Since the 2000 BiOp,” includes

the results of extensive modeling of the nver showing that

the proposed 2000 BiOp summer low flow would be

expected to increase suitable shallow water habitat by 1,189

acres over that existing during regular summer service flows.

The creation of 1,200 acres of habitat, therefore, provides the

same total acreage of accessible calm, shaliow pools dunng

regular summer service flows as the 2000 BiOp summer low

flow would have produced. Second, the 2003 Amended BiOp

RPA retains a spring nse requirement, and the Corps must

tailor the spring mse to provide the necessary biological

spawning cues and floodplain connectivity with the shallow

water habitat. Third, the 2003 Amended BiOp RPA requires

the Corps to monitor the pallid sturgeon population and

collaborate with the FWS to adjust these measures if

necessary. Finally, the avoidance of summer low flow

preserves the existing Lisbon chute shallow water habitat, the

only site in the mver where larval pallid sturgeon occur

naturally, from potential damage.

American Rivers argues that the 2003 Amended BiOp

did not state that the mechanical construction of 1,200 acres

22a

was designed to replace the additional acreage that would

have resulted from summer low flow. American Rivers

contends that this rationale is therefore an impermissible post

hoc rationalization by counsel. "Courts may not accept

appellate counsel's post hoc rationalizations for agency

action." Motor Vehicle Mfrs., 463 U.S. at 50. However, there

is No requirement that every detail] of the agency's decision be

stated expressly in the 2003 Amended BiOp. The rationale is

present in the administrative record underlying the document,

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

Corps of Eng'rs of the United States Army, 866 F.2d 1025,

1031 (8th Cir. 1989), overruled on other grounds, Goos v.

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

Defendants’ rationale is not an impermissible post hoc

rationalization.

We conclude that the Federal Defendants have

demonstrated a rational connection between the facts in the

record and the decision to substitute 1,200 mechanically

constructed acres of shallow water habitat for the 1,189 acres

that would have been created by the 2000 BiOp summer low

flow. Therefore, we affirm the grant of summary judgment to

the Federal Defendants on this claim.

4. The Consistency of the 2003 Amended BiOp

Factual Findings and the RPA for the Least Tern

and Piping Plover

American Rivers argues that the climination of the 2000

BiOp RPA spring rise and summer low flow requirements for

the benefit of the least tern and piping plover is arbitrary and

capricious. The 2000 BiOp flow requirements for the tern

and plover were premised on factual findings that a spring

rise was necessary to scour vegetation from sandbars, while

the summer low flow would expose the resulting sparsely

vegetated sandbars for safe nesting. The 2003 Amended

BiOp RPA replaced the spring rise and summer low flow

requirements with increased focus on the mechanical

23a

construction and clearing of sandbar habitat for the birds and

adjustment of flow levels during the nesting season to

minimize the potential for flooding nests.

In making these changes in the 2003 Amended BiOp, the

FWS had the benefit of a new Corps analysis of the river's

geomorphological processes. The Corps’ computer models

indicated that, given the man-made alterations to the river

channel, a spring rise as envisioned in the 2000 BiOp would

not produce scoured sandbar habitat for use by the tern and

plover. In fact, the models showed that those flows were

more likely to reduce the quality of previously available

habitat.

The 2003 Amended BiOp also included information

about tern and plover populations that was not availiable for

the 2000 BiOp. The updated information included the fact

that "recent counts of least terns (approximately 12,305 terns

in 2003) exceed the overall recovery objective of 7,000

birds,” although geographic distribution and population

stability goals were not yet satisfied. Regarding the recovery

goal for piping plovers, the 2003 Amended BiOp stated that

"in 2001, the Missouri River exceeded this recovery goal for

the first time. It was also exceeded in 2002 and 2003.”

Based on this new information, it was rational for the

FWS to conclude that the 2000 BiOp spring rise and summer

low flow elements were not necessary to avoid jcopardy to

the tern and plover, and to instruct the Corps to focus its

resources on the mechanical construction of habitat,

monitoring and adaptive management.

American Rivers cites the lack of conclusive proof in the

administrative record that the mechanically constructed

sandbars will develop into an ecologically functional habitat

for the plover and tern. American Rivers contends that,

without such conclusive proof, the 2003 Amended BiOp

RPA fails to satisfy the ESA § 7 requirement that the plan

“insure” against jeopardy to the listed species. This argument

24a

fails because, while the proposed mitigation measures must

insure against jeopardy to the protected species if they work

as intended, while there must be a rational reason to expect

them to work as intended, and while they must in fact be

possible to implement, there is no requirement for the FWS

to ensure the overall success of the plan. See Southwest Ctr.

for Biological Diversity v. United States Bureau of

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

note that the 2003 Amended BiOp requires the Corps to

monitor closely the performance of the mechanically

constructed sandbar habitat and test methods of improving

the mix of organic material in the sandbars.

Finally, American Rivers cites its own experts for the

contention that the higher-magnitude 2000 BiOp RPA spring

rise would be more beneficial to the protected species than

the default spring rise in the 2003 Amended BiOp RPA. We

need not address that contention:

[The FWS] was not required to pick the first

reasonable alternative [it] came up with in

formulating the RPA. [It] was not even required

to pick the best alternative or the one that would

most effectively protect the [species] from

jeopardy. The [FWS] need only have adopted a

fina) RPA which complied with the jeopardy

standard and which could be implemented by the

agency.

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

(quotation omitted).

"Because there was a rational connection between the

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

final RPA, and because we must defer to the special expertise

of the FWS in drafting RPAs that will sufficiently protect

endangered species,” the decision to eliminate the 2000 BiOp

flow changes from the 2003 Amended BiOp RPA for the

2Sa

plover and tern was not arbitrary and capricious. Jd We

affirm the grant of summary judgment to the Federal

Defendants on this claim.

E. Selection of the Preferred Alternative in the EIS

American Rivers argues that the Corps’ selection of the

Preferred Alternative ("PA") was arbitrary and capricious

because the Corps did not sufficiently explain why the PA

was superior to plan GP2021, favored by American Rivers.

Plan GP2021 included the spring rise and summer low flow

prescribed by the 2000 BiOp RPA, while the PA became the

2004 Master Manual.

The EIS contains summary statements about the selection

of the PA, such as:

The Corps believes that the PA, when combined

with the other measures . . ., conserves more

water in the upper three lakes during extended

droughts, meets the needs of ESA-listed fish and

wildlife species, is consistent with the Corps’

responsibilities under environmental laws and

tribal trust responsibilities, and provides for the

Congressionally authorized uses of the System.

American Rivers argues that because plan GP2021 also

generally meets those same criteria and outperforms the PA

with respect to wildlife concerns, the Corps’ decision to

select the PA has not been sufficiently explained. "An agency

must cogently explain why it has exercised its discretion in a

given manner.” Motor Vehicle Mfrs., 463 U.S. at 48.

NEPA requires an agency to present the EIS alternatives

in comparative form, “sharply defining the issues and

providing a clear basis for choice among options by the

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

case, the EIS included a detailed comparative analysis of the

effects of all five alternatives on a wide range of interests

26a

including fish and wildlife resources, flood control, water

supply, hydropower, recreation and navigation. This analysis,

presented in a series of tables, enables the reader to compare

the relative effectiveness of each of the alternatives, as

required by NEPA. For example, the Federal Defendants

point to tables showing the strong superiority of the PA over

plan GP2021 in maximizing summer revenue from reservoir

hydropower production while creating far less risk of

disruption for downstream summer power generation. The

tables also show that the PA outperforms plan GP2021 in the

areas of navigation, groundwater damage and floodplain crop

damage. “If the adverse environmental effects of the

proposed action are adequately identified and evaluated, the

agency is not constrained by NEPA from deciding that other

values outweigh the environmental costs." Robertson v.

Methow Valley Citizens Council, 490 U.S. 332, 350, 104 L.

Ed. 2d 351, 109 S. Ct. 1835 (1989).

Contrary to what American Rivers seems to suggest,

there is no further NEPA or Administrative Procedure Act

requirement to repackage the information in the summary

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

of the other alternatives. We conclude that the comparisons

provided in the EIS "cogently explain why(the Corps]has

exercised its discretion in a given manner." Motor Vehicle

Mfrs., 463 U.S. at 48. Therefore, we affirm the grant of

summary judgment to the Federal Defendants on this claim.

F. Claim of the Mandan, Hidasta and Arikara Nation

Regarding the Management of Lake Sakakawea

The Nation claims that the Corps has failed to choose the -

FCA-and ESA-compliant reservoir management plan that

best spurs economic self-sufficiency for the Nation's

members and protects the Nation's cultural resources. The

Nation seeks a court order to enjoin the Corps to correct

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

claim for lack of Article LII standing.

27a

To show Article II] standing, a plaintiff must demonstrate

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

particularized" and “actual or imminent, not conjectural or

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

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

opposed to mere speculation, "that the injury will be

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

Wildlife, 504 U.S. 555, 560-61, 119 L. Ed. 2d 351, 112 S. Ct.

2130 (1992) (quotations omitted).

The Nation articulates its members’ general interest in the

operation of Lake Sakakawea, including an interest in the

economic health of the sport fishing industry located there.

However, the Nation does not articulate how reservoir

operations under the 2004 Master Manual cause an injury to

the Nation that can be redressed by a favorable court

decision. There is nothing in the amended complaint, for

example, stating why reservoir operation under the 2004

Master Manual, which is more sensitive to reservoir

recreation needs during prolonged droughts than was the

1979 Master Manual, will damage the viability of Lake

Sakakawea's sport-fishing industry. Furthermore, if we were

to do exactly as the Nation requests in its amended complaint

and order the Corps to re-formulate the 2004 Master Manual

in a manner that, given FCA and ESA constraints, would best

"spur Tribal self sufficiency and economic development and

protect Indian trust assets,” it is not at all clear what outcome

could be adjudged to comply with our order. The Nation

simply has not set forth a "concrete and particularized” injury

that is likely to be redressed by such an order. Lujan, 504

U.S. at 560-61. Therefore, we affirm the dismissal of this

claim for lack of Article III standing.

G. Extra-Record Materials Offered by American

Rivers

Nebraska challenges the submission of three declarations

by American Rivers that were not part of the administrative

record. The MDL court apparently considered Nebraska's

28a

motions to strike these declarations to be moot. Because we

affirm the grant of summary judgment to the Federal

Defendants on American Rivers’ claims, we also find

Nebraska's motions to strike to be moot.

If. CONCLUSION

On the following three claims, we vacate the MDL

court's grant of summary judgment to the Federal Defendants

and instruct the MDL court to dismiss without prejudice: (1)

NPPD's claim that the FWS failed to consider the economic

feasibility of the summer low-flow requirement in

developing the 2003 Amended BiOp; (2) Missouri's claim

that the loss of shallow water habitat for larval and juvenile

pallid sturgeon in central Missouri resulting from summer

low flow constitutes an impermissible “take” of the sturgeon

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

supplemental EIS is required for the 2003 Amended BiOp

summer low-flow requirement. On all other claims, we

affirm the judgment of the MDL court.

29a

In re: Operation of the Missouri River System

Litigation

03-MD-1555 (PAM)

UNITED STATES DISTRICT

COURT FOR THE DISTRICT

OF MINNESOTA

363 F. Supp. 2d 1145; 2004

U.S. Dist. LEXIS 11410

June 21, 2004, Decided

OPINION BY: Faul A. Magnuson

MEMORANDUM AND ORDER

This matter is before the Court on various Motions for

Summary Judgment. This case arises out of the management

of the Missouri River, which flows from Montana to

Missouri. Pursuant to the Flood Control Act of 1944

("FCA"), the United States Army Corps of Engineers

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

with its responsibilities under the PCA, the Corps developed

a more detailed nanagement plan, the "Missouri River Main

Stem Reservoir System Master Water Control Manual”

("Master Manual"). The Master Manual was first developed

forty years ago, and has been revised three times, in 1973,

1975 and 1979. In the late 1980s, the Corps began to revise

the Master Manual again. Finally, after fifteen years and

repeated delays, the Corps issued a revised Master Manual on

March 19, 2004. nl The Corps also issued the 2004 Annual

Operating Plan ("“AOP”") on March 19, 2004.

30a

nl Revision of the Master Manual is an extensive and

lengthy process that requires the Corps to consult with

various agencies and comply with various regulations and

procedures. Prior to the issue of the new Master Manual, the

Corps must issue a Final Environmental Impact Statement

("Final EIS"), and allow 30 days for public review and

comment as required by the National Environmental Policy

Act ("NEPA"). Here, the Court shortened the NEPA review

period to two weeks and required the Corps to issue a

revised Master Manual on March 19, 2004. On March 1,

2004, the Corps requested a waiver of the NEPA review

period, which the Environmental Protection Agency

("EPA") granted “for compelling reasons of national

policy.” From the outset, the Court refuses to entertain any

Motions attacking the sufficiency of the NEPA review

period and dismisses all claims pertaining to this issue.

Over the last several years, the Missouri River has

experienced prolonged drought conditions. The Corps has

been forced to make difficult decisions regarding the

allocation of water to the different interests in the basin. As a

result, interested parties filed lawsuits in various districts,

seeking to protect their interests. See American Rivers v.

U.S. Army Corps of Eng'rs, File No. 1:03-241 (D.D.C.),

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

Inc. et al. v. Norton, File No. 8:03-142 (D. Neb.); North

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

Dakota v. Ubbelohde, File No. 3:02-3011 (D. S.D.). In July

2003, the multi-district litigation panel consolidated these

actions and transferred them to this Court. In re Operation of

the Missouri River Litig., File No. 03-1555 (PAM). Pursuant

to the Court's scheduling order and as a result of the

coordinated efforts of the parties, the issues presented in

these various cases are now before this Court. This

Memorandum and Order disposes of all claims before the

Court.

BACKGROUND

3la

A. The Parties

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

of North Dakota, South Dakota, Montana, Nebraska, and

Missouri; (2) Blaske Marine, Coalition to Protect the

Missouri River, ConopcoPhillips Company, Ergon Asphalt &

Emulsions, Inc., Magnolia Marine Transport Company,

Midwest Area River Coalition 2000, and Midwest Terminal

Warehouse Company, Inc. (collectively "Blaske Marine");

(3) MO-ARK Association and Missouri River Keepers

(collectively "MO-ARK"); (4) American’ Rivers,

Environmental Defense, National Wildlife Federation,

various state Wildlife Federations, and Izaak Walton League

of America (collectively "American Rivers"); (5) Missouri

River Energy Services ("MRES"); (6) Nebraska Public

Power District ("NPPD"); (7) the Mandan, Hidasta and

Arikara Nation ("the Nation"); and (8) the Corps, Fish and

Wildlife Service ("FWS"), and various directors, secretaries

and officers of these two government agencies (collectively

"Federal Defendants"). Because of their competing interests,

it is difficult to classify each party as a Plaintiff, Defendant,

or both. Rather, the claims can be categorized into four

different topics: (1) Flood Control Act ("FCA") claims; (2)

Endangered Species Act ("ESA") claims; (3) NEPA claims;

and (4) collateral claims. The Court will address each topic in

turn.

B. The Revision of the Master Manual

In 1990, pursuant to the Endangered Species Act

("ESA"), the Corps conducted its first consultation with the

FWS on the effects of its Missouri River operations on

endangered and threatened species. n2 In 2000, the Corps

again consulted with the FWS. Following _ these

consultations, the FWS issued the 2000 Biological Opinion

("2000 BiOp"), that concluded that the Corps’ proposed river

operations for 2000 were likely to jeopardize three species:

32a

the endangered least tern, the threatened piping plover, and

the endangered pallid sturgeon. (Fish and Wildlife Service

Administrative Record (“FWS AR") 1237 at 29216-17.) The

2000 BiOp included a Reasonable and Prudent Alternative

("RPA"), designed to avoid jeopardy to the tern, plover and

sturgeon. Specifically, this RPA recommended a spring rise

and low summer water flow regime, in conjunction with

habitat construction, to avoid jeopardy. (Id. at 29229-32.)

n2 An endangered species is “in danger of extinction

throughout all or a significant portion of its range.” /6

U.S.C. § 1532(6). A threatened species is “likely to become

an endangered specics within the foresecable futerc

all or a significant portion of its range.” 16

U.S.C. § 1532(20).

In April 2003, the Corps consulted with the FWS again

Oe ee ieee ae

issued a supplemental Biological Opinion, concluding that

ee ee

RPA in the 2000 BiOp, the proposed operations were

justified. The District Court of the District of Columbia

disagreed, and granted a preliminary injunction ordering the

Corps to comply with the 2000 BiOp. See American Rivers v.

U.S. Army Corps of Eng'rs, 271 F. Supp. 2d 230 (D.D.C.

2003). In November 2003, the Corps again consulted with

the FWS. The FWS then amended the 2000 BiOp. (2003

Amended Biological Opinion (hereinafter “2003 Amended

BiOp") at FWS AR 1457.) The FWS again concluded that

jeopardy would result to the plover, tern and the sturgeon,

and proposed a new RPA. The 2003 RPA contained three

separate parts, each part applicable to a single species.

As noted above, the Corps issued the 2004 Master

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

with the 2004 AOP, are based on the 2003 Amended BiOp.

In accordance with NEPA, the Corps issued the Final EIS for

the 2004 Master Manual on March 5, 2004. This Court

33a

truncated the public comment and review period for the 2004

Master Manual. Therefore, on March 19, 2004, pursuant to

Court Order, the Corps issued the 2004 AOP, 2004 Master

Manual, and Record of Decision ("ROD"). The issues ir. this

litigation involve both the substance of the 2004 Master

Manual and the procedures the Corps used to formulate the

2004 Master Manual.

DISCUSSION

This case involves the interplay of the Corps’ obligations

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

Corps to operate the Missouri River by balancing a variety of

river interests. The ESA seeks to protect and conserve

endangered and threatened species and their habitats. NEPA

requires agencies to consider and evaluate the potential

environmental consequences that may result from an agency

action. The Corps must consider both competing nver

interests and its legal obligations in the operation of the

Missouri River. o

A. The Flood Control Act of 1944

1. Navigation and Flood Control

The FCA provides for the management of the Missouri

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

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

"Pick" Plan, submitted to Congress by the Corps, proposed

the construction of reservoirs to effectively control flooding,

but also acknowledged that “the development of such a

comprehensive plan involves adjustment of many factors of

flood control, navigation, irrigation, hydroclectric power

production and numerous other functions of water

conservation and management.” H.R. Doc. No. 78-475 at 6

(1944). The “Pick” Plan did not rank any river interest above

another, but rather seeks to provide the “widest range of

multiple benefits” and “to contribute most significantly to the

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

34a

at 7. The "Sloan" Plan, submitted to Congress by the Bureau

of Reclamation, proposed the construction of reservoirs “for

the purposes of storing water, and releasing it during periods

of lew flow . . . such reservoirs will contribute to flood

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

available for irmmgation . . . and . . . make practicable the

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

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

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

likely to yield the greatest good to the greatest number of

people." Id. at 17. The "Sloar" Plan declared that any plan

for operation of the river must “recognize all beneficial uses

of waters, weigh their relative values, and make a

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

of conflict." Id. at 21. These two plans combined to develop

one plan for the river's operation, the "Pick-Sloan” Plan. S.

Doc. No. 78-247 (1944). This “unified” plan was intended to

“secure the maximum benefits for flood control, irrigation,

navigation, power, domestic and sanitary purposes, wildlife,

and recreation" in the Missouri River. Id. at 5; see id. at 2.

Courts acknowledge that the "dominant" functions of the

FCA include flood control and downstream navigation, but

they also acknowledge that other river interests should

similarly be provided for. ETSI Pipeline Project v. Missouri,

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

see also South Dakota v. Ubbelohde, 330 F.3d 1014, 1019-20

(8th Cir. 2003). The Eighth Circuit acknowledged that the

FCA requires that "the Corps must strike a balance among

many interests, including flood control, navigation and

recreation.” Ubbelohde, 330 F.3d at 1019, 1027. The Corps’

obligations under the ESA are within the scope of these

"many interests." See American Rivers, 271 F. Supp. 2d at

252. Because of this balance, the Court may only review the

Corps’ actions to ensure that the Corps considered all river

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

language of the FCA does not require a particular outcome,

but rather that the Corps consider all interests in its

35a

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

legislative history that dictates that the Corps must always

maintain a particular water level or specific water season in

its river operations. All river interests must be considered and

evaluated to "secure the maximum benefits” to river interests.

The Court finds that the FCA does not impose a non-

discretionary duty to maintain minimum navigation flows or

season lengths. The Corps’ prioritization of river interests is

discretionary.

However, the Corps is not entitled to abandon these

interests; it must consider and balance river interests to

achieve maximum benefits. Some parties propose that

navigation is abandoned under the 2004 Master Manual,

because in the event that by March 15 total system storage is

below 31 million acre-feet, the 2004 Master Manual provides

that flows be reduced such that the navigation season is

eliminated for that particular water year. As the Corps points

out, however, the FCA requires it to defer to upstream

consumptive uses in the event these uses “conflict” with

downstream navigation. See 33 U.S.C. § 70]-1(b). In the

rare event that this condition presents itself, the 2004 Master

Manual's elimination of the navigation season ensures that

upstream consumptive uses are given deference as required

by law. The Court finds that the 2004 Master Manual

complies with the FCA.

The priority that the Corps gives the competing river

interests is a discretionary function, and subject to the ESA.

If Congress intended to require that the Corps always

maintain minimum levels of navigation or a specific

navigation season, then Congress must amend the FCA

accordingly. Absent any evidence to the contrary, the Court

concludes that prioritization of river interests is discretionary.

2. Ambiguity of the Master Manual

Ubbelohde declared that the 1979 Master Manual limited

the Corps' discretion to operate the Missouri River. 330 F.3d

36a

at 1029. As 2 result, Ubbleohde found that judicial review of

the Corps’ decisions was appropriate. /d. In reaching that

conclusion, the Eighth Circuit relied on a combination of

three considerations: (1) the language of the manual itself;

(2) the corresponding agency regulations at 33 C.F.R. §

222.5; and (3) the Corps’ treatment of the manual. Id. (citing

Northwest Nat'l Bank v. Dep't of the Treasury, 917 F.2d

1111, 1116-17 (8th Cir. 1990)). Unlike the 1979 Master

Manual, the 2004 Master Manual expressly states that “the

Master Manual has been amended to clearly reflect the

Corps’ intent that it not be considered a binding regulation.”

(2004 Master Manual, at Introduction.) The Corps essentially

is attempting to reserve the right to vary operations from

those set forth in the Master Manual, in the event that

changed conditions or unforeseen circumstances require it to

do so. The Corps insists that the FCA, its regulations, and the

Ubbelohde decision permit it to retain such discretion in its

operations. Missouri, Nebraska, and the NPPD insist that this

discretion is expressly prohibited by Ubbelohde.

Missouri, Nebraska and NPPD misinterpret the discretion

the Corps seeks to retain. The Corps does not intend to

disregard the Master Manual and thus operate the River with

unfettered discretion. To the contrary, the Corps seeks to

retain the discretion to deviate from the 2004 Master Manual

in the event that unforeseen circumstances arise. The Corps

cannot anticipate and. provide for all possible circumstances

affecting river operations. Although historical patterns

provide some insight into future circumstances, the Corps

simply cannot predict the future. If the Corps was prohibited

from varying its operations from the Master Manual to adjust

for unforeseen circumstances, and instead was required to

conform to a Master Manual that did not contemplate a given

situation, the Corps would arguably violate its obligations

under the FCA and Ubbelohde to properly balance river

interests.

37a

However, the Court does not construe this discretion to

permit the Corps to perpetually evade judicial review. The

Eighth Circuit determined that the 1979 Master Manual could

serve as a basis for court review. Ubbelohde, 330 F.3d at

1029-30. Although the Ejghth Circuit made this

determination in part by examining the language of the 1979

Master Manual, it also relied on the regulations governing the

Corps’ promulgation of the Master Manual. Particularly,

these regulations “are not the types of procedures one would

expect in the promulgation of an internal, non-binding

agency guideline.” Jd. at 1029, 33 C.F.R. § 222.5. Therefore,

pursuant to Ubbelohde, this Court determines that the 2004

Master Manual may likewise serve as a basis for judicial

review. The 2004 Master Manual, like the 1979 Master

Manual, is binding on the Corps to the extent that the partics

may seek judicial review to ensure that the Corps’ operations

conform to the 2004 Master Manual. The Corps

acknowledges that it must abide by the 2004 Master Manual,

and that any permanent amendment to the existing provisions

of the 2004 Master Manual must go through the procedures

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

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

acknowledges that the Corps must be permitted to vary its

operations in the event that changed circumstances require it

to do so, but similarly holds that this discretion does not

eliminate the propriety of judicial review of the lawfulness of

the agency action. Therefore, the 2004 Master Manual

satisfies the procedural requirements of Ubbelohde and the

FCA.

3. Recreational Interests

South Dakota maintains that the FCA subordinates

navigation to upstream uses of irrigation and domestic water

supply. The "O'Mahoney-Millikin Amendment,” 33 U.S.C. §

701-1(b) states:

38a

The use for navigation, in connection with the

operation and maintenance of such works herein

authorized for construction, of waters arising in

states lying wholly or partly west of the ninety-

eighth meridian shall be only such use as does

not conflict with any beneficial consumptive use,

present or future, in States lying wholly or partly

west of the ninety-eighth meridian, of such

waters for domestic, municipal, stock water,

irrigation, mining or industrial purposes.

This provision requires that when a conflict between

upstream consumptive uses and downstream navigation

exists, upstream consumptive uses receive deference. South

Dakota does not argue that the 2004 Master Manual does not

serve these consumptive uses. Rather, South Dakota argues

that the 2004 Master Manual is in “conflict” with South

Dakota's consumptive beneficial uses, because the 2004

Master Manual allows for lower levels in reservoirs such that

South Dakota may be required to build extensions to

irrigation lines or extend intake structures for drinking water

at these reservoirs.

South Dakota's argument lacks merit. The statute is not

designed to protect against these kind of difficulties, but

rather designed to “prohibit destruction of state-created water

rights without any compensation at all, by the assertion of an

overriding federal easement for navigation." Turner v. Kings

River Conservation Dist., 360 F.2d 184, 192 (9th Cir. 1966)

(interpreting 33 U.S.C. § 701-1). Moreover, requiring South

Dakota to build extensions for irrigation lines or drinking

water is not in "conflict" with South Dakota's consumptive

beneficial uses, because there is no destruction or denial of

South Dakota's water rights. Kansas v. United States, 2000

U.S. Dist. LEXIS 21021, File No. 00-4153, 2000 WL

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

"potential threat" that Corps’ drainage of water from three

reservoirs would deny adequate drinking water or interfere

39a

with industrial purposes insufficient to constitute “conflict”

with Corps’ actions). In fact, the 2004 Master Manual sets

forth the minimum levels required to be maintained in the

upstream reservoirs, and a “safety cushion” that ensures that

these reservoir levels are maintained even under drought

conditions. (See 2004 Master Manual, § § VII-10 to VII-11

& Table VII-3.) The 2004 Master Manual complies with the

FCA.

4. Conclusion

The Corps’ Motion for Summary Judgment on FCA

claims is granted. Motions by South Dakota, Nebraska,

NPPD, Missouri and Blaske Marine Plaintiffs are denied.

B. The Endangered Species Act and Related Claims

The ESA secks “to provide a means whereby the

ecosystems upon which endangered species and threatened

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

program for the conservation of such . . . species.” 16 U.S.C.

§ 1531(b). The ESA prohibits any person, including federal

agencies, to “take” a listed endangered species. 16 U.S.C. §

1538(a) 1B). “Take” means to “harass, harm, pursue, hunt,

shoot, wound, kill, trap, capture, or collect." 16 U.S.C. §

1532(19).

In the event that its proposed action may jeopardize a

listed species, the Corps must prepare a “biological

assessment” evaluating both the species in the action arca as

well as the potential effects the proposed action may have on

the species no the action area. See 50 C.F.R. § 402.02

(defining biological assessment). A proposed action will

“jeopardize” the species if it “reasonably would be expected,

directly or indirectly, to reduce appreciably the likelihood of

both the survival and recovery of a listed species in the wild

by reducing the reproduction, numbers, or distribution of that

species." Id. If the Corps concludes that its proposed actions

may adversely affect the listed species, then it must initiate

i a

40a

consultation with the FWS. This consultation is required to

“insure” that the Corps’ proposed action “is not likely to

jeopardize the continued existence of any endangered or

threatened species or result in the destruction or adverse

modification of habitat of such species.” 16 USC. §

1536(a2).

After this consultation, the FWS must prepare and issue a

Biological Opinion (“BiOp") to the Corps. 16 U.S.C. §

1536(b 3). The BiOp must set forth the FWS's opinion, with

supporting information, detailing how the Corps’ proposed

actions will affect the species. 16 U.S.C. § 1536(bN3)A). In

the event that the FWS concludes that jeopardy to the species

will result, the FWS must also set forth a RPA. Id. A RPA is

an alternative action “that can be implemented in a manner

consistent with the intended purpose of the action,” within

the Corps’ legal authority. 50 C_F.R. § 402.02. A RPA must

also be economically and technologically feasible for the

Corps to implement. Id. The RPA is designed to avoid the

likelihood of jeopardizing the cominuing existence of the

species. Id. If the FWS concludes that either the Corps’

proposed action or the implementation of a RPA may still

result in an incidental take of the species, the FWS must also

include an Incidental Take Statement ("ITS") in the BiOp. /6

U.S.C. § 1536(bX4), 50 C.F.R. § 402.14(i) (setting forth

requirements for ITS). An incidental take statement identifies

the impact that the take will have on the species, identifies

“reasonable and prudent measures" ““RPM") considered

necessary to minimize the impact, and sets forth the terms

and conditions required to implement the RPMs. Id. If the

Corps’ action is otherwise in compliance with the terms and

conditions set forth in the ITS, any action that harms a listed

species will not be considered a “take” under the ESA. 16

U.S.C. § 1536(0).

Because the ESA makes no specific provision for judicial

review of final agency actions, the scope of the review is

governed by the Administrative Procedures Act ("APA"), 5

4la

U.S.C. § 701 et seq. The Court reviews an agency action to

determine if it was “arbitrary, capricious, an abuse of

discretion or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2\A). If the agency decision fails to articulate a

satisfactory explanation for its conclusions, relies on factors

which Congress did not intend for it to consider, or fails to

consider an important aspect of the problem, that decision is

arbitrary and capricious. Motor Vehicle Mfrs. Ass'n v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 77 L. Ed. 2d 443,

103 S. Ct. 2856 (1983). Under this standard, the Court's

review is narrow, evaluating whether the decisior. was based

on a consideration of relevant factors and whether there has

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

Res. Council, 490 U.S. 360, 378, 104 L. Ed. 2d 377, 109 S.

Ct. 1851 (1989). n3 The Court should defer to the agency so

long as the agency's interpretation of the evidence was

reasonable. Jd. The Court may not substitute its judgment for

that of the agency. Citizens to Preserve Overtone Park, Inc.

v. Volpe, 401 U.S. 402, 416, 28 L. Ed. 2d 136, 91 S. Ct. 814

(1971).

n3 American Rivers and other parties argue that Federal

Defendants are subject to a heightened standard of review,

because the 2003 Amended BiOp is a “reversal” of the 2000

BiOp. The Court disagrees. The law does not require that

Federal Defendants provide extensive justification for the

Corps’ decision. Rather, the decision must be “rational,”

providing “permissible reasons" for the change. American

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

255-56 (D.D.C. 2003).

1. Claims by American Rivers

American Rivers contends that the Corps should maintain

river operations pursuant to the 2000 BiOp. As a result of the

2000 ESA consultations, the FWS issued the 2000 BiOp that

concluded that the Corps’ proposed operations would cause

jeopardy to the tern, plover and sturgeon. The KPA in the

2000 BiOp recommended that the Corps utilize both water

42a

flows and habitat construction, among other elements, to

avoid jeopardy to the plover, tern and sturgeon. (FWS AR

1237 at 29232.) In November 2003, the Corps and the FWS

reinitiated consultation under the ESA. The FWS then issued

the 2003 Amended BiOp, which again concluded that the

Corps’ proposed operations would cause jeopardy to the

plover, tern and sturgeon. The 2003 Amended BiOp

recommended a multiple species RPA to avoid such

jeopardy. The RPA has individual sections allocated to each

one of the species. In particular, the 2003 RPA no longer

requires both flow modification and habitat construction to

avoid jeopardy to the plover and tern. The sturgeon RPA

maintains both flow changes and habitat construction, though

modified somewhat from the 2000 BiOp RPA

American Rivers submits numerous arguments

challenging the validity of the 2003 Amended BiOp.

American Rivers contends that the FWS's elimination of flow

changes in the 2003 RPA applicable to the plover and tern is

arbitrary and capricious, and that the changes made to the

sturgeon RPA are also arbitrary and capricious in violation of

the ESA. American Rivers also maintains that the 2003

Amended BiOp violates the ESA because it docs not “insure”

against jeopardy. As a result, because the Corps fails to

follow the 2000 BiOp, American Rivers contends that the

Corps’ actions “take” the plover, tern and sturgeon in

violation of the ESA.

a. Plover and Tern RPA

The 2000 BiOp recommended that a spring rise and low

summer flow were necessary to avoid jeopardy to all three

species. The 2003 Amended BiOp adopts many of the

findings and conclusions of the 2000 BiOp, including the

general conclusion that flow modifications coupled with

habitat construction will prevent jeopardy to the species.

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

RPA, the 2003 RPA eliminates the requirement that both

flow modifications and habitat construction are essential to

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avoid jeopardy to the plover and the tern. Instead, the 2003

RPA contains additional elements, such as a drought

conservation plan, Gavins Point dam summer releases,

accelerated construction of shallow water habitat, and

adaptive management, that together avoid jeopardy to the

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

The 2003 Amended BiOp relies on updated information:

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

Sciences’ National Research Council, “The Missouri River:

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

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

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

model to better analyze use of reservoir habitat by the tern

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

plover in October 2002. (FWS AFR 1291 at 31065.)

Particularly relevant to the plover and the tern is the new

information relating to the analysis of the 2000 RPA and the

continued monitoring of the species since the 2000 BiOp.

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

populations have expenenced some improvement. (FWS AR

1487 at 33701, 33704.) Further, analysis of the

implementation of the 2000 BiOp RPA indicated that

intended habitat objectives could not be achieved, and that in

fact, spring and summer flows specified in the 2000 BiOp

RPA actually impeded the development of sandbar habitat

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

33545.)

Elimination and degradation of both plover and tern

habitat contribute to the declining status of the species. The

2000 RPA proposed both spring and summer flows and

habitat construction to “restore, maintain, and create sandbar

habitat for terns and plovers.” (FWS AR 1290 at 31040, see

FWS AR 1237 at 29230.) However, the Corps sets forth, and

the FWS adopts, that the “alluvial geomorphic process”

indicated that spring and summer flows would not create

sandbar habitat but would potentially destroy beneficial

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sandbar habitat. (FWS AR 1290 at 31040; FWS AR 1290 at

31067, FWS 1457 at 33545.) Therefore, the Corps proposed,

and the FWS agreed, that the elimination of spring and

summer flows coupled with the addition of new RPA

elements, would continue to avoid jeopardy to the plover and

the tern. American Rivers does not point to any evidence that

indicates that the only possible way to avoid jeopardy to the

plover and the tern is to implement flow changes and habitat

construction. The FWS modified the RPA to prevent further

degradation to the plover and tem habits’. Although

Amencan Rivers may disagree with the FWS's conclusions,

the FWS has articulated a rational basis for its decision to

eciiminate spring and summer flow changes from the 2003

RPA. n4

n4 Even so, the 2003 RPA does not climinate flow

changes altogether. Although it may not specifically require

the implementation of flow changes in order to preserve the

plover and the tern, the RPA requires the Corps to develop a

water plan that includes a spring rise and low summer flow.

In the event the Corps fails to develop such a plan by March

1, 2006, a default water plan that includes both a spring rise

and low summer flow must be implemented. (FWS AR

1457 at 33761-62.)

American Rivers also argues that the FWS improperly

evaluated the effects on the plover and tern from the Corps’

proposed operations. The Court disagrees. Although the FWS

utilized a “worst-case-scenario analysis" for both the plover

and the tern, the FWS also considered both the historical

effects and cumulative and indirect effects of the Corps’

proposed operations on the plover and tern. (FWS AR 1287;

FWS AR 1540; FWS AR 1457 at 33608-30; 33634-42;

33683-85.) The baseline adopted by the FWS is proper.

b. Sturgeon RPA

The sturgeon RPA retains both flow modifications and

habitat construction. The 2003 RPA proposes higher surnmmer

flows than the summer flows required in the 2000 RPA. The

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2000 RPA states that “summer flows shall be decreased. . .

to an interim target of 25 Kcfs by June 21, and held at 25

Kefs until July 15. . . on July 15, the flows shall be stair-

stepped down to a flow of 21 Kefs until August 15." (FWS

AR 1237 at 29230.) The 2003 RPA proposes that for 2004,

“summer habitat flow(s} [shall be] no greater than 25 Kefs

beginning no later than July 1, 2004 lasting for a minimum of

30 days at its lowest point." (FWS AR 1457 at 33760.) The

2003 RPA also allows the Corps to develop its own water

flow regime, no later than March |, 2006, but provides a

default plan in the event the Corps is unsuccessful. This

default plan states that: “beginning on or about June 15, 2006

but no later than July 1, 2006 the Corps shall begin reducing

flows to provide a minimum 30 day summer low flow release

of no greater than 25 Kefs." (Id. at 33762.) The Court

disagrees with American Rivers’ assertion that this change in

summer flows is arbitrary and capricious. The 2003

Amended BiOp RPA prevents low summer flows from

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

operating af 25 Kefs instead of 21 Kefs is minimal.

Moreover, these modifications are further complemented by

the implementation of other elements in the 2003 RPA.

American Rivers also argues that the 2003 RPA delays

implementation of a spring rise, which was required by the

2000 RPA. The Court disagrees. The 2000 RPA permitted a

spring rise only in the event that river conditions allowed

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

similarly permits a spring rise provided water conditions are

favorable. (FWS AR 1457 at 33760-61.) In 2004, because of

unfavorable water conditions, there was no spring rise.

Whether a spring rise will occur in 2005 depends on the

status of water conditions in 2005. The 2003 RPA does not

delay spring rise, but rather requires it under favorable

conditions, similar to the requirements of the 2000 RPA.

Moreover, under the 2003 RPA, the Corps "shall, if

hydrologic conditions are suitable, initiate an experimental

spring pwise to assist and inform the process for establishing

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a long-term flow plan." (FWS AR 1457 at 33760-61.) Unlike

the 2000 RPA, the 2003 RPA requires an annual spring rise,

provided conditions are favorable. American Rivers’

argument that the Corps has delayed a spring rise is without

merit.

American Rivers also complains that the magnitude of

the spring rise in the 2003 RPA is greatly reduced from the

2000 RPA. In the 2000 RPA, the spring rise was included to

provide a spawning cue for the sturgeon, and to create and

maintain sandbar habitat for the plover and the term.

Although the 2003 RPA does not require a spring rise of the

same absolute magnitude as the 2000 RPA, it requires a

bimodal spring rise. Water flows do not effectively construct

habitat for the plover and the tern, and a bimodal spring pulse

may provide greater spawning cues for the sturgeon. (FWS

AR 1457 at 33761, 33765; FWS AR 1291 at 31067-72.) Any

change in flood plain connectivity as a result of a lower

absolute magnitude is also minimal. (Corps AR 1332 at

45605.) Although the spring rise in the 2003 RPA may differ

from that in the 2000 BiOp, it is not unlawful.

American Rivers also contends that the accclerated

construction of shallow water habitat is improper. Both the

2000 BiOp and the 2003 Amended BiOp recommend that the

Corps develop twenty to thirty acres of shallow water habitat

per mile of the Missouri River, in an effort to sustain the

continued survival of the sturgeon. Although lower flows

contribute to the creation of shallow water habitat, such flows

do not create enough shallow water habitat to ensure the

sturgeon's viability. The 2003 Amended BiOp thus included

a measure that requires the Corps to artificially construct

shallow water habitat in an effort to mect habitat standards.

The Corps is currently operating to construct such artificial

habitat, and intends to continue such operations in the future.

(FWS AR 1290 at 31057.) This accelerated construction, in

conjunction with other RPA elements, is an appropriate

measure.

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c. "No Jeopardy” Finding

American Rivers submits that the 2003 Amended BiOp is

arbitrary and capricious because it does not insure against

jeopardy. American Rivers argues that it is not “reasonably

certain” that (1) required flow changes will occur; (2)

congressional funding will be sufficient to implement

artificial habitat construction; and (3) artificial habitat

construction will be effective. The FWS's no jeopardy

finding need only rely on a plan that is reasonably certain to

be implemented. Natl Wildlife Fed'n v. Nat'l Marine

Fisheries Serv., 254 F. Supp. 2d 1196, 1213 (D. Ore. 2003).

American River argues that the 2003 Amended BiOp

proposes flow changes that are not "reasonably certain” to

occur. The 2003 Amended BiOp requires the Corps to

develop, over the next two years, an appropriate flow regime

that implements spring and summer flows to protect the

sturgeon. In the event the Corps fails to develop this plan, the

RPA sets forth a default flow plan that implements both

spring rise and lower summer flows. Because the 2003

Amended BiOp requires that such changes be implemented at

the latest by March |, 2006, the Court finds that there is a

reasonable certainty that such flow changes will take effect.

American Rivers also argues that the artificial

construction of sandbar habitat for the plover and the tern is

an unproven mitigation measure, and thus reliance on such

construction was arbitrary and capricious. The record reflects

that the FWS knew, considered and evaluated both the

negative and positive effects of artificial sandbar habitat

construction. There is no evidence to suggest that the Corps

will fail to implement the measures the FWS recommends.

The Corps is further required, in addition to constructing

habitat, to continuously monitor and evaluate effects on the

plover and the tern, and modify operations as required.

Though American Rivers disputes the ultimate success of

artificial sandbar habitat creation on plover and tem

populations, concerns of uncertainty are inevitable in any

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action an agency may take. Such concerns are insufficient to

invalidate the 2003 Amended BiOp. Reasonable certainty

only applies to the possibility of implementation, not to the

overall success of the particular measure. The record

supports that the FWS considered both the positive and

negative effects of such measures, and thus rationally

concluded, in conjunction with the other RPA elements, that

this measure would avoid jeopardy to the species. Nothing

more is required by the FWS.

American Rivers also argues that the Corps lacks

appropriate funding to complete this habitat construction. By

its nature, a RPA must be capable of implementation, both

economically and technologically. 50 C.F.R. § 402.02.

American Rivers points to no evidence to suggest that the

Corps will be economically prevented from implementing

this RPA. The speculative nature of congressional

appropriations is insufficient to render the RPA arbitrary and

Capricious.

The Court finds that the FWS's 2003 Amended BiOp and

its RPA are not arbitrary and capricious. The FWS has

provided a rational connection between the facts and the

choice made. Motor Vehicle, 463 U.S. at 43. Therefore, the

2003 Amended BiOp and its RPA do not violate Section 7 of

the ESA.

d. The Corps’ Actions Result in a Take

American Rivers also argues that the Corps’ adoption of

the 2003 RPA jeopardizes the species and results in a “take”

of the species, in violation of the ESA. After consulting with

the FWS, the Corps has an independent duty to insure that its

actions satisfy the ESA. 16 U.S.C. § 1536(a)(2). Essentially,

the Corps’ decision to rely on the 2003 Amended BiOp must

not be arbitrary and capricious. Because the Court finds that

the 2003 Amended BiOp is valid, the Corps’ reliance on the

2003 Amended BiOp is likewise valid.

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Section 9 of the ESA prohibits a “take” of the endangered

or threatened species. ]6 U.S.C. § 1538. American Rivers

argues that the 2003 Amended BiOp and RPA take the

plover, tern and the sturgeon. However, the ESA permits that

any taking, in compliance with the Incidental Take Statement

("ITS"), "shall not be considered to be a prohibited taking” of

the species. 16 U.S.C. § 1536(0)(2). The 2003 Amended

BiOp includes an ITS for the plover, tern, and sturgeon.

(FWS AR 1457 at 33769-90.) The Corps has an absolute

defense to a Section 9 claim so long as its operations are in

accordance with the 2003 BiOp and the terms and conditions

of the ITS. American Rivers fails to demonstrate that the

Corps’ operations are contrary to the 2003 Amended BiOp

and its ITS, and therefore there is no violation of the ESA.

2. Claims by Nebraska and NPPD

Nebraska and NPPD ("Nebraska Parties") claim that the

FWS and Corps improperly consulted under the ESA,

resulting in an improper 2003 Amended BiOp and RPA.

They contend that the environmental baseline used in the

2003 Amended BiOp is improper because it fails to include

non-discretionary operations such as minimum flow levels.

They further assert that the 2003 RPA is invalid because its

proposed restoration of a natural hydrograph runs contrary to

the Corps’ obligations under the FCA. Because the Court

concludes that the Corps does not have a non-discretionary

duty to maintain minimum water flows, and that the Corps’

Operations are subject to the ESA, these arguments fail.

The Nebraska Parties further argue that the 2003 RPA is

not economically feasible, because it improperly

compromises both water supply and hydropower benefits to

the Nebraska Parties. However, the requirernent that a RPA

be "economically and technologically feasible" only requires

that the Corps have the resources and technology necessary

to implement the RPA. See Kandra v. United States, 145 F.

Supp. 2d 1192, 1207 (D. Or. 2001). This argument is

likewise without ment,

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The Nebraska Parties also argue that the 2003 Amended

BiOp and RPA are arbitrary and capricious because they are

not based on the best scientific data available. The 2003

Amended BiOp proposes to restore some of the river's

natural hydrograph to water flows. According to the

Nebraska Parties, this proposal bears no resemblance to the

river's \.atural hydrograph, as set forth in the U.S. Geological

Survey ("USGS"). (FWS AR 915 at 14687-885.) The 2003

Amended BiOp does not strictly require the natural

hydrograph contained in the USGS, but rather suggests that

some “semblance” of the natural hydrograph be restored.

(FWS AR 1457 at 33551.) The FWS need only recommend a

RPA that prevents jeopardy, and there is no evidence that an

immediate and complete restoration of pre-dam flows is the

only way to prevent such jeopardy. The fact that the FWS

chose not to propose a plan contained in one report is

insufficient to render the FWS's decision arbitrary and

capricious. The Nebraska Parties’ Motions fail.

3. Claims by Blaske Marine Plaintiffs and Missouri

Blaske Marine and MO-ARK (collectively, “Blaske

Marine Plaintiffs") and Missouri submit that the Corps

should operate the Missouri River as required by the 1979

Master Manual. Both Blaske Marine Plaintiffs and Missouri

argue that the Corps violates the ESA because the low

summer flows set out in the 2003 Amended BiOp eliminate

some areas of shallow water habitat for the sturgeon in the

lowcr Missouri River. They thus argue that this removal of

habitat constitutes a “take” under the ESA. As noted above,

however, because the Corps is operating the River pursuant

to the 2003 Amended BiOp and the ITS, it has an absolute

defense to any Section 9 claim. 16 U.S.C. § 1536(0). Blaske

Marine Plaintiffs and Missouri argue that the ITS does not

apply to the elimination of habitat on the lower Missouri

River, because the ITS does not specifically reference and

connect reduced spawning to reduced downstream water

flows, and therefore the Corps cannot use the ITS as a

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defense to a claim based on this situation. The ITS

anticipates a loss in spawning and nursery habitat “because of

significantly reduced sediment transport and deposition.”

(FWS AR 1457 at 33784.) The complete language of the

ITS, however, establishes that the decrease in downstream

water flow affects the transport and deposition of sediment in

the lower Missouri River, thereby affecting the habitat of the

sturgeon in this point of the River. Id. Thus, the ITS

addresses the effect on the sturgeon in the lowcr Missouri

River, and provides an absolute defense to this ESA claim.

Even without this defense, however, there is no violation

of the ESA. Blaske Marine Plaintiffs and Missouri fail to

demonstrate that low summer water flows result in a "take"

of the sturgeon. They argue that the low summer flows

significantly modify or degrade the habitat, which actually

kills or injures the sturgeon. See Babbitt v. Sweet Home

Chapter of Communities for a Great Oregon, 515 U.S. 687,

697, 132 L. Ed. 2d 597, 115 S. Ct. 2407 (1995). Though the

parties concede that lower flows decrease shallow water

habitat in this particular area of the river, Blaske Marine

Plaintiffs and Missouri fail to set forth any evidence that this

habitat modification actually causes any injury to the

sturgeon. Blaske Marine Plaintiffs and Missouri fail to

acknowledge that the FWS considered this argument in the

2003 Amended BiOp, and concluded that although lower

summer flows may result in a reduction of shallow water

habitat in the lower Missouri River, there is no evidence that

such action will actually kill or injure the sturgeon. (FWS AR

1457 at 33784.) Blaske Marine Plaintiffs and Missouri fail to

consider the effects on the sturgeon of increasing water flows

on other areas of the river. Moreover, the slight reduction in

habitat in the lower river does not negate the fact that the

2003 Amended BiOp results in an overall net gain in the

amount of shallow water habitat on the Missouri River. In

fact, lower flows in the 2003 RPA reduce habitat in the lower

Missouri River by approximately 200 acres compared to the

1979 Master Manual RPA, while the overall increase of

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shallow water habitat on the entire Missouri River under the

2003 RPA compared to the 1979 Master Manual RPA is

approximately 1,189 acres. (FWS AR 1291 at 31077, 31079.)

Absent some evidence that injury will result to the sturgeon,

Blaske Marine Plaintiffs and Missouri's Motions on this point

are denied.

Similar to the argument advanced by the Nebraska

Parties, Missovri also argues that the 2003 Amended BiOp

and RPA are invalid because the FWS and the Corps

improperly consulted under the ESA. Missouri also submits

that the RPA is invalid because it requires the Corps to

violate the FCA by not maintaining minimum flows. As the

Court has previously indicated, the FCA does not impose a

non-discretionary duty to maintain minimum navigation

flows, so these arguments fail.

Missouri further claims that the mandatory language in

the 2003 RPA is an attempt by the FWS to supercede the

Corps’ authority and to “govern the way that the Corps

manages the River system.” The Court is unpersuaded by this

argument. Missouri fails to cite to any legal authority that

indicates that the existence of mandatory language in a RPA

invalidates it as a matter of law. Moreover, absent any

evidence that either the FWS intends to bind the Corps to its

RPA or that the Corps considers itself bound by the FWS's

RPA, this argument fails.

4. Conclusion

The Court finds that the 2003 Amended BiOp and RPA

are not arbitrary and capricious and thus are in accord with

the ESA. Likewise, the 2004 Master Manual, 2004 AOP, and

ROD do not violate the ESA.

C. National Environmental Policy Act Claims

NEPA requires that federal agencies prepare an

Environmental Impact Statement ("EIS") for every "major

Federal action{] significantly affecting the quality of the

53a

human environment.” 42 U.S.C. § 4332(2C), see 42 U.S.C.

§ § 4321-4370f. An EIS must examine: (1) the

environmental impacts of the proposed action; (2) the

adverse environmental effects of the action that cannot be

avoided; (3) alternatives to the proposed action; (4) the

relationship between local, short-term uses of the

environment and the maintenance and enhancement of long-

term productivity; and (5) any irreversible and irretrievable

commitment of resources that would be involved. 42 U.S.C.

§ 4332(2C). Once the EIS is completed, the agency must

prepare a ROD. The Court reviews under NEPA “to ensure

that the agency has adequately considered and disclosed the

environmental impact of its actions and that its decision is

not arbitrary and capricious.” Baltimore Gas & Elec. Co. v.

Natural Res. Def Council, Inc., 462 U.S. 87, 97-98, 76 L. Ed.

2d 437, 103 S. Ct. 2246 (1983). NEPA ensures that the

Corps’ actions are procedurally valid.

The Corps originally considered the impacts of seven

alternatives submitted by different parties. (Final EIS at 4-3

to 4-11; 5-1 to 5-168.) Then, the Corps conducted a detailed

analysis of five different alternatives to the 1979 Master

Manual: (1) the Modified Conservation Plan ("MCP"), which

includes increased drought conservation measures,

unbalanced storage among the three upper and largest lakes

in the Mainstem Reservoir System, and a Fort Peck spring

rise approximately every third year; (2) GP1528, nS which

includes a 15 Kefs spring rise release from mid-May to mid-

June followed by a minimum service flat release of 28 Kefs

that ends on September 1; (3) GP2021, which has a 20 Kefs

spring rise followed by a 25 Kcfs release to mid-July when

the release drops to a low of 21 Kefs unti] mid-August. when

it returns to 25 Kcfs until September 1; (4) GP1521, which

has a 15 Kefs spring rise release from mid-May to mid-June

followed by a release of 21 Kcfs; and (5) GP2028, which has

a 20 Kefs spring rise followed by a 28 Kefs release to mid-

May to mid-June followed by a release of 28 Kcfs. (Final EIS

at 6-3.) Out of these five alternatives, the Corps eventually

54a

identified a Preferred Alternative ("PA") that'included "more

stringent drought conservation measures, a more defined

methodology for unbalancing the upper three lakes, higher

non-navigation season flows, and a planned re-evaluation in

3 years." (Id. at 8-1.) The 2004 Master Manual and 2004

AOP thus evolve from this PA.

nS "GP" means "Gavins Point" and the two numbers

that follow correspond to the spring release and summer

release, respectively.

1. Missouri

Missouri argues that Federal Defendants violated NEPA

because the adoption of “adaptive management” process is

improper, and the economic analysis used by the Corps in

choosing the PA is flawed and misleading. Missouri fails to

demonstrate that the Federal Defendants’ decisions were

arbitrary and capricious.

The Final EIS and the 2004 Master Manual! describe the

“adaptive management" process. Adaptive management is an

approach to natural resources management, in which policy

choices are made incrementally. As each choice is made, data

on the effects of these choices are collected and analyzed in

order to assess whether to retain, reverse, or otherwise alter

the policy choice. Missouri maintains that this adaptive

management approach violates NEPA because it permits the

Corps to circumvent the NEPA process when policy choices

are modified. Missouri takes issue with the potential flow

changes that the Corps may undertake in the future. Missouri

fails to point to any evidence that indicates that the Corps

intends to avoid its NEPA obligations by implementing this

adaptive management approach. To the contrary, the Corps

acknowledges that in the event a major policy change results,

the Corps will be required to comply with NEPA. (Final EIS

at D1-69; Corps AR 1970 at 3.) Absent evidence that the

adaptive management process actually results in the Corps’

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evasion of NEPA obiigations, the Court declines to declare

this approach invalid.

Missouri also argues that the Final EIS is flawed because

it incorrectly calculated the value of benefits to navigation

and downstream water supply resulting from the adoption of

the RPA. Missouri essentially contends that it is impossible

for any increased economic benefit to result to navigation

and downstream water supply as a result of lower

downstream water flows. Missouri disagrees with the Corps’

conclusions, but fails to demonstrate why the Corps’ analysis

is artitrary and capricious. The Corps comparatively

evaluated the economic effects of the PA to the 1979 Master

Manual on a variety of different river interests, including

navigation and water supply. (See Final EIS 8-10 to 8-49.)

The Final EIS was based on the previous draft EIS and its

comments, as well as other economic studies. Missouri may

disagree with the Corps’ conclusions and its rationale, but

that is insufficient to argue that the Corps failed to take a

“hard look" at the economic impact of its decision. Friends of

the Boundary Waters Wilderness v. Dombeck, 164 F.3d

1115, 1128 (8th Cir. 1999) The Corps articulates a rational

basis for its conclusions. Missouri's disagreement with the

Corps’ conclusions is insufficient to render the Final EIS

arbitrary and capricious.

2. Blaske Marine and MO-ARK

The 2004 AOP requires that the Corps restrict summer

flows from Gavins Point to 25 Kefs for a period of 30 days

beginning July 1, 2004. If the Corps develops 1200 acres of

shallow water habitat by July 1, n6 the Corps may engage in

another consultation with the FWS to determine how much

higher it can adjust summer flows. n7 Blaske Marine and

MO-ARK (collectively, "Blaske Marine Plaintiffs") assert

that the Corps must prepare a supplemental EIS discussing

the impacts of operating under such conditions. n8 Blaske

Marine Plaintiffs also argue that the default water flow plan

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set for March 2006 contained in the 2003 RPA requires a

supplemental EIS.

n6 Federal Defendants represented to the Court at oral

argument on May 21, 2004, that the Corps fully intended to

successfully complete this habitat construction by July |,

and that the current status of the construction was on track

for such completion. On June 14, 2004, Federal Defendants

informed the Court that construction was complete and that

consultation between the FWS and Corps had begun. The

FWS anticipates that it will issue an opinion relating to

2004 summer flows on June 22, 2004.

n7? Any claims relating to the outcome of this

consultation between the FWS and Corps are not ripe for

review.

n8 Blaske Marine Plaintiffs failed to include this claim

in their Complaint. Consistent with the Court's oral ruling

on May 21, 2004, the Court permits Blaske Marine

Plaintiffs to amend their Complaint tc include this claim.

The 2003 Amended BiOp proposes a flow of 25 Kefs for

30 days beginning July }, 2004. The 2004 AOP implements

this alternative. The Final EIS issued on March 5, 2004,

evaluated the effects of summer flows at 21 Kcfs and at 28.5

Kefs. (Final EIS Table 7-1.) The Final EIS does not

specifically evaluate the effects of flows at 25 Kefs.

However, flows at 25 Kefs are within the range of

alternatives evaluated by the Corps. The purpose of the Final

EIS is to ensure that the Corps takes a “hard look" at the

environmental consequences of a project before taking a

major action. Friends of the Boundary Waters Wilderness,

164 F.3d at 1128. An EIS must discuss alternatives to the

proposed action, and the sufficiency of the range of

alternatives evaluated is subject to the “rule of reason.” Id.

The “rule of reason” requires the Court to determine whether

the Corps has complied with the Final EIS in good faith, and

whether the Final EIS “sets forth sufficient information to

allow the decision-maker to consider alternatives and make a

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reasoned decision after balancing the risks of harm to the

environment against the bencfits of the proposed action.” Id.

The Final EIS need not be exhaustive. Id. The Court finds

that although the Final EIS did not specifically evaluate

summer flows at 25 Kefs, the range of alternatives discussed

in the Final EIS encompassed such flows. Thus, the Final

EIS sufficiently examined summer flows at 25 Kcfs.

In conjunction with these flow levels, the Corps

anticipates that it will complete construction of 1200 acres of

shallow water habitat by July 1, 2004. Blaske Marine

Plaintiffs contend that construction of this habitat requires a

supplemental EIS. In both the 2000 BiOp and the 2003

Amended BiOp, the FWS set a goal to develop twenty to

thirty acres of shallow water habitat per mile of the Missouri

River. From years 2000 to 2020, 20,000 acres of shallow

water habitat must be developed. Low summer flows help to

develop shallow water habitat, but not at the level required to

protect the sturgeon. The FWS concluded that a multi-faceted

approach was necessary to achieve its goals: reservoir

Operational changes, structural modifications, and non-

structural modifications. The FWS determined that 4900

acres of snallow water habitat results from flows at 21 Kefs

for a period from mid-July to mid-August, while 3,717 acres

of shallow water habitat results from full navigation flows of

34.5 Kefs from mid-July to mid-August. The difference

between shallow water habitat construction at low flows and

at full navigation flows is thus 1200 acres. If the Corps

artificially constructs 1200 acres of shallow water habitat by

July 1, depending on its consultations with the FWS, it may

operate at possibly full navigation flows because the 1200

acres of artificial habitat construction will compensate for the

smaller levels of shallow water habitat construction at full

navigation flows. Both the 2000 BiOp and the 2003

Amended BiOp contemplate that artificial habitat

construction is necessary to maintain sufficient shallow water

habitat. The Final EIS also acknowledges that artificial

shallow habitat construction is needed to provide enough

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shallow water habitat. (Final EIS 7-71.) Moreover, Blaske

Marine Plaintiffs fail to demonstrate that this shallow water

habitat construction is a ‘major Federal action{]} significantly

affecting the quality of the human environment,” or that a

categorical exclusion does not apply. 42 U.S.C. § 4332; 62

Fed. Reg. 2375, 2381 (Jan. 16, 1997). n9 This failure is fatal

to the claim that the FWS must issue a supplemental EIS.

n9 The Court further notes, based on representations by

the Federal Defendants that 1200 acres have been created,

that Blaske Marine Plaintiffs’ claim on this point is likely

moot. Norton v. Southern Utah Wilderness Alliance, 542

U.S. 55, 159 L. Ed. 2d 137, 124 S. Ct. 2373, 542 US. ,

2004 WL 1301302 (June 14, 2004) (supplemental EIS not

required if “major” federal action already completed),

(Sierra Club v. Penfold, 857 F.2d 1307, 1318 (9th Cir.

1988) (dismissing plaintiffs’ NEPA ciaim because ordering

compliance with NEPA would have no effect on the

already-completed agency action).

Blaske Marine Plaintiffs also argue that the proposed

default water plan that may potentially take effect in March

2006, requires a supplemental EIS. The proposed default

water plan was not evaluated nor consiglered under the Final

EIS. This default plan takes effect in 2006 only if the Corps

fails to develop “a flow management plan .. . [that]

provide[s] a spring rise and summer flow which will provide

for the life history needs of the pallid sturgeon.” (FWS AR

1457 at 33761.) Because neither the default plan nor any

future pla

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