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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005

## Text

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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);

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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

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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.

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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.

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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

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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.

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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.

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“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.

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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.

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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).

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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

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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

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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.

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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

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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.

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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 spe

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0473%3A1. Public record. Not legal advice.