Missouri River
Basin Association
* * *
2003 Litigation Activities
Stenehjem
asks high court to hear river case
By RICHARD HINTON
The
dispute between recreational interests and navigation interests along the
North Dakota Attorney General Wayne Stenehjem has asked the high court to review a federal
appeals court decision that permits the U.S. Army Corps of Engineers to release water from
upstream reservoirs to benefit barge traffic downstream.
The case involves a lawsuit the state filed against the corps in 2002, asserting that the
corps was unlawfully harming the lake's walleye fishery by lowering the level of
The
corps appealed to the 8th U.S. Circuit Court of Appeals, which ruled that the corps could
continue to draw down the lake.
At issue is the Flood Control Act of 1944. Stenehjem contends the act does not give
navigation priority over recreation uses, which is what the appeals court ruled.
"The 8th Circuit was plain wrong when it ruled the Flood Control Act gives navigation
priority over recreation," Stenehjem said. His position is the act gives recreation
and navigation equal priority.
Stenehjem said the national implications of the case are tremendous.
"It's a dispute between states and involves the federal government as well," he
said. "Those are the kinds of things the Supreme Court does tend to be interested in,
but the odds are long."
Paul Johnston, a spokesman for the corps in
The petition was filed jointly by
Stenehjem said the deadline for doing anything about the appeals court's ruling is today.
"We had to make a decision, and we had a very good brief," he said.
Charles Carvell, director of the natural resources and Indian affairs division of the
attorney general's office, is the chief author of the petition.
"I think we've placed a petition and brief that could cause the Supreme Court to give
it serious consideration," Stenehjem said.
Ben Shouse
Sioux FallsArgus Leader
Recreation deserves more consideration,
state argues
The request to reconsider a court ruling from June is one of a mounting number of legal
salvos between upstream and downstream interests.
If the Supreme Court takes the case, the ruling would not come until next fall. A
favorable decision could dramatically affect five other lawsuits over the U.S. Army Corps
of Engineers' control of flow.
"It would be a major change in the way the corps does business," said South
Dakota Attorney General Larry Long. He said the court usually declines such requests, but
the state has little to lose if it does.
But Chris Brescia, president of the downstream interest group MARC 2000, said denial of
the request could be seen as support for the old ruling, which does not favor
That ruling, by the 8th Circuit Court in June, said the Flood Control Act of 1944 gave
priority to navigation and flood control over recreation and other uses of the
That let the corps release water for barges in spring at the expense of rainbow smelt, the
main food for walleye on
Another case, brought by environmental groups in a different court, led to an order to
protect endangered species by holding back water in summer, which the corps said was in
conflict with the Flood Control Act.
To resolve the legal tangle, a panel moved the two cases, plus four others, to federal
district court in
Now, the
The motion comes now because the state faced a filing deadline, Long said. The court will
likely decide whether to take the case in a few months, and if it does, that would
probably delay the other river cases.
Complicating the picture is a biological opinion issued Dec. 18, which says the corps must
modify flows to help the endangered pallid sturgeon.
"Just prior to the release of this biological opinion, I really thought that we did
have an opportunity, and were in the process of crafting a compromise to share water
equitably, and now I think that opportunity is gone," Brescia said.
It is not clear if the new move by South and
But if the endangered species ruling stands, more lawsuits are certain,
"We will not agree to a revised master manual that works to the detriment of flood
control and navigation, and so it will end up in courts again."
Order Granting Preliminary Injunction in D.C. District Court
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN RIVERS, et al., ::
Plaintiffs, ::
v. : Civil No. 03-241 (GK)
:
UNITED STATES ARMY CORPS :
OF ENGINEERS, et al., ::
Defendants. :
ORDER
Plaintiffs, a number of national and local environmental organizations, brought suit against the United States Army Corps of Engineers ("Corps"), the Secretary of the United States Army, the United States Fish and Wildlife Service ("FWS"), and the Secretary of the Interior, seeking to protect the endangered least tern, the endangered pallid sturgeon, and the threatened Great Plains piping plover, all of which are protected by the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531, et seq. Plaintiffs allege that the manner in which the Corps has operated the extensive dam and reservoir system on the Missouri River and the manner in which the FWS has carried out its statutory responsibilities under the ESA have adversely impacted the three species in question. Plaintiffs assert claims against the Corps and the Secretary of the Army under the ESA, the Flood Control Act of 1944, 33 U.S.C. §§ 701, et seq, and the Administrative Procedure Act, 5 U.S.C. §§ 701, et seq, and assert ESA and APA claims against FWS and the Secretary of the Interior.
This matter is now before the Court on Plaintiffs' Motion for Preliminary Injunction and Defendants’ Motions to Strike. A motions hearing in this matter was held on July 2, 2003. Upon consideration of the Motions, Oppositions, Replies, amicus curiae and intervenor briefs, the arguments presented at the motions hearing, and the entire record herein, for the reasons set forth in the accompanying Memorandum Opinion, it is hereby ORDERED, that Defendants’ Motions to Strike [#58,60] are denied as moot; and it is further ORDERED that Plaintiffs' Motion for Preliminary Injunction [#47] is granted. The Corps is hereby enjoined from implementing the summer water flow provisions of the revised 2003 Annual Operation Plan, from taking any action that would implement or be consistent with the provisions relating to summer water flow contained in the 2003 Supplemental Biological Opinion, and from taking any action that would be inconsistent with the provisions relating to summer water flow contained in the 2000 Biological Opinion.
7/12/2003 /S/
DATE GLADYS KESSLER
UNITED STATES DISTRICT JUDGE
Copies To:
David A. Becker, Esq.
David John Hayes, Esq.
Janice M. Schneider, Esq.
Julia A. Hatcher, Esq.
Latham & Watkins
555 Eleventh Street, N.W.
Suite 1000
Washington, D.C. 20004
Timothy D. Searchinger, Esq.
Environment Defense
1875 Connecticut Avenue, N.W.
Washington, D.C. 20009
Fred Russell Disheroon, Esq.
U.S. Department of Justice
Environment and Natural Resource Division
601 D Street, N.W.
Washington, D.C. 20004
James A. Maysonett, Esq.
U.S. Department of Justice
Environment & Natural Resources Division
Post Office Box 7369
Ben Franklin Station
Washington, D.C. 20044-7369
Charles M. Carvell, Esq.
ND Office of Attorney General
500 North Ninth Street
Bismarck, North Dakota 58501-4509
Joseph P. Bindbeutel
William J. Bryan
Shannon L. Haney
Missouri Attorney General's Office
Eighth Floor, Broadway Building
Post Office Box 899
Jefferson City, Missouri 65102
David D. Cookson
Attorney General’s Office
2115 State Capitol
Lincoln, Nebraska 68509
D.
Southwestern Division.
STATE OF
and
State of
v.
THE UNITED STATES ARMY CORPS OF ENGINEERS, et.
al., Defendants.
No. A1-03-050.
Dean
J. Haas, Lyle
Gregory Witham, Attorney General's Office, Civil Litigation,
Bismarck, ND, for plaintiffs.
Daniel
W. Pinkston, U.S. Department of Justice, Environmental
Defense Section, Denver, CO, Cameron
W. Hayden, U.S. Attorney's Office, Bismarck, ND, Fred R.
Disheroon, U.S. Department of Justice, Environment and Natural Resources, Washington, DC,
for defendants.
Daniel H. Israel, Boulder, CO, for amicus.
Clark
Jay Bormann, Bormann Law Office, Bismarck, ND, David D.
Cookson, Nebraska Atty Gen's Office, Lincoln, NE, John
P. Guhin, Attorney General's Office, Pierre, SD, for
intervenor.
MEMORANDUM AND ORDER DENYING
DANIEL
L. HOVLAND, Chief District Judge.
I. PROCEDURAL
HISTORY
*1
This case arises out of the management and operation of the
that the Corps maintain a minimum cold water
habitat in
That a Special Master be appointed by the Court to
monitor compliance with the order throughout the summer, and to make recommendations to
the Court to address any changes or adjustments that may be needed based on higher or
lower flows than anticipated in the Corps'
On
FN1. The Eighth Circuit combined
several appeals involving the Missouri River and issued one opinion resolving the
following cases: State of South Dakota, et al. v. Ubbelohde, et al., No. 01-2133SD;
State of South Dakota, et al. v. Ubbelohde, No. 02-2144SD; State of South
Dakota, et al. v. Ubbelohde, et al., No. 02-2185SD; State of South Dakota, et al.
v. Ubbelohde, et al., No. 02-2178SD; State of Nebraska, et al. v. Ubbelohde, et al., No. 02-2191NE; State
of North Dakota, et al. v. Ubbelohde, et al., No. 02-2305ND.
This
matter comes before the Court with a complex and lengthy history involving the dispute
between the Corps of Engineers and the various
FN2. A Motion for Preliminary
Injunction has also been made by
II. BACKGROUND
On
The
State of North Dakota filed a complaint in state district court on
*2
The State of North Dakota contends that the Corps of Engineers' management of the Missouri
River Mainstem Reservoir System, and particularly the management of the release of
waters from Garrison Dam, constitutes a form of "pollution" because it is a
"man-made or man-induced" change that has altered the physical, chemical, and
biological integrity of Lake Sakakawea. According to the State, adherence to the Corps of
Engineers'
FN3. Although the State of North
Dakota characterizes the Corps' actions as constituting "apparent continuing
violations," in its Notice of Violation the State uses language that refers to future
violations rather than current violations; for example "will likely cause,"
"likely to cause," and "will likely occur." At the
The
State of North Dakota is seeking injunctive relief to (1) maintain a minimum cold water
habitat in Lake Sakakawea of 200,000 acre-feet through September 30, 2003; and (2) to
appoint a Special Master to monitor compliance with the preliminary injunction throughout
the summer. North Dakota contends that the survival of the cold water fishery in Lake
Sakakawea this summer is dependent upon (1) the average elevation of Lake Sakakawea in May
before it stratifies; and (2) the amount that inflow into the lake exceeds outflow during the months of June, July, and August.. The first factor
is now moot because the State's initial concern about maintaining the average elevation of
Since
the original filing in
III.
LEGAL DISCUSSION
In
determining whether preliminary injunctive relief should issue, the Court is required to consider the factors set forth in Dataphase
Systems, Inc., v. C.L. Sys. Inc., 640 F.2d 109, 114 (8th Cir.1981) (en banc ). The Eighth Circuit summarized those factors as
follows:
*3 When considering a motion for a preliminary
injunction, a district court weighs the movant's probability of success on the merits, the
threat of irreparable harm to the movant absent the injunction, the balance between harm
and the injury that the injunction's issuance would inflict on other interested parties,
and the public interest. Dataphase Systems, Inc. v. C.L. Sys, Inc., 640 F.2d 108,
114 (8th Cir.1981) (en banc ). We reverse the issuance of a preliminary injunction
only if the issuance "is the product of an abuse of discretion or misplaced reliance
on an erroneous legal premise." City
of Timberlake v. Cheyenne River Sioux Tribe, 10 F.3d 554, 556 (8th Cir.1993) cert. denied 512
U.S. 1236, 114 S.Ct. 2741, 129 L.Ed.2d 861 (1994).
Pottengen
v. Missouri State High School Activities Association, 40 F.3d 926, 929 (8th Cir.1994).
The
burden of establishing the necessity of a preliminary injunction is on the movant. Baker
Electric Co-op Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir.1994); Modern
Computer Systems, Inc. v. Modern Banking System, Inc., 871 F.2d 734, 737 (8th
Cir.1989) (en banc ). "No single factor in
itself is dispositive; in each case all of the factors must be considered to determine
whether on balance they weigh towards granting the injunction." Baker Electric Co-op, 28 F.3d 1472 (quoting Calvin
Klein Cosmetics Corp. v. Lenox Labs, Inc., 815 F.2d 500, 503 (8th Cir.1987)). The granting of a preliminary injunction is an extraordinary remedy
and the right to such relief must be clearly established by the movant. Brookins
v. Wissota Promoters Ass'n, Inc., 142 F.Supp.2d 1149, 1151 (D.N.D.2000). The Court will address each of the Dataphase factors.
A. PROBABILITY
OF SUCCESS ON THE MERITS
To
succeed on the merits,
1. AVAILABILITY
OF JUDICIAL REVIEW
In
prior litigation between various Missouri River Basin states and the Corp of
Engineers, the Corps has argued that federal district courts lacked jurisdiction to review
management decisions of the Corps because these decision were "committed to agency
discretion by law" under 5
U.S.C. § 701(a)(2). See e.g., Brief of Appellant, p. 23, State of North Dakota
v. Ubbelohde, No. 02- 2305. This very issue was recently resolved by the Eighth
Circuit Court of Appeals in the case of South
Dakota v. Ubbelohde, 330 F.3d 1014 (8th Cir.2003), a
decision issued on June 4, 2003.
In South
Dakota v. Ubbelohde, the Eighth Circuit directly addressed the issue of whether the
Corps of Engineers' actions are subject to judicial review.
The Eighth Circuit rejected the Corps of Engineers' argument that its actions are not
subject to judicial review and held that the Corps' actions are constrained both by the
Flood Control Act of 1944 and the Master Manual. 330
F.3d 1014, 1027-1029. The Eighth Circuit concluded that
courts could (1) review the Corps of Engineers' compliance with the Flood Control Act
which mandates the Corps must consider the various interests (flood control, navigation,
recreations, and other interests) before making a decision, and (2) review the Corps'
compliance with the Master Manual which directs the operation of the
*4
Here, the State of North Dakota's claim is based on a different theory and body of law
than its previous claim, although the relief the State seeks appears to be nearly
identical.
The
Ninth Circuit has held that "[u]nder the Clean Water Act, all federal agencies must
comply with state water quality standards.... 33
U.S.C. § 1323(a).
Judicial review of this requirement is available under the Administrative Procedure
Act." Oregon
Natural Resources Council v. United States
Forest Service, 834 F.2d 842, 852 (9th Cir.1987); see
also National
Wildlife Federation v. United States Army Corps of Engineers, 132 F. Supp 2d 876, 878
(D.Or.2001) (finding that the court had jurisdiction to
review claims that the Corps was "violating the Clean Water Act by not complying with
the water quality standards of the State of Washington"). [FN4] Thus, it appears the Corps' compliance with the Clean Water Act is
subject to judicial review.
FN4. The contrary conclusion was
reached by a Pennsylvania district court when environmental groups sought to force the
Corps to comply with the Water Resources Development Act of 1990, which set forth the
general directive that "environmental protection [shall be included] as one of the
primary missions of the Corps of Engineers in planning, designing, constructing,
operating, and maintaining water resources projects." See Raymond
Proffit Foundation v. U.S. Army Corps of Engineers, 175 F.Supp.2d 755, (E.D.Penn.2001) (holding that because "[t]he text of § 2316 provides only a general statement that
established environmental protection as one of the Corps' primary missions [and ] gives no
guidance on how this mission is to be carried out ... §
2316 falls under the § 701(a) exception for
cases where 'agency action is committed to agency discretion by law' [and thus, is not
capable of review by a court]").
The
next hurdle the State of
(a) Each department, agency, or instrumentality of
the executive, legislative, and judicial branches of the Federal Government (1) having
jurisdiction over any property or facility, or (2) engaged in any activity resulting, or
which may result, in the discharge or runoff of pollutants, and each officer, agent or
employee thereof in the performance of his official duties, shall be subject to, and
comply with, all Federal, State, interstate, and local requirements, administrative
authority, and process and sanctions respecting the control and abatement of water
pollution in the same manner, and to the same extent as any nongovernmental entity
including the payment of reasonable service charges.
For
additional support, North Dakota cites to National
Wildlife Federation v. United States Army Corps of Engineers, 92 F.Supp.2d 1072, 1081
(D.Or.2000), where the court found that "[u]nder the
Clean Water Act, all federal agencies must comply with state water quality standards"
and to Executive Order 12088, 43 Fed.Reg. 27,707 (
*5 The act has been amended to indicate unequivocally
that all Federal facilities and activities are subject to all of the provisions of State
and local pollution laws. Though this was the intent of Congress in passing the 1972
Federal Water Pollution Control Act Amendments, the Supreme Court, encouraged by Federal
agencies, has misconstrued the original intent.
Since the substantive requirements of the act and
of State and local law would be unenforceable unless procedural provision were also met,
section 313 is amended to specify that, as in the case of air pollution, a Federal
facility is subject to any Federal, State, and local requirement respecting the control or
abatement of water pollution, both substantive and procedural, to the same extent as any
person is subject to these requirements. This includes, but is not limited to,
requirements to obtain operating and construction permits, reporting and monitoring
requirements, any provisions for injunctive relief and such
sanctions imposed by a court to enforce such relief, and the payment of reasonable service
charges....
The amendment to section 404 clarifies the intent
of Congress relative to the dredging activities of the U.S. Army Corps of Engineers to
maintain navigation on the Nation's waterways is in the national interest. However, Corps
dredging activities, like any municipal or industrial discharge to the Nation's waters, or
any private dredging activities, should be conducted in compliance with applicable State
water quality standards. The Corps, like other Federal agencies, should be bound by the
same requirements as any other discharger into public waters.
By this amendment, the committee clarifies that
Corps dredging activities are not exempt from State pollution abatement requirements. In
spite of language in section 313 in the Senate report on the 1972 act, that "requires
every Federal agency with control over any activity or real property, to provide national
leadership in the control of water pollution in such operations", the Supreme Court
ruling in the Minnesota case would otherwise free corps-conducted dredging from compliance
with State water quality standards. The intention of the 1972 act was not to exempt the
Corps or any other public or private agency from State water quality standards and the
interpretation of section 404 by the courts is at variance with the intent of Congress....
This amendment to section 404 is neither intended
nor expected to result in compromising the ability of
the Corps to maintain navigation. The States that have taken administrative and judicial
action to seek Corps compliance with water quality standards have a comparable interest in
the movement of commerce on waterways maintained by corps dredging. The committee expects
that such States will act both to insure compliance with water quality standards and
continued corps dredging activities.
S.Rep.
No. 95-370, at 68-69 (1977), reprinted in 1977
U.S.C.C .A.N. 4326, 4393. North Dakota argues that Section 313 when read in conjunction
with the 1977 amendments, shows that the Corps of Engineers must comply with state water
quality standards. Finally,
*6
The Corps of Engineers argues that the waiver of sovereign immunity set forth in Section
313 is not a complete waiver and specifically points to Section 511 [33
U.S.C. § 1371]
which provides as follows:
This
chapter shall not be construed as
(1) limiting the authority or functions of any
officer or agency of the
(2) affecting or impairing the authority of the
Secretary of the Army
(B) under the Act of March 3, 1899 (30 Stat. 1122);
except that any permit issued under section 1344 of this title shall be conclusive as to
the effect on water quality of any discharge resulting from any activity subject to
section 403 of this title, or
(3) affecting or impairing the provision of any
treaty of the
(emphasis
added). The Corps of Engineers asserts that an injunction precluding necessary releases of
water would not be sufficient to provide minimum service to navigation. The Corps also
characterizes the current situation as the precise type of fact pattern that Section 511
was enacted to address. The Corps acknowledges that its obligation to "maintain
navigation" does not always trump the Clean Water Act. However, the Corps contends
that when it is faced with what it calls an "either-or-situation," the Corps
ability to maintain navigation is not subject to state water quality standards.
The
Corps of Engineers also contends that the Eighth Circuit decision in State
of Missouri ex rel. Ashcroft v. Dep't of the Army, 672 F.2d 1297 (8th Cir.1982) bars
While
there is no question that Section 313 of the Clean Water Act [33
U.S.C. § 1323]
constitutes a partial waiver of sovereign immunity, there is also no question that Section
511 [33
U.S.C. § 1371]
provides sovereign immunity protection for the Corps of Engineers when compliance with the
Clean Water Act may "affect or impair" the authority of the Corps of Engineers
to "maintain navigation." Thus, the issue becomes whether compliance with
FN5. The issue of sovereign
immunity was not addressed in the
3. WATER
QUALITY STANDARDS
*7
The
Federal Water and Pollution Control Act, commonly referred to as the Clean Water Act, 33
U.S.C. § 1251
et. seq. was designed to "restore and maintain the chemical, physical, and
biological integrity of the nation's waters." 33
U.S.C. § 1251(a).
The Clean Water Act provides for two primary sets of water quality measures: effluent
limitations, found in 33
U.S.C. § 1311,
and water quality standards, found in 33
U.S.C. § 1313.
The
effluent limitations section focuses on the control of individual discharges from
"point sources" into the navigable waters. A "point source" is defined
as "any discernable, confined, and discrete conveyance" such as a pipe, ditch,
or conduit from which "pollutants" may be discharged in navigable waters. See
33
U.S.C. § 1362(14). The Clean Water Act provides that the discharge of any "pollutant" by any person
shall be unlawful. The term "pollutant" is defined as "dredged spoil, solid
waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes,
biological materials, radioactive materials, heat, wrecked or discarded equipment, rock,
sand, cellar dirt and industrial, municipal, and agricultural waste discharged into
water." See 33
U.S.C. § 1362(6).
The term "pollution" as opposed to "pollutant" has a broader
definition under federal law and means the "man-made or man-induced alteration of the
chemical, physical, biological, and radiological integrity of the water." See 33
U.S.C. § 1362(19). The courts have determined that the release of water from dams does
not equate with the addition of "pollutants" to navigable waters. See National
Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C.Cir.1982); Missouri
ex rel. Ashcroft v. Dept. of the Army, 672 F.2d 1297, 1303-1304 (8th Cir.1982).. However, few courts have tackled the issue of whether the operation
of dams may create "pollution."
North
Dakota has not alleged that the Corps of Engineers is discharging pollutants into the Missouri
River in violation of Sections 301 [33
U.S.C. § 1311]
and 402 [33
U.S.C. § 1342]
of the Clean Water Act. In fact,
*8
Under Section 303, the Clean Water Act directs each state to establish its own water
quality standards subject to the procedures set forth in federal statutes and regulations.
See 33
U.S.C. § 1313.
State water quality standards must contain three elements, (1) designated uses, (2)
numeric or narrative water quality criteria, and (3) antidegradation rules. 40
C.F.R. § 131.6(a), 136.11(a)(1), 131.11(b)(1)
and (b)(2), 131.6(d), 131.12. There is no mechanism in the Clean Water Act for the enforcement of
water quality standards adopted by the states; rather the enforcement is left to the
states.
On
1. It shall be unlawful for any person:
a. To cause pollution of any waters of the state or
to place or cause to be placed any wastes in a location where they are likely to cause
pollution of any waters of the state; and
b. To discharge any wastes into any waters of the
state or to otherwise cause pollution which reduces the quality of such waters
below the water quality standards established therefor by the department.
The statute also provides that:
3. Notwithstanding any other provisions of this
chapter, and except as in compliance with the provisions of this chapter, and any rules
and regulations promulgated hereunder, the discharge of any wastes or the violation of
any water quality standards, by any person shall be unlawful. The department may
seek injunctive relief for a threatened or continuing violation of a water quality
standard, including any violations of the narrative standards, if the department
determines that the violation will substantially interfere with or cause or threaten to
cause long-term or irreparable harm to waters of this state that the department determines
has statewide or regional significance or has a substantial impact to a local community.
The authority to seek injunctive relief for a violation of the water quality standards,
including violations of the narrative standards, is
limited to the department, after obtaining written approval of the governor, and may not
be enforced by any other person.
N.D.C.C.
§ 61-28-06(3)
(amending language underlined). "Person" is defined in the statute to include
"any state or federal agency or entity responsible for managing a state or federal
facility." N.D.C.C.
§ 61-28-02(5).
"Pollution" is defined as "the manmade or man-induced alteration of the
physical, chemical, biological, or radiological integrity of any waters of the
state." N.D.C.C.
§ 61-28-02(7).
This is virtually the same definition of "pollution" found in the federal Clean
Water Act.
*9
A review of litigation involving the Corps of Engineers and its operations of dams reveals
few situations where states have attempted to enforce their water quality standards, but
at least one other federal district court has grappled with an alleged violation of state
water quality standards by the Corps of Engineers. [FN6] In National
Wildlife Federation v. United States Army Corps of Engineers, 132 F.Supp.2d 876, 878
(D.Ore.2001), the Federal District Court for the District of
Oregon found it had jurisdiction to review claims that the Corps of Engineers was
"violating the Clean Water Act by not complying with the water quality standards of
the State of Washington" and cited to a line of Ninth Circuit opinions to supports
its conclusion. Id.
at 889 (citing Idaho
Sporting Congress v. Thomas, 137 F.3d 1146, 1153 (9th Cir.1998); Oregon
Natural Resources Council v. Lyng, 882 F.2d 1417, 1424 (9th Cir.1989); Oregon
Natural Resources Council v. United States Forest Service, 834 F.2d 842, 848 (9th
Cir.1987)).
FN6. The concept that state
water quality standards should apply to the activities of the Corps of Engineers was noted
in National
Wildlife Federation v. Gorsuch, 693 F.2d 156, 182 (D.C.Cir.1982), where the court stated that statewide water quality plan may be the
better regulatory tool to address "dam-caused pollution." The court also noted
that new dams cannot be built unless they comply with state water quality standards and
cited to an example in
In National
Wildlife Federation, various environmental groups from
The
court stated it must determine whether the actions of the Corps of Engineers were
arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. 132
F.Supp.2d 876, 878-79.. "In determining whether the
Corps' decision ... regarding the operation of the dams were arbitrary and capricious, the
court must 'consider whether the decision was based on a consideration of the relevant
factors and whether there has been a clear error of judgment.' " Id.
at 879. The court reviewed portions of the administrative
record available and found that it was "not possible to conclude that the Corps complied with its legal obligations under
the Clean Water Act when it made the decisions ... based upon a review of the decisions
themselves." Id.
at 890.
*10
The court rejected an argument by the Corps of Engineers that it was not able to comply
with
Although
this action is in the early stages of litigation, North Dakota has not attempted to show
whether the Corps of Engineers sought to comply with the Clean Water Act and state water
quality standards or whether the Corps of Engineers considered the effect its 2003 Annual
Operating Plan would have on the Clean Water Act and state water quality standards.
Instead,
In
addition, the enforcement of