Conservationists will consider appeal

WASHINGTON - The Missouri River can operate without changes sought by environmentalists to save endangered fish and birds, a federal judge ruled Monday.

U.S. District Judge Paul Magnuson ruled in favor of the Army Corps of Engineers on Monday on all counts. His 51-page order came nearly a year after a different federal judge ordered the changes and, when corps leaders refused to act, cited them for contempt.

Magnuson, a St. Paul, Minn., judge, blocked the contempt citation last year after taking over the river litigation.

Conservation groups will weigh whether to appeal.

"Americans deserve more than ecological decline, economic stagnation, and political stalemate along the Missouri River," said Rebecca Wodder, president of the lead group, American Rivers. "We will not give up the fight to save this river for future generations."

Environmentalists have denounced the corps for giving preference to barge shipping downriver over protection of dwindling fish and bird populations.

It is a 14-year battle between conservationists, who along with the fishing and recreation industry in Montana and the Dakotas want a more seasonal ebb and flow, and farming and shipping interests, who argue spring rises and low summer flows would halt barge shipping and cause flooding.

The corps said the ruling shows the agency has balanced all the demands on Missouri River water. The 2,341-mile river flows from Montana through the Dakotas, Nebraska, Iowa, Kansas and Missouri to St. Louis, where it empties into the Mississippi River.

"That's been our goal forever, is to look at all the authorized purposes, plus the Endangered Species Act, and see if we can't make sure that we serve all of these purposes," said Paul Johnston, spokesman for the corps.

A spokesman for the Justice Department, which is defending the corps, applauded the ruling.

"The court overwhelmingly recognized the difficult decision that federal agencies have to ensure navigation, protect recreation and safeguard wildlife," said the spokesman, Blain Rethmeier.

The corps this year updated river operations. The pallid sturgeon and two shorebirds, the interior least tern and piping plover, were placed on the endangered and threatened species lists decades after the old management plan took effect.

The U.S. Fish and Wildlife Service ordered the corps more than three years ago to elevate flows in the spring and reduce summer water levels to protect habitat and encourage spawning and nesting.

But under the Bush administration, service biologists backed off, saying in December that summer water levels can be kept high enough for barge shipping if the corps also builds new habitat for the sturgeon. The service also says the birds can survive without the changes.

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Missouri River Court Ruling 'A Setback'

Conservationists to Review Ruling Before Deciding Next Steps

Press Release

American Rivers

Tuesday, June 21, 2004 

MINNEAPOLIS, Minn.-- Conservationists warned that the Missouri River's ecological health will continue to decline and its economic potential will continue to be squandered in the wake of a court order issued today.  

Expressing confidence that the U.S. Army Corps of Engineers would adopt a new flow regime to protect endangered fish by 2006, Judge Paul Magnuson of the U.S. District Court of Minnesota relieved the Corps of the obligation to make any changes in the operations of its six Missouri River dams this summer. Conservationists had sued the agency seeking measures to improve the survival prospects for three endangered species, improve the river's overall health, and strike a fairer balance among the needs of various river users. 

"The Corps of Engineers has postponed the necessary changes in river flows for nearly fifteen years, and we do not share the court's confidence that new flows will occur sometime in the future without a court order," said Rebecca R. Wodder, president of American Rivers, the lead conservation organization in the litigation. "Americans deserve more than ecological decline, economic stagnation, and political stalemate along the Missouri River." 

The conservation organizations will review the ruling carefully before determining whether to appeal the decision to a higher court. 

When Lewis and Clark set out on their journey to explore to Missouri River more than 200 years ago, they documented an astonishingly scenic landscape teeming with valuable wildlife. They would scarcely recognize the river today. Since the 1940s, the Army Corps has transformed the river channel and timed the release of water from its Missouri River dams to maximize the river's commercial navigability. 

Today's court order preserves -- at least for now -- a status quo along the Missouri River today serves nobody well. Despite lavish government efforts to prop up the barge industry, time has passed it by and traffic has dwindled to a trickle. Misallocation of river water has pushed many river species towards extinction and compromised the growth of a robust recreational industry in regions struggling to diversify their economies. 

"This was a setback, but we'll keep trying," Wodder said. "We predict that long haul barges will disappear from the river by the end of the decade regardless of this ruling. This was a setback but we will not give up the fight to save this river for future generations."

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Steady on the river

Editorial

Omaha World-Herald

Sunday, June 27, 2004

A nifty piece of jurisprudence clarifies procedure in managing the Missouri.

A federal judge in Minnesota has brought order to the debate over Missouri River management policies.

U.S. District Judge Paul Magnuson, in a 51-page ruling, disposed of river- related lawsuits involving more than two dozen litigants - state governments, Indian tribes, businesses and environmental organizations seeking changes in the U.S. Army Corps of Engineers management plans for the river.

Magnuson upheld the corps' judgments on point after point. His approval extended to a 2003 document in which the U.S. Fish and Wildlife Service dropped parts of a 2000 plan to help propagate federally protected least terns, piping plovers and pallid sturgeons. The 2003 document was incorporated in the corps' 2004 master plan, which Magnuson also upheld.

Alternative ideas about the management of the river have been advanced by environmental groups as well as regional and commercial entities. This newspaper editorialized favorably about the notion of raising water levels in the spring and lowering them in the summer - a feature of the 2000 document that was partially abandoned in the 2003 document.

But we ultimately must applaud Judge Magnuson's decision. It has cleared the lines of authority and highlighted information that the public could find useful in negotiating the complicated nuances of river management.

A contrived "spring flood," for example, while it might provide a "spawning cue" for the pallid sturgeon, isn't necessarily a savior of the terns and plovers.

The original theory was that a rush of high water would scour the riverbed of vegetation and create sandbars, on which the birds make their nests and care for their young.

Judge Magnuson, referring to the 2003 plan, wrote that "the corps set forth, and the (Fish and Wildlife Service) agreed, that . . . spring and summer floods would not create sandbar habitat but would potentially destroy beneficial sandbar habitat (emphasis added)." This plan was based on information obtained through study of the 2000 Fish and Wildlife document, he said.

We have noted previously that human efforts to help one wild creature don't necessarily help other wildlife. This is a textbook example of why these management decisions should not be made piecemeal, in the courtroom, as opposed to being considered with care as part of an overall plan.

Some accounts of the ruling painted it as a clear victory for the barge industry and a setback for federally protected creatures. This view is probably popular among those who see the corps as a dam-building, channel-dredging behemoth devoid of environmental responsibility.

That is not our view of the corps. It certainly isn't the picture that shines through Judge Magnuson's ruling.

Magnuson wrote that the corps is not required to prioritize the various purposes of its management - flood control, irrigation, navigation, power, domestic and sanitary purposes, wildlife and recreation. At the same time, he said, it has a responsibility to consider all of them and find a balance.

The corps' plan, Magnuson noted, "contains additional elements, such as a drought conservation plan, Gavins Point Dam summer releases, accelerated construction of shallow water habitat and adaptive management, that together avoid jeopardy to the plover and tern."

The agency has pledged to create 20,000 acres of sturgeon-breeding shallow water habitat. Last week, it finished the first installment of 1,200 acres.

So the wild creatures aren't neglected, even in the broad management plans of the corps.

How about the spring flood that has become such a symbol in the debate?

It is still in the picture. The 2000 plan allowed a spring rise "only in the event that conditions permitted," Magnuson noted. The 2003 document "similarly permits a spring rise provided water conditions are favorable." This year, he said, conditions were not favorable.

"Whether a spring rise will occur in 2005 will depend on the status of water conditions in 2005," he said.

In the plan, the corps also is directed to "initiate an experimental spring pulse to assist and inform the process of establishing a long-term flow plan."

Nebraska was a loser on a couple of points in the lawsuit. Magnuson rejected a public power district contention that minimum flow levels are required. And he declined to bar the corps from deviating from its plan in an emergency, as Nebraska and some other state governments have requested.

But if drought conditions persist around the Missouri's Rocky Mountain headwaters, minimum stream flows become a paper tiger. And the authority to deviate from the plan in an emergency is simply good management.

Where all this is headed, nobody knows. Drought is a reality with unpredictable potential. Economic evolution has made the barge industry a less prominent contender for a place at the table.

The flood-control and electricity-generation responsibilities of river management continue to affect hundreds of thousands of people throughout the river basin. And, yes, a long-term impulse exists to restore the river as a place of natural beauty and outdoor recreation.

Balancing these concerns is a heavy responsibility for the federal agencies charged with the task.

On point after point, Magnuson referred back to the law and declined to second-guess decisions made by the corps, or the Fish and Wildlife Service, under the law. His ruling, even if it eventually is appealed and superseded, stands as a model of judicial restraint.

The message to all in the Missouri River debate should be clear. If you don't like what the law now says, don't just file another lawsuit. In this and many other matters, the proper agency for changing public policy is Congress.

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Judge vindicates efforts to balance river issues

Opinion

By Harold Anderson

Omaha World-Herald

Sunday, June 27, 2004

The controversy and legal battling will continue, I believe, but a federal judge's ruling last week was nonetheless significant and welcome, endorsing as it did the U.S. Army Corps of Engineers' revised plan for managing flows on the Missouri River.

The corps has been the target for many years of a bitter campaign of half-truths and untruths because it has refused to let "save the river" extremists dictate how the corps should carry out its congressional mandate to manage the Missouri's flow.

The truth is that the corps has made significant changes in an attempt to accommodate a variety of interests. But the changes quite properly - and legally - had to be made within the parameters of what Congress told the Corps of Engineers to do in the Flood Control Act of 1944.

U.S. District Judge Paul Magnuson of St. Paul, Minn., ruled last Monday in favor of the corps on all counts in a lawsuit brought by "save the river" conservation activists.

The prospect of further litigation was raised by Rebecca Wodder, president of the lead conservation group, American Rivers. "We will not give up the fight to save this river for future generations," Wodder said.

It is utter nonsense to suggest that the Missouri River will figuratively die unless it is turned back toward its more natural, "meandering" state, as some "save the river" extremists advocate.

It should never be forgotten that the Flood Control Act of 1944 was specifically designed to keep the river from "meandering," cutting new channels, causing frequent flooding and serving - except for wildlife habitat - none of the important interests now served by a channelized, non-meandering Missouri.

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River's true potential not yet realized

A federal judge's approval of the U.S. Army Corps of Engineers' new master plan for the Missouri River means that only a small step will be made toward wiser management.

Editorial

Lincoln Journal Star

Monday, June 28, 2004

 A giant step was needed.

At least the new plan is a move in the right direction.

As the relatively minor changes in management are implemented, it will become even clearer how wrong-headed it is to operate the river for the benefit of the barge industry.

For a half-century the barge industry has been calling the shots. But the industry has never been able to generate enough economic activity to match the subsidy.

Meanwhile, the recreational use of the river and the lakes behind its dams have soared, generating 10 times the economic activity produced by barges. That only scratches the surface of the river's recreational potential. The river needs to be transformed from a steep-sided ditch filled with speeding water into a more natural, slower-moving river, with side channels filled with habitat for fish and wildlife.

Initial news accounts of the ruling by Judge Paul Magnuson portrayed the ruling as a defeat for American Rivers, an advocacy organization that sought for more pronounced natural seasonal flows - high in the spring, low in the summer.

While it is certainly true that the plaintiffs in the case were dismayed by the ruling - and may yet appeal it court -the barge industry also was disappointed.

Chris Brescia, head of a group that promotes Missouri River commerce, told the St. Louis Post Dispatch that the corps plan could trim nearly two months off the annual navigation season.

North Dakota Attorney General Wayne Stenehjem was more pointed. "The downstream states lost everything they asked for," he said. "The bottom line is, the corps needs to recognize that the barge industry is a dinosaur. Once it comes to that realization, we will start to see ourselves out of the woods."

The most worthwhile aspect of the ruling is that it means the corps will continue to recreate more wildlife habitat along the Missouri. The corps' master plan calls for creation of 20,000 acres of wildlife habitat by 2020.

The corps has begun working toward that goal. Recently it transformed almost 1,800 acres, opening up side channels that had been closed off from the river. Just north of Ponca State Park in Nebraska the corps created new sandbars. Almost immediately, endangered plovers began nesting on them.

The work is only a start. Visionaries already can picture the Missouri River restored to a scenic waterway teeming with wildlife and natural beauty. That dream is still too far in the future.

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Downstream states also lost

By RICHARD HINTON

Bismarck Tribune

Wednesday, June 23, 2004

All may not be sunk after a federal judge's ruling sided with the U.S. Army Corps of Engineers in a lawsuit over how the Missouri River is operated.

"The downstream states lost everything they had asked for, as well," North Dakota Attorney General Wayne Stenehjem said Tuesday.

The most significant loss for downstream states, Stenehjem said, was their legal argument that navigation is the top priority for how the river is managed.

The ruling said the corps is correct in balancing all uses of the river, which includes recreation. "The only flaw is the corps is not acting accordingly," Stenehjem added.

Downstream states wanted the 1944 Flood Control Act as the priority, Stenehjem added. The act is interpreted to mean river management is based on navigation needs.

Downstream interests also sought a ruling that upstream states' spawning and walleye programs violated the Endangered Species Act, Stenehjem said. That lawsuit was dismissed. It was brought by Blaske Marine and other principals in the barge industry and also sought more water for navigation on the lower Missouri River.

Now the corps has to do its part in managing the river, Stenehjem continued.

"The bottom line is the corps needs to recognize that the barge industry is a dinosaur. Once it comes to that realization, we will start to see ourselves out of the woods."

The corps still must comply with the Endangered Species Act, which protects two shore birds that live along the river banks and the dwindling pallid sturgeon population that lives in the river.

U.S. District Judge Paul Magnuson's 50-plus page decision released Monday evening may have cleaned the last of the consolidated river lawsuits from his plate, but several legal and legislative issues involving Missouri River management remain on other tables.

One is North Dakota's Clean Water Act lawsuit that was dismissed by Magnuson. The state has appealed his decision to the 8th U.S. Circuit Court of Appeals.

Another is legislation that Montana Sen. Max Baucus introduced in late April. The legislation would set a minimum water storage level of 44 million acre feet for the six upstream reservoirs in the Missouri River system. If storage dropped below that floor, water releases for navigation would be stopped. The system was at 38.8 maf on Tuesday.

And American Rivers, one of the conservation groups hardest hit by Magnuson's Monday decision, is weighing whether to appeal. If the conservation groups do appeal, North Dakota certainly would join in, Stenehjem said.

"And we want to see what Missouri and Blaske Marine does," Stenehjem added. "They have to be more unhappy down there."

In the wake of the flurry of recent Missouri River opinions, Gov. John Hoeven repeatedly has called for Congress to get involved.

He pressed for a new law again late Monday, "one that reflects today's realities on the river. It's not only for fish, but all the other uses that dwarf the barge traffic."

Hoeven pointed to the North Dakota cities that lost water as a result of the river's lower levels. "Those needs far outweigh navigation," he said.

Sen. Kent Conrad said he is exploring legislative options regarding management of the river system. The North Dakota Democrat said Baucus' legislation would mean an additional 5 feet of water in Lake Sakakawea.

"In addition, I will be working to redirect some funding toward repairing municipal water intakes and boat ramps that have been hit the worst by the corps' river mismanagement."

Conrad also accused the Bush administration of unfairly siding with downstream interests, creating potential roadblocks for any legislative proposals.

Fellow North Dakota Democrat, Sen. Byron Dorgan, agreed with Conrad's assessment.

"We've had big battles with downstream states, and we run into problems because the president went to Missouri and said 'I support your position.'"

He called the Baucus legislation one additional idea among many that would approach the issue.

"I think we are stalemated without a bit of help from the White House," he said. "When the White House is supporting downstream states, it's an uphill battle for those of us who come from upstream states."

Rep. Earl Pomeroy, D-N.D., also pointed a finger at the administration, saying it clearly does not support efforts to address Missouri River management

"Given this environment, legislation to address North Dakota's needs will be difficult to enact, but I certainly support these efforts."

Baucus' bill is in the Energy and Public Works committee, and Baucus, a Democrat, is seeking to secure a co-sponsor from the other side of the aisle.

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River ruling is called "win-loss" for Missouri

By William Lamb

St. Louis Post-Dispatch Washington Bureau

Wednesday, June 23, 2004

WASHINGTON - Missouri officials gave mixed reviews Tuesday to a federal judge's ruling that ratified proposed seasonal changes to water levels along the Missouri River.

Monday's ruling by U.S. District Judge Paul Magnuson almost certainly means that water levels along the lower stretch of the river will rise and fall with the seasons starting in 2006, the officials said.

Missouri Attorney General Jay Nixon said Tuesday that the seasonal ebb and flow, with water levels at their peak in the spring and their lowest in the late fall and winter, could make it difficult for barges to navigate the river and get agricultural products to market.

On the other hand, Nixon and other state officials said, the outcome could have been worse had Magnuson sided with American Rivers and a host of other environmental groups. The environmentalists had argued for wider seasonal variations in water levels to protect three threatened or endangered species: the least tern and the piping plover, both birds, and the pallid sturgeon, a fish.

Monday's ruling also was a setback for drought-stricken states along the river's northern path, which had petitioned for seasonal changes to provide more water for recreation and irrigation.

Instead, Magnuson's ruling essentially ratified the Army Corps of Engineers' 2004 manual for management of the river, which will keep more of the river's water in upstream reservoirs for drought conservation. A corps spokesman said the ruling showed that the agency had delicately balanced the needs of all groups.

Nixon called the ruling a "win-loss day in the sense that the court did not do what the Dakotas or American Rivers wanted."

"But the bottom line," Nixon said, "is that this makes it much more difficult for the barge industry to operate. First, they need to know what the water levels are going to be at what time. They need certainty, and this takes away certainty. Also, the low flow in the winter makes it difficult to get products to market."

Mike Wells, chief of water resources for the Missouri Department of Natural Resources, echoed Nixon Tuesday, calling Monday's ruling a "mixed bag."

Missouri will get "less water under this ruling compared with the old plan," he said. "It's going to be hard to make plans for the future and how the Missouri River is going to be used downstream."

Eric Eckl, a spokesman for American Rivers, the Washington-based environmental group that brought the suit against the corps, said the ruling was a disappointment. But Eckl added that he was encouraged that it requires seasonal changes in water levels, even if they are more modest than those that environmentalists had sought.

"We don't think it's enough, we don't think it's a good start," Eckl said. "But we certainly think it's worth noting that the Army Corps is obligated to engage in a very modest spring rise."

Chris Brescia, president of MARC 2000, a group dedicated to the promotion of river commerce, said Tuesday that the corps' plan could trim nearly two months off the annual navigation season.

"Just about everybody was denied what they asked for except for the federal government," Brescia said. "I think that's probably the best way to characterize it."