Panel transfers action in case of Missouri River

Friday, July 25, 2003

WASHINGTON -- A judicial panel on Thursday afternoon transferred dueling federal court rulings regarding the Missouri River to a different federal court in Minnesota.

The order removed jurisdiction from U.S. District Judge Gladys Kessler, who issued a contempt citation Tuesday ordering the U.S. Army Corps of Engineers to drop water levels on the Missouri or pay $500,000 a day beginning today.

It was unclear late Thursday how the transfer would affect the contempt ruling and the sanctions.

"We're still evaluating what the impacts are going to be," corps spokesman Paul Johnston said.

The federal Judicial Panel on Multidistrict Litigation transferred six lawsuits involving the Missouri River to U.S. District Judge Paul Magnuson in Minnesota. Lawsuits pending in federal courts that involve similar claims can be consolidated and moved to a single judge for pre-trial purposes.

Besides the lawsuit filed by conservation groups in Kessler's court, the transfer also removed jurisdiction from a federal judge in Nebraska who last year ordered the corps to provide enough water for barge shipments on the Missouri.

The corps had refused to follow Kessler's order to reduce water levels because of the Nebraska ruling.

The Justice Department on Thursday asked the Minnesota court for emergency stays while the matter is reviewed.

U.S. District Judge Laurie Smith Camp in Nebraska refused Wednesday to modify her ruling to help the corps avoid being held in contempt. She encouraged the government to appeal to the 8th U.S. Circuit Court of Appeals, which it did late Tuesday. Minnesota also is part of the 8th Circuit.

At issue is the Endangered Species Act and whether it takes priority over barge shipping, flood control and other uses of the river.

The Washington judge ruled that endangered species should be afforded the highest of priorities and ordered water levels dropped in an injunction she granted July 12 to American Rivers and other conservation groups.

The groups want the Missouri to ebb and flow more naturally to encourage spawning and nesting to help sturgeon and shorebird species on the government's threatened and endangered lists.

The Nebraska judge said that maintaining enough water for barge navigation trumps the protection of wildlife and other interest. Barge and farming interests say the corps has an obligation to provide enough water for barge shipments.

The reductions in Kessler's order would halt navigation on the Missouri, dropping depths at Kansas City, Mo., from about 14 feet to eight feet -- too shallow for barges carrying grain and other cargo to the Mississippi River at St. Louis.


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