Judge issues stay of sanctions in river case

Saturday, July 26, 2003

WASHINGTON -- A federal judge delayed a ruling that would have fined the Army Corps of Engineers $500,000 each day it refuses a court order to lower the water levels on the Missouri River.

U.S. District Judge Paul Magnuson in Minnesota issued a two-week stay of another federal judge's contempt order, which required the corps to drop Missouri River water levels or pay fines beginning Friday. The corps said Friday it would maintain current river levels.

The order, issued late Thursday, applied to the contempt ruling and all Missouri River litigation that had been transferred to Magnuson's court hours earlier by a judicial panel. There are six lawsuits in all.

The corps faced sanctions because it refused to follow a July 12 order from a federal judge in Washington to drastically reduce the Missouri's water flow to protect birds and fish listed under the federal Endangered Species Act.

The agency received a conflicting order from a federal judge in Nebraska last year, requiring the corps to provide enough water for barge shipments on the Missouri.

Still, U.S. District Judge Gladys Kessler held the corps in contempt on Tuesday and said sanctions would begin Friday.

Lawsuits in federal courts involving similar claims can be consolidated and moved to a single judge for pretrial purposes, which the federal Judicial Panel on Multidistrict Litigation did with the river cases Thursday afternoon.

Earlier, the government had asked the 8th U.S. Circuit Court of Appeals to delay the Nebraksa judge's ruling to avoid being held in contempt.

The appeals court on Friday denied the stay, saying there was no need for it because a stay already was in effect.

Conservation groups called on the corps to drop water levels immediately.

"In plain English, there never were conflicting orders on river flows," said David Hayes, the attorney representing the groups.

The corps and the Justice Department said Friday that the Minnesota judge's stay means a halt to all the rulings in the case, and the corps announced it would maintain current depths.

"The corps has been faced with conflicting court rulings," said Brig. Gen. William Grisoli, chief of the corps' northwestern division.

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

Conservation 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.

Barge and farming interests say the corps has an obligation to provide enough water for barges.

The reductions sought in the contempt 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.

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