Appeals Court frees Corps from orders on Missouri River

Wednesday, May 22, 2002

Associated Press WriterPIERRE, S.D. (AP) -- A federal appeals court has freed the U.S. Army Corps of Engineers from three court orders that restricted how the agency operated the Missouri River in South Dakota, North Dakota and Nebraska.

The 8th U.S. Circuit Court of Appeals on Tuesday issued a stay that blocks orders issued by federal judges in the three states. State officials received the appeals court's decision on Wednesday.

South Dakota Assistant Attorney General Charlie McGuigan said the appeals court's ruling means the corps is no longer under any court order restricting its operation of the river in South Dakota, North Dakota and Nebraska. A federal judge's order in Montana may still be in effect, he said.

South Dakota Attorney General Mark Barnett said the legal battle had accomplished most of South Dakota's short-term goals by preventing the corps from lowering the water in Lake Oahe during the fish spawning season. The court order protected eggs laid in shallow water in Lake Oahe by baitfish and walleyes.

"We got through most of the hatch, so we're pleased with that," Barnett said. "Because frankly, without this court action, I think we would have taken a tremendous hit to the fishing industry."

Corps spokesman Paul Johnston said the agency was already working with South Dakota officials Wednesday morning to release more water from Lake Oahe to raise levels in the three reservoirs below Oahe. Some boat docks and marinas had become nearly unusable because water had to be taken from Lakes Sharpe, Francis Case and Lewis and Clark during the legal fight.

State officials now want water in the three reservoirs to support fishing and boating over the Memorial Day weekend, Johnston said.

The corps also has received some good news from Montana, Johnson said. Warm weather has increased the Rocky Mountain snow melt, so more water is flowing into the Missouri River, he said.

After South Dakota, North Dakota and Nebraska got court orders limiting how the corps could operate the Missouri River system, the corps appealed. The appeals judges will hear arguments on the merits of the three cases later. In the meantime, the initial court orders that had been issued in North Dakota, South Dakota and Nebraska will no longer be enforced.

Barnett said he will recommend to Gov. Bill Janklow that the state pursue the case to seek a permanent court ruling that would require the corps to honor its 1993 commitment to give upstream recreation equal consideration with downstream barge traffic.

The corps has argued that it is trying to manage the river as best it can after three years of drought.

The upstream states contend the federal agency is favoring downstream barge traffic over fishing and other recreation in the reservoirs in South Dakota, North Dakota and Montana.

Federal judges in South Dakota and North Dakota had issued orders preventing the corps from lowering some Missouri River reservoirs to protect fish eggs. A federal judge in Nebraska ordered the corps to maintain adequate flow to support barge traffic below the reservoirs.

The corps had intended to drop Lake Oahe by 3 feet to provide water for downstream navigation this spring, but South Dakota went to court in late April after biologists determined that this year's hatch of smelt would be the best in five years on the huge reservoir.

Smelt are a key food source for walleyes and other game fish. The smelt population crashed in 1997, partly because hundreds of millions were flushed through Oahe Dam by the corps. The lack of smelt left Lake Oahe's walleyes stunted, and that hurt resorts and other businesses in the fishing industry.

U.S. District Judge Charles Kornmann initially prevented the corps from lowering Lake Oahe, but the corps then dropped Lake Francis Case by about 3 feet to provide water for downstream use. The state argued the drop in Lake Francis Case wiped out most of the walleye eggs in that reservoir.

Kornmann later issued another order also preventing the corps from further lowering Lake Francis Case.

North Dakota and Montana also got federal court orders preventing the corps from lowering Lake Sakakawea in North Dakota and Fort Peck Reservoir in Montana.

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