Feds seek changes to order in advance of contempt hearing

WASHINGTON -- The government on Sunday asked a Nebraska federal court to modify an order requiring higher Missouri River water levels that conflicts with a July 12 court ruling in favor of lower flows.

The Justice Department asked the Nebraska court to alter its ruling to comply with the new order for low flows, and the U.S. Army Corps of Eningeers ordered barge shippers and other river users to secure vessels for lower flows.

Pending a ruling on Sunday's request, "it is anticipated that the ... flows will not be sufficient to maintain commercial navigation from Sioux City, Iowa, to St. Louis," the corps said in a news release issued Sunday.

The legal maneuvering came hours before a contempt hearing against the Army Corps of Engineers set for this morning in the District of Columbia.

U.S. District Judge Gladys Kessler in Washington scheduled the contempt hearing for the corps to explain why it is refusing to obey an injunction she granted ordering low flows on the Missouri.

Conservation groups are suing the corps under the Endangered Species Act, saying the river must be restored to a more seasonal ebb and flow, mimicking natural river conditions before dams and channels were built.

That, the groups contend, would encourage fish spawning and bird nesting by threatened and endangered species.

Kessler granted an injunction July 12 sought by the conservation groups.

The corps on Tuesday refused to comply, saying that cutting flows would violate an earlier ruling by the U.S. District Court for the District of Nebraska that the Missouri must have enough water for barges to navigate and power plants to operate.

That led Kessler to schedule the contempt of court hearing for Monday morning.

"Right now, we have conflicting rulings," Army Corps of Engineers spokesman Paul Johnston said Sunday. "Even though they have different justifications, one says continue to release water; the other says don't release water."

On Friday, an appeals court rebuffed a government effort to stay Kessler's order on an emergency basis, although the government's appeal is still pending. The U.S. Court of Appeals for the District of Columbia denied the government's request for an emergency stay pending appeal of Kessler's ruling.

When the corps announced it would refuse to comply with Kessler's order and instead follow the earlier court order, it also announced plans to finish long-delayed revisions of its "master manual" for operating the river.

Delays have lasted more than a decade because of the battle over returning the Missouri to a more seasonal ebb and flow.

Kessler acknowledged in her order that barge companies will lose revenues, water quality may suffer and consumers may pay more for power this summer along the Missouri River.

But she said that injury to wildlife -- the least tern, piping plover and pallid sturgeon -- will be irreparable without curtailing the Missouri's flow.