Judge holds government in contempt over Missouri River, imposes fines

Associated Press
Billings Gazette


WASHINGTON — The Army Corps of Engineers has until Friday to lower Missouri River water levels or pay half a million dollars for each day it disobeys a federal judge’s order to cut the flow.

U.S. District Judge Gladys Kessler cited the corps and the secretary of the Army for contempt on Tuesday night and warned she might impose "more draconian contempt remedies" if river depths are not reduced by July 31. Additional penalties could include jail time.

The next option for the corps would be for Justice Department lawyers to seek an emergency stay at the Supreme Court from Chief Justice William H. Rehnquist, who handles emergency matters involving the U.S. Circuit Court of Appeals for the District of Columbia.

"We’re reviewing the judge’s decision and will evaluate our options now," Justice Department spokesman Blain Rethmeier said. Corps spokesman Paul Johnston said he expected government lawyers would respond to the contempt citation in a "timely fashion."

The corps has refused to comply because it says Kessler’s order conflicts with an earlier Nebraska federal court ruling requiring enough water for barge shipping and power generation.

"We are still conflicted," Johnston said. "The judge’s ruling does not resolve the inherent conflict we have, with one court telling us to let water out and the other court telling us not to."

Kessler ordered water levels dropped in a July 12 injunction she granted conservation groups that are suing to alter the Missouri’s flow.

The groups want the Missouri to ebb and flow as it did before it was dammed and channeled decades ago to provide constant depths for barge shipping and other uses. The goal is to encourage spawning and nesting to help sturgeon and shorebird species on the government’s threatened and endangered lists.

"The Missouri River’s heartbeat, long flatlined by the corps, is about to get a brief and partial shock back to life," Chad Smith, spokesman for lead plaintiff American Rivers, said Tuesday.

Kessler’s order was to cut the flow, beginning last week, on the lower Missouri River through Nebraska, Iowa, Kansas and Missouri.

She conceded Tuesday that "a conflict may exist" with the Nebraska federal court ruling, but she said a conflict does not excuse the agency from obeying her order. And she accused the government of dragging its feet in responding to the injunction.

Justice Department lawyers representing the corps sought emergency stays last week that were rejected by Kessler and the U.S. Circuit Court of Appeals for the District of Columbia.

"Moving to stay an order does not represent a good faith effort to comply with that order," Kessler wrote. "Rather, it represents an effort to postpone compliance with that order in the hope that it will be overturned on appeal."

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.

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

The sport fishing industry and other upstream interests would benefit from low summer flows that would keep more water in upstream reservoirs in Montana and the Dakotas.

Debate has dragged on for more than a decade over the seasonal changes and whether they should become part of the corps’ Master Water Control Manual for operating the Missouri River.

The corps has not revised the master manual since 1979, before the least tern, piping plover and pallid sturgeon were listed as threatened and endangered under the Endangered Species Act, one of the nation’s most potent environmental laws.

When the agency announced last week it would refuse to comply with Kessler’s order, it also announced new plans to complete master manual revisions by next year.


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