Posted on Mon, Mar. 20, 2006
U.S. Supreme Court declines to hear Missouri River appeal
MARY CLARE JALONICK
Associated Press
WASHINGTON - The Supreme Court refused Monday to hear North Dakota's
arguments that the Army Corps of Engineers has violated state water
pollution laws in managing the Missouri River's water flows.
An appeals court ruled last August that North Dakota could not use its
anti-pollution laws to force the agency to keep more cold water in Lake
Sakakawea's lower depths and help the state's fishing and recreation
industries.
The states of Montana, South Dakota, Nevada and South Carolina had also
asked the justices to consider North Dakota's appeal. The Supreme Court
declined Monday to hear the case. No reason was given.
Attorney General Wayne Stenehjem speculated that the court decided
against hearing the dispute because similar arguments have not arisen
in other appeals courts.
"Sometimes, the Supreme Court declines to hear a case because there are
not sufficient circuits that have different rulings on a question, and
that could well be the reason that they determined not to take this
case, at this time," Stenehjem said.
The 8th U.S. Circuit Court of Appeals court ruled earlier that North
Dakota could not enforce its anti-pollution laws against the corps if
doing so would hamper its ability to manage Missouri River navigation.
A federal law called the Clean Water Act shields the corps from
lawsuits over its Missouri River management decisions, the appeals
ruling said.
A second case, brought by North Dakota and South Dakota, is still
awaiting the Supreme Court's decision on whether it will consider it.
In that dispute, the two states are challenging the same appeals
court's ruling that Missouri River navigation trumps other water
interests when the corps makes decisions on managing river flows.
The decision said recreation and other water uses on the Missouri's
upstream reservoirs are of lesser value than maintaining navigation
traffic along the river's shipping channel, which runs from Sioux City,
Iowa, to St. Louis.
"That's a more serious issue for us," Stenehjem said. "I'm hopeful
we'll be able to get the Supreme Court to take the case and to
determine that all of the (water) uses are to be given equal
consideration."
Lake Sakakawea is the largest of the six Missouri River reservoirs in
Montana, North Dakota and South Dakota.
All three states have been pushing the corps to store more water in the
reservoirs, while downstream states resist the idea. They rely on the
water to maintain Missouri River barge shipping and satisfy other
needs, including water supplies to some cities.
The case is North Dakota v. U.S. Army Corps of Engineers, 05-628.
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