Army Corps Narrowly Interprets River Ruling

The Army Corps of Engineers announced plans Tuesday to lower Missouri River water levels for three days next week rather than the full month ordered by a federal judge seeking to protect birds and fish under the Endangered Species Act.

The corps had refused to follow the order to drastically reduce the Missouri’s depth because the agency said it was under a conflicting order from a Nebraska judge to provide enough water for barge shipments.

U.S. District Judge Paul Magnuson of Minnesota, who took over the case last month, ruled Monday that no conflict existed and that the order to reduce water releases remained in effect.

The original order, issued July 12 by U.S. District Judge Gladys Kessler, cited a period from mid-July to mid-August.

The corps ordered barge shippers to secure their vessels for a period of low flows from Aug. 12 to Aug. 15 that would make the river too shallow for navigation. The directive apparently interprets Kessler’s order only as ending mid-August -- and not as comprising a full month.

Conservation groups expressed anger at the corps’ announcement.

“Who do they think they’re fooling?” said Eric Eckl, a spokesman for American Rivers, the lead plaintiff. “Three days? It’s hard to imagine that such a very limited period is going to have any appreciable effect. This is an act of bad faith.”

A spokesman for the Justice Department, which is representing the corps, said Tuesday that lawyers were discussing their next course of action. Department attorneys plan to ask Magnuson today to renew a stay of the order for less water.

The corps was cited for contempt of court for disobeying the order, but Magnuson delayed the contempt finding and resulting fines of $500,000 a day. He said a higher court, the 8th U.S. Circuit Court of Appeals, was expected to rule Aug. 27, and he scheduled a status conference in his court for Sept. 8.

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

Conservation groups want the Missouri to ebb and flow more naturally to encourage spawning and nesting to protect shorebirds and sturgeon on the government’s list of threatened and endangered species.