State of SD v. MO-ARK Association , 330 F.3d 1014 ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
__________________________________
Nos. 02-2133SD, 02-2144SD, 02-2185SD,
02-2187SD, 02-2191NE, 02-2305ND
__________________________________
_____________ *
*
No. 02-2133SD *
_____________ *
*
State of South Dakota, and *
William J. Janklow, Governor, *
*
Plaintiffs - Appellees, *
*
v. *
*
* On Appeal from the United
Lt. Colonel Kurt F. Ubbelohde, * States District Court
District Engineer, Omaha District, * for the District of
United States Army Corps of * South Dakota.
Engineers, and General David A. *
Fastabend, Commander, NW Division, *
Portland, Oregon, *
*
Defendants, *
*
*
Mo-Ark Association, formerly *
known as Missouri-Arkansas River *
Basins Association, *
*
Movant - Appellant. *
_____________ *
*
No. 02-2144SD *
_____________ *
*
State of South Dakota, and *
William J. Janklow, Governor, *
*
Plaintiffs - Appellees, *
*
v. *
*
*
Lt. Colonel Kurt F. Ubbelohde, *
District Engineer, Omaha District, * On Appeal from the United
United States Army Corps of * States District Court
Engineers, and General David A. * for the District of
Fastabend, Commander, NW Division, * South Dakota.
Portland, Oregon, *
*
Defendants, *
*
*
Ergon Asphalt and Emulsions, Inc.; *
Magnolia Marine Transport *
Company; Blaske Marine, Inc.; *
Koch Materials Company; Mid-West *
Terminal Warehouse Company, Inc.; *
Tosco, a subsidiary of Phillips 66 *
Company; Jebro, Incorporated, and *
Memco Barge Line, Inc., *
*
Movants - Appellants. *
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_____________ *
*
No. 02-2185SD *
_____________ *
*
State of South Dakota, and *
William J. Janklow, Governor, *
*
Plaintiffs - Appellees, *
*
v. *
* On Appeal from the United
* States District Court
Lt. Colonel Kurt F. Ubbelohde, * for the District of
District Engineer, Omaha District, * South Dakota.
United States Army Corps of *
Engineers, and General David A. *
Fastabend, Commander, NW Division, *
Portland, Oregon, *
*
Defendants, *
*
*
State of Nebraska, *
*
Movant - Appellant. *
*
_____________ *
*
No. 02-2187SD *
_____________ *
*
State of South Dakota, and *
William J. Janklow, Governor, *
*
Plaintiffs - Appellees, *
*
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v. * On Appeal from the United
* States District Court
* for the District of
Lt. Colonel Kurt F. Ubbelohde, * South Dakota.
District Engineer, Omaha District, *
United States Army Corps of *
Engineers, and General David A. *
Fastabend, Commander, NW Division, *
Portland, Oregon, *
*
Defendants - Appellants. *
*
_____________ *
*
No. 02-2191NE *
_____________ *
*
State of Nebraska, also known as *
Don Stenberg, Attorney General of *
the State of Nebraska, ex rel., *
*
Plaintiff - Appellee, *
*
v. *
*
*
State of Missouri, *
*
Intervener Below - *
Intervener on Appeal, *
* On Appeal from the United
* States District Court
Kurt F. Ubbelohde, Lt. Colonel, * for the District of
District Engineer, Omaha District, * Nebraska.
United States Army Corps of *
Engineers, and General David A. *
Fastabend, Commander, NW Division, *
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Portland, Oregon, *
*
Defendants - Appellants, *
*
------------------------- *
*
State of Iowa, *
*
Amicus on Behalf of Appellee. *
*
_____________ *
*
No. 02-2305ND *
_____________ *
*
State of North Dakota, and *
John Hoeven, Governor, *
*
Plaintiffs - Appellees, *
*
v. *
* On Appeal from the United
* States District Court
Lt. Colonel Kurt F. Ubbelohde, * for the District of
District Engineer, Omaha District, * North Dakota.
United States Army Corps of *
Engineers, and General David A. *
Fastabend, Commander, NW Division, *
Portland, Oregon, *
*
Defendants - Appellants. *
*
*
State of Missouri, *
*
Intervener on Appeal. *
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___________
Submitted: February 10, 2003
Filed: June 4, 2003 (Corrected: July 29, 2003)
___________
Before WOLLMAN, RICHARD S. ARNOLD, and MELLOY, Circuit Judges.
___________
RICHARD S. ARNOLD, Circuit Judge.
This case arises out of the management of the Missouri River, which runs
through seven states in its journey from Montana to Missouri. The United States
Army Corps of Engineers is charged with the responsibility of managing this river
and its attendant reservoirs. In carrying out this charge, the Corps must strike a
balance among many interests, including flood control, navigation, and recreation.
In good times, the Corps can accommodate all such interests, but, when facing a
continuous drought, the Corps is forced to make hard choices. In the Spring of 2002,
the Missouri River Basin was in the midst of just such a prolonged drought. The
Corps decided to release water from a single reservoir, Lake Oahe, to maintain
downstream river flow. The State of South Dakota, where Lake Oahe is located,
sought and received an injunction barring this release. This action led other states to
seek similar injunctions. Within a period of days, courts had put four of the six
mainstem reservoirs off limits for releases. The State of Nebraska then sought and
received an injunction requiring the Corps to maintain downstream river flow.
In this case we review the decisions of three district courts to issue preliminary
injunctions binding the Corps. District Courts in North Dakota and South Dakota
enjoined the Corps from drawing down reservoirs located in their states for short
periods of time, and a Nebraska District Court ordered the Corps to abide by its
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governing Missouri River operations manual. We reverse the judgments of the
District Courts in North Dakota and South Dakota and affirm the judgment of the
Nebraska District Court.
I.
Congress enacted the Flood Control Act of 1944 to provide for the orderly
management of the Missouri River Basin. Pub. L. No. 78-534, 58 Stat. 887 (1944).
The Act had numerous purposes. First, it entrusted the Army Corps of Engineers with
the task of managing the River basin. The Corps is charged, for example, with
constructing and managing the dams and reservoirs created by the Act, 16 U.S.C.
§ 460d, making contracts for use of surplus water available at the reservoirs, 33
U.S.C. § 708, and “prescrib[ing] regulations for the use of storage allocated for flood
control or navigation at all reservoirs . . . the operation of any such project shall be
in accordance with such regulations,” 33 U.S.C. § 709.1 The Act thus granted the
Corps considerable power over the River basin.
The Act also laid out certain substantive interests that it was to serve. The
dominant functions of the Flood Control Act were to avoid flooding and to maintain
downstream navigation. ETSI Pipeline Project v. Missouri, 484 U.S. 495, 512
(1988). The Act’s dominant functions were expressed repeatedly in three
Congressional Documents: Senate Documents 191 and 247 and House Document
475. See Flood Control Act Section 9, 58 Stat. at 891. House Document 475, which
represented one of two competing plans, confirmed this view, stressing flood control.
H.R. Doc. No. 475, 78th Cong., 2d Sess. 28-29 (1944). At the same time, however,
the Act recognizes secondary uses of the River including irrigation, recreation, fish,
1
The Act also gave certain responsibilities to the Department of the Interior.
See generally ETSI Pipeline Project v. Missouri, 484 U.S. 495 (1988). These
responsibilities are not at issue in this case.
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and wildlife. See Flood Control Act Section 4, 58 Stat. at 889-90; 33 U.S.C. § 708;
43 U.S.C. § 390. The House Document just cited noted that the management plan
“would also provide for the most efficient utilization of waters of the Missouri River
Basin for all purposes, including irrigation, navigation, power, domestic and sanitary
purposes, wildlife, and recreation. ” H.R. Doc. No. 475, supra, at 29. Senate
Document 247, which reconciled the competing proposals, included a discussion of
the purposes of Lake Oahe: “the irrigation of 750,000 acres of land . . . as well as to
provide useful storage for flood control, navigation, the development of hydroelectric
power, and other purposes.” S. Doc. No. 247, 78th Cong., 2d Sess. 3 (1944). Thus,
the Flood Control Act provided the Corps with a wide array of interests to consider
in regulating the River.
While the Flood Control Act laid out broad goals, the intricacies of the River
basin required the Corps to work out a specific management plan. The Corps devised
this more specific management plan and published it in the Missouri River Main Stem
Reservoir System Reservoir Regulation Manual, commonly referred to as the Master
Manual, which explains how the Corps is to go about managing the River system.
The most recent version of the Master Manual was promulgated in 1979, although the
Corps has been in the process of revising the manual since the late 1980's, and the
Corps assures this Court that the revisions should be completed quite soon.
The Master Manual accomplishes numerous goals. For one, Section IX lays
out the “general approach” that is to be used to plan reservoir operation, an approach
that calls for sequential consideration of the various interests. Predictably, it indicates
that flood control will be provided for first. After flood control, the Manual calls for
the Corps to consider (in order) irrigation, water supply and water-quality
requirements, navigation and power, and finally recreation, fish, and wildlife.
Notably, the final provision reads: “insofar as possible without serious interference
with the foregoing functions, the reservoirs will be operated for maximum benefit to
recreation, fish and wildlife.” Master Manual Section 9-3. In addition to laying out
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this general approach, the Master Manual includes more specific technical guidelines.
Thus, the Manual lays out minimum flows that are to be maintained at different points
on the River, Master Manual Section 9-17, and methods for deciding the length of the
navigation season based upon river flow at certain times of the year. Master Manual
Section 9-18. The Master Manual also explains that the Corps has always
promulgated Annual Operating Plans, which lay out the Corps’s particular plan for
the year. Master Manual Sections 9-47 & 9-48. These plans also give the public
notice of the Corps’s plan for operating the system, allowing interested individuals
to order their affairs for the year.
The dispute in this case arose out of the prolonged drought conditions that the
Missouri River has been experiencing over the last several years. This shortage of
water has forced the Corps to make decisions about the allocation of water between
the states and between different interests. Pursuant to its 2002 Annual Operating
Plan, the Corps decided to release water from Lake Oahe in South Dakota to maintain
downstream navigation on the Missouri River. At the same time, the Corps was
planning on holding water levels constant at the other five reservoirs. The Corps
generally lowers only one reservoir if releases are necessary to maintain navigation,
and it attempts to shift this burden from year to year. Because Lake Oahe’s water
level had not been reduced the year before (it had actually increased), the Corps chose
Lake Oahe to bear the burden of the drought in 2002.
The Corps’s plan to release water from Lake Oahe was troubling to South
Dakota, because it wanted the water level of Lake Oahe to be held constant from late
April to late May to allow for a fruitful fish spawn during that period. Lake Oahe has
become a well-known destination for trophy walleye fishing. Since 1997, however,
the State noticed a marked reduction in the quality of fish in the lake — a reduction
that has reduced recreation at the lake. The State concluded that this reduced quality
was caused by a sizable decrease in the number of rainbow smelt, the prey fish of the
walleye. This decrease was due in part to a massive water release from Lake Oahe
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in 1997 and in part to the overpopulation of walleye. South Dakota set out to remedy
this problem by allowing for increased walleye fishing, which would reduce the
number of predators of the rainbow smelt. After this increased fishing, the State
concluded that the rainbow smelt were poised to have an extremely fruitful spawn in
2002. Because the smelt lay their eggs in shallow water, however, the spawn would
not be successful if the water level was reduced even by as little as six inches. South
Dakota therefore asked the Corps to forego its plans to release water from Lake Oahe
during the smelt’s spawning season — late April until late May. The Corps indicated
that it nevertheless intended to abide by its annual operating plan, which called on the
Corps to continue the releases from Lake Oahe to maintain downstream navigation.
On April 25, 2002, after the Corps refused to change its plans, the State of
South Dakota filed suit in the District Court for South Dakota. The suit claimed that
the Corps acted arbitrarily and capriciously in maintaining downstream navigation
rather than maximizing recreation at upstream reservoirs. The suit sought a
declaration that the Corps’s practice of always requiring one of the reservoirs to bear
the burden of a drought was unlawful. The suit sought to enjoin the Corps from
releasing water from Lake Oahe until after the spawning season. After a hearing, the
Court entered a temporary restraining order requiring the Corps to maintain the water
level until a preliminary-injunction hearing could be held. When the Court entered
this restraining order, the Corps announced its intention to release water from Lake
Francis Case to offset its inability to lower Lake Oahe. Lake Francis Case is also in
South Dakota, and the State requested that the District Court consider the propriety
of lowering Lake Francis Case at the preliminary injunction hearing. Before the
preliminary-injunction hearing, the State of Nebraska and numerous private entities
moved to intervene in the case, but the Court denied these motions. After hearing
arguments from all sides on May 9 and 10, the District Court entered a preliminary
injunction that required the Corps to maintain the water level at both Lake Oahe and
Lake Francis Case until May 25 — the end of the spawning season.
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2
The Corps then planned to lower Fort Peck Reservoir in Montana, but as in
North Dakota and South Dakota, Montana went to court and obtained an injunction
each of the injunctions on May 22, 2002. The injunctions in North Dakota and South
Dakota expired by their own terms on May 25, 2002. The Nebraska District Court’s
injunction has not expired and will go into effect again if we lift our stay.
II.
We must decide whether the three District Courts erred in enjoining the Corps
and whether the South Dakota Court erred in denying the motions to intervene. We
conclude that the District Courts in North Dakota and South Dakota erred in
enjoining the Corps from lowering reservoirs to maintain navigation, and that the
District Court in Nebraska correctly ordered the Corps to follow the Master Manual.
We also conclude that the South Dakota District Court erred in denying the motions
to intervene.
A.
Before reaching the merits of this case, we must consider whether the
expiration of the preliminary injunctions in North Dakota and South Dakota renders
the appeals of those orders moot. Although none of the parties to this appeal has
urged this Court to dismiss the case, we must nevertheless satisfy ourselves that this
case is not moot. See Kremens v. Bartley, 431 U.S. 119, 136 (1977). We are so
satisfied for numerous reasons. First, we note that the injunction issued by the
District Court in Nebraska is still in effect, so the Corps’s appeal from that injunction
is clearly not moot, and many, if not all, of the substantive issues raised by the South
Dakota and North Dakota appeals will be decided anyway.
The North Dakota and South Dakota cases fall within the well-known “capable
of repetition, yet evading review” exception to the mootness doctrine. Weinstein v.
Bradford, 423 U.S. 147, 149 (1975). This exception applies when two conditions are
met: “(1) the challenged action [is] in its duration too short to be fully litigated prior
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to cessation or expiration, and (2) there [is] a reasonable expectation that the same
complaining party [will] be subject to the same action again.” Spencer v. Kemna, 523
U.S. 1, 17 (1998).
A preliminary injunction that bars the Corps from releasing water from the
reservoirs during spawning will never last long enough to allow for full litigation
because of the brevity of spawning season. Thus, if these actions were to recur, they
would continually evade review. Moreover, we have every reason to suspect that
these events will recur. On previous occasions, we were inclined to think this type
of litigation would not repeat itself. See South Dakota v. Hazen, 914 F.2d 147 (8th
Cir. 1990) (deciding case was moot because the injunction had expired); cf. Missouri
ex rel. Nixon v. Craig, 163 F.3d 482 (8th Cir. 1998) (deciding that a challenge to the
Corps’s annual operating plan was moot because the plan had lapsed). But repetition
now seems quite likely. At oral argument the parties agreed that drought conditions
continue along the River, meaning that the Corps will again be forced to choose
between releasing water from the reservoirs or letting downstream navigation suffer.
We have every reason to believe that the Corps will choose to release water from at
least one reservoir, and we are confident that the legality of such a release would
again be challenged in the courts. In the end, then, we are persuaded that the
questions presented in this appeal are likely to recur, yet will evade review when they
do. Therefore, the expirations of the preliminary injunctions do not render the
appeals moot.
B.
Next, we must decide whether the South Dakota District Court erred in refusing
to allow various parties to intervene in the case brought by the State of South Dakota.
After the initiation of the suit by South Dakota, the District Court received three
separate motions to intervene as of right under Federal Rule of Civil Procedure
24(a)(2): one from MO-ARK Association, one from Ergon Asphalt and Emulsions,
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Inc., and other corporate entities, and one from the State of Nebraska.3 A party
seeking to intervene must establish both that it has standing to complain and that the
elements of Rule 24(a)(2) are met. Rule 24(a)(2) requires that the proposed
intervenor establish that it claims an interest in the property or transaction which is
the subject of the litigation, that disposition of the litigation in the party’s absence
may impede or impair its ability to protect its interest, and that the interest is not
adequately represented by the current parties to the suit. Fed. R. Civ. P. 24(a)(2);
Jenkins v. Missouri, 78 F.3d 1270, 1274 (8th Cir. 1996). The South Dakota District
Court concluded that the proposed intervenors failed to prove that they had standing
and failed to meet the requirements of Rule 24(a)(2). Additionally, the Court
concluded that allowing the State of Nebraska to intervene would be problematic
because it would put Nebraska and South Dakota on opposite sides of the dispute,
thus bringing the case within the exclusive jurisdiction of the Supreme Court.
We review the District Court’s conclusion that these parties were not entitled
to intervene de novo. Arrow v. Gambler’s Supply, Inc., 55 F.3d 407, 409-10 (8th Cir.
1995). The proposed intervenors presented sufficient evidence of their interest in the
case to give them standing to intervene. Each of the proposed intervenors presented
substantial evidence that the remedies sought by the State of South Dakota threatened
it with serious injury. MO-ARK represents numerous interests along the Missouri
River, including members with interests in navigation, agriculture, and water
treatment. Ergon and the corporate entities that joined its motion to intervene utilize
the lower Missouri River to transport their goods. And the Missouri River runs
through the State of Nebraska. Each of these proposed intervenors claimed an
interest in the litigation based upon the fear that the Court’s ruling would lead to
decreased water flow downstream. They offered to present significant evidence that
3
The proposed intervenors also sought permissive intervention, and the State
of Nebraska moved to be allowed to join as an indispensable party under Rule 19.
Because we ultimately rule that each of the intervenors was entitled to intervene as
a matter of right, we need not reach these alternative theories.
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a reduction in the flow of the River would cause a great deal of harm to downstream
interests. Among the threats were an interruption in their ability to navigate the
River, problems for power plants that relied upon the River water for cooling, and
decreases in water quality for community water supplies. Moreover, the parties
presented evidence that decreasing the flow for even a short period of time could be
troublesome because of the effects that such a short-term reduction could have on
wildlife. Specifically, the parties presented evidence that if the water levels were
decreased, two endangered species of birds would nest on the newly exposed river
bed. Once these birds nested, the proposed intervenors feared, the water flow could
not be increased until after the fledgling birds could leave the nest. Thus, according
to this argument, flow reduction could not be limited to a short term.
The Court did not disagree with this evidence, but merely held that it did not
believe that its order would lead to a reduction in downstream flow. The Court noted
that it was not ordering the Corps to reduce downstream flows, but only to maintain
the water levels at the South Dakota Reservoirs. Thus, the Corps was free to maintain
the downstream flows by lowering water levels at other reservoirs. The Court found
that because its preliminary order would not require a reduction in flow, the proposed
intervenors did not have an interest in the litigation. This finding led the Court to
reject the motion to intervene not only on Rule 24 grounds but also for lack of
standing. However, the proposed intervenors did not move to intervene in only the
preliminary-injunction hearings. Instead, they sought to intervene in the whole case.
As the proposed intervenors explain, the State of South Dakota was seeking more
than a preliminary injunction for the short period of time that it lasted. South Dakota
is also seeking a more permanent, forward-looking declaration that will affect the way
the Missouri River is managed in the future. South Dakota alleges that the Corps
should “give all water uses equal consideration while the Master Manual Review is
undergoing a revision,” First Amend. Compl. ¶ 39, and to accomplish this goal seeks
injunctive relief “to prevent irreparable harm to the fisheries of the mainstream
reservoirs, when the harm is inflected [sic] to benefit downstream navigation.” Id.-15-
at ¶ 55. If South Dakota ultimately prevails in this case, the Corps may be forced to
reduce downstream flows in drought conditions to maintain the water levels at all of
the reservoirs. When we consider the effect that an ultimate ruling for South Dakota
might have, we think the proposed intervenors presented sufficient evidence of a
threatened injury to give them standing.
The District Court did not base its decision solely upon its conclusion that the
proposed intervenors lacked standing; the Court also concluded that the proposed
intervenors had not proved that they were entitled to intervene under Rule 24(a)(2).
The Court first concluded that the proposed intervenors had not shown that they had
an interest in the litigation. Again, we disagree. Success by South Dakota in the
whole litigation would impair the proposed intervenors’ interests in the operation of
the River.
The Court also concluded that the proposed intervenors were not entitled to
participate in the action because their interests were adequately represented by the
Corps under the parens patriae theory. This theory creates a presumption that a
government agency will represent the interests of all citizens in cases raising matters
of sovereign interest. Mausolf v. Babbitt, 85 F.3d 1295, 1303 (8th Cir. 1996).
Proposed intervenors can rebut this presumption, however, if they can make a strong
showing of inadequate representation, for example, by showing that the proposed
intervenor’s interest is not subsumed within the general interests of the public. Id.The District Court concluded that the presumption applied in this case, and that the
proposed intervenors had not overcome it. We respectfully disagree.
The Mausolf case is instructive. There, snowmobile enthusiasts sued the
Secretary of the Interior, seeking to enjoin the enforcement of certain snowmobiling
restrictions in a federal park. Various conservationist organizations moved to
intervene in the case for fear that the Secretary would settle the case or back away
from his rules. The District Court denied intervention, partly because of the parens
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patriae presumption. This Court reversed, finding that the presumption was rebutted.
We noted that the government must represent the interests of all of its citizens, which
often requires the government to weigh competing interests and favor one interest
over another. Where such conflicts exist, “even the Government cannot always
adequately represent conflicting interests at the same time.” Id. at 1303.
This case presents just such a conflict. The Corps is charged with managing
the Missouri River system as a whole — a charge that requires it to balance the
interests of the upstream and downstream users. The proposed intervenors, on the
other hand, wish to represent exclusively downstream interests. Indeed, South
Dakota’s lawsuit itself indicates a fear that the Corps cannot adequately represent the
interests of all parties. The very crux of this suit is that the Corps has failed in its
representative role. Yet South Dakota asks this Court to hold that the Corps will
adequately represent downstream users. We decline to do so. Given that the Corps
is asked to balance multiple interests, we conclude that it cannot adequately represent
the interests of downstream users in this case. The parens patriae presumption,
therefore, does not present an obstacle to intervention. Thus, the proposed
intervenors met the requirements for intervention under Rule 24(a)(2) and were
entitled to intervene.
The District Court presented an additional reason for not allowing the State of
Nebraska to intervene — the Court feared that doing so would strip the Court of
jurisdiction. The Court worried that allowing Nebraska to intervene would create a
case or controversy between two states — a controversy within the Supreme Court’s
exclusive original jurisdiction. This was not an appropriate reason for rejecting
Nebraska’s motion to intervene, however, because, even had Nebraska been allowed
to intervene, the controversy would not have been between South Dakota and
Nebraska. The Supreme Court’s exclusive jurisdiction under 28 U.S.C. § 1251(a)
applies only when one state seeks relief from another state. See Mississippi v.
Louisiana, 506 U.S. 73, 78 n.2 (1992) (“Louisiana’s intervention is also unaffected
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by § 1251(a) because it does not seek relief against Mississippi.”); see also United
States v. Nevada, 412 U.S. 534, 537 (1973) (per curiam) (“The complaint . . . is not
one alleging a case or controversy between two States within the exclusive
jurisdiction of this Court, under 28 U.S.C. § 1251(a), but a dispute between the
United States and two States over which this Court has original but not exclusive
jurisdiction under § 1251(b)(2).”); Connecticut v. Cahill, 217 F.3d 93 (2d Cir. 2000)
(holding that Connecticut could maintain an action against officers of New York in
federal district court because the action was styled as a suit against officers, not the
state). In this case, the controversy is between each of the states and the Corps.
Although the states would have had adverse interests, each state would be seeking
relief from the Court against the Corps. Thus, allowing intervention by Nebraska
would not strip the District Court of jurisdiction.
The District Court’s denials of the motions to intervene are reversed.
III.
We now turn our attention to the question of whether the District Courts erred
in issuing preliminary injunctions in these cases. The decision to issue a preliminary
injunction is within a district court’s discretion in the first instance. The following
factors govern the exercise of that discretion:
Whether a preliminary injunction should issue involves consideration of
(1) the threat of irreparable harm to the movant; (2) the state of the
balance between this harm and the injury that granting the injunction
will inflict on other parties litigant; (3) the probability that movant will
succeed on the merits; and (4) the public interest.
Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en
banc). We review a district court’s decision to grant a preliminary injunction for
abuse of discretion, and can reverse such an injunction only if the district court
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“clearly erred in its characterization of the facts, made a mistake of law, or abused its
discretion in considering the equities.” Bhd. of Maint. of Way Employees v.
Burlington Northern R.R., 802 F.2d 1016, 1020 (8th Cir. 1986).
The facts of these cases are largely undisputed, and the District Courts did not
clearly err in their fact finding. All sides seem to agree that each of the plaintiffs can
show that they will suffer irreparable harm absent the injunctions imposed. The
States of North Dakota and South Dakota demonstrated that the population of fish in
the reservoirs would decrease if the water levels were not maintained. Each state
presented evidence that such a decrease would lead to a decrease in recreation on the
reservoirs. Nebraska presented evidence that it would be harmed by the Corps’s
failure to follow the Master Manual, because the decreased flows would harm many
of its citizens. In each case, the District Court concluded that the complaining party
would suffer irreparable harm without an injunction. There was no clear error here.
The balance-of-harms and public-interest criteria present closer questions, but
we need not pursue these issues. The dispositive issue on this appeal is the likelihood
that each plaintiff would succeed on the merits. In each of these cases, the plaintiffs
are challenging agency actions. Thus, our review is guided by the Administrative
Procedure Act. Under the APA, district courts review agency actions to determine
whether they are “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). In this case, however, the review is
more complicated, because the Corps maintains that its actions are not subject to
judicial review at all. It contends that the Flood Control Act commits these decisions
to the Corps’s discretion. See 5 U.S.C. § 701(a)(2). Thus, before considering
whether the Corps’s actions were unlawful or were arbitrary and capricious, we must
decide whether the Corps’s actions are subject to judicial review.
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A. Is There Law To Apply?
The Corps first argues that the District Courts erred because its actions are not
subject to judicial review. As a general rule, courts presume that Congress intended
agency action to be subject to judicial review. Kenney v. Glickman, 96 F.3d 1118,
1124 (8th Cir. 1996); see also 5 U.S.C. § 702. There is a very narrow exception to
this presumption “applicable in those rare instances where statutes are drawn in such
broad terms that in a given case there is no law to apply.” Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971) (internal quotations omitted).
This exception is quite narrow and does not apply where statutes provide even
minimal guidance to limit agency discretion. Id. at 411-13 (holding that an agency
action was subject to review because the granting statute provided factors for the
agency to consider in making the decision). And courts can find law to apply either
“in the underlying statute or in the regulations by the agency interpreting the
underlying statute.” Kenney, 96 F.3d at 1124. Thus, to prevail on its claim that its
actions are not subject to judicial review, the Corps must demonstrate that neither the
Flood Control Act nor any of its internal regulations provides law to apply in these
cases. We reject this argument. We conclude that the Corps’s actions are constrained
both by the Flood Control Act and by the Master Manual.
The Flood Control Act clearly gives a good deal of discretion to the Corps in
the management of the River. But this discretion is not unconstrained; the Act lays
out purposes that the Corps is to consider in managing the River. The Act recognizes
what the Supreme Court has called the dominant functions of the River’s reservoir
system — flood control and navigation. ETSI Pipeline Project v. Missouri, 484 U.S.
495, 512 (1988). While flood control and navigation are dominant functions, the Act
also recognizes recreation and other interests and secondary uses that should be
provided for. Flood Control Act Section 4, 58 Stat. at 889-90. The text of the Flood
Control Act thus sets up a balance between flood control, navigation, recreation, and
other interests. Because the Flood Control Act calls on the Corps to balance these
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various interests, the courts can review the Corps’s decisions to ensure that it
considered each of these interests before making a decision. What the text of the Act
does not provide is a method of deciding whether the balance actually struck by the
Corps in a given case is correct or not. Nevertheless, the Flood Control Act clearly
provides some law to apply, so the decisions of the Corps are subject to judicial
review under the Act.
The minimal guidance provided by the Flood Control Act is only the beginning
of our inquiry, however. We turn next to the Master Manual to decide whether it
binds the Corps. The Corps has promulgated the Master Manual, which sets out
priorities and directs the Corps to take certain actions in given situations. Upon close
examination, we conclude that the Master Manual is binding on the Corps because
it sets out substantive requirements, and its language and context indicate that it was
intended to bind the Corps’s discretion.
The Corps maintains that the Manual is not binding because it is not a rule,
merely a policy statement. Indeed, the Master Manual was not promulgated through
the notice-and-comment rulemaking procedures of the Administrative Procedure Act.
This does not by itself render the Master Manual non-binding. Agency statements
can be binding upon the agency absent notice-and-comment rulemaking in certain
circumstances. Where a policy statement purports to create substantive requirements,
it can be a legislative rule regardless of the agency’s characterization. Northwest
National Bank v. United States Dep’t of the Treasury, 917 F.2d 1111, 1116-17 (8th
Cir. 1990); see also Syncor Int’l Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997)
(holding that policy statements can become binding on the agency if so intended,
which is a determination made by examining the statement’s language and context).
The language of the Master Manual itself implies that it is binding.
Throughout, the Manual speaks of what “is” done or “will” be done. Section 9-3 of
the Manual, for example, explains that the “general approach, which was developed
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and generally agreed upon during planning and design of the reservoirs, is observed
in operation planning and subsequent reservoir regulation procedures.” Master
Manual Section 9-3 (emphasis added). This general approach prioritizes the different
interests that will be considered in regulating the reservoirs. The interests are to be
provided for in this order: flood control, irrigation and upstream beneficial uses,
downstream water supply, navigation and power, power generation, and finally
recreation and wildlife. In the midst of this prioritization, the Master Manual speaks
in mandatory terms. Focusing on the areas of most interest to this case, the fourth
priority section reads: “the remaining water supply available will be regulated in such
a manner that the outflow from the reservoir system at Gavins Point provides for
equitable service to navigation and power.” Id. (emphasis added). Two paragraphs
later, the Manual indicates that recreation, fish, and wildlife will be provided for
insofar as possible, but consistently with the preceding considerations (including
navigation). Section 9-3 itself seems to indicate that the Manual was intended to bind
the Corps, and later provisions bolster this conclusion.
In addition to sections, like Section 9-3, which explain general priorities and
goals, the Master Manual also includes provisions that direct the Corps to take certain
actions when given circumstances occur. In Section 9-19, for example, the Manual
provides that “Fall extensions of the navigation season beyond the normal 8-month
length will be scheduled” when certain triggering events occur. Other provisions
require the Corps to maintain minimum flow levels at various points on the River at
different times. See generally Master Manual Section 9. These provisions can hardly
be termed non-binding; they, like Section 9-3, speak of what the Corps will do in
given circumstances. The Manual’s provisions, then, do not merely give advice to
administrators; instead, they direct the operation of the River. There is no indication
in the text of the Manual that the Corps is free to ignore its provisions if it so chooses.
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Indeed, the language of the Manual appears to assume that members of the Corps
must follow its provisions.4
In addition to the Master Manual itself, the Corps’s promulgated regulations
indicate that the Manual is binding. The Code of Federal Regulations includes a
section that “prescribes policies and procedures to be followed by the U.S. Army
Corps of Engineers in carrying out water control management activities, including
establishment of water control plans for Corps and non-Corps projects as required by
Federal laws and directives.” 33 C.F.R. § 222.5 (2002). The regulation goes on to
require the Corps to develop water control plans “to conform with objectives and
specific provisions of authorizing legislation and applicable Corps of Engineers
reports,” and indicates that “[t]horough analysis and testing studies will be made as
necessary to establish the optimum water control plans possible within prevailing
constraints.” Id. § 222.5(f). “[P]lans developed for specific projects and reservoir
systems will be clearly documented in appropriate water control manuals.” Id. The
regulation also recognizes the need to create a “Master Manual” in cases where
several projects are linked together. Id. § 222.5(i)(2). These manuals are to be
created with the aid of public involvement. Id. § 222.5(g)(2). And once produced,
these plans are to be made publicly available. Id. § 222.5(g)(2)(ii). These provisions
support the conclusion that the Manual binds the Corps. The most significant of these
provisions is the indication that in creating Master Manuals, the Corps will consider
public comment on its plans and then publicize the completed plans. The public-
comment provision recognizes the power that these Manuals wield — a power that
should be exercised only after public consideration. The provision which makes
these manuals publicly available likewise recognizes that these manuals will affect
4
The Master Manual contains various other provisions that bolster this
conclusion, including a provision that the Manual may be revised when necessary.
Master Manual Section I. If the Manual were non-binding, there would be little need
to include a provision allowing for revision; the Corps could simply ignore the
Manual entirely.
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individuals, and that potentially affected people should have access to the documents.
These are not the types of procedures one would expect in the promulgation of an
internal, non-binding agency guideline.
Moreover, the Corps’s treatment of the Manual indicates that it is binding.
Lawrence Cieslak, a member of the Corps, indicated in his testimony to the South
Dakota District Court that all of the critical decisions that were made in the Spring
of 2002 were based upon the instructions in the Master Manual. The Corps decided
the length of the navigation season and decided not to cut the releases from the
reservoirs because the Master Manual instructed as much. Moreover, Mr. Cieslak
concluded his testimony by observing that “we have stated that we will continue to
try to meet the operational objectives of the current Master Manual,” until a revised
manual is completed. Appendix at 792. As this testimony demonstrates, the Corps
continues to treat the Master Manual as a how-to manual for operating the Missouri
River. The Corps has treated and continues to treat the Master Manual as a constraint
on its discretion in operating the River.
Because the language and context of the Master Manual and the Corps’s
treatment of the manual indicate that it binds the Corps, we conclude that it is
binding. The Corps is not free to ignore the Master Manual (though it may elaborate
upon details of operation in its annual operating plans), and courts can review the
Corps’s actions to ensure conformity. In the end, then, there is sufficient law to apply
in these cases. In each case, courts can assess whether the Corps’s actions run afoul
of either the Flood Control Act or the Master Manual.
B. South Dakota
We turn our attention first to the injunction entered by the South Dakota
District Court. The Court enjoined the Corps from releasing water from either Lake
Oahe or Lake Francis Case. The State of South Dakota claimed that it was entitled
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to this relief on three grounds. First, it alleged that the Flood Control Act requires the
Corps to act so as to maximize all interests on the River, including recreation.
Second, the State argues that it is entitled to relief because the Corps is judicially
estopped to favor navigation over recreation. Finally, South Dakota maintains that
the Corps acted arbitrarily and capriciously in favoring navigation over recreation.
We hold that none of these arguments is likely to succeed on the merits.
South Dakota argues that the Flood Control Act requires the Corps to maximize
the benefits of the River, including fish-and-wildlife benefits.5 This argument is not
based upon the text of the statute, but instead upon the Act’s legislative history.
Senate Document 247 states that the plan “will secure the maximum benefits for flood
control, irrigation, navigation, power, domestic and sanitary purposes, wildlife, and
recreation.” S. Doc. No. 247, at 5; see also H.R. Doc. No. 475, at 29 (“the
comprehensive plan would . . . provide for the most efficient utilization of the waters
of the Missouri River Basin for all purposes, including irrigation, navigation, power,
domestic and sanitary purposes, wildlife, and recreation.”); id. at 3 (“When completed
the basin plan will be operated for maximum multiple purpose use.”). Moreover,
Senate Document 191, which represented one of the original competing views,
included a provision that stated that “during the spawning season every effort will be
made to maintain as constant a pool level as possible.” S. Doc. No. 191, 78th Cong.,
2d Sess. 211 (1944). South Dakota maintains that the sum total of this legislative
history compels the Corps to balance the interests each year so as to maximize each
category of benefits, and that courts can review the annual operating plans to ensure
that they do indeed maximize the benefits.
We reject this argument. South Dakota’s proffered standard — whether the
Corps’s management of the River maximizes the benefits to all interests — is not the
5
South Dakota does not argue that the Corps’s decision to release water from
Lake Oahe was contrary to the Master Manual.
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kind of standard that courts regularly employ in reviewing agency action. As a
general rule, courts defer to agency policy decisions because it is not a court’s
“function to substitute [its] judgment for that of the agency.” Aman & Mayton,
Administrative Law § 13.10.2 (1993). Under South Dakota’s proffered standard the
Corps’s actions would receive no deference and the courts could be called upon to
review every decision that the Corps makes, no matter how minute. Although
Congress could give the courts the power to engage in such searching review, we do
not believe that the portions of the Flood Control Act’s legislative history to which
South Dakota directs this Court are sufficient to achieve such a radical shift from the
normal standard of review. Indeed, the statements that South Dakota points to are
merely general statements of policy goals. They are not phrased as limitations on the
Corps’s discretion. Given that this argument finds no support in the text of the
statute, and given the vagueness of the legislative history on the matter, we refuse to
apply South Dakota’s proffered standard. Courts are simply not empowered to review
every decision of the Corps to ensure that it maximizes the benefits of the River for
all interests. Indeed, such a standard would be impossible to meet, anyway. In times
of drought it is not possible for both navigation and fishery benefits to be maximized.
Something has to give.
South Dakota next argues that judicial estoppel requires the Corps to give equal
consideration to recreation and other interests including navigation. This argument
is based upon an agreement reached in previous litigation in Montana. There, South
Dakota maintains, the Corps agreed to give all interests, including recreation, equal
consideration in the management of the River — as opposed to giving flood control,
navigation, or other interests priority over recreation — until the revision of the
Master Manual was complete. Even assuming that the elements of judicial estoppel
were met in this case,6 the only thing that the Corps agreed to was that it would give
6
Because we rule that there is no evidence that the Corps failed to give equal
consideration to recreation, we do not reach the question of whether the elements of
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all interests equal consideration. S.D. Brief at 27 (citing the ruling in a previous suit
that gave rise to the judicial estoppel claim). Equal consideration does not mean
equal results. In this case, South Dakota has presented no evidence that the Corps did
not give equal consideration to recreation; only that in the end, the Corps decided to
lower one reservoir per year during a drought to maintain navigation. This result
could easily arise from the Corps’s giving equal consideration to each interest.
Indeed, the Corps maintains that it considered the interests of recreation equally.
Testimony of Lawrence Cieslak, App. at 823 (“[I]n the Annual Operating Plan we are
giving equal consideration to all of the project purposes in trying to meet the
operation objectives.”) The Corps concluded that it does not need to hold the water
level at every reservoir constant every year to allow recreational activities to flourish.
The evidence before the Corps indicated that a good fish spawn once every four to
five years is sufficient to maintain the fisheries of each reservoir. Master Manual
Section 9-31. According to this conclusion, then, the Corps can lower each reservoir
on a rotating basis (one per year) and still maintain the fish stock in the reservoirs.
Given this fact, the Corps’s decision to lower one reservoir per year during a drought
simply does not provide any proof that the Corps was not giving recreation equal
consideration. South Dakota is unlikely to succeed on its judicial-estoppel theory.
Finally, we must consider whether the Corps’s decision to lower Lake Oahe in
the Spring of 2002 to maintain downstream navigation was arbitrary and capricious.
See 5 U.S.C. § 706(2)(A). “To make this finding the court must consider whether the
decision was based on a consideration of the relevant factors and whether there has
been a clear error of judgment. Although this inquiry into the facts is to be searching
and careful, the ultimate standard of review is a narrow one. The court is not
empowered to substitute its judgment for that of the agency.” Overton Park, 401 U.S.
at 416 (citations omitted). To pass scrutiny, “[t]he agency must articulate a rational
connection between the facts found and the choice made.” Bowman Transp., Inc. v.
judicial estoppel were met in this case.
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Arkansas-Best Freight Systems, Inc., 419 U.S. 281, 288 (1974) (internal quotations
omitted). This standard of review gives great deference to the policy decisions made
by the agency and does not allow a court to overturn an agency action merely because
the court would have acted differently; a court may find an action to be arbitrary and
capricious only when there is no rational basis for the policy choice.
The policy choice that South Dakota is challenging is not arbitrary and
capricious. The Corps provided a rational basis for its decision to lower one reservoir
per year during drought conditions. The Corps had evidence that every reservoir did
not need to have a good spawn each year to maintain the fish stocks. Thus, so long
as each reservoir’s water level was not lowered every year, the fish stocks in the
reservoirs would not be irreparably harmed. The Corps decided to alternate the harm
among the reservoirs, maintaining the water level at all but one reservoir each year.
This plan would presumably allow each reservoir to have a fruitful spawn five out of
every six years even in the worst drought conditions. This plan was eminently
rational. South Dakota’s efforts to increase the rainbow smelt stock during the Spring
of 2002 do not make the plan irrational. South Dakota knew that Lake Oahe’s water
level had not been lowered in 2001, and that it was thus among the candidates to be
lowered in 2002. Moreover, if Lake Oahe had been lowered as planned in 2002, it
presumably would not be lowered in 2003, which would allow for a fruitful spawn
this year. The Corps’s policy was not irrational when written and did not become
irrational in the Spring of 2002 because of South Dakota’s efforts on Lake Oahe.
South Dakota, therefore, is not likely to succeed on its theory that the Corps acted
arbitrarily and capriciously.
Because none of South Dakota’s theories for relief is likely to succeed on the
merits, it was not entitled to a preliminary injunction. We therefore reverse the
preliminary injunction entered in the South Dakota District Court and remand the
case to that Court for further proceedings consistent with this opinion.
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C. North Dakota
The arguments raised by North Dakota in favor of affirming the injunction
entered in the North Dakota District Court are quite similar to those made by South
Dakota. Having already rejected South Dakota’s judicial-estoppel theory and its
argument that the Corps’s policy to release water from one reservoir per year is
arbitrary and capricious, we need not address these arguments again. In addition,
North Dakota argues that the Flood Control Act itself precludes the Corps from
favoring navigation over recreation. This argument is simply incorrect; the Flood
Control Act does not require the Corps to give equal treatment to recreation. The
Flood Control Act provides little guidance about what priority the Corps can or must
give to different interests. The evidence that we do have, including the sequential
listing of interests that uniformly lists navigation before recreation, indicates that the
Corps’s primary concerns should be flood control and navigation. The Supreme
Court appears to have accepted as much. ETSI, 484 U.S. at 512. The Corps has
adopted this prioritization, as evidenced by the listing of interests in Section 9-3 of
the Master Manual. The Corps’s decision to adopt this prioritization was not
impermissible.
Because, like South Dakota, North Dakota has not demonstrated that it is likely
to succeed on the merits, the North Dakota District Court erred in entering a
preliminary injunction in its favor. We therefore reverse the preliminary injunction
and remand this case to the District Court for further proceedings consistent with this
opinion.
D. Nebraska
The preliminary injunction entered in the Nebraska District Court was wholly
different from those entered in North Dakota and South Dakota. The Nebraska
District Court ordered the Corps to abide by the Master Manual because it concluded
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that the Manual binds the Corps. We can find no error with this conclusion. The
Master Manual does bind the Corps, and under 5 U.S.C. § 706, Nebraska was entitled
to an order that the Corps abide by its own formally adopted policies.
The Corps argues strenuously against the preliminary injunction entered in
Nebraska. It feels that it should not be bound by the Manual when unforeseen
circumstances arise. The record before this Court does not allow us to assess the
validity of this argument on this appeal. Probably the Corps should be accorded some
flexibility if an unforeseen circumstance arises. We leave such questions to the
District Court to decide on remand if necessary. The Nebraska District Court order
granting a preliminary injunction is affirmed, and the stay entered by this Court is
vacated. This case is remanded to the District Court for proceedings consistent with
this opinion.
IV.
In summary, we conclude that the South Dakota District Court erred in denying
the motions to intervene and in entering a preliminary injunction requiring the Corps
to maintain the water level at Lakes Oahe and Francis Case. The Court’s orders are,
therefore, reversed, and the case is remanded for proceedings consistent with this
opinion.
We likewise conclude that the North Dakota District Court erred in enjoining
the Corps from releasing water from Lake Sakakawea. That Court’s order is,
therefore, reversed, and the case is remanded for proceedings consistent with this
opinion.
Finally, we conclude that the Nebraska District Court did not err in entering a
preliminary injunction requiring the Corps to follow the Master Manual. That Court’s
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order is, therefore, affirmed, and the case remanded for proceedings consistent with
this opinion.
The motion for an expanded stay is denied as moot.
It is so ordered.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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