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Missouri River Fight Caught Between Court Orders

July 22, 2003, 6:47 AM

Missouri River Fight Caught Between Court Orders

A federal judge today asked the Army Corps of Engineers why it is ignoring her order to drop Missouri River water levels to protect birds and fish, as required by the Endangered Species Act.

So far, the corps has refused to reduce the river's water level. The agency says to do so would violate an earlier ruling from a different federal court.

Federal Judge Gladys Kessler of Washington, D.C., ordered the flow changes on July 12th, when she granted an injunction to American Rivers and other conservation groups suing the corps to alter the river's flow.

The corps says following Kessler's ruling would violate a 2002 ruling from a Nebraska federal judge that requires enough water in the Missouri for barges to navigate and power plants to operate.

The Nebraska federal court ruling came amid severe drought last year. South Dakota and North Dakota sued the corps to prevent water releases from their reservoirs to protect the sport-fishing industry. An appeals court threw out the Dakotas' injunctions but upheld the Nebraska injunction ordering the corps to release the water to support downstream barge traffic.

The appeals court never mentioned the Endangered Species Act, which was the basis for the conservation groups' lawsuit and Kessler's injunction earlier this month.

It's not immediately clear when Kessler might rule whether the corps is in contempt.

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