McGrath Urges U.S. Supreme Court Acceptance of Missouri River Case
HELENA — Attorney General Mike McGrath filed a friend-of-the-court brief with the United States Supreme Court Wednesday, urging the high court to accept a case brought by North Dakota and South Dakota. In that petition, North Dakota and South Dakota challenge the U.S. Army Corps of Engineers’ recent management of the waters of the Missouri River.
At the center of the case is the question whether the Corps of Engineers can give priority to downstream barge users under the Flood Control Act of 1944. McGrath’s brief argues that it cannot.
“We believe the law requires the Corps to accommodate all uses,” McGrath said, “including the needs of upstream states for recreation, fishing and wildlife.
“The Corps’ preference for downstream states violates the law.”
The case dates back to 2002, when North and South Dakota sued the Corps of Engineers, asserting that the Corps’ river management program harmed fisheries in those states by drawing down reservoirs. The states won temporary injunctions that prevented the Corps from releasing water from upstream reservoirs in Montana and North and South Dakota.
The Corps appealed the North and South Dakota injunctions and, in June 2003, the Eighth Circuit Court overturned the lower court rulings and allowed the river management program to continue. The Circuit Court held that the primary functions of managing the river and its dams are flood control and navigation, and other uses – like fish and wildlife and recreation – are secondary.
Montana’s amicus brief argues that a continued misapplication of the Flood Control Act “will continue to gravely harm the recreational, fish, wildlife and critical habitat for species in the upstream reservoirs unless reviewed by the (United States Supreme) Court.”
The Montana brief also comes less than two weeks after the Corps of Engineers released a draft Environmental Impact Statement for its Master Manual for river operations and a 2004 operating plan for the river. McGrath said he also intends to present the same criticism of the Master Manual prior to the March 19 deadline for public comment.
The Missouri River flows more than 2,300 miles from its beginnings near Three Forks to St. Louis. The Fort Peck Dam is one of six dams and reservoirs in the Missouri River system managed by the Army Corps of Engineers. In recent years drought conditions have substantially reduced water levels at Fort Peck Reservoir.