Editorial: Court Adds New Twist In Ruling For Corps

The St. Louis-based 8th U.S. Circuit Court of Appeals ruled Tuesday in favor of the U.S. Army Corps of Engineers power to control the flows on the Missouri River.

As Yogi Berra would say, "It’s déjà vu all over again."

The St. Louis Post-Dispatch reported on August 17, "The appeals court, restating its own ruling from an earlier case, asserted in the decision that the 1944 Flood Control Act [FCA] stipulates that flood control and navigation are the dominant uses of the river and recreation, fish and wildlife secondary."

While this should put an end to challenges against the Corps’ Missouri River operations, it probably won’t. Nevertheless, the court included a new twist that adds direction when environmental issues conflict with the Corps’ dominant role.

In a footnote the court wrote: "If future circumstances arise in which Endangered Species Act compliance would force the Corps to abandon the dominant FCA purposes of flood control or downstream navigation, the Endangered Species Act [ESA] would not apply."

It would be senseless to go back and find all the rulings that have favored the Corps on this issue. Many echoed what the U.S. Supreme Court ruled long ago, stipulating the dominance of flood control and navigation.

The ringleader involved in bringing lawsuits against the Corps is American Rivers, which leads an alliance of 10 conservation groups that brought one of the legal challenges to the Corps’ authority. It has been going on for decades.

Some recent court rulings have favored the Corps’ approach, because statistics related to endangered birds (piping plover and least interior tern) indicate the population is not suffering and is, in fact, growing. The Corps’ efforts to help preserve these birds and also to increase their population have been successful. The court agrees.

Additionally, in the matter of the pallid sturgeon, the battleground centers on a single reach of Missouri River water, which the U.S. Geological Survey says is not suitable for the sturgeon. So why would litigants continue to insist that the numbers of the endangered sturgeon must be enhanced?

Viewing the Endangered Species Act under a microscope, we find that enforcement of the law has nurtured considerable abuse. For example, if there are 10 million bigga bigga birds in Alaska and none in Missouri, should a bigga bigga bird be ruled endangered in Missouri (if one happens to stray in), and should steps be taken to designate habitat to protect it? Such a designation could be extremely harmful to the region’s economy. A real-life scenario involved the abuse by environmentalists of the ESA when they tried to use the spotted owl to shut down logging in the Pacific Northwest. The owl was found to be flourishing over a vast area of the West; further, it did not require old-growth trees to survive.

We don’t need the mythical bigga bigga bird in Missouri. Having never seen one, why would anyone care? The same question can be asked of the pallid sturgeon. The sturgeon lives all the way from the upper Missouri to the Gulf of Mexico. Most people, we contend, have only read about the sturgeon and have seen them only in pictures, usually accompanying environmental stories designed to convince the court to save them. So is it imperative that the entire river flow be juggled to enhance sturgeon growth when such juggling will result in a huge negative financial impact on the towing industry and those who depend upon it for low-cost transportation? Of course not.

We believe that the court, in its wisdom, sees things the same way. It just said so in a different way.

South Dakota Gov. Mike Rounds, however, is a stubborn loser. He told the Post writer that he is "heartened by wording that accords flexibility to the Corps in making determinations about dividing scarce water.… It [the ruling] did not say that the navigation season precludes all other interests."

He would have preferred that the court would have indicated more interest in preserving his walleye fisheries.

That is wishful thinking. The Corps has always used flexibility when determining river flows. The Corps has been infinitely fair in its efforts to balance water availability and user needs. It is one of the few government agencies that tries hard to balance needs. We think the Court ruled specifically that for practical purposes, navigation and flood control are dominant, and if attempts to comply with it stand in the way of properly carrying out Corps obligations to flood control and navigation, the ESA does not apply. That is a sensible approach.

We don’t know how the Court could have made it any clearer.

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