MISSOURI RIVER DISPUTE HEADS TO US SUPREME COURT
(Pierre) – South Dakota and North Dakota have jointly filed a petition for certiorari, asking the United States Supreme Court to review an Eighth Circuit Court of Appeals decision regarding the U.S. Army Corps of Engineers management of the river in the spring of 2002. It may be several months before the high court rules on whether it will hear the case.
The case involves a suit filed against the Corp of Engineers in 2002 asserting that the Corps was unlawfully harming fisheries through a river management program that drains Lakes Oahe and Francis Case to dangerously low levels during the spring spawning season. In Lake Oahe, the State’s walleye rely on the rainbow smelt for food, and the smelt need a steady to rising lake level to survive. South Dakota and North Dakota won injunctions at the United States District Court level to protect the 2002 fish spawns. The Corps of Engineers appealed to the Eighth Circuit Court of Appeals which overturned two lower court decisions this past summer and allowed the Corps to continue its draw down procedure.
South Dakota does not believe that the Flood Control Act of 1944 gives navigation priority over recreation uses. “We believe that this act gives navigational and recreational uses equal precedence, “said Long. “We ask the Supreme Court to hear the petition but also note that the States’ request to the Court has no negative impact on the US Fish and Wildlife Services recently released biological opinion.”