Archive for Thursday, July 24, 2003

Judge refuses to help Corps of Engineers avoid contempt charge

July 24, 2003


— A Nebraska federal judge refused on Wednesday to help the Army Corps of Engineers escape a contempt citation from another court for failing to lower water levels on the Missouri River.

U.S. District Judge Laurie Smith Camp in Nebraska refused to modify a ruling she issued last year requiring enough water in the Missouri River to allow barge shipments.

The corps sought the change not because it wanted to lower water levels on the Missouri, but because another federal judge in Washington ordered it to and issued contempt citations Tuesday for failure to comply.

The corps has until Friday to lower Missouri River water levels or pay $500,000 for each day it refuses. U.S. District Judge Gladys Kessler in Washington threatened on Tuesday to impose "more draconian contempt remedies," which could include jail time, if river depths are not reduced by July 31.

"We continue to believe as a legal matter that Judge Kessler is wrong," said Blain Rethmeier, a spokesman for the Justice Department, which is defending the corps.

The Nebraska judge encouraged the government to appeal to the 8th U.S. Circuit Court of Appeals. The corps filed the appeal late Tuesday along with a request for an emergency stay to avoid being held in contempt.

"They are constantly delaying. Delay is the corps' middle name," said Eric Eckl, spokesman for American Rivers, one of several conservation groups suing to force lower Missouri River flows.

At issue is the Endangered Species Act and whether it takes priority over barge shipping, flood control and other uses of the river.

The groups want the Missouri to ebb and flow more naturally to encourage spawning and nesting to help sturgeon and shorebird species on the government's threatened and endangered lists.

Barge and farming interests say the corps has an obligation to provide enough water for barge shipments.

Smith Camp, who was appointed to the federal bench by President Bush, said she was bound to follow precedent in the 8th Circuit that maintaining minimum levels for shipping trumps the protection of wildlife and other interests. The 8th Circuit includes Nebraska.

But Kessler, appointed by President Carter, ruled that endangered species should be afforded the highest of priorities. She cited a well-known 1978 Supreme Court ruling as precedent for her findings.

Kessler ordered water levels dropped in an injunction she granted July 12 to the conservation groups.

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