In re Operation of the Missouri River System Litigation

Historically, the Missouri River flooded the surrounding basin every spring. The Flood Control Act of 1944 (FCA) authorized the Army Corps of Engineers (Corps) to construct and manage a dam-and-reservoir system for flood control and other purposes. In 2000, the U.S. Fish and Wildlife Service (FWS) issued a biological opinion (BiOp) finding the Corps’s proposed operation of the system would likely jeopardize three protected species—one fish and two birds—by eliminating natural seasonal flows. Experts thought the spring rise triggered spawning, captured nutrients, connected wetlands, and scoured sandbars, while low summer flows exposed sandbars for nesting. The BiOp included a reasonable and prudent alternative recommending higher spring and lower summer flows as integral to avoid jeopardizing the species. Attempting to appease downstream interests, the Corps released a draft operating plan without the flow changes recommended in the 2000 BiOp. Environmental organizations sued to make the Corps mimic natural flows, but on appeal the Eighth Circuit ruled that the FCA vested the Corps with discretion to balance competing water-use interests. Meanwhile, a persistent drought heightened water-use conflicts. Five states obtained injunctions to stop releases for downstream navigation during spawning season. Ultimately, the federal courts consolidated all the lawsuits into multidistrict litigation. The Corps prepared a new biological assessment and amended BiOp that allowed the Corps to avoid low summer flow by building 1,200 acres of shallow water habitat for fish and focus on mechanically building and clearing sandbar habitat for birds. New data showed the spring rise actually reduced habitat quality and both bird populations were recovering. The district court granted the federal agencies summary judgment. Multiple parties appealed, arguing the Corps had a duty to support downstream navigation, it had not met Endangered Species Act (ESA) requirements, and its decisions were arbitrary and capricious.