Just as states upstream and downstreamrepresenting conservation, recreation and navigation interestscompete to control the Missouri River's flow regime, different legal jurisdictions are moving the dispute in different directions. A judge in U.S. District Court in St. Paul, Minn. on July 24 issued a two-week stay of another federal judge's two-day-old contempt order against the U.S. Army Corps of Engineers. On July 25 the federal 8th Circuit Court in St. Louis ruled that the order for higher flows, which would have favored barge interests over endangered species and upriver recreational activities, had never been put in place. The Corps has maintained that maintaining higher flows in the river puts the agency at odds with recreation and conservation interests, who are suing to enforce lower flows.
Judge Gladys Kessler in the U.S. District Court for the District of Columbia issued a contempt citation after the Corps delayed, pending appeal, her July 12 directive to limit the river's flow rate to no more than 21,000 cu ft per sec. This effectively would drop the channel level at Kansas City from about 14 ft to 8 ft. Failure to do so would trigger fines of $500,000 a day.
Judge Paul Magnuson issued the stay on Thursday, the same day the federal Judicial Panel on Multidistrict Litigation combined six court cases regarding Missouri River flows into a single case and sent it to him. The stay would seem to protect the Corps from the contempt citation, at least for two weeks, while Magnuson's court considers the case.
But the 8th Circuit rulingthat the high flow order had been written but never put in placewould seem to give precedence Judge Kessler's order to put summer flows in place, says American Rivers spokesman Eric Eckl. The Washington, D.C.-based conservation group planned to seek legal clarification over the weekend. "We feel like we're going to prevail, in the long run," he said. "But we want to do something to help the birds and fish this season." American Rivers' legal argument is designed to improve the habitat of three endangered species: the least tern, piping plover and pallid sturgeon.