Filed: Aug. 16, 2005
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT In re: Operation of the Missouri River System Litigation * _ * * No. 04-2737 * _ * * American Rivers, Inc.; * Environmental Defense; National * Wildlife Federation; Iowa * Wildlife Federation; Kansas * Wildlife Federation; Montana * Wildlife Federation; Nebraska * Wildlife Federation; North Dakota * Appeal from the United States Wildlife Federation; South Dakota * District Court for the Wildlife Federation; Izaak Walton * District of Minnesot
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT In re: Operation of the Missouri River System Litigation * _ * * No. 04-2737 * _ * * American Rivers, Inc.; * Environmental Defense; National * Wildlife Federation; Iowa * Wildlife Federation; Kansas * Wildlife Federation; Montana * Wildlife Federation; Nebraska * Wildlife Federation; North Dakota * Appeal from the United States Wildlife Federation; South Dakota * District Court for the Wildlife Federation; Izaak Walton * District of Minnesota..
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
In re: Operation of the Missouri
River System Litigation
*
___________ *
*
No. 04-2737 *
___________ *
*
American Rivers, Inc.; *
Environmental Defense; National *
Wildlife Federation; Iowa *
Wildlife Federation; Kansas *
Wildlife Federation; Montana *
Wildlife Federation; Nebraska *
Wildlife Federation; North Dakota * Appeal from the United States
Wildlife Federation; South Dakota * District Court for the
Wildlife Federation; Izaak Walton * District of Minnesota.
League of America, Inc., *
*
Appellants, *
*
v. *
*
United States Army Corps of *
Engineers; Les Brownlee, Acting *
Secretary of the United States *
Army; United States Fish and *
Wildlife Service; Gale Norton, *
Secretary of the United States *
Department of Interior, *
*
Appellees. *
*
*
__________________ *
*
State of Nebraska; Nebraska *
Public Power District; State of *
Missouri; State of North Dakota; *
State of South Dakota; *
Blaske Marine, Inc.; the Mandan, *
Hidatsa and Arikara Nation; *
Conocophillips Company; Ergon *
Asphalt and Emulsions, Inc.; *
Magnolia Marine Transport *
Company; Midwest Terminal *
Warehouse Company, Inc.; Mo- *
ark Association; Missouri River *
Keepers; Missouri River Energy *
Services *
*
Appellees. *
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
-2-
___________
No. 04-2774
___________
*
State of Nebraska, *
*
Appellant, *
*
v. *
*
United States Army Corps of *
Engineers; Les Brownlee, Acting *
Secretary of the United States *
Army; United States Fish and *
Wildlife Service; Gale A. Norton, *
Secretary of the United States *
Department of Interior, *
*
Appellees. *
__________________ *
*
American Rivers, Inc.; State of *
Missouri; State of North Dakota; *
State of South Dakota; Blaske *
Marine, Inc.; the Mandan, Hidatsa *
and Arikara Nation; *
Conocophillips Company; Ergon *
Asphalt and Emulsions, Inc.; *
Magnolia Marine Transport *
Company; Midwest Terminal *
Warehouse Company, Inc.; Mo- *
ark Association; Missouri River *
Keepers; Missouri River Energy *
Services, *
*
Appellees. *
-3-
___________
No. 04-2785
___________
Nebraska Public Power District, *
*
Appellant, *
*
v. *
*
United States Army Corps of *
Engineers; Les Brownlee, Acting *
Secretary of the United States *
Army; United States Fish and *
Wildlife Service; Gale Norton, *
Secretary of the United States *
Department of Interior, *
*
Appellees. *
__________________ *
*
American Rivers, Inc.; State of *
Missouri; State of North Dakota; *
State of South Dakota; Blaske *
Marine, Inc.; the Mandan, Hidatsa *
and Arikara Nation; *
Conocophillips Company; Ergon *
Asphalt and Emulsions, Inc.; *
Magnolia Marine Transport *
Company; Midwest Terminal *
Warehouse Company, Inc.; Mo- *
ark Association; Missouri River *
Keepers; Missouri River Energy *
Services, *
*
Appellees. *
-4-
___________
No. 04-2794
___________
*
State of Missouri, *
*
Appellant, *
*
v. *
*
United States Army Corps of *
Engineers; Les Brownlee, Acting *
Secretary of the United States *
Army; United States Fish and *
Wildlife Service; Gale Norton, *
Secretary of the United States *
Department of Interior, *
*
Appellees. *
__________________ *
*
American Rivers, Inc.; State of *
Nebraska; Nebraska Public Power *
District; State of North Dakota; *
State of South Dakota; Blaske *
Marine, Inc.; the Mandan, Hidatsa *
and Arikara Nation; *
Conocophillips Company; Ergon *
Asphalt and Emulsions, Inc.; *
Magnolia Marine Transport *
Company; Midwest Terminal *
Warehouse Company, Inc.; Mo- *
ark Association; Missouri River *
Keepers; Missouri River Energy *
Services, *
*
Appellees.
-5-
___________
No. 04-2878
___________
The Mandan, Hidatsa and Arikara *
Nation, *
*
Appellant, *
*
v. *
*
United States Army Corps of *
Engineers; Les Brownlee, Acting *
Secretary of the United States *
Army; United States Fish and *
Wildlife Service; Gale Norton, *
Secretary of the United States *
Department of Interior, *
*
Appellees. *
__________________ *
*
American Rivers, Inc.; *
Environmental Defense; National *
Wildlife Federation; Iowa *
Wildlife Federation; Kansas *
Wildlife Federation; Montana *
Wildlife Federation; Nebraska *
Wildlife Federation; North Dakota *
Wildlife Federation; South Dakota *
Wildlife Federation; Izaak Walton *
League of America, Inc.; State of *
Nebraska; Nebraska Public Power *
District; State of Missouri; State *
of North Dakota; State of South *
Dakota; Blaske Marine, Inc.; *
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Conocophillips Company; Ergon *
Asphalt and Emulsions, Inc.; *
Magnolia Marine Transport *
Company; Midwest Terminal *
Warehouse Company, Inc.; Mo- *
ark Association; Missouri River *
Keepers; Missouri River Energy *
Services, *
*
Appellees. *
___________
No. 04-2994
___________
Blaske Marine, Inc.; *
Conocophillips Company; Ergon *
Asphalt and Emulsions, Inc.; *
Magnolia Marine Transport *
Company; Midwest Terminal *
Warehouse Company, Inc.; Mo- *
ark Association; Missouri River *
Keepers, *
*
Appellant, *
*
v. *
*
United States Army Corps of *
Engineers; Les Brownlee, Acting *
Secretary of the United States *
Army; United States Fish and *
Wildlife Service; Gale Norton, *
Secretary of the United States *
Department of Interior, *
*
Appellees.
-7-
__________________ *
*
American Rivers, Inc.; *
Environmental Defense; National *
Wildlife Federation; Iowa *
Wildlife Federation; Kansas *
Wildlife Federation; Montana *
Wildlife Federation; Nebraska *
Wildlife Federation; North Dakota *
Wildlife Federation; South Dakota *
Wildlife Federation; Izaak Walton *
League of America, Inc.; State of *
Missouri; State of North Dakota; *
State of South Dakota; the *
Mandan, Hidatsa and Arikara *
Nation; Missouri River Energy *
Services, *
*
Appellees. *
________________
Submitted: April 11, 2005
Filed: August 16, 2005
________________
Before WOLLMAN, BEAM, and GRUENDER, Circuit Judges.
________________
GRUENDER, Circuit Judge.
In these consolidated appeals, various parties challenge the operation of the
Missouri River main stem reservoir system by the United States Army Corps of
Engineers (“the Corps”) and associated wildlife assessments produced by the United
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States Fish and Wildlife Service (“FWS”). The district court1 granted summary
judgment to the Corps and FWS and their named individual officers (collectively “the
Federal Defendants”) on all claims. For the reasons stated below, we dismiss three
claims as moot and affirm the judgment of the district court on all remaining claims.
I. BACKGROUND
The Missouri River originates in Montana and runs through North Dakota,
South Dakota, Nebraska, Iowa, Kansas and Missouri before emptying into the
Mississippi River. In its natural state, the river subjected the surrounding basin to
extensive flooding every spring. With the Flood Control Act of 1944 (“FCA”),
Congress authorized the construction of a dam and reservoir system on the upper river
to control the flooding. In addition to flood control, the FCA envisioned that the
reservoirs would provide water for local irrigation projects, steady release into the
river during the summer months to support downstream navigation, hydroelectric
power generation and lake recreation. The FCA delegated construction and
management of the main stem reservoir system to the Corps.2
The current challenges to the Corps’ operation of the system arise from two
directions. First, a persistent drought in the Missouri River basin has led to a
recurring conflict between upstream and downstream water-use interests. In 2002,
the Corps planned to release water from Lake Oahe into the river to maintain
downstream navigation throughout the summer. South Dakota, fearing a negative
1
The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
2
The main stem dams and reservoirs are Fort Peck Dam (Fort Peck Lake) in
Montana, Garrison Dam (Lake Sakakawea) in North Dakota, and Oahe Dam (Lake
Oahe), Big Bend Dam (Lake Sharpe), Fort Randall Dam (Lake Francis Case) and
Gavins Point Dam (Lewis and Clark Lake) in South Dakota.
-9-
impact on the seasonal fish spawn in Lake Oahe and concordantly on the reservoir’s
sport fishing industry, obtained an injunction in federal district court preventing the
Corps from lowering any reservoir in South Dakota until after spawning season.
When the Corps decided to lower Lake Sakakawea instead, North Dakota obtained
a similar injunction. Not to be outdone, Montana obtained an injunction to prevent
releases from Fort Peck Lake. In response, Nebraska obtained an injunction ordering
the Corps to make the required releases to support navigation as called for by the
Corps’ Missouri River Main Stem Reservoir System Master Water Control Manual
(“1979 Master Manual”).
In a consolidated appeal of these injunctions, we ruled that the FCA vested the
Corps with discretion to balance the competing water-use interests. South Dakota v.
Ubbelohde, 330 F.3d 1014, 1027 (8th Cir. 2003). Because the FCA’s legislative
history and its interpretation by the Supreme Court “indicate[] that the Corps’s
primary concerns should be flood control and navigation,” we upheld the Corps’
decision to follow the 1979 Master Manual and draw down the reservoirs to support
downstream navigation.
Id. at 1032.
The second point of conflict has been that flood prevention and steady summer
flows for downstream navigation disrupt the natural habitat of protected bird and fish
species in the Missouri River ecosystem. In litigation initially separate from the
Ubbelohde cases, environmental groups have attempted to force the Corps to operate
the system to produce more “natural” river flows to benefit the protected species. To
understand the current stances of the parties in this litigation, it is necessary to review
in some detail the Corps’ previous attempts to accommodate competing interests
while developing its operating procedures.
The Corps sets forth its general operational guidelines for the Missouri River
reservoir system in a Master Manual and the operational details for each year in an
Annual Operating Plan. The first Master Manual was published in 1960 and revised
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in 1973, 1975 and 1979. The year 1987 brought the onset of the first persistent
drought in the region since the reservoir system had become fully operational.
Because it found that the operational procedures in the 1979 Master Manual were not
well-tailored to handle a persistent drought, the Corps began the revision process for
what would become the 2004 Master Manual.
The operation of the reservoir system also brings the Corps within the
provisions of the Endangered Species Act (“ESA”). Under the ESA, if a government
agency concludes that a proposed action may “jeopardize the continued existence”
of any protected species or adversely affect its critical habitat, the agency must
prepare a Biological Assessment and consult with the FWS. ESA § 7, 16 U.S.C. §
1536. The FWS then issues a Biological Opinion (“BiOp”) describing how the action
will affect the species, based on the “best scientific and commercial data available.”
Id. at § 1536(a)(2). If the FWS concludes that the proposed action would cause
jeopardy to an endangered or threatened species, the BiOp must include a Reasonable
and Prudent Alternative which would allow the agency to implement the desired
action while avoiding jeopardy to the species.
Id. at § 1536(b)(3)(A). Finally, if it
appears incidental “take”3 will occur even if the Reasonable and Prudent Alternative
is implemented, the BiOp must include an Incidental Take Statement setting
conditions under which the agency may proceed while avoiding liability for the
incidental harm to the protected species.
Id. at § 1536(b)(4).
The Corps followed the above process with three protected species in the
Missouri River basin: the pallid sturgeon, a fish listed as endangered since 1990; the
least tern, a migratory bird listed as endangered since 1985; and the piping plover, a
migratory bird listed as threatened since 1985. The pallid sturgeon spends its entire
3
The ESA prohibits “taking” of endangered species. “The term ‘take’ means
to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to
attempt to engage in any such conduct.” ESA § 3(14), 16 U.S.C. § 1532(19).
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life cycle in the Missouri and Mississippi Rivers and their tributaries, while the tern
and plover both nest in the summer on sparsely vegetated sandbars along the rivers.
In 2000, the FWS issued a Biological Opinion (“2000 BiOp”) finding that the Corps’
proposed operation of the reservoir system was likely to jeopardize the continued
existence of the three species.
The FWS found that the harm to the species resulted from the alteration of the
river’s natural hydrograph.4 Before the construction of the dams, the hydrograph had
two prominent components: the “spring rise” and “summer low flow.” The “spring
rise” refers to extremely high flows in late spring resulting from the spring thaw.
According to the 2000 BiOp, the spring rise provided a biological spawning cue for
the pallid sturgeon and enabled the river to capture protein-rich nutrients from the
floodplain and from wetland habitat not connected to the river channel during other
seasons. In concert with the summer low flow, the spring rise also provided seasonal
connectivity to the off-channel wetland habitat, making calm, shallow pools available
to the pallid sturgeon for spawning, nursery and feeding areas. Lower elements of the
food chain also were forced to congregate in the remaining pools, providing easy
summer feeding for the protected species. In addition, the spring rise scoured and
flushed sandbars. When the now-sparsely-vegetated sandbars were exposed by the
summer low flow, the resulting lack of cover for concealed predators allowed terns
and plovers to nest there safely.
The Corps’ operation of the reservoir system, generally capturing water in the
upstream reservoirs to eliminate spring flooding and releasing water throughout the
summer and fall as necessary to enable downstream navigation and restore reservoir
capacity for the following spring, eliminated the spring rise and summer low flow
from the hydrograph. The Reasonable and Prudent Alternative included with the
4
A river’s “hydrograph” is the variation in water level at each point along its
channel over the course of time.
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2000 BiOp (“2000 BiOp RPA”) stated that “higher spring and lower or declining
summer flows than now exist”5 were “an integral component of the measures to avoid
jeopardy” to the three protected species. The 2000 BiOp RPA also mandated habitat
restoration, a comprehensive species and habitat monitoring program, and an adaptive
management framework to “implement, evaluate, and modify the components of the
RPA in response to variable river conditions, species responses, and increasing
knowledge base.”
In an attempt to support downstream water-use interests despite the continuing
drought in the basin, the Corps released a draft Annual Operating Plan for 2003 that
did not incorporate the flow changes from the 2000 BiOp RPA. Environmental
interest groups filed suit under the ESA in the United States District Court for the
District of Columbia to enjoin operations under that plan. At the Corps’ request, the
FWS then issued a supplemental biological opinion (“the 2003 Supplemental BiOp”)
that ratified the Corps’ plan to avoid the 2000 BiOp RPA flows for the period of May
1 through August 15, 2003, with the understanding that operations after 2003 would
be consistent with the 2000 BiOp. Before the district court, however, the Corps
revealed that it had no intention of ensuring that its future operations would so
comply. Am. Rivers v. United States Army Corps of Eng’rs, 271 F. Supp. 2d 230, 253
(D.D.C. 2003). In addition, the district court held that it was improper for the FWS
5
The 2000 BiOp presented data from Corps models showing that, with the
reservoirs and channel improvements in place, the “natural hydrograph” today would
be expected to produce a spring rise of 80 Kcfs (Kcfs = thousand cubic feet per
second) and a summer low flow of 10 Kcfs at the Gavin’s Point Dam, the final
reservoir release point into the lower river. Under the 1979 Master Manual, flow at
that point was typically maintained steadily between 30-35 Kcfs from March through
November. The 2000 BiOp RPA called instead for a spring rise from Gavin’s Point
totaling 50-55 Kcfs to be implemented about once every three years, and an annual
summer low flow of 25 Kcfs, ramped down to 21 Kcfs from mid-July through mid-
August. The flow required for minimum support of downstream navigation is about
28.5 Kcfs, depending upon the accompanying inflow from downstream tributaries.
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to focus on the effects that the proposed action would have on the protected species
during 2003 only, rather than on all future effects of the proposed action, and that the
2003 Supplemental BiOp failed to articulate a reasonable explanation for its departure
from the analysis in the 2000 BiOp. Id. at 254-57. Therefore, the district court
granted the injunction and ordered the Corps to comply with the summer low flow
provisions of the 2000 BiOp.
Id. at 263. Citing a conflict with this Court’s
Ubbelohde holding that required operation consistent with the 1979 Master Manual,
the Corps initially failed to comply with the injunction and was held in conditional
contempt. See Am. Rivers v. United States Army Corps of Eng’rs,
274 F. Supp. 2d
62 (D.D.C. 2003). Two days later, the Federal Judicial Panel on Multi-District
Litigation consolidated all litigation regarding the operation of the Missouri River
main stem reservoir system, including new suits by the parties involved in
Ubbelohde, in the District of Minnesota (“MDL court”). On the order of that court,
the Corps complied with the summer low flow provisions of the 2000 BiOp RPA for
the brief remainder of the 2003 summer period.
At that point, the Corps prepared a new Biological Assessment with the goal
of finding a way to avoid jeopardy to the protected species without following the
2000 BiOp RPA flow requirements. In the fall of 2003, the Corps presented the new
Biological Assessment to the FWS and requested a new Biological Opinion. In
response, the FWS issued an Amendment to the 2000 BiOp (“the 2003 Amended
BiOp”). The 2003 Amended BiOp RPA permitted the Corps to avoid the summer
low flow requirement on the condition that it construct 1,200 additional acres of
shallow water habitat for the pallid sturgeon. In addition, it gave the Corps two more
years to experiment with alternatives to a spring rise. If the Corps could not produce
an acceptable alternative plan, the RPA imposed a default spring rise of reduced
magnitude beginning in the spring of 2006.
The Corps continued to develop the 2004 Master Manual by complying with
the provisions of the National Environmental Policy Act (“NEPA”). See 42 U.S.C.
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§§ 4321 et seq. NEPA requires the preparation of a detailed Environmental Impact
Statement (“EIS”) for every major federal action that will significantly affect the
quality of the environment. 42 U.S.C. § 4332(C). The EIS must also evaluate
alternatives to the proposed action. Id. In this case, the Corps compared five
potential water control plans in its EIS before adopting the Preferred Alternative, a
plan consistent with the 2003 Amended BiOp, as the basis for the 2004 Master
Manual. The MDL court truncated the NEPA public-comment-and-review period and
ordered all plaintiffs in this litigation to amend their complaints to address the 2004
Master Manual and 2004 Annual Operating Plan.
After the issuance of the 2004 Master Manual and 2004 Annual Operating
Plan, various parties filed motions for summary judgment. The district court granted
summary judgment to the Federal Defendants on all claims on the bases that (1) the
FCA does not create a non-discretionary duty in the Corps to maintain minimum
navigation flows or a minimum length for the navigation season, and (2) the
discretionary decisions made by the Federal Defendants in balancing water-use
interests under the FCA and in avoiding jeopardy to the protected species were not
arbitrary and capricious.
The parties now make various arguments on appeal. The states of Missouri and
Nebraska and the Nebraska Public Power District (“NPPD”) argue that the 2004
Master Manual violates a non-discretionary duty of the Corps under the FCA to
maintain river flow sufficient to support uninterrupted downstream navigation
throughout the navigation season. Nebraska and NPPD also argue that the 2003
Amended BiOp is in conflict with the purported FCA minimum-flow requirement,
while Missouri argues that the 2003 Amended BiOp violates the ESA because it will
eliminate some pallid sturgeon habitat in the lower Missouri River. American Rivers,
the National Wildlife Federation, several state Wildlife Federations and the Izaak
Walton League of America (collectively “American Rivers”) argue that the 2003
Amended BiOp is arbitrary and capricious because it does not insure against jeopardy
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to the three protected species. In addition, American Rivers contends that the EIS
was faulty because the Corps failed to explain why the Preferred Alternative was
superior to another evaluated alternative. Blaske Marine, ConocoPhillips Company,
Ergon Asphalt & Emulsions, Inc., Magnolia Marine Transport Company, Midwest
Terminal Warehouse Company, Inc., MO-ARK Association and Missouri River
Keepers (collectively “Blaske Marine”) argue that a supplemental EIS is required for
a contingent summer low flow that the Corps still has the discretion to implement.
Finally, the Mandan, Hidasta and Arikara Nation (“the Nation”) contends that the
Corps must operate Lake Sakakawea (Garrison Dam) for the economic benefit of the
Nation’s members.
II. DISCUSSION
“We review de novo a grant of summary judgment, applying the same legal
standards used by the district court.” Voyageurs Nat’l Park Ass’n v. Norton, 381 F.3d
759, 763 (8th Cir. 2004). We review the actions of the Corps and FWS under the
Administrative Procedure Act “to determine whether they are ‘arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.’”6
Ubbelohde, 330
F.3d at 1027 (quoting 5 U.S.C. § 706(2)(A)). An arbitrary and capricious action is
one in which:
the agency has relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the evidence
6
Nebraska and NPPD argue that the Corps has attempted to evade judicial
review under the Administrative Procedure Act by stating in a letter that it did not
intend for the 2004 Master Manual to be considered a binding regulation. We
established in Ubbelohde that the 1979 Master Manual was binding and subject to
judicial review. 330 F.3d at 1027-30. The Corps has conceded, both in district court
and in its briefs on appeal, that the 2004 Master Manual is still binding on the Corps
and subject to judicial review.
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before the agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.
Cent. S.D. Coop. Grazing Dist. v. Sec’y of the United States Dep’t. of Agric., 266 F.3d
889, 894 (8th Cir. 2001) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co.,
463 U.S. 29, 43 (1983)). “If an agency’s determination is supportable on
any rational basis, we must uphold it.” Voyageurs Nat’l Park
Ass’n, 381 F.3d at 763.
“When the resolution of the dispute involves primarily issues of fact and analysis of
the relevant information ‘requires a high level of technical expertise, we must defer
to the informed discretion of the responsible federal agencies.’” Friends of the
Boundary Waters Wilderness v. Dombeck,
164 F.3d 1115, 1128 (8th Cir. 1999)
(quoting Marsh v. Oregon Natural Resources Council,
490 U.S. 360, 377 (1989)).
A. The Corps’ FCA Duty to Support Downstream Navigation
Missouri, Nebraska and NPPD (collectively “the downstream parties”) argue
that the 2004 Master Manual is not in accordance with law because, under certain
drought conditions, it calls for canceling the navigation season in order to hold water
in the reservoirs for the benefit of recreation. The MDL court concluded that the
FCA imposes no duty to maintain a minimum level of downstream navigation
independent of consideration of other interests. We agree.
This Court has already addressed thoroughly the balance of interests under the
FCA. In Ubbelohde, we relied on the Supreme Court’s decision in ETSI Pipeline
Project v. Missouri, 484 U.S. 495 (1988), and the legislative history of the FCA to
determine that “[t]he dominant functions of the Flood Control Act were to avoid
flooding and to maintain downstream navigation,” while “the Act recognizes
secondary uses of the River including irrigation, recreation, fish, and wildlife.”
Ubbelohde, 330 F.3d at 1019-20. However, the FCA does not set forth what level of
river flow or length of navigation season is required to make navigation “dominant”
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over a “secondary” interest such as recreation. Instead, “the courts can review the
Corps’s decisions to ensure that it considered each of these interests before making
a decision,” but “the Act does not provide . . . a method of deciding whether the
balance actually struck by the Corps in a given case is correct or not.” Id. at 1027.
The downstream parties challenge the provisions of the 2004 Master Manual
referred to as “navigation precludes.” The amount of water stored in the entire
reservoir system is checked on March 15 and July 1 of each year. If total system
storage falls below the “volumes . . . that allow the System to function to meet
authorized purposes during significant multi-year drought periods,” navigation
support is reduced or eliminated for that year. 2004 Master Manual § 7-03. The EIS
estimates, based on the modeling of historical data from 1898 to 1997, that the
selected navigation-preclude volumes will lead to the elimination of the entire
navigation season only in the four worst drought years out of every one hundred
years, and to a navigation season shortened from eight-plus months to less than seven
months only in the eight worst drought years out of every one hundred. Under these
circumstances, we cannot say that the Corps failed to consider downstream navigation
before making its decision.7
7
The Corps states in § 7-01 of the 2004 Master Manual that in the FCA,
“Congress did not assign a priority to these purposes” of “flood control, navigation,
irrigation, hydropower, . . . recreation, and fish and wildlife. . . .” To the contrary, as
we clearly stated in Ubbelohde, the FCA has been interpreted to hold flood control
and navigation dominant and recreation, fish and wildlife secondary. Ubbelohde, 330
F.3d at 1019-20. If, due to extreme conditions, the Corps is faced in the future with
the unhappy choice of abandoning flood control or navigation on the one hand or
recreation, fish and wildlife on the other, the priorities established by the FCA would
forbid the abandonment of flood control or navigation. While we hold today that the
2004 Master Manual does not “abandon” navigation, we do not rule out the
possibility that some more limited degree of support for flood control or navigation
in the future could be held to constitute “abandonment” of these dominant functions.
See also infra note 9.
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Appellees North Dakota and South Dakota argue that because damage to the
recreation industry would have a more dramatic negative economic impact than
would damage to the navigation industry, recreation should receive special priority.
Nothing in the text or legislative history of the FCA suggests that Congress intended
the priority of interests under the FCA to shift according to their relative economic
value. Arguments based on the wisdom of the priorities established by the FCA must
be addressed to Congress.8
The Corps’ balancing of water-use interests in the 2004 Master Manual is in
accordance with the FCA. Because the 2004 Master Manual does not evidence a
failure to consider the support of downstream navigation, it is not arbitrary and
capricious. Therefore, we affirm the grant of summary judgment to the Corps on this
claim.
B. The Corps’ Duty to Consult with the FWS under ESA § 7
Nebraska and NPPD argue that it was not in accordance with law for the Corps
to engage in the ESA § 7 consultation process with the FWS regarding the operation
of the reservoir system. They contend that the ESA does not apply to the operation
of the reservoir system because ESA compliance would interfere with downstream
navigation, a project purpose that is mandated by statute such that the Corps has no
8
Appellee South Dakota also argues that the O’Mahoney-Millikin Amendment,
33 U.S.C. § 701-1(b), prioritizes the retention of water in the reservoirs over
downstream navigation. The MDL court granted summary judgment against South
Dakota on this issue, and South Dakota did not appeal. We, therefore, construe South
Dakota’s argument in opposition to the appellant downstream parties to be that the
O’Mahoney-Millikin Amendment would forbid, for the purposes of supporting
navigation, any further lowering of the navigation-preclude volumes beyond those
implemented in the 2004 Master Manual. Because we find against the appellant
downstream parties on this issue on other grounds, we need not address appellee
South Dakota’s argument.
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discretion in meeting it. See 50 C.F.R. § 402.03 (“Section 7 [of the ESA] and the
requirements of this part apply to all actions in which there is discretionary Federal
involvement or control.”) (emphasis added).
Case law supports the contention that environmental- and wildlife-protection
statutes do not apply where they would render an agency unable to fulfill a non-
discretionary statutory purpose or require it to exceed its statutory authority. For
example, in National Wildlife Federation v. United States Army Corps of Engineers,
384 F.3d 1163 (9th Cir. 2004), the Ninth Circuit held that the Corps’ operation of
four dams on the Snake River did not violate the Clean Water Act. The challenged
noncompliance with water standards was caused by “the existence of the dams and
not any discretionary method of operating the dams,” and the Clean Water Act could
not be construed to supersede “the Corps’s operation of the dams consistent with the
purposes stated by Congress.”
Id. at 1178-79.
Similarly, in Platte River Whooping Crane Critical Habitat Maintenance Trust
v. FERC, 962 F.2d 27 (D.C. Cir. 1992), the Federal Energy Regulatory Commission
(FERC) was authorized by statute to issue annual licenses to hydropower providers
on the Platte River. The enabling statute forbade alteration of the terms of an annual
license without agreement from the licensee. Environmental groups sued FERC,
arguing that the ESA required the imposition of wildlife-protection terms in the
licenses. The court held that the ESA did not apply to the licenses because the ESA
did not authorize FERC to override the statutory prohibition on altering the licenses.
Id. at 32-34. In effect, Platte River Whooping Crane affirmed that the ESA does not
apply where an agency has no statutory authority to act with discretion.
Cases such as National Wildlife Federation and Platte River Whooping Crane
are inapposite to the instant case, however, because compliance with the ESA does
not prevent the Corps from meeting its statutory duty under the FCA to support
downstream navigation. As we stated above, the FCA does not mandate a particular
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level of river flow or length of navigation season, but rather allows the Corps to
decide how best to support the primary interest of navigation in balance with other
interests. The 2004 Master Manual demonstrates that the Corps can comply with the
elements of the 2003 Amended BiOp RPA while continuing to operate the dams
“consistent with the purposes stated by Congress” in the FCA.9 Nat’l Wildlife Fed’n,
384 F.3d at 1179.
Because the Corps is able to exercise its discretion in determining how best to
fulfill the purposes of the reservoir system’s enabling statute, the operation of the
reservoir system is subject to the requirements of the ESA. It was therefore in
accordance with law for the Corps to consult with the FWS to produce the 2003
Amended BiOp. We affirm the grant of summary judgment to the Federal Defendants
on this claim.
C. Mootness of Claims Based on Summer Low Flow
Several of the claims against the Federal Defendants challenge the conditional
summer low flow element of the 2003 Amended BiOp RPA. The Federal Defendants
argue that these claims are now moot because the Corps has successfully completed
the mechanical construction of 1,200 acres of shallow water habitat, which permits
the Corps to avoid the summer low flow requirement.10 The Corps has announced
that it has no plans to implement summer low flows in the foreseeable future.
Missouri, NPPD and Blaske Marine counter that because the Corps retains the
9
It follows that if future circumstances should arise in which ESA compliance
would force the Corps to abandon the dominant FCA purposes of flood control or
downstream navigation, the ESA would not apply. See supra note 7.
10
American Rivers has challenged the successful completion of the 1,200 acres
in the MDL court. The MDL court dismissed the suit without prejudice for
procedural reasons. That dismissal has been separately appealed to this Court,
Docket No. 05-1200, and is still pending.
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discretion to implement the summer low flow in any given year under its adaptive
management framework, these claims fall within the “capable of repetition, yet
evading review” exception to mootness. Ubbelohde, 330 F.3d at 1023 (quoting
Weinstein v. Bradford,
423 U.S. 147, 149 (1975)).
We conclude that the claims based on summer low flow are moot. The
“capable of repetition, yet evading review” exception “applies when two conditions
are met: ‘(1) the challenged action [is] in its duration too short to be fully litigated
prior to cessation or expiration, and (2) there [is] a reasonable expectation that the
same complaining party [will] be subject to the same action again.’” Id. (quoting
Spencer v. Kemna,
523 U.S. 1, 17 (1998)).
In this case, it appears that the 30-day duration of a summer low flow period,
particularly if it is implemented with little prior warning, is too short to be fully
litigated prior to expiration. However, there is no reasonable expectation that the
Corps will implement the 2003 Amended BiOp summer low flow in the future.
Although a “‘party need not show with certainty that the situation will recur,’” a
“speculative possibility is not a basis for retaining jurisdiction over a moot case.”
McCarthy v. Ozark Sch. Dist., 359 F.3d 1029, 1036 (8th Cir. 2004) (quoting Van
Bergen v. Minnesota,
59 F.3d 1541, 1547 (8th Cir. 1995)). We are aware that the
2003 Amended BiOp requires the Corps to be ready to implement summer low flows
as low as 21 Kcfs in the future if monitoring reveals that the alternate measures are
not benefitting the protected species as expected. Nevertheless, as we discuss later
in this opinion, at this point there is no reason to doubt the utility of those alternate
measures. Therefore, “we find nothing to suggest a likelihood” that the Corps will
decide to implement a summer low flow in future years.
McCarthy, 359 F.3d at 1036.
Because there is no reasonable expectation at this point in time that the Corps
will implement the 2003 Amended BiOp summer low flow in the future, we conclude
that the following claims are moot: (1) NPPD’s claim that the FWS failed to consider
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the economic feasibility of the summer low flow requirement in developing the 2003
Amended BiOp; (2) Missouri’s claim that the loss of shallow water habitat for larval
and juvenile pallid sturgeon in central Missouri state resulting from summer low flow
constitutes an impermissible “take” of the sturgeon under ESA § 9; and (3) Blaske
Marine’s NEPA claim that a supplemental EIS is required for the 2003 Amended
BiOp summer low-flow requirement. We vacate the MDL court’s grant of summary
judgment to the Federal Defendants on these claims and instruct the MDL court to
dismiss these claims without prejudice.
D. The Validity of the 2003 Amended BiOp
NPPD argues that the 2003 Amended BiOp is invalid because the FWS
violated regulations applicable to Biological Opinions. American Rivers challenges
the 2003 Amended BiOp on the grounds that the 2003 Amended BiOp RPA
contradicts its own factual findings and the administrative record and does not insure
against jeopardy to the protected species.
1. The Environmental Baseline for the 2003 Amended BiOp
NPPD contends that the FWS used an improper environmental baseline in
producing the 2003 Amended BiOp. “The environmental baseline includes the past
and present impacts of all Federal, State, or private actions and other human activities
in the action area . . . .” 50 C.F.R. § 402.02. Jeopardy to the protected species
resulting from the proposed action is measured relative to the species’ status under
the baseline. Id. The FWS used a “run-of-the-river” baseline in which the dams and
physical channel modifications are assumed to be in place, but all floodgates are
assumed to be wide open, with no flow control. NPPD argues that normal operation
under the 1979 Master Manual was the proper baseline because it is a “past impact”
of a separate federal action and would continue to control operations absent the
proposed action. Because continued operation under the 1979 Master Manual would
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cause the protected species’ chances of recovery to deteriorate, its inclusion in the
baseline would tend to eliminate a finding of jeopardy for any proposed action.
According due deference to the FWS’ interpretation of its own regulations,
Friends of the Boundary Waters Wilderness, 164 F.3d at 1121, we agree with the
FWS that hypothetical continued operation under the previous version of the Master
Manual in future years, as the alternative to the proposed action of updating the
Master Manual, does not in any sense constitute a “past impact” of federal action. As
the district court recognized, this argument is essentially a different twist on the
argument that the Corps has no discretion in operating the reservoir system. If the
FCA mandated that the Corps must manage the system to enable, for example, a barge
of specific size riding a specific depth below the waterline to navigate the river
between Sioux City and the Mississippi River at all times between April 1 and
December 1, there would be some merit to including that non-discretionary condition
in the environmental baseline along with the permanent physical presence of the dams
and channel modifications. However, given that the FCA “clearly gives a good deal
of discretion to the Corps in the management of the River,”
Ubbelohde, 330 F.3d at
1027, we cannot say that it was arbitrary and capricious for the FWS not to include
a specific operational profile in the environmental baseline. Therefore, we affirm the
grant of summary judgment to the Federal Defendants on this claim.
2. Use of the Best Scientific and Commercial Data Available
NPPD argues that the FWS did not rely on the best scientific data available in
its efforts to create a “normalized” hydrograph in the 2003 Amended BiOp RPA. “In
formulating its biological opinion, [and] any reasonable and prudent alternatives
. . . the [FWS] will use the best scientific and commercial data available.” 50 C.F.R.
§ 402.14(g)(8); see 16 U.S.C. § 1536(a)(2).
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To create a normalized version of the summer low flow portion of the natural
hydrograph, the 2003 Amended BiOp calls for low flows beginning in July. NPPD
directs our attention to a United States Geological Survey report in the administrative
record showing that, before construction of the dams, the lowest summer flows
usually occurred between August and early October. NPPD contends that this
incongruity evidences a failure to use the best scientific data available to formulate
the 2003 Amended BiOp.
The administrative record as a whole shows that the FWS did not ignore the
best scientific data on the summer low flow in formulating the 2003 Amended BiOp.
For example, in a document e-mailed by the FWS to new members of the 2003
Amended BiOp development team in November 2003, the FWS recognized that
“[t]he historic hydrograph began to fall at Gavins Point in mid-June and reached it’s
[sic] lowest levels in the fall months,” but indicated that the FWS proposal would end
the low flow period in August because higher releases in the fall were necessary “to
evacuate any excess water [from the reservoirs] prior to the next water year.” The
FWS then stated that, “[w]hile this approach is not a perfect fit to the historic
hydrograph, we believe that it sufficiently mimics . . . the natural hydrograph” to have
the necessary beneficial effect on the protected species.
The FWS has never found that an exact replication of the natural hydrograph
was necessary to avoid jeopardy to the protected species, and the record shows “a
rational connection between the facts found and the decision made” about the timing
of the low flow period. Giford Pinchot Task Force v. United States Fish & Wildlife
Serv., 378 F.3d 1059, 1065 (9th Cir. 2004). Therefore, we affirm the grant of
summary judgment to the Federal Defendants on this claim.
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3. The Consistency of the 2003 Amended BiOp Factual Findings and
the RPA for the Pallid Sturgeon
American Rivers argues, on the basis of the factual findings in the 2003
Amended BiOp and the administrative record underlying it, that the conditional
replacement of the 2000 BiOp RPA summer low flow requirement with the
mechanical construction of 1,200 additional acres of artificial shallow water habitat
for the pallid sturgeon is arbitrary and capricious.
The 2003 Amended BiOp incorporated findings from the 2000 BiOp and stated
that “[u]ntil a semblance of the normalized hydrograph is restored and habitat is
generated and maintained through re-establishment of these [ecological] processes,
listed species will continue to decline.” In addition, the executive summary of the
2003 Amended BiOp summarizes, with regard to the pallid sturgeon:
The proposed accelerated habitat restoration program in the Lower
Missouri River will have little benefit to the pallid sturgeon without a
concurrent or subsequent change in operations to provide a more
normalized hydrograph to (1) provide the spawning cues that are critical
for pallid sturgeon reproduction and (2) allow larvae and juveniles to
move into shallow water habitat.
American Rivers contends that the above statements, and others like them in
the administrative record, show that the FWS was irrational in abandoning any
semblance of half of the natural hydrograph, the summer low flow, in exchange solely
for habitat construction. However, evidence in the record adequately explains the
decision made by the FWS. First, Appendix A of the Corps’ 2003 Biological
Assessment, entitled “New Information Since the 2000 BiOp,” includes the results
of extensive modeling of the river showing that the proposed 2000 BiOp summer low
flow would be expected to increase suitable shallow water habitat by 1,189 acres over
that existing during regular summer service flows. The creation of 1,200 acres of
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habitat, therefore, provides the same total acreage of accessible calm, shallow pools
during regular summer service flows as the 2000 BiOp summer low flow would have
produced. Second, the 2003 Amended BiOp RPA retains a spring rise requirement,
and the Corps must tailor the spring rise to provide the necessary biological spawning
cues and floodplain connectivity with the shallow water habitat. Third, the 2003
Amended BiOp RPA requires the Corps to monitor the pallid sturgeon population and
collaborate with the FWS to adjust these measures if necessary. Finally, the
avoidance of summer low flow preserves the existing Lisbon chute shallow water
habitat, the only site in the river where larval pallid sturgeon occur naturally, from
potential damage.
American Rivers argues that the 2003 Amended BiOp did not state that the
mechanical construction of 1,200 acres was designed to replace the additional acreage
that would have resulted from summer low flow. American Rivers contends that this
rationale is therefore an impermissible post hoc rationalization by counsel. “[C]ourts
may not accept appellate counsel’s post hoc rationalizations for agency action.”
Motor Vehicle Mfrs., 463 U.S. at 50. However, there is no requirement that every
detail of the agency’s decision be stated expressly in the 2003 Amended BiOp. The
rationale is present in the administrative record underlying the document, and this is
all that is required. Mo. Coalition for the Env’t v. Corps of Eng’rs of the United
States Army,
866 F.2d 1025, 1031 (8th Cir. 1989), overruled on other grounds, Goos
v. ICC,
911 F.2d 1283 (8th Cir. 1990). Therefore, the Federal Defendants’ rationale
is not an impermissible post hoc rationalization.
We conclude that the Federal Defendants have demonstrated a rational
connection between the facts in the record and the decision to substitute 1,200
mechanically constructed acres of shallow water habitat for the 1,189 acres that
would have been created by the 2000 BiOp summer low flow. Therefore, we affirm
the grant of summary judgment to the Federal Defendants on this claim.
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4. The Consistency of the 2003 Amended BiOp Factual Findings and
the RPA for the Least Tern and Piping Plover
American Rivers argues that the elimination of the 2000 BiOp RPA spring rise
and summer low flow requirements for the benefit of the least tern and piping plover
is arbitrary and capricious. The 2000 BiOp flow requirements for the tern and plover
were premised on factual findings that a spring rise was necessary to scour vegetation
from sandbars, while the summer low flow would expose the resulting sparsely
vegetated sandbars for safe nesting. The 2003 Amended BiOp RPA replaced the
spring rise and summer low flow requirements with increased focus on the
mechanical construction and clearing of sandbar habitat for the birds and adjustment
of flow levels during the nesting season to minimize the potential for flooding nests.
In making these changes in the 2003 Amended BiOp, the FWS had the benefit
of a new Corps analysis of the river’s geomorphological processes. The Corps’
computer models indicated that, given the man-made alterations to the river channel,
a spring rise as envisioned in the 2000 BiOp would not produce scoured sandbar
habitat for use by the tern and plover. In fact, the models showed that those flows
were more likely to reduce the quality of previously available habitat.
The 2003 Amended BiOp also included information about tern and plover
populations that was not available for the 2000 BiOp. The updated information
included the fact that “recent counts of least terns (approximately 12,305 terns in
2003) exceed the overall recovery objective of 7,000 birds,” although geographic
distribution and population stability goals were not yet satisfied. Regarding the
recovery goal for piping plovers, the 2003 Amended BiOp stated that “[i]n 2001, the
Missouri River exceeded this recovery goal for the first time. It was also exceeded
in 2002 and 2003.”
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Based on this new information, it was rational for the FWS to conclude that the
2000 BiOp spring rise and summer low flow elements were not necessary to avoid
jeopardy to the tern and plover, and to instruct the Corps to focus its resources on the
mechanical construction of habitat, monitoring and adaptive management.
American Rivers cites the lack of conclusive proof in the administrative record
that the mechanically constructed sandbars will develop into an ecologically
functional habitat for the plover and tern. American Rivers contends that, without
such conclusive proof, the 2003 Amended BiOp RPA fails to satisfy the ESA § 7
requirement that the plan “insure” against jeopardy to the listed species. This
argument fails because, while the proposed mitigation measures must insure against
jeopardy to the protected species if they work as intended, while there must be a
rational reason to expect them to work as intended, and while they must in fact be
possible to implement, there is no requirement for the FWS to ensure the overall
success of the plan. See Southwest Ctr. for Biological Diversity v. United States
Bureau of Reclamation, 143 F.3d 515, 523-24 (9th Cir. 1998). We also note that the
2003 Amended BiOp requires the Corps to monitor closely the performance of the
mechanically constructed sandbar habitat and test methods of improving the mix of
organic material in the sandbars.
Finally, American Rivers cites its own experts for the contention that the
higher-magnitude 2000 BiOp RPA spring rise would be more beneficial to the
protected species than the default spring rise in the 2003 Amended BiOp RPA. We
need not address that contention:
[The FWS] was not required to pick the first reasonable alternative [it]
came up with in formulating the RPA. [It] was not even required to pick
the best alternative or the one that would most effectively protect the
[species] from jeopardy. The [FWS] need only have adopted a final
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RPA which complied with the jeopardy standard and which could be
implemented by the agency.
Southwest Ctr. for Biological Diversity, 143 F.3d at 523 (quotation omitted).
“Because there was a rational connection between the facts found in the [BiOp]
and the choice made to adopt the final RPA, and because we must defer to the special
expertise of the FWS in drafting RPAs that will sufficiently protect endangered
species,” the decision to eliminate the 2000 BiOp flow changes from the 2003
Amended BiOp RPA for the plover and tern was not arbitrary and capricious. Id. We
affirm the grant of summary judgment to the Federal Defendants on this claim.
E. Selection of the Preferred Alternative in the EIS
American Rivers argues that the Corps’ selection of the Preferred Alternative
(“PA”) was arbitrary and capricious because the Corps did not sufficiently explain
why the PA was superior to plan GP2021, favored by American Rivers. Plan GP2021
included the spring rise and summer low flow prescribed by the 2000 BiOp RPA,
while the PA became the 2004 Master Manual.
The EIS contains summary statements about the selection of the PA, such as:
The Corps believes that the PA, when combined with the other measures
. . . , conserves more water in the upper three lakes during extended
droughts, meets the needs of ESA-listed fish and wildlife species, is
consistent with the Corps’ responsibilities under environmental laws and
tribal trust responsibilities, and provides for the Congressionally
authorized uses of the System.
American Rivers argues that because plan GP2021 also generally meets those same
criteria and outperforms the PA with respect to wildlife concerns, the Corps’ decision
to select the PA has not been sufficiently explained. “[A]n agency must cogently
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explain why it has exercised its discretion in a given manner.” Motor Vehicle Mfrs.,
463 U.S. at 48.
NEPA requires an agency to present the EIS alternatives in comparative form,
“sharply defining the issues and providing a clear basis for choice among options by
the decision-maker and the public.” 40 C.F.R. § 1502.14. In this case, the EIS
included a detailed comparative analysis of the effects of all five alternatives on a
wide range of interests including fish and wildlife resources, flood control, water
supply, hydropower, recreation and navigation. This analysis, presented in a series
of tables, enables the reader to compare the relative effectiveness of each of the
alternatives, as required by NEPA. For example, the Federal Defendants point to
tables showing the strong superiority of the PA over plan GP2021 in maximizing
summer revenue from reservoir hydropower production while creating far less risk
of disruption for downstream summer power generation. The tables also show that
the PA outperforms plan GP2021 in the areas of navigation, groundwater damage and
floodplain crop damage. “If the adverse environmental effects of the proposed action
are adequately identified and evaluated, the agency is not constrained by NEPA from
deciding that other values outweigh the environmental costs.” Robertson v. Methow
Valley Citizens Council, 490 U.S. 332, 350 (1989).
Contrary to what American Rivers seems to suggest, there is no further NEPA
or Administrative Procedure Act requirement to repackage the information in the
summary tables into prose one-to-one comparisons of the PA with each of the other
alternatives. We conclude that the comparisons provided in the EIS “cogently explain
why [the Corps] has exercised its discretion in a given manner.” Motor Vehicle Mfrs.,
463 U.S. at 48. Therefore, we affirm the grant of summary judgment to the Federal
Defendants on this claim.
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F. Claim of the Mandan, Hidasta and Arikara Nation Regarding the
Management of Lake Sakakawea
The Nation claims that the Corps has failed to choose the FCA- and ESA-
compliant reservoir management plan that best spurs economic self-sufficiency for
the Nation’s members and protects the Nation’s cultural resources. The Nation seeks
a court order to enjoin the Corps to correct these “deficiencies.” The MDL court
dismissed the Nation’s claim for lack of Article III standing.
To show Article III standing, a plaintiff must demonstrate (1) an “injury in
fact” that is both “concrete and particularized” and “actual or imminent, not
conjectural or hypothetical,” (2) “a causal connection between the injury and the
conduct complained of,” and (3) a likelihood, as opposed to mere speculation, “that
the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992) (quotations omitted).
The Nation articulates its members’ general interest in the operation of Lake
Sakakawea, including an interest in the economic health of the sport fishing industry
located there. However, the Nation does not articulate how reservoir operations
under the 2004 Master Manual cause an injury to the Nation that can be redressed by
a favorable court decision. There is nothing in the amended complaint, for example,
stating why reservoir operation under the 2004 Master Manual, which is more
sensitive to reservoir recreation needs during prolonged droughts than was the 1979
Master Manual, will damage the viability of Lake Sakakawea’s sport-fishing industry.
Furthermore, if we were to do exactly as the Nation requests in its amended complaint
and order the Corps to re-formulate the 2004 Master Manual in a manner that, given
FCA and ESA constraints, would best “spur Tribal self sufficiency and economic
development and protect Indian trust assets,” it is not at all clear what outcome could
be adjudged to comply with our order. The Nation simply has not set forth a
“concrete and particularized” injury that is likely to be redressed by such an order.
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Lujan, 504 U.S. at 560-61. Therefore, we affirm the dismissal of this claim for lack
of Article III standing.
G. Extra-Record Materials Offered by American Rivers
Nebraska challenges the submission of three declarations by American Rivers
that were not part of the administrative record. The MDL court apparently considered
Nebraska’s motions to strike these declarations to be moot. Because we affirm the
grant of summary judgment to the Federal Defendants on American Rivers’ claims,
we also find Nebraska’s motions to strike to be moot.
III. CONCLUSION
On the following three claims, we vacate the MDL court’s grant of summary
judgment to the Federal Defendants and instruct the MDL court to dismiss without
prejudice: (1) NPPD’s claim that the FWS failed to consider the economic feasibility
of the summer low-flow requirement in developing the 2003 Amended BiOp; (2)
Missouri’s claim that the loss of shallow water habitat for larval and juvenile pallid
sturgeon in central Missouri resulting from summer low flow constitutes an
impermissible “take” of the sturgeon under ESA § 9; and (3) Blaske Marine’s NEPA
claim that a supplemental EIS is required for the 2003 Amended BiOp summer low-
flow requirement. On all other claims, we affirm the judgment of the MDL court.
______________________________
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