Judges Order Contempt Hearing for Army Corps of Engineers

A federal court on Friday scheduled a contempt hearing against the Army Corps of Engineers for refusing to comply with its order to reduce water levels on the Missouri River.

Also Friday, an appeals court rebuffed a government effort to halt the federal court’s order.

Conservation groups are suing the corps under the federal Endangered Species Act, saying the river must be restored to a more seasonal ebb and flow, mimicking natural river conditions before dams and channels were built.

That, the groups contend, would encourage fish spawning and bird nesting by threatened and endangered species.

U.S. District Judge Gladys Kessler in Washington granted an injunction earlier this week seeking low flows typical of the summer season on the Missouri.

That was to have begun Wednesday.

The corps refused to comply, saying that reduced water levels would violate an earlier ruling by a federal court in Nebraska that the Missouri must have enough water for barges to navigate and power plants to operate.

That led Kessler to schedule a contempt of court hearing for Monday morning.

The U.S. Court of Appeals for the District of Columbia denied the government’s request for an emergency stay pending appeal of Kessler’s ruling.

“It means that the corps can no longer hide, and that they’re going to have to comply with the law or face stiff penalties,” said Chad Smith, spokesman for American Rivers, one of the groups suing the corps.

While the corps reduced flows slightly after Kessler’s initial ruling, it refused to budge on Friday.

“There has been no decision on whether we’re going to change releases,” corps spokesman Paul Johnston in Omaha said Friday. “The Army’s position is that we’re sitting here with conflicting orders.”

When the corps announced it would refuse to comply with Kessler’s order and instead follow the earlier court order, it also announced plans to finish long-delayed revisions of its “master manual” for operating the river.

Delays have lasted more than a decade because of the battle over returning the Missouri to a more seasonal ebb and flow.

More natural changes would benefit the lake recreation industry upriver in Montana and the Dakotas.

But those who live and farm along the lower reaches of the river in Nebraska, Iowa, Kansas and Missouri worry that a spring rise would flood homes and farmland and low summer flows would devastate the barge shipping industry.

Kessler acknowledged in her order that barge companies will lose revenues, water quality may suffer and consumers may pay more for power this summer along the Missouri River.

But she said that injury to wildlife -- the least tern, piping plover and pallid sturgeon -- will be irreparable without curtailing the Missouri’s flow.

The Justice Department is also appealing Kessler’s ruling.