Bismarck Tribune - Bismarck News - Stenehjem asks high court to hear river case

Stenehjem asks high court to hear river case

Dec 30, 2003 - 23:08:08 CST

By RICHARD HINTON, Bismarck Tribune

The dispute between recreational interests and navigation interests along the Missouri River could be heading to the U.S. Supreme Court.

North Dakota Attorney General Wayne Stenehjem has asked the high court to review a federal appeals court decision that permits the U.S. Army Corps of Engineers to release water from upstream reservoirs to benefit barge traffic downstream.

The case involves a lawsuit the state filed against the corps in 2002, asserting that the corps was unlawfully harming the lake's walleye fishery by lowering the level of Lake Sakakawea during the spring rainbow smelt spawning season. Smelt, the primary food of walleye and other game fish, need a steady lake level to ensure the eggs aren't left high and dry.

The corps appealed to the 8th U.S. Circuit Court of Appeals, which ruled that the corps could continue to draw down the lake.

At issue is the Flood Control Act of 1944. Stenehjem contends the act does not give navigation priority over recreation uses, which is what the appeals court ruled.

"The 8th Circuit was plain wrong when it ruled the Flood Control Act gives navigation priority over recreation," Stenehjem said. His position is the act gives recreation and navigation equal priority.

Stenehjem said the national implications of the case are tremendous.

"It's a dispute between states and involves the federal government as well," he said. "Those are the kinds of things the Supreme Court does tend to be interested in, but the odds are long."

Paul Johnston, a spokesman for the corps in Omaha, Neb., said the courthouse is available for all parties, noting there are lawsuits representing all sides in the river management dispute.

The petition was filed jointly by North Dakota and South Dakota. It likely will be several months before the court rules on whether it will hear the case. If the high court decides to hear the case, briefs and arguments could come late next year, Stenehjem said.

Stenehjem said the deadline for doing anything about the appeals court's ruling is today.

"We had to make a decision, and we had a very good brief," he said.

Charles Carvell, director of the natural resources and Indian affairs division of the attorney general's office, is the chief author of the petition.

"I think we've placed a petition and brief that could cause the Supreme Court to give it serious consideration," Stenehjem said.

(Reach reporter Richard Hinton at 250-8256 or outdoors@bismarcktribune.net.)

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