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Supreme Court declines appeal of case giving barges priority

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WASHINGTON -- The Supreme Court declined Monday to consider challenges to a court ruling that barge shippers trump other water interests when the Army Corps of Engineers makes decisions on managing Missouri River flows.

The case was brought by North Dakota and South Dakota in response to an August ruling by the 8th U.S. Circuit Court of Appeals.

That decision said recreation and other water uses on the Missouri's upstream reservoirs are of lesser value than maintaining navigation traffic along the river's shipping channel, which runs from Sioux City, Iowa, to St. Louis.

The Supreme Court did not give a reason for rejecting the Dakotas' arguments Monday.

"We've apparently struck a reasonable middle ground and will continue to try to meet the needs of all the authorized purposes," said Paul Johnston, a spokesman for the corps' northwestern division office in Omaha.

The Supreme Court's refusal to hear the case comes just a week before the corps is expected to move forward with controversial plans for an artificial "spring rise" on the river.

Johnston said Monday that water levels in reservoirs that feed the river likely will remain high enough for a release of water to take place sometime after May 1. The release is timed to encourage spawning by the pallid sturgeon, a fish on the endangered species list.

North Dakota Attorney General Wayne Stenehjem said he is disappointed in the court's decision.

"What we now have is a contorted view that for some reason the meager and puny navigation industry is entitled to priority over much more robust uses," he said.

Stenehjem said the decision leaves the states with few options, since Congress is unlikely to intervene in their favor.

"The only other thing we can do is pray for more rain and snowfall in the winter months," he said.

The Missouri River begins in Montana and runs through or alongside North Dakota, South Dakota, Nebraska, Iowa, Kansas and Missouri before emptying into the Mississippi River.

Congress passed the Flood Control Act in 1944, authorizing the construction of a dam and reservoir system on the upper river to control spring flooding.

The Dakotas and Montana have been pushing the corps to store more water in the reservoirs, while downstream states resist the idea. They rely on the water to maintain Missouri River barge shipping and satisfy other needs, including water supplies to some cities.

Last month, the court refused to hear North Dakota's arguments that the corps violated state water pollution laws in managing the Missouri River's water flows.

While the corps will not make a final decision on the spring rise until May 1, Johnston said that as of Monday, the six upper reservoirs feeding the main stem of the river have 37.6 million acre-feet of water.

Lawmakers in Montana and the Dakotas worry the release may not leave enough water for boating and fishing interests upstream. Missouri officials fear it will flood farmland along the river and harm the barge industry.

Environmental groups generally support the plan as the best way to protect river wildlife.

A first pulse was supposed to take place on the river earlier this year, but was called off because water levels in reservoirs that feed the river were too low.

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