A New Corps of Discovery for Missouri River Management

• Publication year: 2021

83 Nebraska L. Rev. 305. A New Corps of Discovery for Missouri River Management

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Sandra B. Zellmer(fn*)

A New Corps of Discovery for Missouri River Management

TABLE OF CONTENTS

I. Introduction ..................................................... 306
II. The Jeffersonian Corps of Discovery ............................. 310
III. Of Famine and Floods: The Flood Control Act
of 1944 ........................................................ 312
A. The Impetus for the Flood Control Act ....................... 312
B. The Implementation of the Flood Control Act ................. 315
IV. The Environmental Era: All Creatures Great
and Small ....................................................... 319
V. The Clash of the Titans: Engineers, Barges, Birds,
and Fish ......................................................... 324
A. Track One: The States' Flood Control Act
Litigation .................................................. 324
B. Track Two: The Environmental Groups' ESA
Litigation .................................................. 326
C. The Minnesota Opinion and 2004 Master
Manual ...................................................... 329
VI. A New Corps of Discovery: An Organic Act for a
Sustainable Management Paradigm ................................. 334
A. The Law of the Missouri River ............................... 334
B. A Federal Missouri River Organic Act ........................ 337
C. The Basic Organic Act Principles ............................ 346
D. Other Options, from Most to Least Drastic ................... 357
VII. Conclusion ..................................................... 360

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I. INTRODUCTION

I am certainly not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new dis coveries are made, new truths discovered and manners and opinions change, . . . institutions must advance also to keep pace with the times.

Thomas Jefferson(fn1)

Two hundred years ago, President Thomas Jefferson sent Meriwether Lewis and William Clark on an expedition along the Missouri River in hopes of discovering an allwater route to the Northwest. Although this dream was not fulfilled, the Corps of Discovery brought back a wealth of scientific information.(fn2) Its zoological and botanical discoveries, in particular, were beyond any value.(fn3) Today, at the expedition' bicentennial, the Missouri River continues to defy the government' aspirations for substantial commercial navigation. It remains an ecological treasure trove of endemic fish and wildlife species and plant communities, but these riches have been vastly depleted. Protecting and restoring the river' ecological values, while sustaining realistic economic expectations, will prove to be a task equal to the one undertaken by Lewis and Clark.

The indubitable goal of river management in Jefferson' day and for over a hundred and fifty years afterwards was navigation for purposes of promoting commerce and westward expansion.(fn4) That goal has begun to evolve for river systems across the nation. The emergent focus is ecosystem health, forced in part by federal requirements for water quality and endangered species. Ecosystem health in turn requires ecological sustainabilitymaintaining both the physical structure and organization of the river and its inhabitants as well as their function and vitality over time.(fn5) For river ecosystems, ecological sustainability invariably entails some semblance of natural flow regimes.(fn6) National environmental policy has begun to recognize the

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close linkages between ecosystem health and human wellbeing, but the law does not fully reflect those linkages.(fn7)

On the Missouri, tensions have run high ever since the Corps of Discovery explored the river' furthest reaches in the early 1800s.(fn8) The conflict between navigation and ecological protection in the Missouri River basin has given rise to a veritable "clash of the titans" during these bicentennial years. Upper basin states, are pitted against lower basin states, and both have had their runins with federal agencies. The U.S. Army Corps of Engineers stands at the vortex of the controversy, with the states, as well as environmental and commercial associations, demanding contradictory and even mutually exclusive responses in river operations.

Tensions over river management are by no means isolated to the Missouri River basin. Conflicts between water users and imperiled species have been raging across the country for the past quartercentury. The flavor of the conflict is somewhat different in the Missouri River basin than in many regions of the American West, because so few rely on Missouri River water for consumptive uses. Irrigation with water from the mainstem river is minimal, and there are few users with legally protected rights to the water who have an incentive to jump into the fray. As Professor Dan Tarlock points out, "the Missouri River is a paradox: the amount of water available . . . is inverse to the number of potential users."(fn9)

Yet "conflict without scarcity" in terms of water quantity is conflict nonetheless.(fn10) Other types of scarcity generate controversy on the Missouri River: scarcity of keystone species; diminishment of the natural flow regime; and a paucity of willingness to adapt as necessary to ensure the longterm viability of human and ecological communities. These conflicts prompt stakeholders to draw battle lines in the sand,

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making them less amenable to adaptive, creative solutions, just as surely as conflict over water scarcity does.

The most recent Missouri River litigation conflagration has drawn in five states, two federal agencies, several Native American tribes, and numerous private litigants over the largest dam and reservoir system on the longest river system in the nation.(fn11) It implicates three federally protected species, as well as barge operators, shippers, and recreational and commercial interests related to tourism and sport fisheries.(fn12) Two potentially contradicting federal laws provide the subtext: the Endangered Species Act ("ESA") and the Flood Control Act of 1944.(fn13) The impetus for litigation has been the Corps of Engineers' ongoing efforts to revise its Master Manual for river operations under the Flood Control Act. The result so far has been dozens of court orders from six different federal courts.(fn14)

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Two separate themes share center stage: state sovereignty and federalism, on one hand, and more to the point for my purposes here, the adaptation of outdated and illsuited human strategies in the face of longterm ecosystem needs. When the Flood Control Act was adopted in the 1940s, navigational hopes were high and "ecosystem management" had not yet emerged as a fundamental ecological precept. The Flood Control Act, like many of the first generation of federal public land management statutes, imposes a multipleuse requirement that emphasizes commodity production rather than ecological needs.(fn15)

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Misunderstanding and misallocation have been the inevitable results, perpetuated by the Corps of Engineers, a 200yearold military agency charged with implementing this archaic statute.

The Missouri River is representative of a nationwide phenomenon. The Law of the River is evolving from water quantity allocation, reflecting wellsettled prior appropriation law and decadesold interstate compacts to broader ecologicallybased requirements. From sturgeon to salmon to silvery minnows, every major river system in western United States is now managed, at least in part, pursuant to contemporary environmental legislation, which has begun to eclipse traditional water law. Just look to the Rio Grande(fn16) and the Klamath River(fn17) for the extensive changes wrought by the ESA. The need for river restoration in order to meet ecological needs has been a compelling force, even on the heavily regulated and overappropriated Colorado River.(fn18) Meanwhile, on the Missouri, longstanding navigational directives are being influenced by the ESA and other environmental requirements.

My objective in this Article is twofold: first, to show that the Master Manual revision process pursuant to the Flood Control Act asks the wrong questions and therefore cannot provide a complete solution for the Missouri River basin; and second, to suggest legislative change. I offer my voice to a long line of distinguished scholarship on Missouri River management with some trepidation, and with full knowledge that this Article is far from the definitive word on this complex and seemingly intractable controversy. To this end, the Article is not intended to be prescriptive but rather a springboard for further discussion.

The Flood Control Act, in attempting to be all things to all people, fails to prioritize or even promote sustainable national, regional, and local interests on the Missouri River. As a result, a longterm, comprehensive management strategy is unlikely to be forged from the long drawnout revisions to the Master Manual. Neither can the ESA, standing alone, provide the answers.

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A new way of thinking, supported by a complete legislative overhaul, is long overdue. A holistic organic act for the Missouri River ecosystem, one which provides a sustainable future for both human and ecological interests, is desperately needed. Such an act might follow the pattern set by the latest generation of organic acts for public lands management. The most recent of these enactments, the National Wildlife Refuge System Improvement Act of 1997 ("Refuge Act"),(fn19) prioritizes conservation and compatible, sustainable resource use. It provides an exemplary model for consideration.

This Article begins in Part II by highlighting the remarkable ecological...