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MIssouri River Use Under
Montana, Dakotas Want Pro-Industry Ruling Reversed
January 30, 2006
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McGrath made the request in a brief supporting the original Supreme Court appeal filed by North Dakota and South Dakota in November.
North Dakota Attorney General Wayne Stenehjem wants justices to reverse a federal appeals court ruling that concluded barge traffic along the river's navigation channel is a higher priority than other interests, including swimming, boating and wildlife management. The channel runs from Sioux City to St. Louis.
The conclusion was part of an August ruling that said North Dakota could not use federal and state anti-pollution laws to force the Army Corps of Engineers to keep more water in Lake Sakakawea.
The corps manages the Missouri River system. The state of Missouri, barge companies and other downstream interests have supported releasing more water from the river's reservoirs to help the shipping industry.
"This is the latest in a long history of disputes about the handling of water resources along the Missouri," McGrath said. "We believe review by the Supreme Court is necessary so the concerns of smaller, upstream states like Montana and the Dakotas are given the same significance as those of larger, downstream states."
In his brief, McGrath said the Flood Control Act of 1944 requires that all river uses be treated equally, something he said the corps also acknowledges.
The act is the federal law that authorizes the management of the river.
"This is particularly important in drought years," McGrath said. "The corps has been playing favorites for too long."
Stenehjem has said the 8th U.S. Circuit Court of Appeals, which issued the August ruling, has no legislative history or authority to support its conclusion that navigation was a paramount interest of the river system.
The Supreme Court will decide later whether to hear the case.