Case No. 00-4153-DES
September 29, 2000
MEMORANDUM AND ORDER
This matter is before the court on the plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction (Doc. 2). On September 26, 2000, the court heard oral arguments from counsel for the parties concerning the issuance of the temporary restraining order. The court took plaintiff's motion under advisement and directed the parties to file additional briefs on this matter. Both parties have filed briefs, and the court has carefully reviewed this case. For the reasons set forth below, plaintiff's motion for preliminary injunction is granted.
The State of Kansas filed the motion for preliminary injunction seeking a court order enjoining the defendants from any further draining of water from three Kansas reservoirs, Milford Lake, Perry Lake, and Tuttle Creek Lake, for the purpose of navigation support of the Missouri River. The United States Army Corps of Engineers ("Corps") plans to drain six feet of water from each of the three reservoirs to provide navigation support to the Missouri River. Plaintiff argues that defendants do not have the authority to drain the water from the three Kansas reservoirs to provide navigation support in the Missouri River and, if they have authority, the decision is arbitrary, capricious, and an abuse of discretion. Defendant argues it has the authority to drain the water for navigation and this court does not have jurisdiction to determine this case.
Defendants argue that the decision to drain six feet of water from the three Kansas reservoirs to provide navigation support in the Missouri River is a decision committed to agency discretion by law and, therefore, not subject to review by the court. The Administrative Procedures Act ("APA"), 5 U.S.C. § 551-59, 701-06, governs judicial review of agency action. Section 701 of the APA provides for judicial review of agency action except where agency action is committed to agency discretion as a matter of law. 5 U.S.C. § 701(a)(2).
Judicial review of agency action is precluded only "in those rare instances where `statutes are drawn in such broad terms that in a given case there is no law to apply.'" Story v. Marsh, 732 F.2d 1375, 1379 (8th Cir. 1984) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971)). When a statute is written in such broad terms "the courts have no standard against which to measure the lawfulness of agency action." City of Santa Clara v. Andrus, 572 F.2d 660, 666 (9th Cir. 1978). Accordingly, the court can only exercise jurisdiction if a standard exists upon which to determine the lawfulness of agency action.
The reservoirs are governed by the Flood Control Act ("Act"), which explicitly states that the reservoirs are under the control of or under the direction of the Army Secretary. ETSI Pipeline Project v. Missouri, 484 U.S. 495, 505 (1988) (discussing the 1944 Act). The Act provides no management standards and leaves decisions regarding the reservoirs to the discretion of the Corps. Because the Act commits reservoir management to the Corps, defendant argues that there are no standards to allow for review. Plaintiff argues both the Corps' Regulatory Manuals and 33 U.S.C. § 701-1(b) provide standard against which to measure the lawfulness of the Corps' action.
Defendants rely on Story v. Marsh, 732 F.2d 1375 (8th Cir. 1984), to support their position that the court lacks jurisdiction. In Story, the district court entered an order enjoining the Corps from artificially crevassing frontline levee of the Birds Point — New Madrid Floodway during high flood stages on the Mississippi River. The district court concluded that the Flood Control Act of 1965 did not provide for congressional approval of the plan to artificially crevasse the frontline levee and the plan to breach the levees was arbitrary and capricious. The Eighth Circuit reversed the district court's grant of an injunction as an abuse of discretion. The Eight Circuit concluded Congress authorized crevassing of the frontline levee but provided no additional standards for determining whether or where to crevasse the frontline levee. "In such circumstances, the courts have little, if any, standards against which to assess the agency decision, thus rendering the substance of the agency action largely unreviewable." Id. at 1381. Defendant argues that the broad delegation of Congressional authority under the Flood Control Act is similar to that of the Floodway and precludes judicial review.
While the court finds Story persuasive, the court must recognize the contradiction between Story and the subsequent Eighth Circuit opinion of South Dakota v. Hazen, 914 F.2d 147 (8th Cir. 1990). In Hazen, the district court enjoined the Corps from releasing water from the Oahe reservoir into the Missouri River at a rate greater than that at which water was flowing into the reservoir. Plaintiffs argued that the continued drought in the area combined with the Corps' release of water would prevent the successful spawn of fish in the lake. The district court found it arbitrary and capricious for the Corps to favor one use of water over another. The Eighth Circuit reversed the district court holding that the Corps' actions were not arbitrary and capricious. In addition, the court raised the question of whether the agency action was judicially reviewable under the APA and ordered further briefing. By the time additional briefing was submitted, the issue had become moot as spawning season ended.
Although the issue was moot, the Eighth Circuit did discuss the arguments of both parties as follows:
The only plausible source of law in this situation is the Corps' own [Manual], a document the Corps says was intended only for internal use in meeting the goals set forth by Congress. The Corps therefore concludes that its actions regarding releases of water from Lake Oahe were "committed to agency discretion by law," 5 U.S.C. § 701(a)(2) (1988), and thus are not subject to judicial review. The Corps also relies on our prior decision in Story v. Marsh, 732 F.2d 1375, 1381 (8th Cir. 1984). . . . [Plaintiffs], on the other hand, contend that the Corps relies upon its Manual when managing the system and has purported to be bound by it. Thus, they say, even though the manual was not adopted as a regulation through the rulemaking procedure of the APA, it does provide law to apply. Moreover, the states argue, a finding of unreviewability would give the Corps unbridled discretion over Lake Oahe and other main stem reservoirs, a result Congress surely could not have intended.Hazen, 914 F.2d at 149. The Hazen court did not rule that the issue had been resolved in Story, rather the court stated, "[t]his question is not free from doubt and there are weighty arguments on both sides." Id.
The arguments in Hazen are substantially the same as those articulated and anticipated by the parties in this case. The State of Kansas relies on the Corps' own regulations to support their claim. All three of the reservoirs have a regulation manual which governs its operation. The manuals provide, "During designated periods, minimum permissible pool levels for adequate recreations and reasonably stable or slowly rising pool levels for fish spawning will supersede navigation requirements except during unusual circumstances." See Tuttle Creek Lake Regulation Manual at VIII-5 (1991). The manuals also provide, "Under the present conditions of development, the Corps of Engineers . . . in cooperation with the State of Kansas, will endeavor to maintain an equitable balance between the multipurpose pool level for recreation and other lake interests and for the release for downstream use." Id. at VIII-8. The regulation manual provides some standard for the court's review.
Whether or not the Corps' own manual can serve as the basis for court review is a question which remains unanswered. The Eighth Circuit recognized that the "question is not free from doubt and there are weighty arguments on both sides." Hazen, 914 F.2d at 149. Although the court has serious doubts about its authority, the court finds that it has the authority to review the decision to drain six feet of water from the three Kansas reservoirs to provide navigation support in the Missouri River.
As to plaintiff's argument that 33 U.S.C. § 701-1(b) provides a standard against which to measure the lawfulness of the Corps' action, the court finds it does not under these circumstances. Section 701-1(b), which is commonly referred to as the O'Mahoney-Milliken Amendment, provides:
The use for navigation, in connection with the operation and maintenance of such works herein authorized for construction, of waters arising in States lying wholly or partly west of the ninety-eighth meridian shall be only such use as does not conflict with any beneficial consumptive use, present or future, in States lying wholly or partly west of the ninety-eighth meridian, of such waters for domestic, municipal, stock water, irrigation, mining, or industrial purposes.33 U.S.C. § 701-1(b).
The court takes judicial notice of the fact that Kansas lies partly west of the ninety- eighth meridian.
Plaintiff argues defendant's drainage of water from three reservoirs is in "conflict" with its present beneficial consumptive use, therefore, defendant does not have authority to use the water for navigation. Specifically, plaintiff has presented evidence demonstrating not only its use of the reservoirs for drinking water but also for eight undisclosed industrial applications. The record before the court demonstrates that the State of Kansas is in the midst of drought conditions. However, plaintiff's evidence is demonstrative of only the potential threat that defendant's drainage of water from the three reservoirs could deny adequate drinking water or interfere with industrial purposes. The court finds plaintiff has not sufficiently shown that its beneficial uses are in conflict with defendant's actions. The court finds that the "conflict" requirement must not be read so broadly as to extinguish, in the totality, defendant's authority to use the reservoirs to aid navigation.
A court reviewing an agency decision "may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of review proceedings," pursuant to 5 U.S.C. § 705. The requirements for a stay of agency action pending judicial review are the same as those for preliminary injunction. Corning Sav. and Loan Ass'n v. Federal Home Loan Bank Bd., 562 F. Supp. 279 (E.D.Ark. 1983). To obtain a preliminary injunction, the moving party has the burden of establishing that:
1. The party will suffer irreparable injury unless the injunction issues;
2. The threatened injury to the moving party outweighs whatever damage the proposed injunction may cause the opposing party;
3. The injunction, if issued, would not be adverse to the public interest; and
4. There is a substantial likelihood that the plaintiff will eventually prevail on the merits.Resolution Trust Corp. v. Cruce, 972 F.2d 1195, 1198 (10th Cir. 1992) (quoting Tri-State Generation Transmission Ass'n, Inc. v. Shoshone River Power, Inc., 805 F.2d 351, 355 (10th Cir. 1986)). The issuance of preliminary injunctive relief is within the sound discretion of the district court. Tri-State Generation, 805 F.2d at 354. The court finds in its discretion that the preliminary injunction requested by plaintiff should be issued.
First, plaintiff must demonstrate it will suffer irreparable injury unless the injunction issues. "In order to issue a preliminary injunction, however, the court need not find that the claimed injury is certain to result — a likelihood of irreparable injury is sufficient." Sac and Fox Nation v. LaFaver, 946 F. Supp. 884, 886-87 (D.Kan. 1996) (citing Bath Indus., Inc. v. Blot, 427 F.2d 97, 111 (7th Cir. 1970)). Plaintiff claims it will suffer irreparable injury because once the water is released, it can never be returned to the Kansas reservoirs. Kansas is currently in a drought and facing a possible multi-year drought. The only way to replenish the water in the lakes is through sufficient rainfall and runoff. The lower water level will dry up the wetlands which will adversely impact waterfowl and other migratory birds. In addition, a six foot water release would have severe economic impact due to damage to marinas on two reservoirs and lack of recreational use of all three reservoirs. The court finds that if the defendants are not enjoined from draining the three reservoirs, the plaintiff would suffer irreparable injury.
Second, the threatened injury to plaintiff must outweigh whatever damage the proposed injunction may cause defendants. The six feet of water from the three lakes will result in approximately one inch of water in the Missouri River. The court has considered the parties' arguments concerning the balancing of potential injury to the parties and finds that the potential harm to the plaintiff if the preliminary injunction is not issued outweighs the potential harm to the defendants which would be caused by the issuance of the order.
Third, the injunction must not be adverse to the public interest. The court finds that the issuance of the preliminary injunction would not be contrary to the public interest.
Finally, there must be a substantial likelihood that the plaintiff will eventually prevail on the merits. If the plaintiff satisfies the first three elements, the standard for meeting the fourth requirement, likelihood of prevailing on the merits, becomes more lenient. Franklin Sav. Ass'n v. Office of Thrift Supervision, 732 F. Supp. 1123, 1124-25 (D.Kan. 1990). In such a case, the plaintiff need only show that the issues are so serious, substantial, difficult, and doubtful as to make them fair ground for litigation. Id. Given this standard, the court finds that the plaintiff has met its burden of showing a likelihood of prevailing on the merits.
Plaintiff argues success on the merits because the decision of the corps to drain six feet of water from the three Kansas reservoirs was arbitrary and capricious. 5 U.S.C. § 706(2)(A). To determine whether an agency decision is arbitrary and capricious, the court must "[c]onsider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). The agency must have made a "rational choice between the facts found and the choice made." Burlington Truck Lines, Inc. v. Unites States, 371 U.S. 156, 168 (1962).
From the facts presented to the court at this time, it appears that no "choice" was made by the Corps. The Corps did not conduct any studies to determine the adverse impacts of the release of water from the Kansas reservoirs. The Corps has not informed itself of the "relevant factors." Without knowledge of the relevant factors, it is impossible for the Corps to make an informed decision as to whether an "equitable balance" between the multipurpose pool level for recreation and other lake interests and the release for navigation. The Corps' decision is arbitrary and capricious. Plaintiff has demonstrated a likelihood of success on the merits, identifying issues that are so serious, substantial, difficult, and doubtful as to make them fair ground for litigation.
The court finds the plaintiff has demonstrated the four elements necessary for the issuance of a preliminary injunction. Therefore, the preliminary injunction requested by the plaintiff shall be issued.
IT IS THEREFORE BY THIS COURT ORDERED that the plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction (Doc. 2) is granted. The defendants are enjoined and restrained from any further draining of water from Milford Lake, Perry Lake, and Tuttle Creek Lake for the purpose of navigation support of the Missouri River until further order of the court.