A three-judge federal panel on Thursday upheld the authority of the U.S. Army Corps of Engineers to determine the level of discharges from a Missouri River reservoir in South Dakota and North Dakota. The 8th U.S. Circuit Court of Appeals panel overturned a lower court order that releases from the Oahe reservoir be reduced, as had been requested by the drought-stricken states. The appeals panel said it had serious reservations about whether courts have jurisdiction over such decisions by the corps. In a brief order, the panel said it would spell out its legal reasoning later in a formal opinion. The tug-of-war over water rights pitted the corps and the states of Iowa, Nebraska, Kansas and Missouri against North Dakota, South Dakota and Montana over whether water flow should be reduced from the reservoir, which stretches from Pierre, S.D., to near Bismarck, N.D. U.S. District Judge Patrick Conmy in Bismarck had ordered the corps to reduce the discharges by one-third until June 1 so the hatch of walleye pike could be completed in the 232-mile long reservoir. The appeals panel granted an emergency stay of that order last Friday. The corps said the lower water level would threaten barge traffic between Sioux City, Iowa, and St. Louis, a 730-mile shipping channel, and also would jeopardize two species of birds protected by the Endangered Species Act. State officials on both sides of the issue said they were not surprised by the ruling. ``It was expected, anticipated that the judges would rule in our favor. But nonetheless it is good news,'' said Nebraska Gov. Kay Orr in Omaha, Neb. ``The downstream states have to protect our interests from the states upstream,'' she said. North Dakota Attorney General Nicholas Spaeth, who argued the case Wednesday before the panel, said in Bismarck that there probably isn't time to appeal the case to the U.S. Supreme Court. ``We don't have many options,'' said Spaeth. ``It'll be almost impossible to get Supreme Court review in the two weeks we have left.'' North Dakota Gov. George Sinner, speaking from Washington, D.C., expressed strong disappointment with the ruling. ``The upper basin states have continued to give and give and give. We gave up huge amounts of our most fertile land for flood protection for the lower basin states,'' he said. ``Now we're being asked to give up recreation for the lower basin navigation. ``It's patently unfair and we will seek every avenue that we can to get restitution for our people,'' Sinner added. Despite the defeat, South Dakota Gov. George Mickelson said in Sioux Falls, S D., ``it was a battle that had to be fought.''
