EAST ST. LOUIS – California lawyers suing the Army Corps of Engineers over management of the Mississippi River tried to deceive U.S. District Judge David Dugan, according to an order he signed on Jan. 22.
Dugan found they misrepresented the law and the contents of the record.
“Such ignoble conduct, though for noble purposes, never wins the day,” Dugan wrote.
“Future disingenuousness of this magnitude will not be tolerated by the court and may result in sanctions.”
He approved the Corps’ plan for the river from the Missouri to the Ohio, 195 miles.
Attorney Stephan Volker of Berkeley sued the Corps in 2020, along with Alexis Krieg and Stephanie Clarke of his firm and Bruce Morrison of St. Louis.
The attorneys represent National Wildlife Federation, American Rivers, Prairie Rivers Network, Missouri Coalition for the Environment, and Great Rivers Habitat Alliance.
Their suit claims revisions of a management plan from 1976 violates the national Environmental Policy Act and the Water Resources Development Act.
Plaintiffs predict drastic effects if the Corps continues building what they call river training structures.
They claim the Corps didn’t consider alternatives and relied on bad information.
They moved for summary judgment last February, claiming the middle Mississippi was in a state of steep ecological decline.
“Fish and wildlife populations are collapsing because of the growing degradation and loss of their habitat,” the suit claims.
Plaintiff allege the Corps continues relying on obsolete data from the 1976 plan.
They claim scientific understanding of sediment transport and deposition made great progress since then.
They quoted a finding of an independent review panel that strong working knowledge of sediment was necessary to design regulating structures.
The panel “concluded that the supplemental environmental impact statement has little information on the hydraulic and hydrologic engineering data for the middle Mississippi River,” the suit claims.
The Corps allegedly violates the Water Resources Development Act by failing to prepare a plan for mitigation of adverse impact on fish and wildlife.
Plaintiffs cite a piece of the Act allowing selection of a project alternative in any report under two conditions.
First, they wrote, the report must contain a recommendation with a specific plan to mitigate for terrestrial and aquatic damages and for fish and wildlife losses.
Second, they wrote, the Secretary of the Corps must determine that the project will have negligible adverse impact on ecological resources and fish and wildlife without implementation of mitigation measures.
“Because the Corps has issued a report, the draft and final supplemental environmental impact statement, on the project, and the Secretary of the Army has not found that the project will have negligible adverse impact on ecological resources and fish and wildlife without the implementation of mitigation measures, the Corps is required to mitigate the project’s adverse impacts on those ecological resources and fish and wildlife,” the suit claims.
In May, Corps counsel Matthew Marinelli of the Justice Department in Washington responded that they misrepresented the review panel’s comment.
Marinelli claimed the panel found data from 1976 complete and suitable.
He claimed the mitigation requirement in the Water Resources Development Act applied only to reports submitted to Congress.
Dugan agreed on both points.
He found the reference to the review panel’s comment incomplete and misleading.
“A reading of the entire referenced sentence leaves no room for anything but the conclusion that the information available was adequate,” Dugan wrote.
He expressed concern with a lack of candor on representations made to his court.
The record consisted of more than 49,000 pages.
Dugan wrote that environmental cases are particularly burdensome because they take the court into a highly technical realm.
“Any lack of candor on the part of counsel as to the contents of the record is particularly offensive because it requires the assignment of additional resources to check and recheck the record to test the veracity of counsel’s representations,” Dugan wrote.
“Mischaracterizing the contents of the record or omitting important and operative terms contained in a sentence in the record violates the lawyer’s most basic duty to a tribunal, the duty of candor.”
He quoted a judge who found a duty to advocate vigorously was trumped by a duty “to guard against the corruption that justice will be dispensed on an act of deceit.”
Dugan declared the argument about a mitigation report misleading too.
He found it significant that plaintiffs didn’t accurately and completely recite the language in the Water Resources Development Act.
“This may explain why counsel does not argue for and simply skips by any interpretation of that provision,” he wrote.
He found the section of the Act at issue addressed only proposals for authorization of water resources in reports to Congress.
He found the mere ability of a party to conceive of any meaning other than the clear meaning of a statute doesn’t render it ambiguous.
“In sum, the plaintiffs have not revealed any clear error of judgment on the part of the Corps,” he wrote.
He found none of its decisions was arbitrary, capricious, or an abuse of discretion.
Assistant U.S. attorney Nathan Wyatt of Fairview Heights represented the Corps in association with Marinelli.