State of Missouri v. U.S. Army Corps of Engineers, et al.
Filing
1
COMPLAINT against defendant All Defendants with receipt number 0865-2729141, in the amount of $350 Non-Jury Demand,, filed by State of Missouri. (Attachments: # 1 Exhibit Birds Point New Madrid Floodway Operations Plan, # 2 Exhibit Affidavit of Paul D. Parmenter, # 3 Exhibit Affidavit of Davis Minton)(McManus, John) (Additional attachment(s) added on 4/27/2011: # 4 Civil Cover Sheet, # 5 Original Filing Form) (CSG).
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
AT CAPE GIRARDEAU
STATE OF MISSOURI, ex rel.
Chris Koster, and the
MISSOURI DEPARTMENT
OF NATURAL RESOURCES,
MISSOURI STATE EMERGENCY
MANAGEMENT AGENCY
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Plaintiff,
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v.
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UNITED STATES ARMY CORPS
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OF ENGINEERS,
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MAJOR GENERAL MICHAEL J. WALSH,)
COLONEL VERNIE L. REICHLING JR. )
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Defendants.
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Civil Action No. __________________
Complaint
The State of Missouri, at the relation of Chris Koster, Attorney General, the
Missouri Department of Natural Resources, and Missouri State Emergency Management Agency
jointly file this complaint and allege as follows:
Nature of the Action
1.
The purpose of this action is to block the Army Corps of Engineers from
detonating explosives that will destroy portions of the Front Line levee, which is located in
Mississippi and New Madrid Counties in Missouri. The destruction will flood most of
Mississippi County and a portion of New Madrid County. The action violates the Missouri
Clean Water Law, Mo. Rev. Stat. § 644, et seq., and the federal Administrative Procedures Act, 5
U.S.C. § 701, et seq.
Parties
2.
Chris Koster, is the duly elected, qualified, and acting Attorney General of
Missouri. The Attorney General is authorized to institute, in the name and on behalf of the State,
all civil proceedings at law or in equity necessary to protect the rights and interests of the State
under § 27.060, RSMo 2000 . Section 644.076, RSMo, of the Missouri Clean Water Law
authorizes the Attorney General to bring this lawsuit.
3.
The Missouri Department of Natural Resources (“the Department”) is a duly
authorized state agency created under Mo. Rev. Stat. §640.010, to administer the programs
relating to environmental control and conservation, and to manage the natural resources of the
State of Missouri.
4.
The Missouri State Emergency Management Agency (“SEMA”) is a duly
authorized state agency created under Mo. Rev. Stat. §44.020 responsible for the planning for
and responding to natural and manmade disasters in the State of Missouri. Attorney General
Koster, the Department and SEMA shall be collectively referred to as “the State” in this Petition
unless specifically designated otherwise.
5.
The United States Army Corps of Engineers (“the Corps”) is the agency of the
United States government with responsibility for flood control in the Mississippi River basin.
6.
Defendant Major General Michael J. Walsh is the commander of the Mississippi
Valley Division of the Corps and President-designee, Mississippi River Commission. General
Walsh is named in his official capacity only.
7.
Colonel Vernie L. Reichling Jr. is the commander of the Corps’ Memphis
District. Colonel Reichling is named in his official capacity only.
Jurisdiction and Venue
8.
This Court has jurisdiction pursuant to § 313 of the federal Clean Water Act, 33,
U.S.C. 1323, and Administrative Procedures Act, 5 U.S.C. § 703. Venue is proper in this court.
General Allegations
9.
The Flood Control Act of May 15, 1928, 45 Stat. 534, authorizes the Corps to
develop plans for controlling flooding on the Mississippi River.
10.
In response to that congressional authorization, and to control flooding above and
below the confluence of the Mississippi and Ohio Rivers, the Corps developed the Birds Point –
New Madrid Floodway and, in 1985, issued an associated “Birds Point – New Madrid Floodway
Operations Plan” (“the Plan”). See Exhibit A.
11.
In essence, the floodway is a huge swath of land that the United States
government has decided to sacrifice to flooding in order to protect other areas that it considers
more valuable.
12.
The floodway encompasses most of Mississippi County, Missouri and parts of
New Madrid County Missouri. In all, the floodway covers over 130,000 acres in Missouri, an
area three times the size of the city of St. Louis.
13.
In constructing the floodway, the United States built two levees.
14.
One levee, known as the frontline levee, follows closely along the path of the
river over approximately 40 miles starting upstream at a point across the river from Cairo,
Illinois, and ending just up river of New Madrid, Missouri.
15.
Between these two cities, the river forms a wide arc.
16.
The second levee, known as the setback – mainline levee, is fairly straight and
connects the two ends of the arc, creating an open area between the two levees that is about 30
miles long and is, in places, more than ten miles wide.
17.
The area inside the two levees has over 90 homes and more than 200 residents, as
well as pets and livestock. In addition, the area is being used for crops that have significant
economic value.
18.
The area inside the floodway also has petroleum storage tanks, farm chemical
storage buildings and LP gas tanks.
19.
The Corps issued the Plan in 1986.
20.
The Plan calls for blowing up portions of the frontline levee so that flood waters
can be directed into the floodway.
21.
Pursuant to the terms of the Plan, the decision to blow up the levee is made on the
recommendation of the Corps’ Memphis District commander and on the order of the President of
the Mississippi River Commission.
22.
When this happens, the inundation of flood waters will flood the homes, buildings
and cropland in the floodway.
23.
The threat of flooding is currently causing the evacuation of the families in the
floodway.
24.
The flood will also cause the release of farm chemicals into the environment and
cause those chemicals, along with sediment and other contaminants, to enter into waters of the
state of Missouri.
25.
Pursuant to § 313 of the federal Clean Water Act, 33, U.S.C. 1323, each
department, agency, or instrumentality of the federal government engaged in any activity which
may result in the discharge or runoff of pollutants, and each officer, agent, or employee thereof
in the performance of his official duties, shall be subject to, and comply with, all State
requirements, administrative authority, and process and sanctions respecting the control and
abatement of water pollution in the same manner and to the same extent as any nongovernmental
entity.
26.
Thus in § 313 of the federal Clean Water Act, the federal government has waived
its sovereign immunity for violations of state water pollution laws.
27.
Section 313 of the federal Clean Water Act goes on to say that the waiver applies
to any process and sanction, whether enforced in Federal, State, or local courts or in any other
manner.
28.
As a consequence, Defendant is subject to suit in this court for violations of
Missouri’s Clean Water Law, Mo. Rev. Stat. § Chapter 644.
29.
The preceding paragraphs are incorporated into each subsequent count of this
complaint.
COUNT I – Unlawful Pollution to Waters of the State
30.
Pursuant to Mo. Rev. Stat. § 644.051.1(1), it is unlawful for any person to cause
pollution of any waters of the State or to place or cause or permit to be placed any water
contaminant in a location where it is reasonably certain to cause pollution of any waters of the
State.
31.
Mo. Rev. Stat. § 644.016(26) defines “person” to include any agency, board,
department, or bureau of the federal government.
32.
Mo. Rev. Stat. § 644.016(26) defines “pollution” as such contamination or other
alteration of the physical, chemical or biological properties of any waters of the state, including
change in temperature, taste, color, turbidity, or odor of the waters, or such discharge of any
liquid, gaseous, solid, radioactive, or other substance into any waters of the state as will or is
reasonably certain to create a nuisance or render such waters harmful, detrimental or injurious to
public health, safety or welfare, or to domestic, industrial, agricultural, recreational, or other
legitimate beneficial uses, or to wild animals, birds, fish or other aquatic life.
33.
Mo. Rev. Stat. § 644.016(26) defines “waters of the state” as all rivers, streams,
lakes and other bodies of surface and subsurface water lying within or forming a part of the
boundaries of the state which are not entirely confined and located completely upon lands
owned, leased or otherwise controlled by a single person or by two or more persons jointly or as
tenants in common and includes waters of the United States lying within the state.
34.
Mo. Rev. Stat. § 644.016(23) defines “water contaminant” as any particulate
matter or solid matter or liquid or any gas or vapor or any combination thereof, or any
temperature change which is in or enters any waters of the state either directly or indirectly by
surface runoff, by sewer, by subsurface seepage or otherwise, which causes or would cause
pollution upon entering waters of the state, or which violates or exceeds any of the standards,
regulations or limitations set forth in sections 644.006 to 644.141 or any federal water pollution
control act, or is included in the definition of pollutant in such federal act
35.
Defendants’ breach of the frontline levee will cause pollution to waters of the
state of Missouri and will place or cause or permit to be placed water contaminants in a location
where they are reasonably certain to cause pollution of waters of the state of Missouri in
violation of Mo. Rev. Stat. § 644.051.1(1).
36.
Mo. Rev. Stat. § 644.076.1 states that in the event the director of the Missouri
Department of Natural Resources determines that any provision of sections 644.006 to 644.141
or standard, rules, limitations or regulations promulgated pursuant thereto, is in imminent danger
of being violated, the director may cause to have instituted a civil action in any court of
competent jurisdiction for the injunctive relief to prevent any such violation or for the assessment
of a penalty not to exceed ten thousand dollars per day for each day, or part thereof, the violation
occurred and continues to occur, or both, as the court deems proper.
37.
Pursuant to Mo. Rev. Stat. § 644.076.1, RSMo, this Court may impose upon
Defendants an injunction and penalties of up to Ten Thousand Dollars ($10,000.00) per day for
each day of each violation.
Count II – The Birds Point – New Madrid Floodway Operations Plan is Unlawful under
the Administrative Procedures Act
38.
Pursuant to § 706 of the Administrative Procedures Act, 5 U.S.C. § 706, the
reviewing court must set aside agency action that is held to be arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law or contrary to constitutional right, power,
privilege, or immunity.
39.
Defendants have been arbitrary, capricious and abused their discretion in the
adoption of the Plan because the Plan protects some land over other land without identifying the
basis for that decision.
40.
Defendants have been arbitrary, capricious and abused their discretion in the
adoption of the Plan because Defendants have failed to update the plan for over twenty-five
years to account for changes in the conditions of the river or the relative value of the properties
affected by the Plan.
41.
Defendants have acted in a manner contrary to constitutional rights because
Defendants have not secured all necessary easements and appropriate rights to allow the flooding
of all of the private property to be affected.
42.
This court may set aside the Defendants’ adoption of the Plan pursuant to § 706 of
the Administrative Procedures Act, 5 U.S.C. § 706.
Count III – Defendants’ actions in implementing the Birds Point – New Madrid Floodway
Operations Plan are Unlawful under the Administrative Procedures Act
43.
Pursuant to § 706 of the Administrative Procedures Act, 5 U.S.C. § 706, the
reviewing court must set aside agency action that is held to be arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law or contrary to constitutional right, power,
privilege, or immunity.
44.
The Plan does not set mandatory procedures. Rather, the plan gives the Corps’
Memphis district commander and the President of the Mississippi River Commission the
discretion to implement the plan.
45.
However, the Plan states that “[i]t is the intent that operation occur only as
absolutely essential to provide the authorized protection to all citizens.” The Plan at page 2.
46.
Defendants have been arbitrary, capricious and abused their discretion in the
implementation of the Plan because the actions taken in implementing the Plan will result in the
unnecessary destruction of property.
47.
Defendants have been arbitrary, capricious and abused their discretion in the
implementation of the Plan because the actions taken in implementing the Plan will result in the
release of pollutants into waters of the state of Missouri in violation of Missouri law.
48.
Defendants have been arbitrary, capricious and abused their discretion in the
implementation of the Plan because there is currently no evidence that the implementation of the
Plan is needed to protect the integrity of any other flood control structures in the Mississippi
River basin.
49.
Defendants have been arbitrary, capricious and abused their discretion in the
implementation of the Plan because the Corps has failed to take all actions necessary to limit
water levels in the Mississippi River basin, including the failure to properly manage reservoirs to
minimize releases to the Mississippi and Ohio Rivers.
50.
Defendants have been arbitrary, capricious and abused their discretion in the
implementation of the Plan because the corps has failed to adequately identify the basis for
implementing the steps for leading up to and including the demolition of the frontline levee.
51.
Therefore, this court may set aside the Defendants’ adoption of the Plan pursuant
to § 706 of the Administrative Procedures Act, 5 U.S.C. § 706.
WHEREFORE, the State asks this Court for a Judgment granting the following relief:
A.
Issuing a temporary restraining order and preliminary and permanent injunctions
prohibiting Defendants from any violations of the Missouri Clean Water Law, Chapter 644,
RSMo, and the regulations duly promulgated thereunder;
B.
Issuing a temporary restraining order and preliminary and permanent injunctions
prohibiting Defendants continued implementation of the Birds Point – New Madrid Floodway
Operations Plan;
C.
Assessing costs of these proceedings against Defendants; and
D.
Granting such other relief as may be just and proper.
Respectfully submitted,
CHRIS KOSTER
Attorney General
/s/John K. McManus
JOHN K. MCMANUS
Chief Counsel
Missouri Bar No. 59486
Broadway State Office Building
221 West High Street, 8th Floor
P.O. Box 899
Jefferson City, MO 65102
Telephone: (573) 751-0052
Facsimile: (573) 751-8796
ATTORNEYS FOR PLAINTIFF
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