DANIEL L. HOVLAND, Chief Judge, United States District Court
A hearing was held before the Court on May 13, 2003, on the Defendants, (the "Corps of Engineers") Motion to Dissolve the Ex Parte Temporary Restraining Order entered by state district court Judge Gail Hagerty, on April 29, 2003, and extended by this Court on May 7, 2003. The Ex Parte Temporary Restraining Order ("TRO") enjoined the Corps of Engineers from exceeding specified discharge rates at Garrison Dam and lowering elevation levels of Lake Sakakawea and Lake Oahe. Discussions prompted by the Court subsequent to the hearing have focused on the possibility of the Corps of Engineers consenting to an extension of the TRO pending a decision by the Court on the Motion to Dissolve.
Rule 65(b) of the Federal Rules of Civil Procedure states that a temporary restraining order issued without notice shall expire by its terms within ten (10) days unless extended for a similar period upon a showing of "good cause". On May 7, 2003, the Court found that "good cause" existed to extend the Ex Parte Restraining Order under the circumstances. Arguably, the TRO will expire on May 19, 2003. There is case law that establishes that the restrained party (Corps of Engineers) may consent to a continuation of the order beyond the 20-day period.
The text of Rule 65(b) seems to exclude the possibility that a temporary restraining order can remain in force beyond 20 days. Unfortunately, case law around the country is not helpful in providing guidance on the subject of whether a temporary restraining order may be extended beyond 20 days without the restrained party's consent. The history and purpose of temporary restraining orders supports the argument that there may be situations in which a temporary restraining order may remain in effect beyond a total of 20 days. However, there are cases that support both positions.
As it currently stands the TRO (a) enjoins the Corps of Engineers from releasing water from Garrison Dam during May 2003 in excess of a daily average of 17,450 cfs and establishes specific release amounts for June-August 2003; (b) orders the Corps of Engineers to submit a plan to the North Dakota state court within twenty days to achieve and maintain compliance with all North Dakota water pollution laws and water quality standards Footnote; (c) requires the Corps of Engineers to submit to the state court an implementation schedule for the Corps of Engineers to come into compliance with North Dakota water pollution laws and water quality standards as soon as practicable; (d) prohibits the Corps of Engineers from lowering the water elevation at Lake Oahe prior to a show cause hearing; and (e) orders the Corps of Engineers to show cause why the state court should not issue a preliminary injunction which specifies the amount of water which may be released by the Corps from Garrison Dam for the months of May through September 2003.
On May 15, 2003, the Corps of Engineers informed the Court that it would be willing to consent to a continuation of the TRO pending the Court's ruling on the Corps, Motion to Dissolve the Ex Parte Temporary Restraining Order if the TRO were modified to allow the Corps to release a maximum daily average of 21,500 cfs from Garrison Dam for the remainder of May 2003. This increase in releases is necessary because the endangered least interior tern and the piping plover populations will begin to nest below Garrison Dam in the very near future. The piping plover nest on reservoir beaches and interchannel sandbars at the lowest elevations possible, scraping the nests in the sand. Nest initiation generally begins in late April through late June. Least terns arrive on the Missouri River, including the Garrison Reach, in mid to late May, with most nests initiated the first two weeks of June. Piping plover nest scrapings were observed on May 9, 2003, and nests containing eggs were located on May 14, 2003, below Garrison Dam. In order to mitigate the loss of these endangered species and maintain compliance with the Endangered Species Act, the Corps needs to increase flows from Garrison Dam immediately. A daily average flow of 21,500 cfs during the remainder of May will be sufficient to prevent the tern and plover from nesting at the lowest elevations, and will preserve the Corps of Engineers' flexibility to operate the System later in the summer as needed. Based on the flows recorded for May 1 through May 15, 2003, the flows of up to 21,500 cfs each day for the remainder of May would mean a monthly average of 18,900 cfs.
South Dakota and Nebraska have expressed no objection to a modification of the TRO to allow for a daily average flow of 21,500 cfs for the remainder of May 2003. North Dakota has indicated that it has no objection to average flows of 21,500 cfs, but the State requests that Lake Sakakawea remain at its current level of 1822 msl (mean sea level) through May 25, 2003. Based on current conditions, the Corps of Engineers forecasts that the requested revised flow of 21,500 cfs will not result in any appreciable decline in the elevation of either Lake Sakakawea or Lake Oahe between now and May 25, 2003, when the smelt hatch will be complete.
Accordingly, and in accordance with the consent of the parties, and particularly the consent of the restrained party (the Corps of Engineers), the Ex Parte Temporary Restraining Order entered on April 29, 2003, is modified as follows: Paragraph one is modified to allow the Corps of Engineers to release a maximum daily average of 21,500 cfs from Garrison Dam for the remainder of May 2003. Paragraph two requiring the Corps of Engineers to submit a compliance plan by May 19, 2003, is suspended until the Court issues a ruling on the Corps, Motion to Dissolve.
IT IS SO ORDERED.