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South Dakota Loses Bid to Sue Three Other States Over Water

March 31, 1986

WASHINGTON (AP) _ South Dakota today lost its bid to sue Nebraska, Iowa and Missouri in the Supreme Court over the use of water from the Missouri River.

The court refused to become embroiled, at least for now, in the water-use feud that dates back to 1982.

Still very much alive, the feud is pending before the St. Louis-based 8th U.S. Circuit Court of Appeals in a lawsuit filed against the federal government by state officials from Nebraska, Iowa and Missouri.

South Dakota’s attempt to participate in that legal fight failed previously.

The justices refrained from invoking the court’s so-called ″original jurisdiction″, which allows it to settle disputes between states before any ruling in a lower court.

Such cases typically take years to resolve, and usually involve the appointment of a ″special master″ to conduct hearings and make recommendations to the justices.

In their 1982 lawsuit against the Army Corps of Engineers and other federal agencies, Nebraska, Iowa and Missouri officials challenged South Dakota’s authority to divert water from Lake Oahe, created by one of four South Dakota dams on the Missouri.

In late 1981, South Dakota contracted with Energy Transportation Systems Inc. for the diversion of 50,000 acre-feet of water each year from the lake. The contract is worth millions to the state.

ETSI then won federal approval for the water diversion.

Nebraska, Iowa and Missouri sued over what they alleged to be a threat of harm to those downstream states.

The suit, filed in federal court in Nebraska, contended that any use of the river’s waters by South Dakota harms drinking water supplies, power generation capacities and wildlife habitats.

U.S. District Judge Warren K. Urbom, after refusing to let South Dakota intervene in the case, ruled that the ETSI water diversion must end.

The federal government appealed Urbom’s ruling to the 8th Circuit court.

Not waiting for an appeals court ruling, the South Dakota officials asked the Supreme Court to rule that Judge Urbom never should have ruled in the case because only the nation’s highest court had the proper jurisdiction.

Despite the naming of federal agencies as defendants, the lawsuit really is a fight between the three downstream states and South Dakota, the justices were told by South Dakota’s lawyers.

″Although the (1982 suit) did not name South Dakota as a party it nevertheless sought ... to attack and negate the power of South Dakota to allocate its share of the waters of the Missouri River within its territorial boundaries,″ the state’s lawyers contended.

They said that under Urbom’s ruling, ″the ability of South Dakota to grant permits for use of Missouri River waters is at least clouded if not negated.″

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