The opinion of the court was delivered by: Gladys Kessler, United States District Judge.
On July 12, 2003, this Court granted Plaintiffs' Motion for Preliminary Injunction, which sought, in part, to enjoin the United States Army Corps of Engineers ("Corps") and the Secretary of the Army (collectively, "Federal Defendants") from operating the extensive dam and reservoir system on the Missouri River in a manner that would adversely impact three species protected by the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531, et seq. The Court's July 12 Order enjoined the Federal Defendants"from implementing the summer water flow provisions of the revised 2003 Annual Operat[ing] Plan ["AOP"], from taking any action that would implement or be consistent with the provisions relating to summer water flow contained in the 2003 Supplemental Biological Opinion ["BiOp"], and from taking any action that would be inconsistent with the provisions relating to summer water flow contained in the 2000 Biological Opinion." July 12, 2003 Order at 2.
On July 14, 2003, the Federal Defendants filed a Motion for Stay of the July 12, 2003 Order Pending Appeal Or, In the Alternative, Temporary Stay of Fourteen Days. On July 15, 2003, the Court denied the request for stay,*fn1 and the Federal Defendants and the State of Nebraska immediately moved to for a stay pending appeal with the Court of Appeals for the District of Columbia Circuit. Our Court of Appeals denied the Motions to Stay on the afternoon of July 18, 2003, stating that the Defendants had"not satisfied the stringent standards required for a stay pending appeal." American Rivers, et al., v. U.S. Army Corps of Engineers, et al., No. 03-5177, slip op. at 1 (D.C. Cir. July 18, 2003) (citing Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977); D.C. Circuit Handbook of Practice and Internal Procedures 33 (2002)).
This matter is now before the Court on Plaintiffs' Motion for an Order to Show Cause Why Defendant The U.S. Army Corps of Engineers Should Not Be Held in Contempt and Sanctioned, filed July 18, 2003. A hearing was held in this matter on July 21, 2003. Upon consideration of the Motion, the Opposition filed on July 20, 2003, the arguments presented at the hearing, and the entire record herein, for the reasons discussed below, Plaintiffs' Motion is granted.
There is"no question that courts have inherent power to enforce compliance with their lawful orders through civil contempt." Shillitani v. United States, 384 U.S. 364, 370 (1966); see also SEC v. Diversified Growth Corp., 595 F.Supp. 1159, 1170 (D.D.C. 1984) (to coerce obedience of a lawful order is within the court's civil contempt power). Civil contempt is a remedial sanction used to obtain compliance with a court order or to compensate for damage sustained as a result of noncompliance. NLRB v. Blevins Popcorn, Co., 659 F.2d 1173, 1184 (D.C. Cir. 1981). The principal purpose of civil contempt is vindication of judicial authority. Id., 659 F.2d at 1185 n.73 (citing Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 (1911)). A civil contempt proceeding is a three stage process in which: 1) a court must issue an order directing a party to take or not take certain action; 2) if there is disobedience of that order, the court must issue a conditional order finding the recalcitrant party in contempt and threatening to impose a specified penalty unless the recalcitrant party complies with prescribed conditions set forth in a"purgation order;" and 3) execution of the threatened penalty if the conditions are not fulfilled. Id. at 1184. In a proceeding for civil contempt, the moving party has the burden of proving by clear and convincing evidence that the court's order has been violated. Id. at 1183. In finding a party to be in civil contempt of a court's order,"the intent of the recalcitrant party is irrelevant," and the court must only determine whether its order has been violated. Id. at 1184, 1186 n.77.
A. The Corps Has Not Complied with the Court's Order of July 12, 2003.
With regard to the first stage in a civil contempt proceeding, this Court's Order of July 12 enjoined the Corps from implementing the summer water flow provisions contained in either the revised 2003 AOP or the 2003 Supplemental BiOp. The revised 2003 AOP and 2003 Supplemental BiOp allowed the Corps to implement summer water flow releases of 26 Kcfs (thousand cubic feet of water per second) or higher"to meet downstream flow targets" to support navigation. 2003 Supplemental BiOp at 5. The Court's July 12 Order also enjoined the Corps from taking any action inconsistent with the summer water flow provisions contained in the 2000 BiOp. The 2000 BiOp spelled out that in order to avoid jeopardy to the protected species under Section 7 of the ESA and to avoid violating the takings provision of Section 9 of the ESA, the Corps would have to implement low summer flows of not more than 25 Kcfs from June 21 to July 15, flows of not more than 21 Kcfs from July 15 to August 15, and flows of not more than 25 Kcfs from August 15 to September 1. 2000 BiOp at 242-43.
Consequently, in order to avoid jeopardy to the protected species and to avoid violation of the takings provision of Section 9 of the ESA, the Court's July 12 Order enjoined the Corps from implementing any flow regime not in compliance with the low summer flows contained in the 2000 BiOp, including the high navigation dependant flow releases provided in the 2003 AOP and 2003 Supplemental BiOp. In fact, the Corps immediately recognized that its obligation under the Order was to reduce water flow on the Missouri River, as evidenced by its press release of July 15, 2003. See U.S. Army Corps of Engineers News Release No. PA-03-18, 3 (2003) at http://www.hq.usace.army.mil/cepa/releases/MoRiver.htm ("July 15 News Release") (stating that this Court's Order"prohibits the Corps from implementing the summer flows set forth in the 2003 [AOP] and 2003 Supplemental [BiOp]").
With regard to the disobedience finding in the second stage of a civil contempt proceeding, there can be no question that the Corps is in violation of the Court's July 12 Order.*fn2 Since July 15, 2003, the Corps has not decreased water flow from the Gavins Point Dam below 25 Kcfs. See Ex. 1 and 2 to Pls.' Becker Decl. (daily flow data released by the Corps). In fact, on July 15, 2003, the Corps issued a news release, boldly admitting that"the Corps plans to continue operating under the 2003 Supplemental Biological Opinion," rather than comply with this Court's Order of July 12, 2003. July 15 News Release at 3.
B. It Is Not Impossible for the Corps to Comply with the Court's July 12 Order, and It Has Not Made a Good Faith Effort to Do So.
Even though the Corps is in clear violation of the Court's July 12 Order, the Federal Defendants still argue that a contempt order should not be issued. Their primary argument is that while they have made a good faith effort to comply with the Court's Order, it is impossible to do so given a conflicting injunction issued by the District Court of Nebraska regarding the Corps' management of the Missouri River Basin.
While impossibility is a defense to contempt, S.E.C. v. Ormont Drug & Chemical Co., Inc., 739 F.2d 654, 656 (D.C. Cir. 1984), impossibility exists only when a party demonstrates that it is"powerless to comply" with a court's order, Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692, 713 (D.C. Cir. 1975). In this case, the Corps is not powerless to comply with the Court's Order; it is perfectly free to lower water releases on the Missouri River. Instead, it has made a deliberate choice to disobey this Court's injunction entered on July 12, 2003, and to obey the injunction issued over a year ago by the District Court of Nebraska. Thus, the fact that the Corps and the Secretary of the Army can ...