Federal Judge Affirms Conservation Court Action

JEFFERSON CITY -- A federal court judge in Kansas City has ordered AmerenUE to face liability claims in Miller County for a spring 2002 fish kill at Bagnell Dam. That fish kill resulted in the loss of over 43,000 fish valued at $3.2 million.

The Missouri Department of Conservation (MDC) filed a law suit in Miller County after AmerenUE, formerly known as Union Electric, had filed an action in federal court. AmerenUE's action claimed that its federal license to operate the dam prevented state courts from hearing damage claims against the privately owned utility company.

In her ruling, U.S. District Court Judge Nanette K. Laughrey found, "the Federal Power Act leaves the issue of damages caused by Union Electric's operation of its facility at Bagnell Dam to be determined by state law." Judge Laughrey dismissed other matters pending in the case as she sent the damage claim to Miller County Circuit Court for prosecution.

Earlier, AmerenUE challenged MDC's authority to pursue the fish kill claim on behalf of the state. The company supported its challenge with a letter it received from the Office of the Attorney General. The letter claimed that only the Attorney General, not MDC, could bring claims on behalf of the state.

AmerenUE's legal maneuvering caused MDC to file an action in Cole County Circuit Court against the Attorney General asking for the state judge to uphold the department's constitutional authority to defend Missouri's fish, forests and wildlife.

According to MDC Director John Hoskins, the dismissal of AmerenUE's federal challenge brings the authority battle to a close. "We are pleased that we can dismiss our Cole County lawsuit against the Attorney General. We were confident that our authority to defend the resources we manage would be upheld, and there is no need to continue with litigation when there is no active dispute." Hoskins said MDC lawyers have dismissed the Cole County action.

The underlying Miller County suit will proceed to protect the fishery resources at Lake of the Ozarks and the Osage River below Bagnell Dam. The spring 2002 kill lasted 45 days and affected over 20 different species of fish. The most significant loss was paddlefish, better known as spoonbills, which accounted for over $3 million of the kill's damages.

In August, AmerenUE publicly claimed it expected to have a trial solution in place by the spring of 2003 to prevent another fish kill at Bagnell Dam. However, the corporation has not communicated with MDC on this issue since November 2002. Conservation Department officials said they are afraid that AmerenUE has made no progress.

They stressed the continued need for action because fish kills are an increasingly frequent problem. Since the spring 2002 kill ended, MDC has investigated four other kills involving the loss of hundreds of fish.

Director Hoskins affirmed MDC's interest in finding a solution, "The fishery at Lake of the Ozarks is a valuable state resource that the department must defend. While we regret having to go to court to settle our differences, it's our duty to preserve the resources of the region for the future."

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