Richland/Wilkin Joint Powers v. Fargo-Moorhead Flood Diversion

Filing

OPINION FILED - THE COURT: Bobby E. Shepherd, C. Arlen Beam and Jane Kelly AUTHORING JUDGE:Bobby E. Shepherd (PUBLISHED) [4414381] [15-2123]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-2123
___________________________
Richland/Wilkin Joint Powers Authority, a Minnesota-North Dakota Joint Powers Authority
lllllllllllllllllllll Plaintiff - Appellee
v.
United States Army Corps of Engineers; John McHugh, Secretary of the US Army
Corps of Engineers (in his official capacity); Jo-Ellen Darcy, Assistant Secretary of
the Army for Civil Works (in her official capacity); Col. Dan Koprowski, District
Commander, St. Paul District, US Army Corps of Engineers (in his official capacity)
lllllllllllllllllllll Defendants
Fargo-Moorhead Flood Diversion Board of Authority
lllllllllllllllllllllIntervenor Defendant - Appellant
-----------------------------State of North Dakota
lllllllllllllllllllllAmicus on Behalf of Appellant(s)
Minnesota Department of Natural Resources
lllllllllllllllllllllAmicus on Behalf of Appellee(s)
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
____________
Submitted: February 11, 2016
Filed: June 20, 2016
____________
Before SHEPHERD, BEAM, and KELLY, Circuit Judges.
____________
SHEPHERD, Circuit Judge.
The local sponsor, the Fargo-Moorhead Diversion Board of Authority
(“Authority”), in the development of a diversion project on the Red River with the
United States Army Corps of Engineers (“Corps”) alleges that the district court made
numerous errors in granting a preliminary injunction to the Joint Powers Authority of
Richland County, North Dakota, and Wilkin County, Minnesota (“JPA”), prohibiting
the Authority’s continued construction of a ring levee around the communities of
Oxbow, Hickson, and Bakke, North Dakota (“OHB” and “OHB ring levee”). Holding
that the district court1 did not err in determining that the OHB ring levee is a
component of the larger diversion project, we affirm the district court’s injunction.
I.
The north-flowing Red River runs between Minnesota and North Dakota. In
the spring, snow melt contributes to the river’s volume and routinely causes the river’s
waters to migrate suddenly and unpredictably in all directions, sometimes causing
flooding as far as three miles from the river’s banks throughout its flat natural flood

1

The Honorable John R. Tunheim, Chief Judge, United States District Court for
the District of Minnesota.
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plain, extending from Oxbow to Fargo, North Dakota. Efforts to prevent flooding on
one side of the river can redirect water to the other side and cause flooding.
After the 2009 flood, several entities proposed various permanent measures to
reduce the flood risk to the Fargo-Moorhead metropolitan area. The alternatives were
analyzed and two were carried forward, each involving a “control structure,” or highhazard dam. A draft Environmental Impact Statement (“EIS”) was completed,
proposing three possible plans. One plan, the Locally Preferred Plan (“LPP”), would
divert 35,000 cubic feet of water per second on the North Dakota side. Pursuant to the
joint request of Fargo, Moorhead, as well as Clay and Cass counties, the Assistant
Secretary of the Army for Civil Works approved designation of the LPP as the
tentatively selected plan.
Further modeling indicated that the LPP would have a more extensive
downstream impact than had been anticipated. A supplemental EIS was released,
tentatively recommending several changes, including reducing the diversion channel’s
capacity, adding storage and staging areas, and then compensating most affected
landowners within the storage and staging areas. A Final Feasibility Report and EIS
was released in July 2011, and the project was recommended for authorization.
Subsequent design and engineering studies led to additional modification proposals,
including the OHB ring levee, which would protect the OHB communities, all now
within the flood-water staging area, from flooding caused by the larger diversion
project. An additional supplemental environmental assessment evaluated different
versions of this modification.
The Minnesota Department of Natural Resources (“MDNR”) determined that
because the larger diversion project included a high-hazard dam, it required the
MDNR, as the responsible government unit, to complete a full EIS. In May 2013,
Minnesota environmental review commenced. In January 2014, the MDNR decided
that the OHB ring levee was a step to advance the environmentally controversial part
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of the larger project still under review, so any construction on the OHB ring levee
before the completion of MDNR’s EIS would violate the Minnesota Environmental
Procedure Act (“MEPA”). In reaching this conclusion, the MDNR considered the fact
that the levee was designed to reach heights nine feet above the FEMA 100-year flood
event level and the communities’ existing flood protection, which had been
reexamined and modified in response to the 2009 flood. In August 2014, Minnesota
Governor Mark Dayton wrote to the Assistant Secretary of the Army for Civil Works
to express strong concern over the diversion project, including construction of the
OHB ring levee. In the letter, Governor Dayton stated that “construction of the
[OHB] Ring Levee, prior to the completion of Minnesota’s EIS, violates our state’s
law.” In response, the Authority offered to build the OHB ring levee to only 100-year
flood levels, but did not change the base width of the levee structure. The Authority
began construction on the OHB levee in June 2014, under the Corps’ supervision.
The larger diversion project is not expected to be operational before 2022.
Minnesota environmental review process is still ongoing. At the time of the
district court’s opinion, the MDNR expected to release its own State EIS in August
2015. MEPA prohibits approval of environmentally damaging projects where feasible
and prudent alternatives exist; the JPA alleges that the National Economic
Development (“NED”) plan, which had been considered earlier along with the LPP,
is such a prudent alternative. The NED plan would not require construction of the
OHB ring levee or cause the same flooding to the JPA’s members’ properties.
In 2014, Congress enacted the Water Resources Reform and Development Act
of 2014 (“WRRDA”), specifically authorizing the project. See Pub. L. No. 113-121,
128 Stat. 1193 (2014), § 7002. It authorized a total project cost of $1,924,300,000,
with $846,700,000 federally funded. The law noted that the project should be “carried
out by the Secretary [of the Army] substantially in accordance with the plan, and
subject to the conditions, described in the respective reports designated in this
section.” As of the May 13, 2015 district court’s decision, the project had received
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$40,000,000 in federal funds. The Corps has determined that the OHB ring levee is
integral to the diversion project, so the Diversion Authority would receive in-kind
contribution credit for its work on the levee toward the required non-federal cost of
the project. In January 2013, North Dakota enacted HB 1020, which appropriated
funding for flood control, including levees. The bill conditioned expenditure for most
elements of the larger project on receipt of congressional authorization, but exempted
levee work from this requirement.
In November 2014, the JPA filed its third amended complaint, listing the
Authority as defendant-intervenor. In the complaint, the JPA alleged that the ongoing
construction of the OHB ring levee violated MEPA, specifically, its ban on starting
a project before an EIS has been completed and determined adequate. See Minn. R.
4410.3100. The JPA filed a motion for a preliminary injunction to halt construction
on the OHB ring levee, claiming that construction would harm its members by
prejudicing the environmental review and permitting system and forcing selection of
a project which would flood its members’ properties. The district court found that the
OHB ring levee was an integral part of the larger diversion project and granted a
preliminary injunction. No bond was required. The Authority proposes that the loss
of a construction season equates to approximately $1.17 million in construction costs.
II.
“A district court has broad discretion when ruling on a request for preliminary
injunction, and it will be reversed only for clearly erroneous factual determinations,
an error of law, or an abuse of its discretion.” Novus Franchising, Inc. v. Dawson,
725 F.3d 885, 893 (8th Cir. 2013) (internal citation omitted). “We will not disturb a
district court’s discretionary decision if such decision remains within the range of
choice available to the district court, accounts for all relevant factors, does not rely on
any irrelevant factors, and does not constitute a clear error of judgment.” PCTV Gold,
Inc. v. SpeedNet, LLC, 508 F.3d 1137, 1142 (8th Cir. 2007). “Abuse of discretion
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occurs if the district court rests its conclusion on clearly erroneous factual findings or
if its decision relies on erroneous legal conclusions.” Id. Clear error exists when
“despite evidence supporting the finding, the evidence as a whole leaves us with a
definite and firm conviction that the finding is a mistake.” United States v. Williams,
346 F.3d 796, 798 (8th Cir. 2003) (citing United States v. U.S. Gypsum Co., 333 U.S.
364, 395 (1948)). “In every case, an appellate court must remain mindful as to the
district courts being closer to the facts and parties.” PCTV Gold, Inc., 508 F.3d at
1142.
A district court’s decision to issue a preliminary injunction “depends upon a
‘flexible’ consideration of (1) the threat of irreparable harm to the moving party;
(2) balancing this harm with any injury an injunction would inflict on other interested
parties; (3) the probability that the moving party would succeed on the merits; and
(4) the effect on the public interest.” Planned Parenthood Minn., N.D., S.D. v.
Rounds, 530 F.3d 724, 729 n.3 (8th Cir. 2008) (en banc) (citing Dataphase Systems,
Inc. v. C L Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc)). The Authority
argues that the district court erred in its determination regarding each of the first three
factors. Regarding harm, the Authority argues that the district court erred in
determining that the continued construction of the OHB ring levee, prior to the
MDNR’s completion of an EIS, constituted a sufficient threat of irreparable harm, in
part, because procedural harm alone cannot constitute irreparable harm. Next, the
Authority argues that the court erred in balancing the harm that the Authority would
face from potentially missing an additional construction season against the potential
impact of continuing construction.
The Authority challenges the district court’s determination regarding the
probability that JPA will succeed on the merits as well. First, the Authority alleges
that the district court applied the wrong threshold standard for likelihood of success.
Second, the Authority argues that the district court erred in determining the likelihood
that JPA’s MEPA claim would succeed on the merits because MEPA does not apply
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to conduct outside of Minnesota and the OHB ring levee is not a part of the diversion
project under MEPA, and such an application of MEPA would violate the dormant
Commerce Clause of the United States Constitution. Finally, the Authority contends
that the district court abused its discretion when it did not require JPA to post an
injunction bond.2 We address the district court’s findings of fact, determination
regarding each of the first three factors, and bond waiver below.
III.
A. Findings of Fact
As an initial matter, the district court’s finding of fact that the OHB project is
a part of the larger diversion project is not clearly erroneous and broadly supports the
district court’s decision to grant the injunction. The district court determined that
“[w]hile the OHB ring levee is being constructed in North Dakota, and while many
other aspects of the diversion project will be built in North Dakota, they are all
integral parts of a larger project that indisputably will be constructed, in part, in
Minnesota.” The district court found that “arguments to the contrary – that the OHB
ring levee is of independent value, for example – ignore[] the project’s practical
reality.” The district court based this on its finding that the OHB communities “do not
appear to face the same risk or present the same sense of urgency, unless the diversion
project is constructed,” as the Fargo-Moorhead metropolitan region. For this reason,
the court was able to determine that the OHB ring levee was not being built because
“its independent value is so great that North Dakota has prioritized the OHB
communities over the Fargo-Moorhead region, but because it is an integral part of the
overall diversion project,” and a part which could easily be funded and constructed.

2

The Authority does not challenge the district court’s determination regarding
the fourth factor, the public interest, so we do not address it.
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There is evidence supporting the district court’s determination. The Corps’
supplemental environmental assessment labels the OHB levee as a component of the
overall diversion project and states that OHB levee serves the purpose of mitigating
the effects of the to-be-constructed high-hazard dam. (Decl. of Coleman, Jan. 23,
2015, para 6). Indeed, the OHB levee was originally designed to protect against the
depth of flooding that the diversion project would create, and even as modified,
maintains a base width which permits for an increase in height that would provide that
same protection. The district court’s determination regarding the levee’s purpose is
further supported by evidence stating that the Oxbow community already has flood
protection in place designed to protect that community. (Decl. of Miller, Berg,
Hovland, Feb. 13, 2015, para 7). The Authority has not provided sufficient evidence
that the OHB levee would have been funded irrespective of its ties to the larger
diversion project to cause the district court’s conclusion—that the OHB ring levee is
a part of the larger project—to be clearly erroneous.
B. Threat of Irreparable Harm
For an injunction to be appropriate, “a party must show that the harm is certain
and great and of such imminence that there is a clear and present need for equitable
relief.” Roudachevski v. All-Am. Care Ctrs., Inc., 648 F.3d 701, 706 (8th Cir. 2011)
(quoting Iowa Utilities Bd. v. Fed. Commc’ns Comm’n, 109 F.3d 418, 425 (8th Cir.
1996)). However, “the alleged harm need not be occurring or be certain to occur
before a court may grant relief.” Michigan v. U.S. Army Corps of Eng’rs, 667 F.3d
765, 788 (7th Cir. 2011) (citing United States v. W.T. Grant Co., 345 U.S. 629, 633
(1953)). Failure to comply with the process required by a national analogous statute,
the National Environmental Policy Act (“NEPA”), does not automatically warrant
injunctive relief. Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165-66
(2010); Neighborhood Transp. Network, Inc. v. Pena, 42 F.3d 1169, 1171 (8th Cir.
1994) (“Procedures under MEPA are in large measure similar to, and coextensive
with, those under NEPA.”). However, this court has found that failure to comply with
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NEPA, “causes harm itself, specifically the risk that real environmental harm will
occur through inadequate foresight and deliberation.” Sierra Club v. U.S. Army Corps
of Eng’rs, 645 F.3d 978, 995 (8th Cir. 2011) (internal quotations omitted)
(recognizing the “difficulty of stopping a bureaucratic steam roller, once started”
(internal quotations omitted)). Harm to the environment “may be presumed when an
agency fails to comply with the required NEPA procedure.” Id. (internal quotations
omitted).
The plaintiff must additionally show irreparable harm to themselves, which can
be accomplished through demonstrating “injury to their specific environmental
interests,” created by the actions taken with “inadequate foresight and deliberation.”
See id. This may be established by showing that not only will the environment suffer
harm, but that the party in question uses the area which will suffer environmental
harm, and that their use of it will be negatively impacted by the environmental harm.
For example, injury to a Plaintiff’s “aesthetic, educational and ecological interests”
and enjoyment of an area may suffice. See id. In Sierra Club, the court concluded
that absent an injunction, the effects of constructing a plant would necessarily harm
the plaintiffs’ environmental interests because they inhibited the plaintiffs’ abilities
to engage in hunting, bird-watching, and nature-indulging. Id. at 994-995; see also,
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 25 (2008) (considering the harm
to ecological, scientific, and recreational interests caused by injuring marine mammals
as harms). Flooding of a plaintiff’s lands would certainly cause injury to their specific
environmental interests, because it would severely limit their use of the flooded lands.
The district court found adequate procedural harm and harm to the JPA’s
specific environmental interests sufficient to support a preliminary injunction. The
procedural harm identified by the court was the Authority’s continued work on “an
integral part of the diversion project prior to the completion of the MDNR’s
environmental review.” This construction, prior to completing the review, could be
presumed to risk real environmental harm. See Sierra Club, 645 F.3d at 995. To
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connect this harm to JPA’s specific environmental interests, the court looked to
declarations provided, specifically noting a declaration from Pleasant Township, a
member of the JPA, stating that Pleasant Township faces significant flooding from the
diversion project. (Decl. of Nipstad, Pleasant Township Clerk, Feb. 11, 2015). The
district court recognized that any flooding that would occur “is likely years down the
road[,]” but determined that “construction here is critically tied to that eventual harm,
because the OHB levee is tied to one specific configuration of the diversion project
that, if completed, will have a certain and significant impact on citizens in Pleasant
Township and elsewhere.” Based on this certain impact, the court noted that there
“will no doubt [be] immediate consequences in terms of property value, at minimum,”
before reaffirming that the JPA had shown the procedural injury and sufficient threat
of harm to specific environmental interests necessary to meet the standard set forth in
Sierra Club. See Sierra Club, 645 F.3d at 995-96.
The Authority asks us to find that the district court erred. First, the Authority
argues that only procedural harm has been established and procedural harm is not
enough to create irreparable harm. Second, it argues that any impact on Pleasant
Township or the JPA will not occur for at least seven years, and would occur as a
result of the larger project, not the OHB ring levee. The Authority further argues that
these potential future consequences are not certain, as they would result from only one
formation of the project. The Authority points out that Sierra Club differs from the
case at hand, in that the actual construction process in Sierra Club harmed the parties’
specific environmental interests by preventing Plaintiffs from using and enjoying the
area through noise and pollution, while here, the construction process itself will not
cause the flooding. This added a level of immediacy and certainty to the harm alleged
in Sierra Club, which the Authority asserts is not present in this case. The Authority
then points to James River Flood Control Ass’n v. Watt, for the proposition that harm
from flooding, years in the future, cannot support a preliminary injunction. 680 F.2d
543, 544-45 (8th Cir. 1982) (per curiam) (granting a stay for a preliminary injunction
halting progress on a project, pending proceedings regarding the adequacy of the EIS).
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Based on the district court’s finding that the OHB ring levee is a part of the
larger diversion project, we find the district court did not abuse its discretion or
commit an error of law in finding irreparable harm. JPA members face procedural
harm because, as noted by the district court, there would be added difficulty in
stopping the specific iteration of the larger project once construction has begun on the
OHB levee. See Sierra Club, 645 F.3d at 994-95 (recognizing “a risk that real
environmental harm will occur through inadequate foresight and deliberation” and
recognizing “the difficulty of stopping a bureaucratic steam roller, once started” as
proper factors for the district court to take into account (internal quotations omitted)).
And the district court found that this iteration of the larger project, based on the
Nipstad Declaration, risks flooding JPA’s members’ lands. If the OHB ring levee is
a part of that larger project, construction of the OHB ring levee prior to completion
of the MDNR’s review also leads to the harms caused by the larger project. This
flooding harm specifically impacts JPA’s members’ interests, because it limits the
ways in which they will be able to use their lands during flooding. Unlike in James
River Flood Control, where the district court did not provide “any factual basis for the
conclusion that the [plaintiff] or the public will suffer irreparable harm if construction
proceeds,” 680 F.2d at 544, the district court here, citing specific evidence, found that
the OHB ring levee’s construction is “critically tied” to the larger project, and thus
also to the flooding which will occur in Pleasant Township. See Sierra Club, 645 F.3d
at 995. Based on the district court’s findings of fact, this record discloses both the
procedural harm of inadequate review and the concrete, substantive environmental
harm of flooding in JPA’s members’ land.
C. Balance of Harms
Once the court has determined that there is a threat of irreparable harm to the
moving party, it must balance this harm with any injury an injunction would inflict on
other interested parties. Rounds, 530 F.3d at 729 n.3. The Authority argues that the
district court erred in determining that the balance of harms favored granting the
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preliminary injunction. The district court acknowledged that the delay “may result in
higher construction costs, continued risk of flooding for the OHB communities, and
uncertainty for homeowners within the ring levee that are attempting to sell their
homes,” but found these concerns were outweighed by the risk of irreparable harm to
JPA. The district court based this determination, first, on its finding that the
injunction would likely be short in duration because Minnesota’s environmental
review was likely to be completed soon.3 Second, the district court explained that the
OHB community had already constructed significant flood protection; the new OHB
ring levee was designed to protect the community from the flooding caused by the
larger diversion project.
The district court did not abuse its discretion in finding that the balance of
harms favored an injunction. The district court determined that the OHB communities
were already somewhat protected, and that the real motivation for the project was to
pave the way for the larger diversion project and protect against flooding which would
only occur if the larger diversion project went forward. In light of these conclusions,
the district court did not err in finding that the flooding risk to the OHB communities
alleged by the Authority did not weigh heavily in comparison to the risk of harm JPA
faced. Further, the Authority, by proceeding with construction before Minnesota
could complete its EIS or the court could determine whether permitting was required,
“jumped the gun,” placing some of the responsibility for its harm on itself. See Sierra
Club, 645 F.3d at 997. And while the loss of a building season is expensive, even
irreparable, as the district court noted, the permitting process could be completed
soon.4 See Richland/Wilkin Joint Powers Auth. v. U.S. Army Corps of Eng’rs, 38 F.
3

The Final EIS was made available for public review on May 16, 2016, with a
comment period lasting through May 31, 2016. Final Environmental Impact
Statements, Project Title: Fargo-Moorhead Flood Risk Management Project, EQB
Monitor, May 16, 2016, Vol. 40, No. 20.
4

While some time has passed since the district court predicted that the
permitting process should be completed soon, this does not mean that the court clearly
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Supp. 3d 1043, 1060 n.9 (D. Minn. 2014). Thus, the court did not err in its
consideration of this factor.
D. Likelihood of Success on the Merits
i. Standard
Once the court has considered the threat of irreparable harm and the balance of
harms, the appropriateness of an injunction still depends on “the probability that the
moving party would succeed on the merits.” Rounds, 530 F.3d at 729 n.3. The
plaintiff “need only establish a likelihood of succeeding on the merits of any one of
[its] claims.” Am. Rivers v. U.S. Army Corps of Eng’rs, 271 F. Supp. 2d 230, 250
(D.D.C. 2003).
In determining the likelihood of succeeding, the district court applied the “fair
chance of prevailing” standard. See 1-800-411-Pain Referral Serv., LLC v. Otto, 744
F.3d 1045, 1054 (8th Cir. 2014) (describing “this circuit’s ordinary preliminary
injunction test, [as] ask[ing] only whether a movant has demonstrated a ‘fair chance
of prevailing’ in the ultimate litigation”). The Authority argues that this was the
wrong standard because under Rounds, the court must sometimes apply a more
stringent standard of “likely to prevail.” 530 F.3d at 730. In Rounds this court held
that where a party seeks to enjoin the enforcement of a state statute, the court must
apply a more rigorous threshold and determine whether the movant is “likely to
prevail.” Id. For “administrative actions by federal, state or local government
agencies,” the court may evaluate whether “the full play of the democratic processes”
was involved in enactment, then determine which standard would be more
appropriate. Id. at 732 n.6 (internal quotation omitted). The district court found that
the democratic process required by Rounds was not satisfied by the environmental

erred, based on the evidence available to the court at that time.
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planning process. As for the project’s authorization under the WRRDA, the district
court reasoned that the project was adopted pursuant to expert agency
recommendation, something “far different than adopting a complex statute through
fulsome debate.” The district court also noted that the injunction did not seek to
enjoin the WRRDA, but merely delay a local partner’s construction of part of a project
pending Minnesota environmental review.
The Authority argues that the district court drew the category of government
action that requires the “likely to prevail” standard too narrowly and that, in any case,
the injunction did enjoin a state and federal statute, North Dakota’s appropriation of
funds and the WRRDA. However, Rounds notes that where an injunction is sought
to stop anything other than “government action based on presumptively reasoned
democratic process,” the familiar “fair chance of prevailing” test will still apply. Id.
at 732. The district court did not err in finding that the WRRDA, which did not
appropriate funds, merely represented the “authorization of a project pursuant to
expert agency recommendation.” Thus the district court was well within its discretion
when it determined that the process involved in the project’s approval, including the
WRRDA, made the “fair chance of prevailing” standard more appropriate. The
district court also noted that the injunction in question would “simply . . . delay the
local partner’s construction of part of the project pending Minnesota environmental
review.” The fact that this injunction only seeks to delay the project through the
environmental review rather than until the court makes its final determination also
supports the district court’s determination. Further, the Authority did not mention
North Dakota’s HB 1020, which makes no explicit mention of the OHB ring levee,
before the district court below. Based on the district court’s fact findings, it was not
error for the district court to determine that the “fair chance of prevailing” standard
was more appropriate in these circumstances.

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ii. MEPA
The Authority next argues that JPA’s likelihood of succeeding on its MEPA
claims is insufficient for an injunction, because MEPA is not intended to apply to outof-state action and the OHB ring levee is separate from the larger diversion project
under MEPA. The district court determined that the OHB ring levee was a part of the
larger diversion project and clearly subject to the State of Minnesota’s environmental
review. Thus, JPA’s showing that the OHB ring levee’s construction was underway
sufficiently demonstrated a fair chance of prevailing on the merits.
MEPA prevents governmental agencies from taking action on proposed projects
until the agency has considered the project’s environmental consequences by first
requiring an adequate EIS. See Citizens Advocating Responsible Dev. v. Kandiyohi
Cnty. Bd. of Comm’rs, 713 N.W.2d 817, 823 (Minn. 2006). The regulations define
a governmental unit as “any state agency and any general or specific purpose unit of
government in the state, including . . . counties, towns, cities, port authorities, housing
authorities, and the Metropolitan Council, but not including courts, school districts,
the Iron Range Resources and Rehabilitation Board, and regional development
commissions.” Minn. R. 4410.0200, subp. 34. Under MEPA, a plaintiff “aggrieved
by a final decision on . . . the adequacy of an environmental impact statement is
entitled to judicial review of the decision.” Minn. Stat. § 116D.04, subd. 10.
The Authority’s first argument is that the district court erred because MEPA
cannot apply out-of-state. This argument is largely based on the fact that MEPA had
not previously been applied, what the Authority characterizes as “extraterritorially.”
The Authority also argues that MEPA should not apply out-of-state, because the
effects could be present in “innumerable contexts.” However, the district court noted
that Minnesota has a strong and unique interest in preventing flooding within its lands.
The district court’s finding that the OHB ring levee is a part of the larger, interstate
project further supports the district court’s determination.
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Next, the Authority argues that the OHB ring levee has independent utility, so
MEPA does not prohibit its construction. Under MEPA, “[t]wo projects are
‘connected actions’ if a responsible government unit determines they are related in
any of the following ways: A. one project would directly induce the other; B. one
project is a prerequisite for the other and the prerequisite project is not justified by
itself; or C. neither project is justified by itself.” Minn. R. 4410.0200, subp. 9c. The
district court found that under this definition, the OHB ring levee had a fair chance of
being a “connected action.” The Authority argues that the court should read an
exception for projects with “independent utility,” into MEPA where none is stated, to
mimic NEPA, and find that there is independent utility to the OHB levee, so it cannot
be a “connected action.” The Authority provides no case requiring such a reading.
As explained above, despite the Authority’s contentions, the district court found that
the OHB levee is not independently justified, and that its construction was integral to
the larger diversion project and would lock the Authority into one design for the
project. Thus, the district court’s determination that the JPA showed a fair chance of
prevailing on the merits under MEPA is not erroneous.
iii. Dormant Commerce Clause
Next, the Authority argues that MEPA cannot prevent construction of the OHB
ring levee, because to do so would breach the dormant Commerce Clause of the
United States Constitution. The Authority contends that this project’s construction
will take place “wholly” within North Dakota because the presence of Minnesota
actors on the Authority is insufficient to connect the project to Minnesota. We find
that the district court did not err in finding that the dormant Commerce Clause does
not prevent MEPA’s application.
The dormant Commerce Clause is the negative consequence of the Commerce
Clause. Quill Corp. v. North Dakota, 504 U.S. 298, 312 (1992). Under it, states are
barred from discriminating against or unduly burdening interstate commerce. Id. The
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dormant Commerce Clause “precludes the application of a state statute to commerce
that takes place wholly outside of the State’s borders, whether or not the commerce
has effects within the State.” Healy v. Beer Inst., 491 U.S. 324, 336 (1989). If the
regulation is not per se invalid and not discriminatory, the court balances whether the
burdens are “clearly excessive in relation to the putative local benefits.” Pike v. Bruce
Church, Inc., 397 U.S. 137, 142 (1970).
The district court determined that “[w]hile the OHB ring levee is being
constructed in North Dakota, and while many other aspects of the diversion project
will be built in North Dakota, they are all integral parts of a larger project that
indisputably will be constructed, in part, in Minnesota.” The Authority disagrees,
arguing that only the effects of the OHB ring levee will reach Minnesota. The district
court reasoned that “laws governing a project that crosses the border between two
states are bound to have some extraterritorial effect;” if North Dakota were permitted
to begin building the diversion project in North Dakota, and could only be stopped
once it reached the Minnesota border, the practical effect would be that for interstate
projects, the state with more lenient laws would always control. Thus, as the district
court found, “both states clearly have an interest in regulating the diversion project
and their regulatory regimes will no doubt intersect.” The Authority points out that
the presence of Minnesota actors within the Authority is not sufficient, but as already
stated, such actors are not the lone connection between this project and Minnesota.
By virtue of OHB ring levee’s connection with the larger diversion project, its
construction does not take place “wholly outside” Minnesota’s borders. Minnesota
has an interest in regulating the larger diversion project and its parts. Thus, the district
court did not err in finding that the dormant Commerce Clause does not preclude
JPA’s MEPA claim.

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IV.
Finally, the Authority argues that the district court erred in failing to require the
JPA to post a bond. The district court waived the security requirement, based on its
characterization of the suit as public interest environmental litigation. The district
court acted within its discretion in doing so.
Under Federal Rule of Civil Procedure 65(c), “[t]he court may issue a
preliminary injunction or a temporary restraining order only if the movant gives
security in an amount that the court considers proper to pay the costs and damages
sustained by any party found to have been wrongfully enjoined or restrained.”
However, the “amount of the bond rests within the sound discretion of the trial court
and will not be disturbed on appeal in the absence of an abuse of that discretion.”
Stockslager v. Carroll Elec. Coop. Corp., 528 F.2d 949, 951 (8th Cir. 1976). This
court will reverse if the district court “abuses that discretion due to some improper
purpose, or otherwise fails to require an adequate bond or to make the necessary
findings in support of its determination.” Hill v. Xyquad, Inc., 939 F.2d 627, 632 (8th
Cir. 1991); Rathmann Grp. v. Tanenbaum, 889 F.2d 787, 789 (8th Cir. 1989) (citing
Roth v. Bank of the Commonwealth, 583 F.2d 527, 539 (6th Cir. 1978) (finding error,
not because the trial court failed to require a bond in any particular amount, but
because the court failed to exercise the discretion required by Rule 65(c) of
considering the question of requiring a bond)). Courts in this circuit have almost
always required a bond before issuing a preliminary injunction, Curtis 1000, Inc. v.
Youngblade, 878 F. Supp. 1224, 1278 (N.D. Iowa 1995), but exceptions have been
made where the defendant has not objected to the failure to require a bond or where
the damages resulting from a wrongful issuance of an injunction have not been shown.
Fantasysrus 2, LLC v. City of East Grand Forks, 881 F. Supp. 2d 1024, 1033 (D.
Minn. 2012); Bukaka, Inc. v. Cnty. of Benton, 852 F. Supp. 807, 813 (D. Minn. 1993).

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The Authority argues that it was error to not require a bond. But, in analogous
NEPA claims, some courts have not required a bond, or have only required a minimal
bond, because of the important public interest in the enforcement of NEPA. See
Davis v. Mineta, 302 F.3d 1104, 1126 (10th Cir. 2002) (directing the district court to
determine the bond, but stating that, “[o]rdinarily, where a party is seeking to
vindicate the public interest served by NEPA, a minimal bond amount should be
considered”); Monarch Chem. Works, Inc. v. Exon, 452 F. Supp. 493, 503 (D. Neb.
1978), aff’d, 604 F.2d 1083 (8th Cir. 1979) (setting a bond of $10,000 in a NEPA
case, based on the district court’s recognition that the plaintiff had the ability to pay
and that “private enforcement of environmental duties would be hindered if more than
a nominal bond were required”); Landwatch v. Connaughton, 905 F. Supp. 2d 1192,
1198 (D. Or. 2012) (requiring no bond, based on public interest and the potential
chilling effect of requiring one). And notably, the Authority proceeded with
construction before the proposed required environmental studies were completed, as
the party did in Mineta. See Mineta, 302 F.3d at 1126 (factoring into account the
defendants’ “apparent prejudgment to proceed prematurely with the Project before the
required environmental studies were considered” in its determination to suggest a
smaller bond). Thus, it was permissible for the district court to waive the bond
requirement based on its evaluation of public interest in this specific case.
V.
For these reasons, we affirm the district court’s ruling in its entirety.
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