Richland/Wilkin Joint Powers Authority v. United States Army Corps of Engineers et al

Filing 598

ORDER: IT IS HEREBY ORDERED that the Fargo-Moorhead Flood Diversion Authority and the Army Corps of Engineers not commence construction on Plan B until further Order of the Court. This Order shall not affect construction projects that the Court has approved under the current injunction.(Written Opinion). Signed by Chief Judge John R. Tunheim on 1/25/2019. (JMK)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
RICHLAND/WILKIN JOINT POWERS
AUTHORITY,

Civil No. 13-2262 (JRT/LIB)

Plaintiff,
and
MINNESOTA DEPARTMENT OF
NATURAL RESOURCES
Intervenor-Plaintiff,

ORDER

v.
UNITED STATES ARMY CORPS OF
ENGINEERS, ROBERT SPEER,
ASSISTANT SECRETARY OF THE
ARMY FOR CIVIL WORKS, and COL.
SAM CALKINS,
Defendants,
and
FARGO-MOORHEAD FLOOD
DIVERSION BOARD OF AUTHORITY
and CITY OF OXBOW,
Intervenor-Defendants.

Gerald W. Von Korff and Jonathan Wolf, RINKE NOONAN, P.O. Box
1497, Saint Cloud, MN 56302, for plaintiff.
Colin Patrick O’Donovan and Max H. Kieley, Assistant Attorneys General,
MINNESOTA ATTORNEY GENERAL’S OFFICE, 445 Minnesota
Street, Suite 900, Saint Paul, MN 55101, for intervenor-plaintiff.
Devon Lehman McCune, UNITED STATES DEPARTMENT OF
JUSTICE, 999 18th Street, South Terrace, Suite 370, Denver, CO 80202,
for defendants.

Robert E. Cattanach and Michael R. Drysdale, DORSEY & WHITNEY
LLP, 50 South Sixth Street, Suite 1500, Minneapolis, MN 55402, for
intervenor-defendant Fargo-Moorhead Flood Diversion Board of Authority.
Joseph A Turman, TURMAN & LANG, LTD, PO Box 110, Fargo, ND
58107, for intervenor-defendant City of Oxbow.

The Army Corps of Engineers (the “Corps”) and the Fargo-Moorhead Flood
Diversion Authority (the “Diversion Authority”) are engaged in a compressive
construction effort aimed at lessening the flooding problems caused by the Red River of
the North. On September 7, 2017, the Court enjoined further work on a construction
plan, now referred to as “Plan A,” because the Corps and the Diversion Authority had not
received necessary permits from the Minnesota Department of Natural Resources
(“DNR”).
In recognition of the Court’s injunction, and in an effort to establish a project that
would best serve the interests of all affected parties, North Dakota governor Doug
Burgum and then Minnesota governor Mark Dayton created the Fargo-Moorhead Area
Flood Diversion Task Force. The Task Force, Army Corps, and Diversion Authority
eventually compromised on a new flood protection plan, referred to as “Plan B.” On
December 27, 2018, the DNR granted the Corps and Diversion Authority a Dam Safety
and Public Waters Work Permit (the “Permit”) for this new plan. The Court commends
the hard work and leadership shown by both Governors Burgum and Dayton, as well as
the Task Force, in reaching this Plan B compromise.

-2-

In response to the DNR’s permit decision, the Richland/Wilkin Joint Powers
Authority (“JPA”) filed a request for a contested case hearing with the DNR, seeking the
Permit’s rescission. This request has not yet been granted, but a decision is expected in
the immediate future. There is disagreement between the parties as to whether, if a
contested case hearing is granted, the Permit would be effective or if the Permit would be
voided pending the results of the contested case hearing.
On January 23, 2018, the Court held a status conference with all the parties to
discuss these updates and to determine how to proceed with the present litigation. The
Diversion Authority and the Corps requested that the Court hold that the prior injunction
does not extend to Plan B, which would potentially allow the Diversion Authority and the
Corps to begin construction immediately. The JPA argued that any such request should
be done by motion.
Because of the present uncertainty regarding the Plan B permit approval process,
the need for additional permits as indicated in the conditions imposed by the DNR, the
interim effects any contested hearing may have on the Plan B permit, and the federal
appropriations lapse affecting the Corps and the United States Department of Justice—
which is representing the Corps—the Court orders that any Plan B construction must not
commence until further order of the Court. The purpose of this order is simply to
preserve the status quo until further information and clarification is available.
When the federal appropriations lapse ends and the Department of Justice is able
to resume work on this case, the Court will invite any motions to either extend the
injunction to Plan B or to lift the injunction entirely. Further, at that time, if necessary,
-3-

the Court will address any arguments regarding whether construction on certain parts of
Plan B may commence despite any contested case hearing.
Based on the foregoing, IT IS HEREBY ORDERED that the Fargo-Moorhead
Flood Diversion Authority and the Army Corps of Engineers not commence construction
on Plan B until further Order of the Court.

This Order shall not affect construction

projects that the Court has approved under the current injunction.

DATED: January 25, 2019
at Minneapolis, Minnesota.

____s/John R. Tunheim____
JOHN R. TUNHEIM
Chief Judge
United States District Court

-4-