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

Filing 643

MEMORANDUM OPINION AND ORDER granting 615 the Diversion Authority's Motion to Modify or Dissolve the Preliminary Injunction and granting 623 the Corps' Motion to Alter/Amend/Correct Other Orders. (Written Opinion) Signed by Chief Judge John R. Tunheim on 4/8/2019. (HAZ)

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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,
v.
UNITED STATES ARMY CORPS OF
ENGINEERS, ROBERT SPEER,
ASSISTANT SECRETARY OF THE
ARMY FOR CIVIL WORKS, and COL.
SAM CALKINS,

ORDER ON DEFENDANTS’
MOTION FOR RELIEF FROM
INJUNCTION

Defendants,
and
FARGO-MOORHEAD FLOOD
DIVERSION BOARD OF AUTHORITY
and CITY OF OXBOW,
Intervenor-Defendants.

Gerald W. Von Korff, RINKE NOONAN, P.O. Box 1497, Saint Cloud, MN
56302, for plaintiff.
Colin Patrick O’Donovan and Philip Pulitzer, 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.

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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.
Katrina A. Turman Lang, TURMAN & LANG, LTD, PO Box 110, Fargo,
ND 58107, for intervenor-defendant City of Oxbow.

Defendant U.S. Army Corps of Engineers (the “Corps”) and Intervenor-Defendants
Fargo-Moorhead Flood Diversion Board of Authority (“Diversion Authority”) move the
Court to modify the preliminary injunction in this case. Defendants ask the Court to allow
construction of certain non-waterway aspects of a larger flood diversion project along the
Red River between Minnesota and North Dakota. The Court previously enjoined any
construction in furtherance of the project, but has allowed requested construction on a caseby-case basis. Because of the change in circumstances since the Court entered the
injunction, and because the requested construction will occur in non-waterways in North
Dakota, the Court will grant Defendants’ Motions.
BACKGROUND
The facts of this case are discussed at length in the Court’s prior preliminary
injunction and motion to dismiss order, and the Court incorporates them by reference. See
generally Richland/Wilkin Joint Powers Auth. v. United States Army Corps of Engineers,
279 F. Supp. 3d 846 (D. Minn. 2017). The Court will only recite facts relevant to the
present motion.
On September 7, 2017, the Court ordered that Defendants “cease and desist all
construction work on the Fargo–Moorhead Flood Risk Management Project . . . until

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further order of the Court,” granting Plaintiffs Richland/Wilkin Joint Powers Authority (the
“JPA”) and intervenor-plaintiffs Minnesota Department of Natural Resources’ (the
“DNR”) respective preliminary injunction motions. Richland/Wilkin, 279 F. 3d at 882. In
granting the preliminary injunction, the Court recognized the clear and undisputed need for
flood protection along the Red River. However, the Court also recognized the substantial
procedural and environmental harm that the DNR and the JPA might suffer if construction
commenced before the DNR granted the project a Dam Safety and Public Waters Work
Permit. While the injunction applied to any construction related to the project, the Court
noted that it would “consider requests to allow certain construction to go forward” if those
portions of construction would have no impact on Minnesota’s waterways. Id. In addition,
the Court encouraged “all parties to work to agree on a flood protection project that can
serve the interests of both states and the affected communities.” Id.
In response to the preliminary injunction, Defendants stepped away from the
original project, now referred to as “Plan A,” and began to formulate a project that was
acceptable to both North Dakota and Minnesota. To facilitate this effort, North Dakota
Governor Doug Burgum and then Minnesota Governor Mark Dayton created the FargoMoorhead Area Flood Diversion Task Force that was comprised of members from both
states who represented a range of interests. (Decl. of Michael R. Drysdale (“Drysdale
Decl.”) ¶ 2, Ex. A (the “Permit”) at 12-13, Mar. 11, 2019, Docket No. 619-1.) 1 The Task

1

See
also
https://fmdiversion.com/burgum-dayton-appoint-diversion-task-forcemembers-set-first-meeting/.

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Force designed a project that was satisfactory to most interested parties and submitted it to
the Diversion Authority for review. (Id.) Shortly thereafter, the Diversion Authority
submitted the project—referred to as “Plan B”—to the DNR for permitting. (Id. at 13.)
The DNR, reviewing the Diversion Authority’s application, determined that the
Plan B project was sufficiently different from the original Plan A project to warrant
supplemental environmental review. (Id.) Accordingly, the DNR conducted its statutorily
required environmental review, and published a Supplemental Environmental Impact
Statement (“SEIS”) on November 13, 2018. (Id. at 14.) The DNR thereafter analyzed the
SEIS and determined it was adequate and in accordance with Minnesota law. (Id.)
On December 27, 2018, then DNR Commissioner Tom Landwehr waived the need
for a contested case hearing on the permit application, determined that the Plan B project
“adequately protects the health, safety and welfare of the public, represents the minimal
impact solution, and is reasonable and practical,” and granted Plan B a Dam Safety and
Public Waters Work Permit (the “Permit”). (Id. at 88-89.)
After Commissioner Landwehr granted the Plan B Permit, several local government
units (“LGUs”) filed demands for a contested case hearing in accordance with Minnesota
law. (JPA Mem. in Supp. at 13-14, March. 11, 2019, Docket No. 613.) These LGUs seek
to challenge the DNR’s permit decision before an Administrative Law Judge (“ALJ”).
While the JPA was procedurally unable to file a contested case demand, and is therefore

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not a party to the contested case, the JPA represents two of the three LGUs able to file. (Id.
at 14.) All parties anticipate that a contested case will commence soon. 2
Defendants, despite the anticipated contested case hearing, now bring motions
requesting that the Court modify the preliminary injunction to allow them to begin
construction and preparation for construction on several isolated parts of the overall Plan
B project, each of which would take place in North Dakota. (Mot. to Modify, Mar. 11,
2019, Docket No. 615; Mot. to Alter/Amend/Correct, Mar. 11, 2019, Docket No. 623.)
Additionally, the Corps requests the Court’s permission to conduct certain nonconstruction design and mitigation work in Minnesota and North Dakota. (Id.) In total,
Defendants request permission to begin: (1) manufacturing components for the Diversion
Inlet Structure and the Wild Rice River Structure; (2) site preparation and construction on
both structures; (3) building the Western Tieback; (4) commencement of the PublicPrivate-Partnership; and (5) non-construction work in North Dakota and Minnesota such
as geotechnical investigations, soil borings, and cone penetration testing. (See Mem. in
Supp. of Mot. to Modify at 13, Mar. 11, 2019, Docket No. 617; Mem. in Supp. of Mot to
Alter/Amend/Correct at 11-13, Mar. 11, 2019, Docket No. 625.)

2

Plaintiffs and Defendants disagree over the legal ramifications of the contested case
hearing. Defendants suggests that the Permit remains valid during the contested case. Plaintiffs,
on the other hand, argue that the contested case acts to nullify the Permit, and argue therefore that
Defendants do not currently have a valid permit for Plan B. After reviewing the arguments and
the relevant Minnesota statutes, the Court is inclined to agree with the Plaintiffs. Ultimately,
however, both sides agree that the Court need not answer this question at this time because
Defendants are not seeking to begin construction on the entire project.

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Defendants argue that the present circumstances differ significantly from the
circumstances that existed when the Court granted the preliminary injunction, and that
limited relief from the injunction is therefore warranted. Defendants further contend that
none of the proposed construction can or will affect Minnesota waters because it will all
be conducted on dry land in North Dakota or will not entail construction at all. Further,
Defendants state that if an ALJ eventually denies the Plan B Permit, any construction that
is completed will simply be abandoned.
DISCUSSION
I.

STANDARD OF REVIEW
“Generally, a district court has the authority to modify its injunctive decrees where

changed circumstances require modification so as to effectuate the purposes underlying the
initial grant of relief.” Pro Edge L.P. v. Gue, 411 F. Supp. 2d 1080, 1086–87 (N.D. Iowa
2006); see also United States v. Swift & Co., 286 U.S. 106, 114 (1932) (noting that it is
“not doubtful of the power of a court of equity to modify an injunction in adaptation to
changed conditions.”). “In modifying a preliminary injunction, a district court is not bound
by a strict standard of changed circumstances but is authorized to make any changes in the
injunction that are equitable in light of subsequent changes in the facts or the law, or for
any other good reason.” Movie Sys., Inc. v. MAD Minneapolis Audio Distribs., 717 F.2d
427, 430 (8th Cir. 1983). 3 Thus, Defendants must show that circumstances have changed

3

Several of the parties contend that the Court should reapply the Dataphase factors that
were used to grant the preliminary injunction in the first place. See Dataphase Sys., Inc. v. C L

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so as to make the modifications they request equitable.
II.

THE PARTIES’ ARGUMENTS
Defendants highlight several facts in arguing that this case has “changed

significantly since this Court entered its Order.”

(Mem. in Supp. of Mot. to

Alter/Amend/Correct at 16.) First and foremost is the fact that Plan B was granted a permit,
albeit one that is subject to a contested case hearing not yet conducted. When the Court
originally granted the preliminary injunction, Defendants had not only failed to obtain a
permit for Plan A, but the DNR had actively denied the permit application, finding that
Plan A was inadequate.

Despite the DNR’s denial, Defendants attempted to start

construction using Plan A’s design. Now, although a contested case hearing is pending,
Defendants are not attempting to construct a project that the DNR explicitly rejected. To
the contrary, the DNR advocates for Plan B.
Defendants argue that the Permit is significant not only because it is an
acknowledgment that the DNR approves of Plan B, but also because it symbolizes the
important compromise that occurred between Minnesota and North Dakota. As noted,

Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981). However, the Dataphase factors would only apply if
the Court were considering whether to vacate or rescind the preliminary injunction. See Paisley
Park Enterprises, Inc. v. Boxill, Civ. No. 17-1212 (WMW/TNL), 2018 WL 1427102, at *2 (D.
Minn. Feb. 12, 2018) (“If the party opposing the injunction demonstrates that the injunction is no
longer warranted based on the test under which it issued, the injunction may be vacated.”)
(emphasis added); see also Baker Elec. Co-op., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir. 1994)
(analyzing a district court’s decision to rescind a preliminary injunction by using the Dataphase
factors). Although Defendants at times suggest they are seeking a rescission, they ultimately ask
only for a modification, and thus the Court will employ the Movie Systems changed circumstances
test.

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Plan B is the result of an interstate task force that collaborated in a significant way to
prepare a plan acceptable to both states and most local interests. The DNR, Corps, and
Diversion Authority all, in some way, acknowledge that they acted on the Court’s prior
direction to the parties to work together and, as a result, “the injunction has achieved its
goal.” (Mem. in Supp. of Mot. to Modify at 15.)
Additionally, Defendants point out that the Court granted the preliminary injunction
in part because the DNR could have suffered significant procedural and environmental
injury if Plan A construction began. The procedural injury that concerned the Court came
from the idea that “once the project begins, it creates the risk of a ‘steam roller’ effect
preventing the DNR from properly regulating the Project.” Richland/Wilkin, 279 F. Supp.
3d at 879. The environmental injury came from Plan A’s expected effect on Minnesota
waters, and that “any construction of a dam on the Red River will have an environmental
effect on Minnesota.” Id.
Now, however, Defendants argue that the DNR will not suffer any injury as a result
of the requested construction.

Defendants point out that they are only requesting

permission to start certain non-waterway construction in North Dakota. They argue that
the requested construction cannot affect Minnesota waters because the construction will
not alter any rivers that flow into Minnesota. They further argue that any procedural harm
to Minnesota is drastically reduced or eliminated completely. First, they point out that the
DNR explicitly approved Plan B after significant environmental research and the DNR
permitting process. Additionally, Defendants state that—even if the Permit is ultimately
denied—Minnesota would not suffer a procedural injury because the Defendants will
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simply abandon the completed construction in North Dakota. In essence, Defendants argue
that they have specifically tailored their requested construction so as to avoid the potential
harms underlying the Court’s preliminary injunction.
The DNR largely agrees with Defendants. It too recognizes the significant factual
differences now compared to when it requested the preliminary injunction.

It

acknowledges that, in granting the Plan B permit, the DNR believes that the project, as
proposed, adequately protects the public and itself from the harms that the Court previously
considered. Like Defendants, it also highlights the significant work done by the interstate
task force and the fact that the task force was formed in direct response to the Court’s
injunction. The DNR, therefore, supports the injunction modification, with the caveat that
the Court require Defendants to begin construction in strict accordance with the Permit.
Only if Defendants are required to comply with the Permit, the DNR argues, can the DNR’s
interests be protected.
The JPA, for its part, makes an overarching argument against any modification to
the injunction. However, the JPA does not present any arguments as to the specific requests
brought by Defendants or how the limited North Dakota construction could cause it harm.
Instead, the JPA’s argument that any modification is improper focuses solely on the
pending contested case hearing, the fact that it believes the contested case nullifies the
Permit, and the fact that an ALJ may ultimately overturn the Plan B Permit.
III.

MODIFICATION
After reviewing the parties’ arguments and the preliminary injunction itself, the

Court is persuaded that a modification is appropriate.
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The preliminary injunction was entered in large part to stop Defendants from
beginning construction on a project that would irreparably harm the JPA and the DNR, and
which the JPA and the DNR strongly opposed. However, as noted above, while the DNR
opposed Plan A, it fully supports Plan B and continues to suggest that it is a permittable
project. Further, the DNR conducted an extensive environmental review and determined
that Plan B adequately protects Minnesota’s environmental interests. Thus, as far as the
DNR is concerned, all of its procedural interests have been protected and none of its
environmental interests will be harmed by the construction requested. The DNR therefore
supports a modification.
The JPA, on the other hand, continues to oppose any modification to the preliminary
injunction. However, it has presented no arguments as to the specific requests at issue
here. The Court understands the JPA’s continued opposition to the Plan B project as a
whole and its belief that an alternative plan should be selected. But the Court is not
considering whether to allow the entire project to move forward, or whether the Plan B
project will ultimately be selected. Indeed, the Court is in no position to answer the latter.
Instead, the Court is considering whether it remains equitable to enjoin Defendants from
beginning construction of certain non-waterway aspects of the larger project. Because the
requested construction will not affect Minnesota waters and will be carried out in North
Dakota, the DNR supports the modification, and there is no clear harm to the JPA, the
Court finds that is not equitable to do so.
The Court, then, must decide how specifically to modify the injunction. The DNR
urges the Court to allow the requested construction but to require the Corps and the
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Diversion Authority to comply with the granted Plan B Permit. The DNR suggests that its
procedural and environmental interests can only protected if Defendants are required to
comply with the conditions of the Permit.
The Diversion Authority takes no issue with the DNR’s request, and states that it
intends to comply with the Permit whether the Court mandates compliance or not. The
Corps, on the other hand, disagrees with the DNR. The Corps argues that the Court lacks
jurisdiction to order it to comply with the Permit, that it is not a proper permittee, and that
it has sovereign immunity over state permitting requirements. Instead, the Corps clarifies
its role as assisting the Diversion Authority, and states “[a]s with any project, the Corps
supports non-Federal sponsors in their compliance with any lawful permit conditions and
will continue to work cooperatively with the DNR and other stakeholders.” (Reply at 3,
Mar. 22, 2019, Docket No. 640.) In essence, the Corps argues that while it is not subject
to the Permit, it intends to ensure the Diversion Authority’s compliance.
The Court appreciates the delicate nature of the Corps’ position, as well as the
DNR’s desire to ensure that only the project it permitted is constructed. However, the
Court does not currently need to answer the significant legal questions presented by the
Corps. Instead, given the representations made at the hearing on the present Motions by
Defendants about their respective roles and intentions, the Court expects that the Permit
conditions will be fully complied with. Moreover, the Court has already noted the
particular roles that the Diversion Authority and Corps must take in ensuring compliance
with the Permit. In the preliminary injunction order, the Court stated that “the Corps has
an independent mandate to monitor and audit the Diversion Authority as it carries out the
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Project to ensure compliance with section 2232,” which requires the Diversion Authority
to obtain and follow all necessary state permits. Richland/Wilkin, 279 F. Supp. at 866.
Accordingly, the Court will grant Defendants’ Motions and allow the requested
construction.
CONCLUSION
The Court’s preliminary injunction was put in place in part to ensure that Defendants
complied with all of their legal responsibilities before carrying out construction of the flood
diversion project. Accordingly, Defendants, instead of pressing forward with a project
rejected by Minnesota, worked with Minnesota to establish a path forward that both
Minnesota and North Dakota found acceptable. The Court appreciates the leadership by
the Governers and the substantial work accomplished by the Governor’s Task Force and
the compromises made by both sides.
The injunction was also put in place to stop Defendants from irreparably harming
Minnesota and the JPA by beginning construction on aspects of the project which would
impact Minnesota waters but could not be reversed or retroactively influenced by the DNR.
For that reason, the Court noted in the preliminary injunction that it would consider
relieving Defendants from the injunction for construction that would have no impact on
Minnesota waterways.
In the present Motions, Defendants have shown that they have satisfied the Court’s
concerns about complying with their legal responsibilities, and have presented construction
requests that are tailored to restrict any impact on Minnesota. The Court believes it
equitable to allow the requested construction.
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However, though the Court will grant Defendants’ Motions and modify the
injunction, the Court notes that it retains jurisdiction over the preliminary injunction.
Accordingly, should the circumstances change once again, or should Defendants overstep
the relief granted here, the Court will entertain any future motions by the DNR or the JPA
which seek to reinstate the preliminary injunction in its entirety or to enjoin specific aspects
of the project.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.

The Diversion Authority’s Motion to Modify or Dissolve the Preliminary

Injunction [Docket No. 615] is GRANTED.
2.

The Corps’ Motion to Alter/Amend/Correct [Docket No. 623] is

GRANTED.
3.

The Court modifies the September 7, 2017 preliminary injunction [Docket

No. 530] to allow Defendants to:
a. Manufacture components and begin construction of the Diversion Inlet
Structure;
b. Manufacture components and begin construction of the Wild Rice River
Structure;
c. Commence the Public Private Partnership process for the Diversion
Channel and Associated Infrastructure element of the Plan B Project in

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North Dakota.
d. Begin construction of the Western Tieback; and
e. Undertake the requested non-construction design and mitigation work in
North Dakota and Minnesota.
4. If any party or other person believes that the Permit or any condition thereof is
not being complied with, notice of such alleged non-compliance shall be made
to the DNR, or the DNR may assert a circumstance of non-compliance on its
own initiative. If the DNR determines that some action or inaction does not
comply with the Permit, it shall notify the Diversion Authority and provide a
reasonable opportunity to bring the Project into compliance. If the alleged noncompliance is not remedied to the DNR’s satisfaction, the DNR may apply to
this Court for such relief as may be reasonable and necessary under the
circumstances.

DATED: April 8, 2019
at Minneapolis, Minnesota.

_______
______
JOHN R. TUNHEIM
Chief Judge
United States District Court

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