Richland/Wilkin Joint Powers Authority v. United States Army Corps of Engineers et al
Filing
90
MEMORANDUM, OPINION AND ORDER 1)Granting defendant's 53 Motion for Preliminary Injunction as follows: a) The parties in this action and their officers, agents, and employees, and all others acting in concert or participation with them are enjoined from prosecuting and pursuing relief in the lawsuit filed June 13, 2014 by Plaintiff in the State of Minnesota District Court, Eighth Judicial District, County of Wilkin. b) This injunction shall re main in effect until a final judgment is entered in this action and all appellate rights are exhausted or until further order of the Court. 2) Granting Minnesota Department of Natural Resources 76 Motion to Appear as Amicus Curiae (Written Opinion). Signed by Judge John R. Tunheim on August 14, 2014. (DML)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
RICHLAND/WILKIN JOINT POWERS
AUTHORITY, a Minnesota-North
Dakota Joint Powers Authority,
Civil No. 13-2262 (JRT/LIB)
Plaintiff,
v.
UNITED STATES ARMY CORPS OF
ENGINEERS, JOHN MCHUGH, JOELLEN DARCY, and COL. DAN
KOPROSWKI,
Defendants,
and
MEMORANDUM OPINION AND
ORDER GRANTING DEFENDANTS’
MOTION FOR PRELIMINARY
INJUNCTION
FARGO-MOORHEAD FLOOD
DIVERSION BOARD OF AUTHORITY,
Intervenor Defendant.
Gerald W. Von Korff, RINKE NOONAN, Post Office Box 1497,
St. Cloud, MN 56302, for plaintiff.
Carol Lee Draper, UNITED STATES DEPARTMENT OF JUSTICE,
601 D Street N.W., Room 3106, Washington, D.C. 20579, and Friedrich
A. P. Siekert, Assistant United States Attorney, UNITED STATES
ATTORNEY’S OFFICE, 600 United States Courthouse, 300 South
Fourth Street, Minneapolis, MN 55415, for defendants United States Army
Corps of Engineers, John McHugh, Jo-Ellen Darcy, and Colonel Dan
Koprowski.
Robert E. Cattanach, Michael R. Drysdale, Theresa M. Bevilacqua, and
Kurt G. Whitman, DORSEY & WHITNEY LLP, 50 South Sixth Street,
Suite 1500, Minneapolis, MN 55402 for Intervenor Defendant FargoMoorhead Flood Diversion Board of Authority.
Nathan J. Hartshorn, Assistant Attorney General, MINNESOTA
ATTORNEY GENERAL’S OFFICE, 445 Minnesota Street, Suite 1800,
28
St. Paul, MN 55101, for proposed amicus curiae Minnesota Department of
Natural Resources.
The Joint Powers Authority of Richland County, North Dakota, and Wilkin
County, Minnesota (“Joint Powers”) brought this action against the United States Army
Corps of Engineers (“the Corps”) and various individuals, alleging violations of the
National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321, et seq., and the
Administrative Procedures Act (“APA”), 5 U.S.C. § 706.
The Joint Powers is an
organization that was formed to represent the interests of Richland and Wilkin Counties
with regard to flood prevention measures. Defendant the Corps is the federal entity
involved in the development of a flood prevention project on the Red River in response to
flooding in Fargo, North Dakota, Moorhead, Minnesota, and surrounding areas, most
recently in 2009. The Chief of the Corps is responsible for submitting a report with a
flood prevention proposal for ultimate approval by Congress. In its complaint, filed in
August 2013, the Joint Powers alleges that the Corps’ proposed plan, which involves
diverting flood waters (the “diversion project”), and the Chief’s report are and were
flawed and arbitrary and capricious in violation of NEPA and the APA. In November
2013, the Fargo-Moorhead Flood Diversion Board of Authority (“Diversion Authority”),
which is the local entity developing and managing the diversion project, was granted
leave to intervene.
Part of the diversion project involves ring levees around three communities in
Cass County, North Dakota, and construction was scheduled to commence in June 2014
on the Oxbow, Hickson, and Bakke ring levees (“OHB ring levees”). On June 13, 2014,
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the Joint Powers filed a proceeding in Wilkin County District Court against the Diversion
Authority (but not the Corps) seeking to enjoin the construction of the OHB ring levees
on the ground that the diversion project has not yet been approved through the State of
Minnesota’s environmental review process. The Diversion Authority now moves for a
preliminary injunction order enjoining the Joint Powers from continuing to pursue this
separate state court action. Defendants argue that the state court action seeks the same
relief the Joint Powers seeks in this action – putting a stop to the diversion project.
The Court will grant the Diversion Authority’s motion for a preliminary
injunction, concluding that the Joint Powers seeks essentially the same relief – requiring
the same legal determinations – in the Wilkin County action as it seeks here. The Joint
Powers is not foreclosed from seeking the relief or bringing the claims it has in the
Wilkin County action, but rather is welcome to seek that relief in this action.
BACKGROUND
I.
DIVERSION PROJECT BACKGROUND
Fargo-Moorhead and the Red River Basin have been subject to severe flooding in
recent years, particularly 2009. As a result, several entities came together to consider
possible solutions and alternate long-term plans for mitigating the flood risk in FargoMoorhead, including no action, non-structural measures, flood barriers (including
levees), increased conveyance (including diversion channels), and flood storage. (Decl.
of Gerald Von Korff, Ex. A (Fargo-Moorhead Feasibility Report and Environmental
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Impact Statement (“EIS Exec. Summ.”)) at 4, July 15, 2014, Docket No. 71.) 1 After
analyzing the alternatives for effectiveness, environmental effects, social effects,
implementability, cost, risk, separable mitigation, and cost effectiveness, the alternatives
were narrowed down to two possibilities moving forward: a diversion in Minnesota and a
diversion in North Dakota. (EIS Exec. Summ. at 4.) By May 2010, a draft of the
Environmental Impact Statement (“Draft EIS” or “DEIS”) had been completed,
proposing three possible plans: a National Economic Development plan (“NED”), which
would have the capacity to divert 40,000 cubic feet of water per second on the Minnesota
side, the Locally Preferred Plan (“LPP”), which would involve 35,000 on the North
Dakota side, and the Federally Comparable Plan (“FCP”), which would involve 35,000
on the Minnesota side. The cities of Fargo and Moorhead and counties of Clay and Cass
jointly requested the LPP plan on March 29, 2010, and that plan’s designation as the
tentatively selected plan was approved by the Assistant Secretary of the Army for Civil
Works on April 28, 2010. (EIS Exec. Summ. at 4-6.)
The Draft EIS summarizing these plans was released for public review on June 11,
2010, and in September 2010, hydraulic modeling indicated that the LPP would have
more extensive downstream impacts than previously anticipated, so additional analysis
was undertaken to identify ways to minimize downstream impacts from the LPP. (EIS
Exec. Summ. at 7.) The additional analysis led to a Supplemental Draft Feasibility
Report and Environmental Impact Statement (“SDEIS”), which was released for public
comment in April 2011. (Id.)
1
Unless otherwise noted, all page citations refer to CMECF pagination.
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In July 2011, the Final Feasibility Report and Environmental Impact Statement
(“Final EIS”) was released, proposing a modified LPP, with additional features to
minimize downstream impacts. (Id.)2 Ultimately, the Final EIS stated that the Corps’
local head engineer “has determined that the selected plan presented in this report [the
LPP] is in the overall public interest and is technically sound, environmentally
acceptable, and economically feasible,” such that the Corps “recommends that the
Locally Preferred Plan . . . be authorized for implementation as a federal project.” 3 (EIS
Exec. Summ. at 19.) At some point in 2013 the plan was amended to include the OHB
ring levees in order to protect those communities from the intentional flooding resulting
from the dam. (See Mot. for Prelim. Inj., Ex. 1 (Compl. in Wilkin County Action
(“Wilkin Cnty. Compl.”)) ¶ 25, June 19, 2014, Docket No. 53.)
II.
MINNESOTA’S CONCERNS WITH THE PROCESS
A.
Coordination with State Environmental Review and Other Concerns
Part of the background of the instant dispute began with the Minnesota
Department of Natural Resources (“MDNR”) expressing concerns about the Corps’
proposed plans. MDNR sent a letter to the Corps on June 16, 2011 indicating that it did
not believe that its concerns about ecological sustainability, need for a least-impact
solution and mitigation of adverse effects, and consistency with regional and local
2
The EIS Executive Summary includes summaries of the three plans, and a more detailed
summary of the LPP, which is the plan tentatively selected by the report. (EIS Exec. Summ. at
8-15.)
3
The LPP had undergone some revisions in the supplemental drafting process, and now
involves a 20,000 cubic feet per second diversion channel, with upstream staging and storage,
and other features. (EIS Exec. Summ. at 19.)
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ordinances and standards had been thoroughly addressed, and observing that anticipating
these issues early on would facilitate the state environmental review process, which also
needed to be done in order for the project to proceed. (Von Korff Decl., Ex. B at 2.)
The letter attached previous comments, including one noting that “[a]ll action
alternatives that are being carried forward in the SDEIS include construction of the high
hazard dam on the Red River that would need a dam safety permit from the MDNR,” and
that “Minnesota Statutes related to environmental policy address how alternatives must
be considered for actions significantly affecting the environment,” (id., Ex. B at 3-4),
specifically referencing Minnesota Statute § 116D.04, subd. 6, which prohibits state
action “significantly affecting the quality of the environment . . . so long as there is a
feasible and prudent alternative . . . .” Minn. Stat. § 116D.04, subd. 6.
The comments also included a section dedicated to the “State Environmental
Review and Permitting,” which explained that under Minnesota rules, regulations, and a
recent executive order from the governor, “the only way to comply with [MN] law is to
have all permitting questions and issues resolved as part of the EIS process,” meaning
that a final design report “must be submitted concurrently with the State environmental
review process.” (Von Korff Decl., Ex. B at 11.) The commentary’s conclusion warned
that “the DNR cannot issue a permit for an on-channel structure if a feasible alternative
with less potential for environmental impact is available that can provide acceptable flood
control benefits” and that “additional efforts are needed to demonstrate that projects are
ecologically sustainable, the least impact solution, adverse effects can and will be
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mitigated, and the chosen project is consistent with other standards, ordinances, and
resource plans of local and regional governments.” (Id., Ex. B. at 12.)
The record also includes August 6, 2010, January 14, 2010, and March 16, 2010
letters from the MDNR to the Corps raising a variety of concerns about the proposals,
ranging from wildlife and invasive species issues and concerns about the impact of large
diversions, to how the Corps will work with MDNR to coordinate the state environmental
review process. (Id., Ex. B at 15-38.) The Joint Powers has submitted portions of the
SDEIS which summarize many of the comments it received, including those from the
MDNR, and addresses those comments. (Id., Ex. C.) With regard to the comments about
the Minnesota State EIS Process, the SDEIS states:
The Corps recognizes the need for a Minnesota State EIS for this project
and has been coordinating with the Minnesota Department of Natural
Resources and project sponsors for the development of this EIS. . . . During
this coordination, the parties agreed to initiate the state process when the
Final EIS was released to the public. The non-federal sponsors will work
with the DNR to complete the State EIS and determine an appropriate
course of action to address the state’s 30-day deadline for issuance of
permits following final approval of the environmental impact statement.
(Id., Ex. C at 2 (citing Minn. Stat. § 116D.04, subd. 3a).)
B.
OHB Ring Levees
MDNR also expressed concerns specifically with regard to the proposed OHB ring
levees, which were not included as part of the original plan. In a letter dated January 14,
2014, from the MDNR to the co-chair of the Diversion Authority, the MDNR advised
that the MDNR had “commenced the necessary environmental review for the Diversion
Project,” but that the final EIS would not be complete for another year, such that “it
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would be unlawful for any Minnesota governmental unit or organization of which it is a
member to commence work on a component of the Diversion Project.” (Von Korff
Decl., Ex. I at 1.) The letter cited Minnesota Rules § 4410.3100, which states that if an
“EIS is required for a governmental action . . . a project may not be started and a final
governmental decision may not be made to grant a permit, approve a project, or begin a
project, until,” among other things, “an EIS is determined adequate.”
Minn. R.
§ 4100.3100, subp. 1. It also states:
If a project subject to review . . . is proposed to be carried out or sponsored
by a governmental unit, the governmental unit shall not take any action
with respect to the project, including the acquisition of property, if the
action will prejudice the ultimate decision on the project . . . . An action
prejudices the ultimate decision on a project if it tends to determine
subsequent development or to limit alternatives or mitigative measures.
Id., subp. 2 (emphasis added). Citing this rule, the MDNR specifically referenced the
OHB ring levees, which had recently come to MDNR’s attention, noting that “[b]ecause
of the complexities of Minnesota law it is imperative that the MDNR fully understand the
relationship between the O-H-B Levee and the Diversion Project,” as “[i]f the O-H-B
Levee is a stand-alone project that would be built even if the full Diversion Project is not
built, commencement of construction would not present a problem under MEPA.” (Von
Korff Decl., Ex. I at 2.) But if, as the documents explaining the OHB ring levee plans
suggested, it was part of the bigger project, “commencement of construction prior to
completion of the state final EIS and adequacy determination would be violation of
Minnesota law.” (Id.)
MDNR sent a follow-up letter on April 22, 2014, referencing its January 14, 2014
letter and the Diversion Authority’s response (which stated that “the OHB levee has
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independent utility” but “is being designed to also provide flood protection if the F-M
Project is approved and constructed”). (Von Korff Decl., Ex. J at 1.) The MDNR’s April
letter warns that “it would be unlawful for any Minnesota governmental unit or
organization of which it is a member to commence work on a component of the F-M
project unless there is an independent basis for that component part separate and apart
from the F-M project.”4 (Id.) The letter proceeds to explain that MDNR has reviewed all
the relevant documents and concluded that the OHB ring levee “is a project component of
the F-M Project, without an independent basis for its construction as proposed,” and that
“MDNR will not be making any final governmental approvals on the F-M project or any
component thereof until the state’s EIS process is complete.” (Id., Ex. J at 1-2 (emphasis
in original).)
III.
THIS ACTION
The Joint Powers filed this action on August 19, 2013. (Compl., Aug. 19, 2013,
Docket No. 1.) Initially, the Joint Powers brought four counts: one for violation of
NEPA, one for the “selection of [a] project option that violates Minnesota law”
(specifically Minn. Stat. chaps. 103A, 103G, 116B, and 116D), one for violation of
Executive Order 11988, and one regarding the proposed Finding of No Significant
Impact (“FONSI”). (First Am. Compl., Oct. 22, 2013, Docket No. 14.) Upon the
stipulation of the parties, however, the Magistrate Judge granted leave to amend and the
Joint Powers filed a second amended complaint including only the NEPA claim and new
4
The letter then notes that “we also continue to acknowledge that, because the OHB
levee is entirely within North Dakota, the MDNR has no jurisdiction over construction of the
OHB levee.” (Von Korff Decl., Ex. J at 1.)
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FONSI claim, but excluding counts for violation of Minnesota law, Executive Order
11988, and the FONSI claim as originally stated. (Order, May 6, 2014, Docket No. 48;
see also Stipulation, May 2, 2014, Docket No. 46.)
In the Second Amended Complaint (“complaint”), the Joint Powers seek to have
the Record of Decision set aside and to compel the Corps to comply with NEPA and to
cease efforts to obtain authorization to construct any portion of the project until all
environmental and permitting reviews are complete. (Second Am. Compl., May 2, 2014,
Docket No. 47.) The complaint alleges several problems with the proposed diversion
project and the documents and reports the Corps submitted to Congress in order to garner
support for the plan. (Id.)
The complaint alleges several shortcomings of the report of the Chief of the Corps
and the environmental impact statements: that they fail to disclose that the proposed plan
wastes scarce federal water resources, its goals could be accomplished at a vastly reduced
coast without flooding upstream and downstream communities, it proposes a level of
flood protection that is unnecessary (twice as high as any flood in the last century in
Fargo), and that it failed to address Minnesota regulatory requirements and required a
lengthy and costly regulatory review process. (Id. ¶ 6.) For example, it alleges that the
Corps did not adequately advise Congress “in a transparent manner if alternatives to the
proposed action can meet state and national objectives for a lesser cost and with lesser
negative environmental impacts,” and the Chief’s Report “poses to Congress a false
choice between overbuilding a wasteful and costly project with avoidable consequences,
on the one hand, and denying any flood protection at all, on the other.” (Id. ¶ 14.)
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The Joint Powers further alleges that an agreement (“Mediated Agreement”)
following the 1997 floods adopted a “basin-wide” that seeks, among other things, to
avoid adopting flood solutions that focus on one or more locales and risk shifting water
problems downstream or upstream. (Id. ¶ 28.) Plaintiff alleges that, rather than taking
such an approach, the Corps, heavily influenced by the City of Fargo, ultimately rejected
more moderate alternatives (which would not have resulted in upstream flooding) on the
grounds that they did not eliminate (as opposed to dramatically reduce) the risk of
flooding in Fargo-Moorhead. (See e.g. id. ¶¶ 31-32, 40.) It also alleges that the final
proposed plan provides flood protection for areas of Fargo that are not yet developed (but
which Fargo presumably hopes to be able to develop) and are in flood plains. (See, e.g.,
id. ¶¶ 43, 46.)
The Joint Powers also alleges that the selection of the plan “rested upon a major
engineering error in hydrology that was discovered only after the original Environmental
Impact Statement was completed.” (Id. ¶ 48.) It alleges that the Corps considered only
one option for storage of downstream flooding, referred to as the Richland/Wilkin Flood
Storage Proposal, which will flood extensive valuable farmland in both counties. (Id.
¶¶ 50, 52.) Plaintiff alleges that other options were not considered because of the error –
and that when the original EIS was done, the Corps was under the mistaken assumption
that there would be no need for downstream flooding, but discovered that the LPP would,
in fact, cause damaging downstream flooding. (Id. ¶ 49.) The Joint Powers further
alleges that the Corps then failed to consider a variety of options for flood storage and
that the ultimate selection of the Richland/Wilkin Flood Storage Proposal was arbitrary
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and capricious. (Id. ¶¶ 50-51.) Part of the diversion plan’s solution for the downstream
flooding it would generate involves ring levees around the communities of Oxbow,
Bakke, and Hickson, all of which are in Cass County. (Id. ¶ 58.)
Count I for violation of NEPA alleges that the selection of the plan and the OHB
ring levees is arbitrary and capricious because (1) it failed to address alternatives,
(2) failed to address the possibility that the plan might violate Minnesota law, and
(3) failed to address the possibility that the plan violates Executive Order 11988.
Count II, regarding the Proposed Finding of No Significant Impact alleges that the
proposed finding of no significant impact arbitrarily, unlawfully, and capriciously fails to
report to Congress that there exists a viable and fully suitable less costly flood control
option that avoids the flooding of Richland and Wilkin Counties and lands downstream
of Fargo and Moorhead while providing full protection to Fargo and Moorhead for floods
reasonably likely to occur.
IV.
STATE COURT ACTION (“WILKIN COUNTY ACTION”)
A.
Background
When the Joint Powers first became aware of the plan to build the OHB ring
levees, it sent a letter to the Corps as part of a comment procedure during a required
permit application process. The letter, dated April 21, 2014, focused on the OHB ring
levees, and observed that the project purpose has changed and the EIS did not focus on
the OHB ring levees. (Von Korff Decl., Ex. G at 1.) The letter argued that the OHB ring
levees should not be permitted because they cannot satisfy the requirements of the
relevant permit application because there are practicable alternatives which would have a
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less adverse impact on the aquatic ecosystem, including more modest flood mitigation
measures. (Id., Ex. G at 2.) It further pointed out that the OHB ring levees were not
submitted to Congress with the Chief’s Report, and that the Diversion Authority cannot
legally commence a part of a project that has not completed the Minnesota environmental
review. (Id., Ex. G at 3.) The letter proceeded to argue that the OHB ring levees are not
a standalone project to protect against natural flood conditions, but rather mitigation for
the diversion project (and thus cannot be commenced before the full MDNR
environmental review is complete). (Id., Ex. G at 4-7.)
The Joint Powers also submitted to the Corps the affidavit of Charles Anderson as
a comment to the same permit application process. Charles Anderson is an engineer who
was asked by the Joint Powers to provide advice on potential alternative approaches to
the proposed design. (Von Korff Decl., Ex. H at 1.) In his affidavit, he highlights the
state of Minnesota’s Mediated Agreement, and opines that the proposed project “is a
seriously flawed plan from a basin wide perspective” because it focuses on FargoMoorhead and ignores the rest of the basin. (Id. at 3.) He makes recommendations for an
alternate plan that includes a variety of approaches and measures. (Id. at 4-10.)
B.
Complaint
On June 13, 2014, the Joint Powers filed an action in Wilkin County Court against
the Diversion Authority (but not the Corps). (Wilkin Cnty. Compl.) The complaint
generally alleges that the Diversion Project, including the dam, will likely violate Minn.
Stat. chapters 116B and 116D, particularly § 116D.04, subd. 6, which requires that
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[n]o state action significantly affecting the quality of the environment shall
be allowed, nor shall any permit for natural resources management and
development be granted, where such action or permit has caused or is likely
to cause pollution, impairment, or destruction of the air, water, land or other
natural resources located within the state, so long as there is a feasible and
prudent alternative consistent with the reasonable requirements of the
public health, safety, and welfare and the state’s paramount concern
for the protection of its air, water, land and other natural resources
from pollution, impairment, or destruction. Economic considerations
alone shall not justify such conduct.
Minn. Stat. § 116D.04 (emphasis added). The Joint Powers alleges that the part of the
proposal that involves flooding of Wilkin County results from several design features that
are not necessary, including providing twice the level of protection necessary for FargoMoorhead, seeking to provide protection to undeveloped flood plain so that parts of
Fargo will be available for commercial development, failing to use mitigation features,
and deciding to put the dam in a location that shifts the damage and flooding to Wilkin
and Richland Counties. (Wilkin Cnty. Compl. ¶ 11.)
The complaint also explains that the dam and concomitant downstream flooding
and storage require a variety of permits under Minnesota law, which involves conducting
an environmental review. (Id. ¶ 12.) The Joint Powers alleges that “[c]ommencing the
project, or any part of it, before the environmental review is completed and before
issuance of permits is unlawful and would inflict irreparable harm on Wilkin County, its
residents, and others.” (Id. ¶ 17.) The Joint Powers alleges that the Diversion Authority
conceived of the plan to add the OHB ring levees as a solution to the problem of
additional flooding generated from the proposed dam, and that the design of the ring
levees “was determined entirely by the flooding contemplated as a part of the Fargo
Flood Mitigation Project.” (Id. ¶ 26.) The complaint then references the January 14,
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2010 letter from MDNR to the Diversion Authority, stating that the environmental review
must precede any construction, including of the OHB ring levees, citing Minnesota Rules
§ 4410.3100, and that “the DNR identified construction of the dike as a prejudicial action
that may ‘limit alternatives or mitigative measures or predetermine subsequent
development.’” (Id. ¶ 27 (quoting Minn. R. § 4410.3100).) The Joint Powers alleges that
the Diversion Authority “changed course” as a result of the letter, and began to claim that
the ring levees have independent utility not connected to the overall project, such that
construction need not wait until environmental review of the entire project is complete.
(Id. ¶ 28.)
Based on these and other allegations, the Joint Powers brings three counts: (1) for
declaratory judgment stating that the proposed project and the OHB ring levees violate
the Minnesota Environmental Rights Act (“MERA”) by inflicting unnecessary damage
on Minnesota’s environmental resources and injunctive relief to prevent commencement
of construction activities towards any part of that project; (2) for declaratory judgment
that commencement of the any part of the Fargo-Moorhead Flood Control Project
(including the OHB ring levees) prior to completion of the Minnesota environmental
review and grant of all necessary permits is unlawful and injunctive relief prohibiting the
commencement of construction; and (3) declaratory judgment that commencement of any
part of project will violate state and local law both because state and local permits have
not been issued, and because even if applied for, these permits cannot be lawfully
granted. (Id. at 15-19.)
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The Joint Powers did not immediately serve the Diversion Authority upon filing
the complaint with Wilkin County, and service had not been effected when the Diversion
Authority made this motion for preliminary injunction on June 19, 2014. Tthe Diversion
Authority has since been served.
V.
MOTION FOR PRELIMINARY INJUNCTION
On the same day the Wilkin County complaint was filed, June 19, 2014,
Defendant-Intervenor Diversion Authority filed a motion for a preliminary injunction in
this action seeking an order enjoining the Joint Powers from “serving and initiating” the
state court action and enjoining them from initiating “any action in the state courts of the
State of Minnesota or State of North Dakota seeking declaratory or injunctive relief to
prevent or in any way interfere with the commencement of construction of the FargoMoorhead Flood Control Diversion Project, and any non-significant changes thereto, as
authorized by the [WRRDA].” (Mot. for Prelim. Inj. at 2.)
The Diversion Authority urges the Court to enjoin the Wilkin County proceeding,
arguing that the Anti-Injunction Act does not bar enjoining the suit and that it has
satisfied the traditional equitable test for an injunction. It argues that it has demonstrated
a likelihood of success on the merits because the federal WRRDA preempts state law,
because the Joint Powers failed to join an indispensable party in the state court action –
the Corps, which would have required removal to federal court, and because the parties
stipulated that the Minnesota state law issues are not ripe. It argues that delaying or
stalling construction on the OHB ring levees will cause irreparable harm to Oxbow and
the surrounding areas, that the balance of harms favors the Diversion Authority because
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the Joint Powers can bring its request seeking to delay the construction in this federal
action, and because enjoining the Wilkin County action would be in the public interest.
The Joint Powers counters that the Minnesota Statute issues are not preempted by
federal law, observing that the Corps itself (and the Chief’s Report) has recognized that
state approval is needed, suggesting that the way that the diversion project has proceeded
is an example of powerful members of Congress diverting water liabilities or assets, and
warning that NEPA reforms were intended to stop this sort of abuse of power. Second,
the Joint Powers argues that the Diversion Authority has made no claim that would
support an injunction – essentially that there is no claim for which it could be ‘likely to
succeed on the merits’ – and urging that it is not clear that there is any issue over which
the Court has jurisdiction here that should preclude the proceedings between the
Diversion Authority and Joint Powers in Wilkin County.
The Diversion Authority has attached several documents and declarations to its
motion, many of which purport to describe the irreparable harm that will occur if the
Court does not enjoin the Wilkin County proceeding. Bruce Spiller is the program
manager of an engineering firm which is the program management consultant for the
Diversity Authority and is contracted with the Cass County Joint Water Resource District
(“CCJWRD”) to provide construction management services for the OHB ring levees.
(Decl. of Bruce Spiller ¶ 1, June 19, 2014, Docket No. 57.) As project manager on both
contracts, he oversees the development of project schedules, cost estimates, and
sequencing or coordination of projects. (Id. ¶ 3.) He states that “[a] massive project like
the Fargo-Moorhead Area Flood Diversion Project requires a highly orchestrated
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coordination of several components. Delay in any one part of the project risks delaying
the entire project to at least an equal, if not greater, delay. The very limited construction
season in North Dakota further complicates the timing coordination.” (Id. ¶ 4.) He
explains in his declaration that any delay beyond June 19, 2014, pushes back the
completion target of September 26, 2014, on a “day for day” basis, costing approximately
$10,000 to $20,000 per day of delay. (Id. ¶ 5.) He further explains that “[e]ven a modest
delay risks postponing the entire 2014 Ring Levee project until next year,” and that the
ring levees must be complete in September in order for further developments to proceed,
such as the construction and paving of a road and construction of replacement homes,
before winter and in order to keep the entire project on schedule for a 2017 completion.
(Id. ¶ 6.) Any delay with the 2014 ring levees could push back the project’s completion
until 2018, “creating significant personal safety and financial risks,” and exposure to
millions of dollars in property damage, lost wages, and harm to infrastructure. (Id. ¶ 7.)
He estimates that missing this year’s construction season would add between $1.2 million
and $2.3 million to the cost of the project. (Id. ¶ 8.) Beyond that, delay would generate
additional costs on account of staff and management time, home acquisition and
relocation costs, duplicative appraisal costs, lost profits for the contractors who have
planned to do this work and turned down other jobs as a result, and the opportunity costs
for families of lost jobs. (Id. ¶¶ 9-11.)
James Nyhof, the Mayor of the City of Oxbow, North Dakota, which is “squarely
in the middle of the planned upstream staging area,” explains that because of Oxbow’s
position in the upstream staging area and uncertainty regarding how it would fare in the
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project, city residents have been unable to sell or even get appraisals for their homes.
(Decl. of Mayor James E. Nyhof ¶ 1, June 19, 2014, Docket No. 58.) He states that
Oxbow lost eleven homes during the 2009 floods and since then it has been able to build
levees, but those levees are inadequate for a variety of reasons (not FEMA-certifiable,
gaps between sections, and inability to raise them because of location to river bank). (Id.
¶ 2.) As a result of some of these problems, FEMA ordered several of the levees
removed in 2012, which further exposed Oxbow to flooding risk. (Id. ¶¶ 3-4.) He further
states that the OHB ring levees will be FEMA-certifiable and will provide Oxbow with
100-year flood protection, but in order to do so the ring levees must be farther from the
river, which requires removing forty-two homes and will sever the Oxbow Golf &
Country Club. (Id. ¶ 5.) Mayor Nyhof declares that Oxbow itself does not have the tax
base to support a project of that size, but that the North Dakota legislature committed
cost-sharing funds for the construction, and those appropriations “specif[y] that the
Oxbow levee project should proceed even if the larger F-M Diversion Project d[oes] not.”
(Id. ¶ 6.) The plans in place for the Oxbow levee have stabilized home values, but Mayor
Nyhof believes that if the Joint Powers are “successful in stopping the commencement of
construction, it would result in immediate, disastrous economic and emotional
consequences for our community.” (Id. ¶ 7.) For example, the City would be liable for
millions of dollars in damages to contractors, thirty-eight families’ relocation process (of
which they are in the middle) would be interrupted, and others would need to find
additional flood insurance. (Id. ¶¶ 10-12.)
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Mark Brodshaug is the chair of the CCJWRD, which “is the legal entity at the
helm of construction” of the OHB
ring levee project; it selects and will pay the
contractors working on the project. (Decl. of Mark Brodshaug ¶ 1, June 19, 2014, Docket
No. 59.)
He explains that the CCJWRD awarded a contract to Riley Brothers
Construction on May 22, 2014 for $2.8 million, and if the project is delayed, suspended,
or permanently forestalled, CCJWRD will be “irreparably harmed” and liable to Riley for
damages.
(Id. ¶¶ 2-3.)
Brodshaug also describes the reputational, emotional, and
physical damage to Cass County that will occur if construction is delayed. (Id. ¶¶ 4, 6-7.)
Finally, Darrell Vanyo, a Cass County Commissioner and Co-Chair of the
Diversion Authority, explains that the diversion “project is the product of more than four
years of study, hearings, and legislative work,” and is “eagerly anticipated by the
thousands of residents who will no longer live under constant threat of catastrophic
flooding.” (Decl. of Darrell Vanyo ¶ 1, June 19, 2014, Docket No. 60.) He estimates that
if there is another flood comparable to the 2009 flood that it could cost the area
$10 billion in damages. (Id.) The Diversion Authority accepted the Section 404 permit
proffered by the Corps on June 18, 2014, and was informed that the permit will be
formally executed on June 20, 2014. (Id. ¶ 3.) He states that “[v]ast and irreparable harm
will occur if the flood control project is not completed in a timely fashion,” because the
whole construction season will be lost and the long-term plan for the project will be
extended for another year, putting homes at risk for longer. (Id. ¶ 4.)
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VI.
MDNR’S MOTION FOR LEAVE TO APPEAR AS AMICUS CURIAE
The afternoon before the Court held oral argument on the motion for preliminary
injunction, the MDNR filed a motion for leave to participate as amicus curiae and a
memorandum (pending ruling on the motion) regarding the Diversion Authority’s motion
for preliminary injunction, along with several declarations and exhibits.
MDNR
essentially opposes the Diversion Authority’s position that the diversion project is not
subject to state law, arguing that the Corps’ involvement in the project does not
immunize the entire project from state regulation, but rather such projects are typically
undertaken in partnership with state and local governments, and that federal authorization
of the project does not preempt state regulation. (Amicus Curiae MDNR’s Mem. on Mot.
for Anti-Suit Inj. at 12-15, July 22, 2014, Docket No. 79.) The Court has reviewed the
parties’ submissions on this matter. It concludes that permitting MDNR to file an amicus
brief creates no prejudice for the other parties and that there is potentially some benefit in
receiving MDNR’s perspective, particularly with regard to the preliminary injunction
given that the Joint Powers alleges violations of Minnesota’s regulatory scheme. Thus,
the Court will grant MDNR’s motion for leave to appear as amicus curiae in this action.
See Mausolf v. Babbitt, 158 F.R.D. 143, 148 (D. Minn. 1994) rev'd on other grounds, 85
F.3d 1295 (8th Cir. 1996) (“The amicus privilege rests in the discretion of the court which
may grant or refuse leave according as it deems the proffered information timely, useful,
or otherwise.” (internal quotations omitted)).
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ANALYSIS
The Court will first consider whether the injunctive relief the Diversion Authority
seeks is barred by the Anti-Injunction Act before proceeding to consider the merits of its
request.
I.
ANTI-INJUNCTION ACT
The Anti-Injunction Act states that “[a] court of the United States may not grant an
injunction to stay proceedings in a State court except as expressly authorized by Act of
Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its
judgments.” 28 U.S.C. § 2283. In Barancik v. Investors Funding Corp. of New York,
489 F.2d 933 (7th Cir. 1973), then-Circuit Judge Stevens, writing for the panel, held that
“the mandatory prohibition in § 2283 against injunctions staying court proceedings does
not apply to state actions commenced after a motion for injunctive relief is filed in the
federal court.” Id. at 938. Although not all circuits have followed this rule, see, e.g.,
Royal Ins. Co. of Am. v. Quinn-L Capital Corp., 3 F.3d 877, 885 (5th Cir. 1993) (holding
that “the Act applies regardless of when the federal and state suits were filed”); Standard
Microsystems Corp. v. Tex. Instruments, 916 F.2d 58, 61–62 (2d Cir. 1990); Roth v. Bank
of the Commonwealth, 583 F.2d 527, 533 (6th Cir. 1978), the Eighth Circuit has squarely
adopted it. In National City Lines, Inc. v. LLC Corp., 687 F.2d 1122 (8th Cir. 1982), the
Eighth Circuit held that “the question whether state actions are ‘pending’ is appropriately
answered by reference to the date on which injunctive relief is sought in federal court,
not the date on which injunctive relief is granted.” Id. at 1127 (emphasis added) (citing
Barancik, 489 F.2d at 936-67).
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Under this rule, the Court concludes that the Anti-Injunction Act does not bar the
relief the Diversion Authority seeks here because the Diversion Authority filed this
motion for preliminary injunction before it was served in the Wilkin County action,
which is what determines whether a state court action has commenced under the
Minnesota Rules of Civil Procedure. See Minn. R. Civ. P. 3.01 (“A civil action is
commenced against each defendant . . . when the summons is served upon that
defendant . . . .”); cf. Hruby v. Larsen, Civ. No. 05-894, 2005 WL 1540130, at *2
(D. Minn. June 30, 2005) (holding Anti-Injunction Act did not bar court from enjoining
state eviction action by federal defendants against plaintiffs where it was “undisputed that
plaintiffs initiated their federal suit [which included a request for preliminary injunction]
before defendants initiated eviction proceedings”).
II.
STANDARD FOR REVIEWING PRELIMINARY INJUNCTION MOTION
Thus, as an initial matter, National City Lines establishes that the Anti-Injunction
Act does not categorically bar the Court from enjoining the state court action here. It is
less clear, however, how the Court should analyze whether it should enjoin the state court
action. For this analysis, the parties point to the standard four factors for determining
whether a preliminary injunction should issue and each argues that those factors favor
them. Those factors are:
(1) the threat of irreparable harm to the movant; (2) the state of balance
between this harm and the injury that granting the injunction will inflict on
other parties litigant; (3) the probability that movant will succeed on the
merits; and (4) the public interest
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Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981). The Diversion
Authority argues that it is likely to succeed because the project cannot be enjoined by a
state court and because the Joint Powers failed to name a necessary party (the Corps),
while the Joint Powers argues that under these factors, there is no basis for a preliminary
injunction because the Diversion Authority has made no claim upon which it could be
said that it is likely to succeed.
As the Ninth Circuit and others have pointed out, however, this set of factors is an
odd fit for an anti-suit injunction. See E .& J. Gallo Winery v. Andina Licores S.A., 446
F.3d 984, 990 (9th Cir. 2006) (“The suitability of an anti-suit injunction involves different
considerations from the suitability of other preliminary injunctions.”). The court in Gallo
Winery considered the propriety of an injunction sought by the plaintiff Gallo to preclude
preexisting, concurrent litigation of the same issues in Ecuadorean courts that was
initiated by the opposing party, Andina.
The court observed that, with anti-suit
injunctions,
[o]ften, as here, the injunction will be defensive in nature. Gallo has
requested the preliminary injunction because of Andina’s potentially
prejudicial, vexatious and oppressive proceedings in Ecuador. But should
Gallo also need to prove a likelihood of success on the merits of the breach
of contract claim in order to receive an anti-suit injunction? That is, does
our usual test for a preliminary injunction apply, or is a modified analysis
required for anti-suit injunctions? While our cases are not clear on this
issue, we conclude that the more appropriate approach is that enunciated by
the Fifth Circuit: “To the extent the traditional preliminary injunction test is
appropriate, . . . we only need address whether [the injunction seeker]
showed a significant likelihood of success on the merits. The merits in this
case, however, are . . . about . . . whether [the injunction seeker] has
demonstrated that the factors specific to an anti-suit injunction weigh in
favor of granting that injunction here.”
- 24 -
Id. at 990-91 (alterations in original) (quoting Karaha Bodas Co., L.L.C. v. Perusahaan
Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 364 (5th Cir. 2003)
(“Although both the district court and the parties discussed all four prerequisites to the
issuance of a traditional preliminary injunction, the suitability of such relief ultimately
depends on considerations unique to antisuit injunctions.”)); see also Katz v. Lear
Siegler, Inc., 909 F.2d 1459, 1463 (Fed. Cir. 1990) (the standard four-part preliminary
injunction inquiry “was developed to test the grant of the requested remedy before the
case has been tried on the merits,” and “does not apply to the different question of
whether to enjoin the prosecution of concurrent litigation. In the latter case it is not
controlling whether the plaintiff is likely to succeed on the merits. Instead, a primary
question is whether the issues and parties are such that the disposition of one case would
be dispositive of the other.”).5
This case is a prime example of this poor fit: the Diversion Authority is not
bringing claims upon which it could be said that it is likely to succeed – rather, the Joint
Powers is bringing all the claims, and has tried to do so both here and in state court.
Instead, the Diversion Authority is trying to quash the state court action on the grounds
that it is duplicative. Thus, instead of applying the traditional four Dataphase factors, the
Court will look to considerations more appropriate to an anti-suit injunction. In this
5
Although the Eighth Circuit relied on the Dataphase factors in affirming the enjoining
of a state administrative proceeding in Entergy, Ark., Inc.. v. Nebraska, 210 F.3d 887, 898-900
(8th Cir. 2000), the party seeking the injunction there, although initially a defendant, had sought
to realign itself as a plaintiff and brought substantive cross-claims, the merits of which the Eighth
Circuit analyzed under the traditional Dataphase factors. See id. at 898. Here, the Diversion
Authority has no substantive claims against the Joint Powers, besides an argument that a state
court cannot interfere with or enjoin a federally authorized project, but that is a defense to the
merits of the Joint Powers’ Wilkin County action, not a separate claim in this action.
- 25 -
regard, the Court takes significant guidance from the Eighth Circuit’s opinion in National
City Lines.6
There, the Eighth Circuit observed that “[t]he Anti-Injunction Act is
inapplicable when a federal court has first obtained jurisdiction of a matter in controversy
by the institution of suit. Notwithstanding the confines of the Anti-Injunction Act, the
federal court may in these circumstances restrain subsequently filed state court
proceedings involving the same subject matter.” Nat’l City Lines, Inc., 687 F.2d at
1127 (emphasis added). In a footnote following that text, the court noted that a “federal
court should not, of course, ignore the principles of equity, comity and federalism which
might preclude an injunction against state proceedings.” Id. at 1127 n.8. In determining
6
In other circuits that have explicitly rejected the four-part test, courts typically proceed
to use that circuit’s foreign anti-suit injunction analysis. See, e.g., Gallo Winery, 446 F.3d at 991
(after concluding that “Gallo need not meet our usual test of a likelihood of success on the merits
of the underlying claim to obtain an anti-suit injunction,” proceeding instead to consider whether
Gallo demonstrated “that the factors specific to an anti-suit injunction weigh in favor of granting
the injunction” (referring to the factors specific to a foreign anti-suit injunction)). The Eighth
Circuit’s foreign anti-suit injunction analysis, however, is uniquely specific to foreign suits, not
suits in state courts, as it focuses on weighing the United States’ interests with “concerns of
international comity.” Goss Int’l Corp. v. Man Roland Druckmaschinen Aktiengesellschaft, 491
F.3d 355, 359 (8th Cir. 2007) (adopting, in contrast to the Ninth, Fifth, and other circuits, the
“conservative” approach for foreign anti-suit injunctions, “under which a foreign antisuit
injunction will issue only if the movant demonstrates (1) an action in a foreign jurisdiction would
prevent United States jurisdiction or threaten a vital United States policy, and (2) the domestic
interests outweigh concerns of international comity”). The Eighth Circuit adopted this approach,
rather than an approach that also considers whether the action is duplicative, in part because it
“(1) recognizes the rebuttable presumption against issuing international antisuit injunctions,
(2) is more respectful of principles of international comity, (3) compels an inquiring court to
balance competing policy considerations, and (4) acknowledges that issuing an international
antisuit injunction is a step that should be taken only with care and great restraint and with the
recognition that international comity is a fundamental principle deserving of substantial
deference[,]” and also in order to avoid “convey[ing] the message, intended or not, that the
issuing court has so little confidence in the foreign court’s ability to adjudicate a given dispute
fairly and efficiently that it is unwilling even to allow the possibility.” Id. at 360 (internal
quotation marks omitted) (citing Quaak v. Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren,
361 F.3d 11, 18 (1st Cir. 2004); Gau Shan Co., Ltd. v. Bankers Trust Co., 956 F.2d 1349, 1355
(6th Cir. 1992)). Because most of these concerns are unique to balance and respect for the
interests and agency of foreign courts, this reasoning does not require the application of the
“conservative” approach in considering whether to enjoin the state court proceeding here.
- 26 -
whether to enjoin the parties from proceeding in state court here, the Court will therefore
consider first the extent to which the state court action seeks to litigate issues whose
subject matter is already part of this action, and second, how considerations of comity,
federalism, and equitable principles operate in these circumstances.
A.
Comparing the Subject Matter of the Claims
In light of the guidance from National City Lines that a “federal court may in these
circumstances restrain subsequently filed state court proceedings involving the same
subject matter,” 687 F.2d at 1127, the Court will first consider whether the Wilkin
County action involves the same subject matter as the issues before the Court in this
action.
The Eighth Circuit has not provided extensive guidance as to in what
circumstances concurrent cases can be deemed to involve the same subject matter. In the
absence of guidance from the Eighth Circuit or argument from the parties, the Court
concludes that, applying that language and principle in a common sense manner guided
by judicial experience, the subject matters of the two lawsuits are substantially the same
because they both involve whether to proceed with the diversion project.
This action involves whether the Corps acted arbitrarily or capriciously in
submitting a Chief’s Report to Congress which, according to the Joint Powers, was
deficient in many respects. One of the primary respects in which the Joint Powers alleges
that the report was deficient is its failure to inform Congress of the fact that the project
had not yet been approved through Minnesota’s state environmental review, which
needed to be done independent of the federal environmental review because the Corps
“refused to honor State of Minnesota objections to the completeness” of the federal
- 27 -
environmental impact statement, (Second Am. Compl. ¶ 77), and in its failure “to address
a number of specific Minnesota law constraints” (id. ¶ 81). Further, the complaint alleges
specifically that the EIS fails to note the Corps’ inadequate response to MDNR’s
comments about the premature construction of the OHB ring levees, alleging:
Adoption of the Environmental Impact Statement, issuance of the Chief’s
Report and the later adoption of the FONSI and EA in connection with the
Oxbow-Bakke-Hickson ring dike proposal, notwithstanding the State of
Minnesota’s official comments is arbitrary and capricious and unlawful.
Leaving those comments unresolved and deferring them for resolution in
the Minnesota environmental process improperly certified to Congress that
the project selected is ready for funding, when in fact it is not, is arbitrary,
capricious and unlawful.
(Id. ¶ 84.)
The Wilkin County action involves three claims: whether the entire project
(including the OHB levees) comports with Minn. Stat. § 116D.02, whether the OHB ring
levees’ construction can commence now even though the Minnesota environmental
review is not complete for the full project, and a general claim about violation of
Minnesota water law. The second issue, about the OHB levees, hinges on whether the
OHB ring levees are part of the larger diversion project or an independent undertaking –
if they are part of the larger project, commencement of construction on the ring levees
could prejudice the environmental review under Minnesota Rules § 4410.3100. Thus, the
central question at issue in the Wilkin County case appears to be whether the OHB ring
levees are independent of the larger diversion project or not, for the purposes of
Minnesota Rules chapter 4410.
Although not identically postured, the issues in both actions would likely require
consideration of the same question: whether the diversion project and the ring levees in
- 28 -
particular violate Minnesota law because they are not the least harmful alternative or
because they cannot proceed with construction before the environmental review is
complete. These questions are directly before the Wilkin County court and indirectly
before this Court, given that part of the Joint Powers’ basis for its claim that the Chief’s
Report was arbitrary and capricious was that it failed to indicate how the plan was
violative of and inadequate with regard to Minnesota law. Thus, the Court concludes that
the two actions involve essentially the same subject matter, counseling in favor of
enjoining the Wilkin County action.
One consideration might counsel against deeming the claims substantively similar,
but are ultimately not persuasive. It appears that the federal action was filed before the
MDNR or the Joint Powers were aware of the plans to construct the OHB ring levees,
suggesting that the levees and whether they are part of the larger project or independent is
not part of the issues raised in the federal litigation. However, the Joint Powers amended
its complaint in May 2014 – after the January and April letters from MDNR to the
Diversion Authority, and the newly amended complaint now focuses on the OHB ring
The Court therefore concludes that the issues “involv[e] the same subject
levees.
matter.” Nat’l City Lines, 687 F.2d at 1127.
B.
Considerations of Equity, Comity, and Federalism
The Eighth Circuit observed that even when the Anti-Injunction Act does not
apply, a “federal court should not, of course, ignore the principles of equity, comity and
federalism which might preclude an injunction against state proceedings.” Nat’l City
Lines, 687 F.2d at 1127 n.8. Any concerns the Court might have had about comity,
- 29 -
federalism, and respect for the state courts are mitigated by the timing of the two cases
here. This federal action was filed almost a year prior to the Wilkin County action.
Although it does not follow Barancik’s timing rule with regard to the Anti-Injunction
Act, the Fifth Circuit has nevertheless found that “[w]here the federal case is filed
substantially prior to the state case, and significant proceedings have taken place in the
federal case, we perceive little, if any, threat to our traditions of comity and federalism,”
and that “[i]n fact, by filing a state suit after a federal action has been filed, the state
plaintiff can be viewed as attempting to use the state courts to interfere with the
jurisdiction of the federal courts.” Royal Ins. Co. of Am. v. Quinn-L Capital Corp.,
3 F.3d 877, 886 (5th Cir. 1993) (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 21–22 (1983) (fact that substantial proceedings have occurred is a
relevant factor to consider in deciding whether to abstain)); see also Colo. River Water
Conservation Dist. v. United States, 424 U.S. 800, 818 (1976) (observing that, although it
is rare for a federal court to dismiss an action over which it would otherwise have
jurisdiction in favor of concurrent state court litigation, one of the considerations is the
timing of the two suits, noting that “[i]t has been held . . . that the court first assuming
jurisdiction over property may exercise that jurisdiction to the exclusion of other
courts.”7).
7
The Supreme Court also noted the fact of a pending action in state court “is no bar to
proceedings concerning the same matter in the Federal court having jurisdiction,” Colo. River
Water Conservation Dist., 424 U.S. at 817 (internal quotations omitted), and that federal courts
have a “virtually unflagging obligation . . . to exercise the jurisdiction given them,” id.
Certainly, the matters in this action should proceed before this Court, and given the recency of
the initiation of the state court action, it is most practicable to utilize this forum for all matters
related to this dispute.
- 30 -
Furthermore, the Joint Powers indicated at oral argument that its primary intention
is to find a forum in which to seek relief against the commencement of construction on
the OHB ring levees, but that need not be in state court. Thus, the Joint Powers’
commencement of a state court action here appears to be more of a search for a forum,
rather than a preference for state court. Indeed, the Joint Powers filed this initial action
in federal court, and the Court would receive timely amendments to the Joint Powers’
complaint in this action to accommodate its search for a forum for its most recent issues.
The Court also finds that comity and federalism are best served by keeping all
claims related to this action in federal court given the unique interstate nature of the
project subject to this dispute.8 Because the Court concludes that the principles of equity,
comity, and federalism generally support rather than discourage the Court’s enjoining of
the parties’ further proceeding in the Wilkin County action and because that action
involves substantially similar issues as the instant action before the Court, the Court will
enjoin the parties from proceeding with the state court action.9
8
The Court declines to adopt or endorse the Diversion Authority’s arguments that the
state court action should be enjoined because the federal congressional authorization is supreme
over any Minnesota laws that could apply, such that failure to comply with Minnesota law
cannot possibly bar the progress of a federally funded initiative. The Court makes no
determination now as to whether and how the diversion project would be subject to Minnesota
law.
9
Although the Court previously concluded that the four traditional factors are not a good
fit for determining the propriety of entering a preliminary injunction in this case, the Court
nevertheless would, applying those factors, likely reach the same determination that the parties
should be enjoined from further proceeding in the Wilkin County action. Although it is unclear
what the “merits” would be in this situation, the Court thinks it sufficient that the Wilkin County
action would likely end up being removed to federal court because the Corps is likely a
necessary party under Minnesota Rule of Civil Procedure 19.01 given its role in planning,
overseeing, and facilitating funding of the diversion project and the ring levees, (see, e.g.,
Second Am. Compl. ¶¶ 61, 76 (“the Corps [] intends to build the ring dikes before the Red River
- 31 -
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.
Defendant’s Motion for Preliminary Injunction [Docket No. 53] is
GRANTED as follows:
a.
The parties in this action and their officers, agents, and employees,
and all others acting in concert or participation with them are enjoined from
prosecuting and pursuing relief in the lawsuit filed June 13, 2014 by Plaintiff in
the State of Minnesota District Court, Eighth Judicial District, County of Wilkin.
b.
This injunction shall remain in effect until a final judgment is
entered in this action and all appellate rights are exhausted or until further order of
the Court.
2.
The Clerk of Court shall provide a copy of this Order to the Clerk of Court
for the State of Minnesota District Court, Eighth Judicial District, County of Wilkin.
dam is permitted and approved” (emphasis omitted)), such that in its “absence complete relief
cannot be accorded,” Minn. R. Civ. P. 19.01. If the Corps were joined as a defendant in the
Wilkin County action it would likely seek removal to federal court, which it is entitled to
because the Corps is a federal agency. See 28 U.S.C. § 1442(a)(1). Thus, the Diversion
Authority is likely to succeed at least with regard to whether the Joint Powers’ claims practically
can or will proceed in state as opposed to federal court. The Diversion Authority has also likely
demonstrated for the purposes of this stage in the proceedings that any delay in the project will
cause irreparable harm because it could set the entire project back a year. The balance of harms
favors the Diversion Authority, as the Joint Powers will suffer no harm because it can seek the
same relief in this federal action, and the public interest favors keeping all disputes in federal
court given the interstate nature of the project.
- 32 -
3.
The Motion to Appear as Amicus Curiae by Minnesota Department of
Natural Resources [Docket No. 76] is GRANTED.
DATED: August 14, 2014
at Minneapolis, Minnesota.
____s/
____
JOHN R. TUNHEIM
United States District Judge
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