‘Cease and Desist’ Order for Diversion Construction

Article Image

Posted September 12, 2017

Judge John Tunheim, U.S. District Court for the District of Minnesota, ruled Thursday, Sept. 7 that construction on the proposed Fargo-Moorhead Diversion must immediately cease and desist.

The ruling is the latest milestone in the five-year battle for the more than $2.1 billion project. Supporters of the Richland-Wilkin Joint Powers Authority, partnered with the Minnesota Department of Natural Resources, expressed cautious optimism. That’s because the Fargo-Moorhead Diversion Authority, partnered with the U.S. Army Corps of Engineers, has stated it will appeal the ruling.

“We will need to consult with the Corps over what changes in the federal project can be made consistent with federal law,” said Fargo Mayor Tim Mahoney, chairman of the Diversion Authority board. “My expectation is this ruling will be immediately appealed as it is estimated the cost of construction increases the total cost by $60 million a year. We simply cannot live with that level of financial risk, or the risk to public safety of not having protection.”

Richland County Commissioner Chairman Nathan Berseth, and a member of the Richland-Wilkin Joint Powers Authority, said he was thrilled by Tunheim’s ruling.

“I’m elated for every taxpayer and person in the Red River Valley, from Fargo to Wahpeton, throughout Richland, Wilkin, Cass and Clay counties. This is a win for state’s rights. It forces leaders in Fargo and Moorhead to come up with a plan that will protect the city of Fargo and lessen the impact on all others,” Berseth continued.

Wilkin County Commissioner Chairman Stephanie Miranowski, and a member of the Joint Powers Authority, was equally excited.

“This is something we’ve been working for for so long,” Miranowski said. “This decision shows we are going in the right direction and how important permitting is. The state does have a piece of the game here. Minnesota is important. If they (F-M Diversion Authority) want our help and want to utilize our resources, they have to give us a voice and follow the proper procedures. This decision means they do have to follow the law.”

Earlier this year, construction of an outlet for the proposed diversion channel began south of Horace, North Dakota. U.S. Sen. Heidi Heitkamp, D-N.D., and U.S. Sen. John Hoeven, R-N.D., attended the groundbreaking ceremony, being called hypocrites at the time by protesters. The senators each responded to Tunheim’s ruling.

“We’re still reviewing the decision that was just released to fully understand it,” Hoeven said. “However, it is clear that we must find a way to work together to get comprehensive flood protection built in a timely way to protect homes and property in the Red River Valley.”

In her statement, Heitkamp commented on how the ruling will make it difficult for the F-M Diversion’s delegation to get needed federal funds to complete the project. So far, $5 million in federal funds has been secured.

“We should now use this decision as an opportunity for Minnesota and North Dakota to come back to the table and have a discussion about how to protect families from flooding while also respecting the concerns of those upstream,” Heitkamp continued.

As attention shifts from the ruling to future conversations about flood protection, there is much speculation about who is in a position of power.

“Up to now, the Minnesota Department of Natural Resources has had an open mind and open hands with the Fargo-Moorhead Diversion Authority,” said Fargo attorney Cash Aaland. “They tried to talk to the Diversion Authority about a Plan B. That’s gone on for a year or so, as I understand.”

At every point in the discussion, Aaland continued, leaders in Fargo played hardball, saying “No” regarding a Plan B. However, the F-M Diversion Authority has now been served notice it needs a Minnesota permit to continue its project.

“By refusing to negotiate in good faith with Minnesota about permanent flood protection for Fargo for the past year, they just lost all power in their negotiation position,” Aaland said. “With today’s decision, Minnesota no longer needs to negotiate. I think Minnesota is interested and will work with the Diversion Authority as far as permanent flood protection for Fargo, but I think a dam on the Red River is now off the table.”

Lyle Hovland, also a Wilkin County Commissioner and Joint Powers Authority member, said he’s keeping a “It’s-never-over-until-it’s-over” attitude.

“It’s a big deal that the judge says ‘stop it now, no more construction,’” Hovland said. “They have to listen to what the judge says. They can’t keep doing whatever they choose to do and disregard the state, saying it’s a federal project.”

Miranowski said the Joint Powers Authority is more than happy to sit down and be part of discussions on a Plan B for comprehensive flood protection.

“We are not against flood protection for Fargo-Moorhead. As part of the Red River Basin Commission, we want a basin-wide approach. I just talked with the Moorhead mayor (Del Rae Williams, vice chair of the F-M Diversion Authority). The opportunities are there for us to be a part of discussing Plan B. We need to be part of the process,” Miranowski continued.

Berseth is hopeful a discussion will happen. At the same time, he called the F-M Diversion Authority’s statements about appealing Tunheim’s ruling “very disheartening.”

“For them to say they will appeal this and continued to spend hundreds of thousands of dollars, then want to sit down at the table at the same time … it will be pretty tough to sit across the table with them when they’re hoping they can trump our negotiations,” Berseth said.

Berseth also called for a multi-faceted flood protection plan.

“We’re looking for a plan that protects existing infrastructure rather than protect future growth,” he added.

Earlier this year, Maj. Gen. Michael Wehr, commander of the Corps’ Mississippi Valley Division, said the F-M Diversion is a project that would make history.

“You’re helping us redefine the rules and the policies that others in the nation will have to figure out as well,” Wehr said earlier.

According to Berseth, the Corps gave the F-M Diversion Authority false assurances over the security of the diversion project.

“The Corps of Engineers hoodwinked the Diversion Authority,” Berseth said. “They led them down this golden path, saying ‘This is taken care of. Don’t worry, we’re the Corps of Engineers. We trump all. We know all. We will take care of you.’ They didn’t and they misled them and misguided them to the tune of close to half a billion dollars. That’s half a billion dollars that could have gone directly to Fargo flood protection and it’s half a billion dollars less than will go into it.”

Source: Daily News