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Injunction Filed in JPA Lawsuit

Posted on April 6, 2017

By Frank Stanko, Daily News

On Thursday, March 30, the Richland-Wilkin Joint Powers Authority filed for a preliminary injunction against the U.S. Army Corps of Engineers and the Fargo-Moorhead Diversion Authority.

The Joint Powers Authority wants Judge John Tunheim, U.S. District Court for the District of Minnesota, to prevent the Corps and Diversion Authority from carrying out the proposed Fargo-Moorhead Diversion. That decision would be expected to stand until the state of Minnesota first grants necessary permits for the project or a revised project is reauthorized by Congress.

“(We request) an order requiring that the defendants and those acting in concert with them shall cease and desist construction on the proposed Red River dam, the dam inlet structure, or diversion channel, or any work on the Oxbow-Hickson-Bakke Ring Dike,” wrote Joint Powers Authority attorney Gerald W. Von Korff.

Since February, the Corps has been considered an active defendant alongside the Diversion Authority in a lawsuit with the Joint Powers Authority and the Minnesota Department of Natural Resources.

Landwehr’s response

Minnesota’s position has not changed, Department of Natural Resources Commissioner Tom Landwehr wrote on Tuesday, March 14.

“You should understand that the Corps’ decision to initiate construction in no way increases the likelihood that Minnesota will ultimately act favorably on a revised permit application, should one be submitted,” Landwehr told the Corps. “The Corps and the Diversion Authority are proceeding entirely at their own risk. We believe this risk to be considerable and unwarranted.”

On Friday, March 24, the Department of Natural Resources filed a complaint against the Corps and the Diversion Authority, seeking preliminary and permanent injunctive relief for violations of the federal Administrative Procedure Act, the Minnesota Environmental Rights Act and other state statutes.

The Department of Natural Resources said violations occurred with the Corps and Diversion Authority proceeding to construct the proposed F-M Diversion without first obtaining all necessary permits.

“(We seek) a declaratory judgement that the Diversion Authority’s actions described in this complaint are in violation of the Department of Natural Resources’ order dated Monday, Oct. 3, 2016 denying the Diversion Authority’s permit application,” wrote Max Kieley and Colin P. O’Donovan, each the assistant attorney general for Minnesota.

Kieley and O’Donovan also seek a declaratory judgement that the Diversion Authority’s actions violate state statutes, in addition to preliminary and permanent injunctive relief. The proposed relief would prevent “all further construction of the project, and any component part thereof” until the Diversion Authority receives all permits and approvals necessary.

Red-letter date

At 1 p.m. Monday, April 17, the Corps and Diversion Authority are scheduled to host a groundbreaking ceremony for the proposed diversion. The event, expected to last one hour, will be at the intersection of County Roads 17 and 16 south of Horace, North Dakota.

“For over 20 years, we’ve all experienced the unbelievable stories of heartache and heroism from the floods of 1997 and 2009, along with the impact they have made upon the lives of citizens in Fargo-Moorhead and the surrounding area,” said Mayor Tim Mahoney, Fargo. “Our people have waited patiently for many years for this moment and now the wait is finally over.”

On Thursday, April 17, 1997, the Red River finally crested, with subsequent receding waters putting an end to a historic flood that impacted the Southern Red River Valley. In addition to the groundbreaking, the Horace event will observe the flood’s 20th anniversary.

“As we commemorate fighting the historic flood of 1997, we also realize the flood of 2009 crested even higher in Fargo and Moorhead. We’re committed to building a project that prevents catastrophic flooding,” said Col. Sam Calkins, commander of the Corps’ St. Paul District.

Scheduled to appear with Mahoney and Calkins is Mayor Del Rae Williams of Moorhead, Minnesota. Invitations have been sent to North Dakota’s senators, Congressmen and governors.

Explanation, please

Given the ongoing litigation against the proposed diversion, anyone could question why a groundbreaking ceremony would still be held.

Information from the Diversion Authority’s Thursday, March 23 meeting states the diversion project is under consideration for a 404(r) permit. This is a rare permit that would allow the Corps and Diversion Authority to continue without permits from Minnesota or North Dakota. Allowance of a 404(r) permit would essentially state the diversion project is so needed and valuable that it does not need local permits, and, by extension, Minnesota’s water quality certification.

“That ship has already sailed,” said Tim Fox, former Wilkin County Attorney. “Judge Tunheim took care of that when he considered the Corps an active defendant.”

Furthermore, Fox explained, 404(r) permits do not circumvent the environmental review process. Essentially, Minnesota law has already placed and continued to place restrictions on the diversion project.

Landwehr also responded to the idea of the Corps and Diversion Authority receiving a 404(r) permit. Doing so would directly contradict the Corps’ July 2011 environmental impact statement for the diversion project, he wrote.

“More prudent stewardship of the public’s tax dollars would seem to call for cessation of construction activities until Minnesota’s permitting issues for this project have been resolved,” Landwehr added.

In the past, diversion opponents have suggested Tunheim will rule against the project.

As of Saturday, April 1, Fox could not give an anticipated date for that decision.

“The court will set the date for the hearing,” he said. “The motion for a temporary injunction may be heard at the end of April or the first of May. The DA and the Corps will have a short timeline to respond to motion prior to hearing.”

Source: Daily News

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