Judge Puts Two-State Flood Project on Hold

           FERGUS FALLS, Minn. (CN) – Work on a flood-diversion levee around three North Dakota communities must stop pending Minnesota’s environmental review, a federal judge ruled.
     Counties, schools and citizens belonging to the Richland/Wilkin Joint Powers Authority objected to the two-state project in 2013, claiming it would protect North Dakota developers’ interests at the expense of flooding Minnesota and North Dakota farmland.
     U.S. District Judge John Tunheim outlined the history of the project in his 54-page opinion Wednesday.
     The adjacent twin cities of Fargo, N.D. and Moorhead, Minn. have suffered from floods in the Red River Basin in the past 25 years. In 2010, the Assistant Secretary of the Army for Civil Works approved a plan for an upstream dam, which would divert 35,000 cubic feet per second on the North Dakota side of the river. The plan included a 150,000-acre “staging area” to hold excess water in floods.
     Oxbox, Hickson and Bakke, N.D. are in the proposed staging area, so in the summer of 2014, the Diversion Authority, with approval from the Army Corps of Engineers, began building a levee – referred to as the OHB ring levee – to divert floodwater around them.
     The Joint Powers Authority says the construction was illegal because it violated the Minnesota Environmental Rights Act (MERA) and the Minnesota Environmental Policy Act (MEPA). The JPA said the project should not go forward without public review of an environmental impact statement from Minnesota.
     The Diversion Authority disagreed, saying that because the levee would be entirely in North Dakota, the JPA was “impermissibly attempting to apply the laws of one state to conduct occurring wholly within another state,” Judge Tunheim wrote in his 54-page ruling.
     The Minnesota Department of Natural Resources, in an amicus brief, contended that “MEPA and MERA both apply to out-of-state conduct, at least when that conduct is committed by Minnesota government entities.”
     Tunheim agreed.
     “The Authority which is undertaking the project is partially run by a Minnesota city and county … and will indisputably be constructed and have effects, in part, in Minnesota,” he wrote. “These mandates on Minnesota governmental units do not evaporate when those units take action on portions of cross-border project[s] built outside of Minnesota.”
     Minnesota counties and cities involved in the project “are equal members of the Diversion Authority with their counterpart North Dakota political subdivisions and responsible for the JPA’s actions,” Tunheim added. “They cannot evade MEPA’s requirements by simply letting North Dakota’s Authority members sign off on portions of a cross-border project that may violate MEPA.”
     Even though the construction is wholly in North Dakota, it cannot be separated from the larger project. “While the OHB ring levee is being constructed in North Dakota, and while many other aspects of the diversion project will be built in North Dakota, they are all integral parts of a larger project that will indisputably be constructed in part, in Minnesota,” Tunheim ruled.
     Tunheim granted the JPA request for a temporary injunction, finding that it “presents a strong case that action on the ring levee, which is an integral part of the overall project, amounts to a violation of MEPA’s prohibition of starting a project prior to an EIS [environmental impact statement] being determined adequate.”
     Tunheim acknowledged that halting construction may lead to higher costs later, but said that the injunction “need not be a lengthy one.”
     “The costs of delaying construction, with respect to the longer-term public interest in constructing the diversion project and mitigating floods in Fargo-Moorhead, are relatively minor. But the public’s interest in enforcing a state’s environmental laws, and, in particular, ensuring that every major environmental action is subjected to robust review and compliant with all of the relevant federal, state, and local requirements, is significant,” Tunheim concluded.
     Joint Powers attorney Jerry Von Korff wrote in a memo supporting the injunction: “An environmental impact statement … is designed to assist policy makers, including Congress, the executive branch, state and local governments and the local sponsor in making decisions among choices. Injunctive relief will serve to prevent avoidable environmental damage.”
     Diversion Authority Robert Cattanach told Courthouse News: “The judge has essentially called a time out to allow the MDNR to finish its work,” referring to the Minnesota Department of Natural Resources.
     “We are hopeful that it won’t last too long because we are very concerned about the loss of another construction season. Frankly, we are racing Mother Nature to finish this project before the next big flood hits, and of course nobody knows when that will be. We just hope it won’t be in the year that we lost because of the order.”
     Tunheim dismissed the Army Corps of Engineers as defendants, finding that sovereign immunity barred state and local claims against the federal government.