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Richland/Wilkin Joint Powers Auth. v. United States Army Corps of Eng'rs

United States District Court, D. Minnesota

August 14, 2014

RICHLAND/WILKIN JOINT POWERS AUTHORITY, a Minnesota-North Dakota Joint Powers Authority, Plaintiff,

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For Plaintiff: Gerald W. Von Korff, RINKE NOONAN, St. Cloud, MN.

For United States Army Corps of Engineers, John McHugh, Jo-Ellen Darcy, and Colonel Dan Koprowski, Defendants: Carol Lee Draper, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C. and Friedrich A. P. Siekert, Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE, Minneapolis, MN.

For Fargo-Moorhead Flood Diversion Board of Authority, Intervenor Defendant: Robert E. Cattanach, Michael R. Drysdale, Theresa M. Bevilacqua, and Kurt G. Whitman, DORSEY & WHITNEY LLP, Minneapolis, MN.

For Minnesota Department of Natural Resources, Proposed Amicus Curiae: Nathan J. Hartshorn, Assistant Attorney General, MINNESOTA ATTORNEY GENERAL'S OFFICE, St. Paul, MN.

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JOHN R. TUNHEIM, United States District Judge.

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, 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.



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 Fargo-Moorhead, including no action, non-structural

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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 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.)

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.)


A. Coordination with State Environmental Review and Other Concerns

Part of the background of the instant dispute began with the Minnesota Department

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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 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 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).)

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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 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 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 ...

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