United States District Court, D. Minnesota
W. Von Korff and Jonathan Wolf, Rinke Noonan, for plaintiff.
Patrick O'Donovan and Max H. Kieley, Assistant Attorneys
General, Minnesota Attorney General's Office, for
Lehman McCune, United States Department of Justice, for
E. Cattanach and Michael R. Drysdale, Dorsey & Whitney
LLP, for intervenor-defendant Fargo-Moorhead Flood Diversion
Board of Authority.
A Turman, for intervenor-defendant City of Oxbow.
R. TUNHEIM, CHIEF JUDGE.
Army Corps of Engineers (the “Corps”) and the
Fargo-Moorhead Flood Diversion Authority (the
“Diversion Authority”) are engaged in a
compressive construction effort aimed at lessening the
flooding problems caused by the Red River of the North. On
September 7, 2017, the Court enjoined further work on a
construction plan, now referred to as “Plan A, ”
because the Corps and the Diversion Authority had not
received necessary permits from the Minnesota Department of
Natural Resources (“DNR”).
recognition of the Court's injunction, and in an effort
to establish a project that would best serve the interests of
all affected parties, North Dakota governor Doug Burgum and
then Minnesota governor Mark Dayton created the
Fargo-Moorhead Area Flood Diversion Task Force. The Task
Force, Army Corps, and Diversion Authority eventually
compromised on a new flood protection plan, referred to as
“Plan B.” On December 27, 2018, the DNR granted
the Corps and Diversion Authority a Dam Safety and Public
Waters Work Permit (the “Permit”) for this new
plan. The Court commends the hard work and leadership shown
by both Governors Burgum and Dayton, as well as the Task
Force, in reaching this Plan B compromise.
response to the DNR's permit decision, the
Richland/Wilkin Joint Powers Authority (“JPA”)
filed a request for a contested case hearing with the DNR,
seeking the Permit's rescission. This request has not yet
been granted, but a decision is expected in the immediate
future. There is disagreement between the parties as to
whether, if a contested case hearing is granted, the Permit
would be effective or if the Permit would be voided pending
the results of the contested case hearing.
January 23, 2018, the Court held a status conference with all
the parties to discuss these updates and to determine how to
proceed with the present litigation. The Diversion Authority
and the Corps requested that the Court hold that the prior
injunction does not extend to Plan B, which would potentially
allow the Diversion Authority and the Corps to begin
construction immediately. The JPA argued that any such
request should be done by motion.
of the present uncertainty regarding the Plan B permit
approval process, the need for additional permits as
indicated in the conditions imposed by the DNR, the interim
effects any contested hearing may have on the Plan B permit,
and the federal appropriations lapse affecting the Corps and
the United States Department of Justice- which is
representing the Corps-the Court orders that any Plan B
construction must not commence until further order of the
Court. The purpose of this order is simply to preserve the
status quo until further information and clarification is
the federal appropriations lapse ends and the Department of
Justice is able to resume work on this case, the Court will
invite any motions to either extend the injunction to Plan B
or to lift the injunction entirely. Further, at that time, if
necessary, the Court will address any arguments regarding
whether construction on certain parts of Plan B may commence
despite any contested case hearing.
on the foregoing, IT IS HEREBY ORDERED that
the Fargo-Moorhead Flood Diversion Authority and the Army
Corps of Engineers not commence construction on Plan B until
further Order of the Court. This Order shall not affect