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Richland/Wilkin Joint Powers Authority v. United States Army Corps of Engineers

United States District Court, D. Minnesota

April 8, 2019

RICHLAND/WILKIN JOINT POWERS AUTHORITY, Plaintiff,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, ROBERT SPEER, ASSISTANT SECRETARY OF THE ARMY FOR CIVIL WORKS, and COL. SAM CALKINS, Defendants, and MINNESOTA DEPARTMENT OF NATURAL RESOURCES Intervenor-Plaintiff, and FARGO-MOORHEAD FLOOD DIVERSION BOARD OF AUTHORITY and CITY OF OXBOW, Intervenor-Defendants.

          GERALD W. VON KORFF, RINKE NOONAN, FOR PLAINTIFF.

          COLIN PATRICK O'DONOVAN AND PHILIP PULITZER, ASSISTANT ATTORNEYS GENERAL, FOR INTERVENOR-PLAINTIFF.

          DEVON LEHMAN MCCUNE, UNITED STATES DEPARTMENT OF JUSTICE, FOR DEFENDANTS.

          ROBERT E. CATTANACH AND MICHAEL R. DRYSDALE, DORSEY & WHITNEY LLP, FOR INTERVENOR-DEFENDANT FARGO-MOORHEAD FLOOD DIVERSION BOARD OF AUTHORITY.

          KATRINA A. TURMAN LANG, TURMAN & LANG, LTD, FOR INTERVENOR-DEFENDANT CITY OF OXBOW.

          ORDER ON DEFENDANTS' MOTION FOR RELIEF FROM INJUNCTION

          JOHN R. TUNHEIM CHIEF JUDGE

         Defendant U.S. Army Corps of Engineers (the “Corps”) and Intervenor-Defendants Fargo-Moorhead Flood Diversion Board of Authority (“Diversion Authority”) move the Court to modify the preliminary injunction in this case. Defendants ask the Court to allow construction of certain non-waterway aspects of a larger flood diversion project along the Red River between Minnesota and North Dakota. The Court previously enjoined any construction in furtherance of the project, but has allowed requested construction on a case-by-case basis. Because of the change in circumstances since the Court entered the injunction, and because the requested construction will occur in non-waterways in North Dakota, the Court will grant Defendants' Motions.

         BACKGROUND

         The facts of this case are discussed at length in the Court's prior preliminary injunction and motion to dismiss order, and the Court incorporates them by reference. See generally Richland/Wilkin Joint Powers Auth. v. United States Army Corps of Engineers, 279 F.Supp.3d 846 (D. Minn. 2017). The Court will only recite facts relevant to the present motion.

         On September 7, 2017, the Court ordered that Defendants “cease and desist all construction work on the Fargo-Moorhead Flood Risk Management Project . . . until further order of the Court, ” granting Plaintiffs Richland/Wilkin Joint Powers Authority (the “JPA”) and intervenor-plaintiffs Minnesota Department of Natural Resources' (the “DNR”) respective preliminary injunction motions. Richland/Wilkin, 279 F.3d at 882. In granting the preliminary injunction, the Court recognized the clear and undisputed need for flood protection along the Red River. However, the Court also recognized the substantial procedural and environmental harm that the DNR and the JPA might suffer if construction commenced before the DNR granted the project a Dam Safety and Public Waters Work Permit. While the injunction applied to any construction related to the project, the Court noted that it would “consider requests to allow certain construction to go forward” if those portions of construction would have no impact on Minnesota's waterways. Id. In addition, the Court encouraged “all parties to work to agree on a flood protection project that can serve the interests of both states and the affected communities.” Id.

         In response to the preliminary injunction, Defendants stepped away from the original project, now referred to as “Plan A, ” and began to formulate a project that was acceptable to both North Dakota and Minnesota. To facilitate this effort, North Dakota Governor Doug Burgum and then Minnesota Governor Mark Dayton created the Fargo-Moorhead Area Flood Diversion Task Force that was comprised of members from both states who represented a range of interests. (Decl. of Michael R. Drysdale (“Drysdale Decl.”) ¶ 2, Ex. A (the “Permit”) at 12-13, Mar. 11, 2019, Docket No. 619-1.)[1] The Task Force designed a project that was satisfactory to most interested parties and submitted it to the Diversion Authority for review. (Id.) Shortly thereafter, the Diversion Authority submitted the project-referred to as “Plan B”-to the DNR for permitting. (Id. at 13.)

         The DNR, reviewing the Diversion Authority's application, determined that the Plan B project was sufficiently different from the original Plan A project to warrant supplemental environmental review. (Id.) Accordingly, the DNR conducted its statutorily required environmental review, and published a Supplemental Environmental Impact Statement (“SEIS”) on November 13, 2018. (Id. at 14.) The DNR thereafter analyzed the SEIS and determined it was adequate and in accordance with Minnesota law. (Id.)

         On December 27, 2018, then DNR Commissioner Tom Landwehr waived the need for a contested case hearing on the permit application, determined that the Plan B project “adequately protects the health, safety and welfare of the public, represents the minimal impact solution, and is reasonable and practical, ” and granted Plan B a Dam Safety and Public Waters Work Permit (the “Permit”). (Id. at 88-89.)

         After Commissioner Landwehr granted the Plan B Permit, several local government units (“LGUs”) filed demands for a contested case hearing in accordance with Minnesota law. (JPA Mem. in Supp. at 13-14, March. 11, 2019, Docket No. 613.) These LGUs seek to challenge the DNR's permit decision before an Administrative Law Judge (“ALJ”). While the JPA was procedurally unable to file a contested case demand, and is therefore not a party to the contested case, the JPA represents two of the three LGUs able to file. (Id. at 14.) All parties anticipate that a contested case will commence soon.[2]

         Defendants, despite the anticipated contested case hearing, now bring motions requesting that the Court modify the preliminary injunction to allow them to begin construction and preparation for construction on several isolated parts of the overall Plan B project, each of which would take place in North Dakota. (Mot. to Modify, Mar. 11, 2019, Docket No. 615; Mot. to Alter/Amend/Correct, Mar. 11, 2019, Docket No. 623.) Additionally, the Corps requests the Court's permission to conduct certain non-construction design and mitigation work in Minnesota and North Dakota. (Id.) In total, Defendants request permission to begin: (1) manufacturing components for the Diversion Inlet Structure and the Wild Rice River Structure; (2) site preparation and construction on both structures; (3) building the Western Tieback; (4) commencement of the Public-Private-Partnership; and (5) non-construction work in North Dakota and Minnesota such as geotechnical investigations, soil borings, and cone penetration testing. (See Mem. in Supp. of Mot. to Modify at 13, Mar. 11, 2019, Docket No. 617; Mem. in Supp. of Mot to Alter/Amend/Correct at 11-13, Mar. 11, 2019, Docket No. 625.)

         Defendants argue that the present circumstances differ significantly from the circumstances that existed when the Court granted the preliminary injunction, and that limited relief from the injunction is therefore warranted. Defendants further contend that none of the proposed construction can or will affect Minnesota waters because it will all be conducted on dry land in North Dakota or will not entail construction at all. Further, ...


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