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Dave Roepke, Published July 23 2010

Courts to consider land-access permits

Officials studying a $1.46 billion Red River diversion in North Dakota are trying to get court-issued permits to allow access to private land on the proposed route of the massive channel.

Five landowners who are refusing to allow access are the target of civil litigation in Cass County District Court by the county’s Joint Water Resource District. Judge Steven Marquart will consider the water board’s application at an Aug. 9 hearing.

At least one of the holdout landowners is planning to hire a lawyer to contest the permit request: Kevin Heiden, a West Fargo-area farmer with more than 220 acres of land by the Maple River that engineers say is a critical spot for the study of the diversion plan.

Heiden said he’s against the project for personal and philosophical reasons. His family stands to lose about 400 acres if the diversion is built, 25 percent of its holdings, he said. But he’s also concerned about the possible impact downstream.

“I’m morally opposed to what the city of Fargo’s doing to the people on the north end of this project,” Heiden said.

Tom Fischer, chairman of the Cass County water board, said he understands why people would fear the possibility of higher crests downstream but dismissed worries the issue won’t be addressed as “ludicrous.”

“I can’t put on a piece of paper exactly what’s going to be done yet,” he said. “That’s the rub. They don’t believe it.”

Permits are being sought to access eight parcels that cover more than 800 acres of land, areas identified as essential to completing the study of the North Dakota diversion – a channel that would require a half-mile swath of land 36 miles long.

The 35,000-cubic-feet-per-second diversion has been tapped by local officials as the preferred option, while the corps has pegged a

$1.37 billion diversion in Minnesota as being the federal government’s preference.

Aaron Snyder, the Army Corps co-manager for the feasibility study, said land considered “critical” to the study is mostly river crossings. Those areas are the most important because that’s where structures would be built, he said.

“They’re the areas that will drive the cost,” Snyder said.

Snyder said the parcels need to be surveyed for soil suitability, cultural artifacts, hazardous materials and potential impact on wetlands and forests.

Soil testing is especially important and could end up changing the proposed route, Fischer said. Dirt that’s prone to erosion, for instance, could inflate the cost of maintenance.

“The people who are objecting may find it’s not the place the channel should be put,” Fischer said.

In court records included with the permit request, which was filed July 2, Jeff Volk, president of Moore Engineering, describes the required soil boring as 6 to 8 inches wide and 60 to 90 feet deep. The water board said in court filings that it has offered to pay $250 for each hole it drills for the geotechnical surveying.

Fischer said that damage caused by the trucks the drills are mounted upon is compensated fully, including lost crops.

Snyder said while corps officials had hoped to have access to all critical land already arranged, pressing for permits in court should not delay the study, which is expected to be presented in early October. He said scheduling accounted for possible legal action.

“It’s just part of the process,” he said.

The greater focus for now is on the North Dakota-side project, Snyder said. Still, there are two critical parcels along the Minnesota route where owners have also denied access, he said.

Moorhead City Manager Michael Redlinger said he is aware of no litigation on the Minnesota holdouts, but that could change.

“I certainly wouldn’t rule it out in the future,” Redlinger said.

Snyder said the corps has received seven denials, five no responses and 34 access agreements on the critical parcels in North Dakota.

For the critical parcels in Minnesota, there have been two denials, 11 parcels that have not responded and 40 parcels accessed, he said.

There’s also noncritical land that needs to be studied. In North Dakota, there have been five denials on noncritical land, 33 that did not respond and 131 where access was granted. On the other side, access to two noncritical parcels has been denied, there’s been no response on 68 parcels and 162 access agreements.

Snyder said the corps is hoping to have access in place by Oct. 8 for noncritical plots, which are needed in the design stage. Project backers hope to have plans to submit to Congress and the Obama administration by the end of the year.

Fischer said seeking land access in court is often needed in flood-protection projects – the water board’s filings included a similar order issued last year in Cass County – but it still makes him uncomfortable.

“It’s an unpleasant deal,” said Fischer, a Republican state senator from Fargo. “I’m a property rights person. But under the circumstances, there’s no other choice.”

Readers can reach Forum reporter Dave Roepke at (701) 241-5535