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Dave Roepke, Published October 11 2011

Cass County judge grants diversion land access

FARGO – With owners of some of the land objecting, a Cass County judge issued two orders Tuesday allowing survey crews access to properties that have to be studied in order for the $1.8 billion diversion project to continue moving forward.

Judge Wickham Corwin issued the orders following a similar ruling by him last week covering other parcels of land, granting the permits to legally pave the way for U.S. Army Corps of Engineers contractors to conduct new tests on land along the affected rivers and the proposed route of the 36-mile flood channel.

The testing includes boring holes 60 to 90 feet deep to determine if the soil is suitable for the diversion and a battery of federal mandated assessments of the project’s environmental and cultural impact.

For instance, archeologists will take core samples of soil two inches wide and 10 feet deep to examine the samples for artifacts, said Lee Beauvais of the West Fargo-based Moore Engineering, project manager for the Cass County Joint Water Resource District.

David Gust protested the surveying because he worries it may damage a grass-top airplane runway he’s spent $100,000 on for his aerial spraying business. He asked if the surveyors could avoid the runway.

Butch McConn, assistant city attorney in Fargo, said the joint water district – an entity that Fargo and Cass County have an agreement with to seek land access – can’t make assurances like that because until the tests are done, the scope of them will be unclear.

Another of the half-dozen property owners to appear at the hearing on Tuesday afternoon, Stuart Johnson, said in previous surveying done on the project on his land, he got no prior notification before crews began working in his field.

Contractors are expected to tell the property owners in advance when they will be working, McConn said.

It’s not the first time that Cass County water board officials and the U.S. Army Corps have gone to a court to get entrance to property in connection to the flood-control project. The parties sought and received access permits last summer, too.

Corwin said North Dakota law allows entities with the power to seize land by eminent domain the right to enter private land for the purpose of surveying.

“The law is really clear,” the judge said. “It doesn’t even really give me any discretion.”

Corwin repeatedly noted in the afternoon hearing – a similar hearing involving a larger group of landowners was held in the morning – that the matter before the court wasn’t whether taking land for the diversion would be proper or the merits of the project.

“At this point, we’re not talking about taking property,” Corwin said.

“I’m not sure you’re not,” Gust responded.

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