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Published February 06 2012

Red River diversion: Those for or against plan may try court

CHRISTINE, N.D. – Supporters and critics of the Red River diversion project are gearing up for an explosive showdown in the courts, which could potentially start as early as April.

Opponents, specifically a coalition of rural residents south of Fargo-Moorhead, aim to halt the project because of its harm to their communities.

Anticipating the protests, Diversion Authority officials are also preparing ways to legally defend the project and keep it moving forward.

Fargo Administrator Pat Zavoral said he expects residents to file legal challenges as early as April, when the assistant secretary for the Army’s civil works division is expected to sign a Record of Decision for the project.

“The federal laws say that anybody who’s opposed to the project can’t sue on any of what they might see as deficiencies in the project until a Record of Decision,” Zavoral said, “so we suspect once the Record of Decision has come, there’ll be a flurry of legal questions and protests.”

Several communities – such as Hickson and Oxbow – will be displaced by the current plans for the diversion.

A staging area is set to temporarily store up to 200,000 acre-feet of water during severe floods, a consequence that will require those communities to be bought out.

Based on the swiftest possible timeline, late 2013 would be the earliest officials could start buying the land needed for construction and mitigation.

In preparation for that “worst-case scenario,” members of the MnDak Upstream Coalition visited with lawyers Monday night to learn about what rights they have once the government comes knocking on their doors to buy their properties.

St. Cloud-based attorneys Kurt Deter and Igor Lenzer explained in detail the federal process Diversion Authority officials will have to use in acquiring land for the diversion and what benefits the residents are entitled to through the constitutional protections of eminent domain.

Lenzer encouraged property owners to make informed decisions, whether they choose to voluntarily sell their property when the time comes or if they opt to fight against the project in court.

“You don’t necessarily have to go through an eminent domain proceeding to make sure you get something fair,” he said. “You should not fear the process; the process really is designed to make you whole.”

But Deter offered a blunt reality for the residents to keep in mind: the federal process has its limits, and residents likely won’t agree with the end results.

“Making you whole will never happen,” Deter said. “Money can’t buy what’s being taken here; it just can’t, but at least you should know as much information as possible.”

Residents also asked what they can do to stop the project before it becomes a reality.

Deter said that’s a conversation for another meeting, but he said Monday’s gathering was “in no way anybody rolling over for this project.”

The coalition has retained Deter’s and Lenzer’s law firm, Rinke Noonan, to represent them in their fight against the project.

Earlier Monday, the Diversion Authority’s finance committee recommended local stakeholders in the project start setting aside an undetermined amount of funds for the authority’s legal defense.

Diversion Authority officials said insurance coverage for defense costs would require an annual premium of about $500,000, making it cost prohibitive.

Instead, if and when the court battle begins, local governments will be billed by the Diversion Authority to share in the costs, Zavoral said.

“We don’t want to take money out of the entities until we have a sense of what the magnitude of that defense will be,” he said.

The full Diversion Authority board is scheduled to meet at 3:30 p.m. Thursday in Fargo’s City Hall, 200 3rd St. N.

Diversion project timeline

These dates are based on the swiftest possible timeline, according to forecasts by Diversion Authority consultants. This doesn’t account for possible delays, such as legal challenges or a lack of available funding. Because of the size of the project, many phases will overlap and take several years.

Construction might be complete by the end of 2021 at the earliest.

Source: CH2M Hill, as of Jan. 12, 2012.

Readers can reach Forum reporter Kristen Daum at (701) 241-5541