Kyle Potter, Published September 12 2013
Diversion board to seek 'seat at table' in lawsuit against Army CorpsFARGO – It could be a costly move, but diversion leaders decided Thursday to try to join the U.S. Army Corps of Engineers and fight a federal lawsuit against the project.
If a federal judge allows the Diversion Authority to join the lawsuit as a party – project opponents only sued the corps in their Aug. 19 lawsuit – the Diversion Authority will be able to make its own case for why the massive flood protection project should move on unhindered.
Diversion Authority Chairman Darrell Vanyo said intervening in the lawsuit would allow diversion attorneys “a seat at the table” to assist and collaborate with the corps’ legal team.
The Diversion Authority voted unanimously to file a motion to intervene in the case.
“I think the fact that we’ve been working with the corps on it, we just wanted to be participating,” Vanyo said. “In that way, we are a little bit more in control of the destiny of things.”
Vanyo said he expects U.S. District Court Judge Richard Kyle to rule on the authority’s motion sometime in October.
It will cost up to $2,000 to file the motion to join the suit, Vanyo said. If granted, he estimated the Diversion Authority could rack up $100,000 or more in legal fees while working on the case.
Vanyo justified the possible cost of joining the suit because it allows the Diversion Authority to ensure it makes its case.
“We don’t know the type of defense the corps would have,” he said. “We run a risk: Would we or would we not be satisfied with their efforts? This way, we’re working in sync with them.”
After more than a year of considering a legal challenge, the Richland-Wilkin Joint Powers Authority filed a lawsuit in U.S. District Court against the corps last month. The suit accuses diversion leaders of unnecessarily expanding the scope of the flood protection project, which opponents allege has multiplied its estimated cost to $1.8 billion and will damage farmland that falls in the so-called staging area south of the Fargo-Moorhead metro area, where water would collect in the event of a severe flood.
“It’s interesting to see that they’re wanting to make comments,” Nathan Berseth, a spokesman for the Joint Powers Authority, said of the Diversion Authority’s attempt to get involved in the case. “Obviously, they’re taking this lawsuit very seriously.”
Citing a section of state law that allows governing boards to bring a public meeting behind closed doors to discuss pending litigation, the Diversion Authority met behind closed doors for nearly an hour to discuss the lawsuit.
Several members said the diversion was too important to the metro area to not get involved.
“We have a lot at stake here,” Moorhead City Councilwoman and Diversion Authority member Nancy Otto said after the group’s executive session concluded. “I think for the sake of the entire Fargo-Moorhead area, it is very important for us to maintain our status as being fully apprised of the information that’s being presented in the legal realm.”
Clay County Commissioner Kevin Campbell asked the authority’s finance committee to look into the impact legal fees would have on their budget.
The Diversion Authority also approved their budget for next year and signed off on adding itself as the third sponsor of the project with Moorhead and Fargo.
Vanyo said 50 to 60 percent of the authority’s $70 million budget for next year will go toward buying land and houses in the footprint of the proposed 36-mile flood channel. A significant chunk will also go to the ring levee around Oxbow, Hickson and Bakke. Construction on that part of the project is expected to begin sometime in 2014.
Readers can reach Forum reporter Kyle Potter at (701) 241-5502