Tom Olsen, Forum News Service, Published April 04 2014
Magistrate hears oral arguments in lawsuit against F-M diversion projectDULUTH – Allegations in a lawsuit challenging the planned construction of the Fargo-Moorhead flood diversion project rely heavily on future determinations that the Minnesota Department of Natural Resources has not yet made, attorneys for the project argued Thursday in seeking the dismissal of most counts.
But an attorney for the Richland-Wilkin Joint Powers Authority said it is clear that the DNR opposes designs presented to Congress and argued that authorities are attempting to sidestep state and federal regulations to construct the project.
The parties were in U.S. District Court in Duluth for the hearing in the lawsuit filed last August by the Joint Powers Authority seeking to prevent the U.S. Army Corps of Engineers from building the project as currently planned.
U.S. Magistrate Judge Leo Brisbois called the hearing to hear oral arguments on a motion to dismiss three of four counts in the suit. The motion was filed in December by the Fargo-Moorhead Diversion Authority, which joined the corps in defending the project.
The Joint Powers Authority argues that the proposed 36-mile flood channel is designed to protect the interests of Fargo and Moorhead and developable land in the floodplain. The opponents call the project unnecessarily expansive and claim it will lead to farmland flooding in the “staging area” in Richland and Wilkin counties.
The lawsuit alleges that the corps has ignored Minnesota state and federal laws by failing to present to Congress suitable alternative plans that would bring less environmental impact.
The project has been authorized by the U.S. House and Senate, in separate bills. However, both chambers still need to pass an identical bill and allocate funding before construction can begin.
Minneapolis attorney Michael Drysdale, representing the Diversion Authority, argued at the hearing that portions in the lawsuit are unripe – or unready for litigation at this time – because the Minnesota DNR has not completed its environment impact review of the project.
He said the plaintiffs’ claims hinge on the assumption that the DNR will find that the flood diversion project violates state environmental standards.
“We have no idea if this will come to pass or not,” Drysdale said. “It is contingent on events that may or may not happen.”
Even if the DNR makes a finding unfavorable to the project, there is no legal basis to stop the project, Drysdale argued. Federal law would supersede a state determination, he said.
“When federal and state laws conflict, federal law prevails,” he told the judge. “If the state says, ‘You can’t do this,’ the federal government can say, ‘This is our project, and we’re going to do it.’ ”
St. Cloud attorney Gerald Von Korff, representing the Joint Powers Authority, argued that there is no federal law that would supersede a DNR decision to deny construction permits. The project must comply with state laws, he said.
“There’s a process you have to go through when you do that,” Von Korff said. “That’s why they’re spending $1 million on a state environmental impact statement. They’re not doing it because they want to. If it was unnecessary, do you think they’d be doing that?”
Furthermore, Von Korff said, all indications are that the DNR will issue a decision that is unfavorable to the project. He said authorities have continuously ignored warnings from the state about potentially devastating environmental effects.
“In the process of the EIS, the state has screamed to the corps: ‘You haven’t done an adequate job of exploring the consequences,’ ” he said. “Instead of ignoring the state, they need to talk about it.”
Defense attorneys are also seeking the dismissal of a count alleging violations of an executive order pertaining to floodplain management. The presidential order requires federal agencies to “avoid direct and indirect support of floodplain development wherever there is a practicable alternative.”
Attorneys for the diversion project argue that private claims cannot be made under the executive order; the plaintiffs disagree.
If the three counts are dismissed, it would narrow the lawsuit to a single count alleging general violations of the National Environmental Protection Act. Drysdale said after the hearing that the defendants will not seek dismissal of that count, but plan to defend against those allegations in court.
The parties agreed to work on an amended complaint, which would change some of the language in the lawsuit, but not have any substantial effect on the substance of claims. That is expected to be completed within two weeks.
Brisbois took the defendants’ dismissal motion under advisement. He will make a recommendation based on arguments, but the final decision rests with U.S. District Judge Richard Kyle, who is presiding over the case.
Brisbois did not set a timetable for his recommendation, and no other hearings are scheduled at this time.