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F-M Diversion opponents file second lawsuit against project

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FARGO – Upstream opponents of the proposed Fargo-Moorhead diversion have filed a second lawsuit against the project, threatening to try to block construction of a ring dike around Oxbow, Hickson and Bakke.

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Filed in Minnesota District Court on Friday, the lawsuit from the Richland-Wilkin Joint Powers Authority alleges that the plan to dam the Red River – creating the so-called staging area, where floodwaters would collect before feeding into the proposed 36-mile channel around the metro – may violate Minnesota law if other, less-damaging alternatives. 

Minnesota’s Department of Natural Resources is still studying the environmental impact of the project and exploring alternatives. While that review is ongoing, the project’s opponents say it’s not just illegal, but nonsensical, to move ahead with the ring dike, a $70 million part of the project to protect three communities in the staging area.

“The timing of the lawsuit was driven by Fargo’s belief that for some reason, it needs to put up this ring dike before the Minnesota process was done,” said Gerald Von Korff, the Richland-Wilkin JPA’s attorney. “It defies common sense.”

Diversion officials say they hope to start building the ring dike within weeks. The Richland-Wilkin JPA’s lawsuit gives the opponents an avenue to block construction through an injunction, while also challenging the project as a whole.

The DNR itself said earlier this year that building the ring dike before their review was complete would violate Minnesota law. But in that same letter to the Diversion Authority, the state acknowledged it had no jurisdiction because the levees would be built only in North Dakota.

‘Stop the wheels’

Much like a lawsuit filed in federal court in August by the same organization, Friday’s complaint also accuses the Diversion Authority of unnecessarily expanding the scope of the project to protect land south of Fargo for future development, and intentionally flooding upstream communities in the process.

Informed of a second lawsuit against the project Sunday night, Diversion Authority Board Chairman Darrell Vanyo pointed to the DNR’s letter, admitting it had no jurisdiction to back up his belief that the project’s opponents’ claims are weak. But with construction of the ring dike fast approaching, he said it will likely end up in the hands of a judge soon.

“Based upon the letter from the DNR, there was nothing that said that we had to stop what we were doing, so we continue to proceed.” Vanyo said. “They hope that somewhere along the lines they can stop the wheels from turning.”

Integral or independent?

At the heart of the dispute is whether the Oxbow-Hickson-Bakke ring dike is an integral part of the diversion, as opponents say, or has “independent utility,” as the Diversion Authority says.

Vanyo said the ring dike can be part of the larger project, yet still provide independent benefits to the three communities. And since the project was officially authorized this past week, Vanyo said that disagreement may be irrelevant – Congress and President Barack Obama have signed off on the project.

Members of the Richland-Wilkin JPA point out that plans for a ring dike only emerged after the Diversion Authority pivoted to a plan that relies on the staging area south of Fargo-Moorhead.

“You can only come to one conclusion: that this is a part of the project to avoid flooding them based on the staging area,” said Tim Fox, state’s attorney for Wilkin County and the city of Breckenridge, Minn., and a JPA advisor.

Von Korff, the group’s lawyer, said they’re still trying to get diversion officials to come to the table and scrap ring dike construction until the DNR’s review is complete. They should instead focus on building in-town levees and other, less controversial, parts of the project, he said.

“We’re doing a lot of wheel spinning on both sides in court,” he said.

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