FARGO - A federal judge has allowed the Minnesota Department of Natural Resources to join a lawsuit against the Fargo-Moorhead flood diversion started earlier by upstream opponents of the project.
U.S. District Judge John R. Tunheim in Minneapolis said the Diversion Authority and the city of Oxbow both conceded that the DNR did have interests to protect but had argued that the DNR should start a separate suit to avoid delays in the current suit.
They had argued the DNR had known about the project and been involved with it for many years so should've filed sooner.
Tunheim, agreeing with the DNR, said the department couldn't have asserted itself until it's permitting process was complete. The DNR denied a permit for a dam that would control the flow of water into the diversion, but the Diversion Authority and U.S. Army Corps of Engineers say they can move forward with building the dam anyway.
The $2.2 billion project would protect Fargo, Moorhead and West Fargo from what the corps calculates to be a 100-year flood. The DNR has said it believes the dam violates Minnesota law because it protects too much undeveloped land, saying that new dikes and emergency measures such as sandbagging should suffice for Fargo-Moorhead's protection. The corps has argued the dam at the location south of Fargo protects the most structures and lives. Diversion Authority officials said sandbagging is much too risky.
Tunheim still has some other big decisions to make in the case.
The Richland-Wilkin Joint Powers Authority, the upstream group that started the suit, wants the U.S. Army Corps of Engineers to be brought back into the lawsuit. The judge had earlier dismissed all complaints against the corps. If he were to bring the agency back, it could be the set up for a showdown between the federal government and the state of Minnesota over which state laws the government must follow.
In addition, both the RWJPA and the Diversion Authority want the judge to rule in their favor. The RWJPA wants him to stop the diversion project until it can get a DNR permit. The authority wants him to dismiss the case.