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Diversion officials to file eminent domain lawsuits against landowners for easements

Of the 172 owners who have received appraisals, as many as 62 could face eminent domain proceedings by the end of January 2023.

031722.N.FF.DIVERSION
The first of three 47.5-ton steel gates was delivered to the diversion inlet structure site south of Horace, North Dakota, on Wednesday, March 16, 2022.
David Samson / The Forum
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FARGO — With construction on the metro flood project well underway, officials are accelerating their efforts to sign easements to allow temporary storage of floodwater land south of a 20-mile embankment during extreme floods.

The Cass County Joint Watershed District has negotiated about 29% of the flowage easements that will be needed to temporarily flood about 29,000 acres south of Fargo-Moorhead for a project that will become operational in 2027.

To meet that timeline, lawyers will begin filing eminent domain lawsuits against landowners who haven’t yet signed the flowage easements, but will keep negotiating toward settlements, said Jodi Smith, director of lands and compliance for the Metro Flood Diversion Authority.

The estimated cost of acquiring the flowage easements is $206.7 million, which includes $48.5 million for property in the footprint of the 20-mile embankment. Another $148.2 million is for property in the area that will be flooded temporarily when the diversion operates.

About 50 residents in the upstream area will need to be acquired and relocated, Smith said.

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The first group of eminent domain lawsuits over flowage easements will be filed this week, with others to follow by January, she said.

Landowners who only recently received their appraisals of the value of the easements — some got them in September and still are reviewing the offers — will not be among those sued in the initial lawsuit filings, Smith said.

“There are more batches after that,” she added.

Of the 172 owners who have received appraisals, as many as 62 could face eminent domain proceedings by the end of January 2023, she said.

Despite filing the lawsuits, officials have made many offers that landowners are reviewing, and Smith hopes to negotiate settlements.

“There’s quite a few offers on the table,” she said.

For those landowners who only recently received their offers, officials will allow more time for consideration and review of the offers, Smith said.

“There’s quite a few out there that aren't ready yet,” she said. “That’s fair.” On the other hand, officials will be forced to go to court in cases where landowners aren’t meeting to discuss terms.

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“We have some landowners who are refusing to negotiate at all,” Smith said.

Diversion officials have no choice but to file lawsuits soon, as it can take up to two years to get a case to trial, and an appeal can take another year or more.

“That’s why these are being filed at this time,” Smith said. “We have to file these to stay on schedule.”

Even after a lawsuit is filed, negotiations can continue, even after a trial has started, she said.

“Our goal is to negotiate and not go to court,” Smith said.

In addition to the flowage easements, farmers in the upstream mitigation area will be provided with supplemental crop insurance at no cost, as well as a debris cleanup program.

More information about the mitigation programs and flowage easements is available in a recording of a public meeting that took place Nov. 3, and at www.FMDiversion.gov/flowageeasements .

Patrick Springer first joined The Forum in 1985. He covers a wide range of subjects including health care, energy and population trends. Email address: pspringer@forumcomm.com
Phone: 701-367-5294
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