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Federal judge halts Oxbow, N.D., ring dike work citing Minnesota environmental review

FARGO--The immediate result of a federal judge's order Wednesday was that construction of the Oxbow-area ring dike will "cease immediately," but there may be other consequences for the proposed Fargo-Moorhead flood diversion.

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Earth-moving equipment is south of Oxbow and Hickson constructing a ring dike as seen Friday, August 1, 2014. File photo. Dave Wallis / The Forum

FARGO-The immediate result of a federal judge’s order Wednesday was that construction of the Oxbow-area ring dike will “cease immediately,” but there may be other consequences for the proposed Fargo-Moorhead flood diversion.

Related: read past coverage of the F-M diversion here

For one, U.S. District Judge John R. Tunheim in Minneapolis narrowed the lawsuit filed by upstream diversion opponents by dismissing several allegations made against the U.S. Army Corps of Engineers and the Diversion Authority.
The corps is mostly immune from state and local laws, but the authority is not, Tunheim said in his order. In this case, the authority must wait for the Minnesota Department of Natural Resources to complete its environmental review of the project before proceeding with the ring dike, which he and diversion opponents consider a part of the diversion project.
Sid Berg, chairman of the Richland-Wilkin Joint Powers Authority, the group filing the suit, expressed hope that this setback will bring all sides back to the negotiation table. Richland (N.D.) County and Wilkin (Minn.) County are upstream of a dam that’s part of the diversion project.
“I think it’s good news for us,” he said. “It’s what needed to be done to bring us and the Diversion Authority and the city of Fargo closer together to talk about how we want to protect Fargo.”
Authority Chairman Darrell Vanyo was disappointed with the ruling. He said pausing construction won’t harm the diversion effort greatly, but could halt the buyout of homes in the way of the ring dike or the building of replacement homes, leaving residents in limbo.
“It’s not as simple as a statement to stop work,” he said. “It’s, ‘Stop what?’ We know it means the levee; we don’t know if it means other things connected to that.”
Asked if the judge’s order might affect the Diversion Authority’s legal strategy or other plans, he said all the discussion so far is about the Oxbow work and not any other ramification.
The corps, a federal entity, leads the estimated $1.8 billion project, but the Fargo-Moorhead Flood Diversion Board of Authority, made up of local governments in North Dakota and Minnesota, is the local sponsor.
The channel diverting Red River floodwater around the Fargo-Moorhead area is in North Dakota, but it depends on a dam straddling the state line to reduce the flow to a manageable level. Oxbow, Hickson and Bakke are behind that dam on the North Dakota side and the Diversion Authority is building a ring dike to protect them.
The state of North Dakota embraces the project, but the state of Minnesota is insisting on an environmental review first. It claims jurisdiction over the entire project and the Diversion Authority because of the Minnesota components.
The Richland-Wilkin Joint Powers Authority is suing the corps and the Diversion Authority primarily because they haven’t followed Minnesota environmental laws.
Judge Tunheim dismissed three of five allegations against the corps because he agreed with the federal government that it’s mostly immune to state laws. However, two of the allegations involve federal environmental laws, which Richland-Wilkin claims require the federal government to cooperate with states when federal projects may violate state laws. The judge said it’s reasonable to think that Richland-Wilkin may prevail with these allegations, so they ought not be summarily dismissed.
The Diversion Authority also attempted to have the same allegations dismissed, but Tunheim rejected that argument. He said the authority is not immune because the ring dike is integral to the diversion project, which can’t move forward without the state of Minnesota’s OK, and the authority itself includes Minnesota members.
Tunheim said he ordered ring dike construction to stop because if it were completed, it might create a bureaucratic momentum that favors diversion proponents at a cost to opponents.
“The law simply requires that all federal and state environmental reviews be completed before construction begins,” Tunheim said. “Construction of the (Oxbow-Hickson-Bakke) ring levee violates this principle and creates the real risk of a ‘steam roller’ effect. When considering a project of this size, scope, and potential environmental impact, the review process must be completed first.”

Readers can reach Forum reporter Tu-Uyen Tran at (701) 241-5417

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