Richland/Wilkin Joint Powers Auth. v. U.S. Army Corps of Eng'rs

• Decision Date: 13 May 2015
• Docket Number: Civil No. 13-2262 (JRT/LIB)
• Citation: Richland/Wilkin Joint Powers Auth. v. U.S. Army Corps of Eng'rs, Civil No. 13-2262 (JRT/LIB) (D. Minn. May 13, 2015)
• Parties: RICHLAND/WILKIN JOINT POWERS AUTHORITY, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, JOHN MCHUGH, JO-ELLEN DARCY, and DAN KOPROWSKI, Defendants, v. FARGO-MOORHEAD FLOOD DIVERSION BOARD OF AUTHORITY, Intervenor Defendant.
• Court: U.S. District Court — District of Minnesota

RICHLAND/WILKIN JOINT POWERS AUTHORITY, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS,JOHN MCHUGH, JO-ELLEN DARCY, and DAN KOPROWSKI, Defendants, v. FARGO-MOORHEAD FLOOD DIVERSION BOARD OF AUTHORITY, IntervenorDefendant.

Civil No. 13-2262 (JRT/LIB)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

May 13, 2015

MEMORANDUM OPINION AND ORDER ON MOTIONS TO DISMISS AND MOTION FOR PRELIMINARY INJUNCTION

Gerald W. Von Korff and Jonathan D. Wolf, RINKE NOONAN, P.O. Box 1497, St. Cloud, MN 56302, for plaintiff.

Carol Lee Draper, UNITED STATES DEPARTMENT OF JUSTICE, 601 D Street NW, Room 3106, Washington DC 20579; Friedrich A. P. Siekert, Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE, 600 United States Courthouse, 300 South Fourth Street, Minneapolis, MN 55415, for defendants.

Robert E. Cattanach and Michael R. Drysdale, DORSEY & WHITNEY LLP, 50 South Sixth Street, Suite 1500, Minneapolis, MN 55402, for intervenordefendant.

Jill S. Nguyen, Assistant Attorney General, MINNESOTA ATTORNEY GENERAL'S OFFICE, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101, for amicus curiaeMinnesota Department of Natural Resources.

Matthew A. Sagsveen, Assistant Attorney General, NORTH DAKOTA ATTORNEY GENERAL'S OFFICE, 500 North Ninth Street, Bismarck, ND 58501, for amicus curiaeState of North Dakota.

This case involves a large-scale flood diversion project being planned in the Fargo-Moorhead region of Minnesota and North Dakota ("diversion project" or "project").Plaintiff Joint Powers Authority of Richland County, North Dakota, and Wilkin County, Minnesota ("Joint Powers" or "JPA"), which was formed to represent the interests of political subdivisions and citizens affected by the diversion project,¹ brought this action against the United States Army Corps of Engineers ("the Corps") and various individuals (collectively, "federal defendants" or simply, "the Corps"), alleging violations of the National Environmental Policy Act ("NEPA") and the Administrative Procedure Act("APA").The Corps is the federal entity involved in developing the diversion project on the Red River, in response to flooding in Fargo, North Dakota, and Moorhead, Minnesota, and surrounding areas, most recently in 2009.

The JPA initially filed this action on August 19, 2013.The Court later granted a motion to intervene filed by the Corps' local sponsor in developing the project: the Fargo-Moorhead Diversion Board of Authority²("Diversion Authority" or "Authority").Part of the diversion project involves a ring levee around the three North Dakota communities of Oxbow, Hickson, and Bakke ("OHB ring levee").Construction on theOHB ring levee began last summer - in June 2014 - and portions of the eastern and southern sides of the ring levee have been built.On June 13, 2014, the JPA filed an action in Wilkin County District Court against the Diversion Authority, seeking to enjoin the construction of the OHB ring levee because Minnesota's environmental review of the diversion project had not yet been completed.This Court granted the Authority's motion to enjoin the state court action, but welcomed the JPA to assert its state law claims in this action.Richland/Wilkin Joint Powers Auth. v. U.S. Army Corps of Eng'rs(Richland/Wilkin), 38 F. Supp. 3d 1043, 1045(D. Minn.2014).

The JPA filed a third amended complaint on November 4, 2014.In it, the JPA asserts NEPA violations against the Corps in Counts I and II.In Counts III-V, it also alleges against both defendants violations of the Minnesota Environmental Rights Act("MERA"), the Minnesota Environmental Policy Act ("MEPA"), and state and local permitting laws.The JPA has brought a preliminary injunction motion, seeking to enjoin construction of the OHB ring levee.The Corps and the Diversion Authority have both brought motions to dismissthe state and local law claims found in Counts III-V of the third amended complaint.The Corps argues that sovereign immunity bars the state and local law claims against the federal government.The Authority makes several arguments in favor of dismissal, one of which is that any application of Minnesota law to construction in North Dakota violates the United States Constitution's so-called dormant Commerce Clause.

Because state and local environmental law does not bind the federal government, the Court will grant the Corps' motion to dismiss Counts III-V of the third amendedcomplaint.Claims III and IV as asserted against the Diversion Authority are not precluded by the dormant Commerce Clause, however, so the Court will deny the Authority's motion to dismiss these counts.The Court will dismiss Count V against the Authority.Finally, the Court concludes that the JPA has shown a fair chance of prevailing on the merits of at least some of its state law claims, and has met the other preliminary injunction factors.Consequently, the Court will grant the JPA's motion for a preliminary injunction.

BACKGROUND³

I.DIVERSION PROJECT BACKGROUND

The adjacent communities of Fargo, North Dakota, and Moorhead, Minnesota, and the Red River Basin more broadly, have routinely experienced significant flooding, particularly in the last 25 years.(Ex. E ("FEIS Executive Summary")at 14, Feb. 12, 2015, DocketNo. 162.)In particular, the record 2009 spring flood reached a flood stage of 40.8 feet.(Id.)The Corps characterized that flood as a 2-percent chance (otherwise called a 50-year (i.e., twice in 100 years)) event.(Id.)The affected cities had largely been responding to flooding with short-term emergency measures.(Id.)

Several entities came together to propose various permanent measures to reduce the flood risk in the Fargo-Moorhead metropolitan area.These measures included a no-action alternative and the continued use of emergency measures; non-structuralmitigation measures; flood barriers, including levees; increased conveyance of flood waters, including through the construction and use of water diversion channels; and flood storage.(Id.)The various alternatives were analyzed for their effectiveness, environmental effects, social effects, acceptability, implementability, cost, risk, separable mitigation, and cost effectiveness.(Id.)An initial Alternatives Screening Document was issued in December 2009 that resulted in two diversion concepts being carried forward: one in Minnesota and one in North Dakota.(Id.)All diversion channel options involve the construction upstream of a "control structure" or, as the Minnesota Department of Natural Resources("MDNR") characterizes it, a high-hazard dam.(Ex. B (Decl. of Aaron Snyder ("Snyder Decl."))¶ 12, Feb. 12, 2015, DocketNo. 162.)

A draft Environmental Impact Statement ("Draft EIS" or "DEIS") was completed in May 2010 and released on June 11, 2012, proposing three possible plans: a National Economic Development plan ("NED"), which would have the capacity to divert 40,000 cubic feet of water per second (cfs) in Minnesota; the Locally Preferred Plan ("LPP"), which would divert 35,000 cubic feet per second on the North Dakota side; and the Federally Comparable Plan ("FCP"), which would involve a diversion rate of 35,000 cfs on the Minnesota side.(FEIS Executive Summaryat 14-17.)Pursuant to the joint request of the cities of Fargo and Moorhead and counties of Clay and Cass, the Assistant Secretary of the Army for Civil Works approved the designation of the LPP as the tentatively selected plan on April 28, 2010.(Id. at 16.)

In September 2010, hydraulic modeling indicated that the LPP "would have more extensive downstream impacts than previously anticipated."(Id. at 17.)As a result, asupplemental DEIS ("SDEIS") was released in April 2011.(Id.)That SDEIS assessed and tentatively recommended several changes to the LPP, including reducing the capacity of the diversion channel, "raising upstream tie-back levee elevations, adding a 50,000 acre-foot storage area and a 150,000 acre-foot staging area, and compensating most affected landowners within the storage and staging areas."(Id.)These revisions reduced the downstream impacts of the diversion project, but increased the upstream impacts.⁴(Id.)The addition of the staging area decreased the capacity requirements of the diversion channel to 20,000 cfs.(SnyderDecl. ¶ 20.)It was initially estimated that the staging area would be utilized once every four years.(Id.¶ 21.)

In July 2011, the Final Feasibility Report and EIS ("FEIS") was released, which considered comments received on the SDEIS and made several more revisions.(FEIS Executive Summaryat 17.)In a December 19, 2011 report ("Chief's Report") to the Secretary of the Army, the then-Acting Chief of the Engineers of the Corps, Major General Merdith W. B. Temple, recommended the diversion project for authorization.(Second Decl. of Bruce Spiller ("Second Spiller Decl."), Ex. A ("Chief's Report")at 9, July 8, 2014, DocketNo. 69.)The Office of Management and Budget("OMB") then determined the project was consistent with Administration policy and the final Record of Decision was signed on April 3, 2012.(SnyderDecl. ¶ 24;see also Ex. D (Record of Decision ("ROD")), Feb. 12, 2015, DocketNo. 162.)

Subsequent design and engineering studies led to additional proposed modifications.(Ex. H ("Supplemental EA")at 7, Feb. 12, 2015, DocketNo. 162.)One of these modifications was the OHB ring levee, which would protect the OHB communities - all of which lie within the SDEIS's new flood-water staging area - from being flooded.(Id. at 7, 22-23.)In September 2013, the Corps released a supplemental environmental assessment ("EA") which evaluated various versions of this modification, along with a no-action alternative, and which ultimately proposed a full levee around the OHB communities.(Id. at 22-23, 55.)The EA also proposed in-town levees for Fargo, which would reduce the usage of the staging area to once every ten years.(Id. at 32, 36.)

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