Richland/Wilkin Joint Powers Auth. v. McHugh

• Decision Date: 31 March 2016
• Docket Number: Civil No. 13-2262 (JRT/LIB)
• Parties: Richland/Wilkin Joint Powers Authority, Plaintiff, v. United States Army Corps of Engineers, John McHugh, Jo-Ellen Darcy, and Col. Dan Koprowski, Defendants, v. Fargo-Moorhead Flood Diversion Board of Authority, Intervenor Defendant.
• Court: U.S. District Court — District of Minnesota

176 F.Supp.3d 839

Richland/Wilkin Joint Powers Authority, Plaintiff,
v.
United States Army Corps of Engineers, John McHugh, Jo-Ellen Darcy, and Col. Dan Koprowski, Defendants,
v.
Fargo-Moorhead Flood Diversion Board of Authority, Intervenor Defendant.

Civil No. 13-2262 (JRT/LIB)

United States District Court, D. Minnesota.

Signed March 31, 2016

176 F.Supp.3d 841

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

Carol Lee Draper, UNITED STATES DEPARTMENT OF JUSTICE, 601 D Street N.W., Room 3106, Washington, D.C. 20579, for defendants.

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

MEMORANDUM OPINION AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

JOHN R. TUNHEIM, Chief Judge, United States District Court

Plaintiff Richland/Wilkin Joint Powers Authority (“JPA”) alleges that Defendants violated state and federal laws in allegedly not devoting sufficient attention to one particular Minnesota alternative to a proposed flood diversion project that the U.S. Army Corps of Engineers (“Corps”) decided to place in North Dakota. The JPA's theory of the case is that the Minnesota alternative route would have been better in terms of floodplain protection, and Defendants ignored that concern in their study of alternatives. The Court's order today concerns only the JPA's federal claims brought under the National Environmental Protection Act (“NEPA”). Because NEPA's provisions are largely procedural, and the Corps studied the at-issue Minnesota route at length, the Court will grant Defendants' motions for summary judgment.

The Court notes that it passes no judgment on whether the North Dakota route that the Corps ultimately selected is the best route either generally or for the environment. The Court's task today is not to decide whether the Minnesota alternative is good, or the selected North Dakota route is bad. The Court's role is only to evaluate whether the government's decision-making process in declining to choose the Minnesota route was “arbitrary and capricious.” It was not.

Even after today, this case will go on. The JPA's Minnesota law claims have not yet been decided and the Court's previously granted injunction will continue for the time being.

BACKGROUND

The Court has issued numerous orders in this case and those orders have discussed the facts at length. See, e.g. , Richland/Wilkin Joint Powers Auth. v. U.S. Army Corps of Eng'rs , 38 F.Supp.3d 1043, 1045–55 (D.Minn.2014). The Court will revisit these facts only to the extent necessary to provide context for and decide the motions now pending before the Court.

I. THE PARTIES

The JPA is a joint authority created by Richland County in North Dakota and Wilkin County in Minnesota pursuant to statutes in each state allowing their respective government units to jointly and cooperatively exercise power with other government units, even those in other states. See Minn. Stat. § 471.59 (“JOINT EXERCISE OF POWERS”); N.D. Cent. Code § 54-40.3 (“JOINT POWERS AGREEMENTS”). Richland and Wilkin Counties formed the JPA to protect their citizens and their citizens' property from flooding.

The Corps is a federal agency involved in the development of the flood prevention project at issue in this case.

176 F.Supp.3d 842

Defendant Fargo-Moorhead Flood Diversion Board of Authority (“Diversion Authority”) is also a joint authority formed pursuant to Minnesota and North Dakota's joint powers statutes. The Diversion Authority was formed by the following government units: the City of Fargo, North Dakota; Cass County, North Dakota; Cass County Joint Water Resources District, North Dakota; the City of Moorhead, Minnesota; Clay County, Minnesota; and the Buffalo-Red River Watershed District, Minnesota. The Corps designated the Diversion Authority as the local entity that would develop and manage the diversion project at issue in this case.

II. FACTUAL BACKGROUND

The Red River of the North originates at the confluence of two tributaries, demarking nearly the entirety of the Minnesota-North Dakota border. The Red flows northward through the Red River Valley, eventually emptying into Lake Winnipeg in Canada. For as long as humans have lived on the Red River, the river has flooded, sometimes to disaster. In 2008, the Corps, Fargo, and Moorhead together began a feasibility study to examine “alternatives ... to reduce flood risk in the entire Fargo-Moorhead Metropolitan area.” (A.R. at 49,644.)¹ After a devastating flood in 2009, the project gained momentum.

In December 2009, the Corps published an “Alternatives Screening Document” indicating that it had identified a “wide array of initial alternatives” for how communities along the Red River should address future flood risks: continue the status quo and respond to floods with “emergency measures”; take “[n]onstructural measures” to reduce flood risks by, for example, relocating flood-prone structures, elevating at-risk structures, and bolstering the role of wetlands and grasslands; build “[f]lood barriers,” such as levees and floodwalls; “[i]ncrease conveyance” of water by building “[d]iversion channels around the study area” either in Minnesota or in North Dakota; or take action to increase “[f]lood storage,” by for example building “[d]istributed storage” and “[l]arge dams upstream.” (Id. at 990, 998-99.) That document analyzed the various alternatives and recommended that two options be considered for further evaluation: taking no action, and building diversion channels. (Id. at 1,033.) The document reported that the Corps had conducted an initial screening of nine different diversion channels running along four different “alignments”: a 25-mile alignment in Minnesota, a 29-mile alignment in Minnesota, a 35-mile “west” alignment in North Dakota, and a 36-mile “east” alignment in North Dakota. (Id. at 1008-09.) The Corps initially considered varying capacities for each alignment ranging from 25,000 to 45,000 cubic feet of water per second (“cfs”). (Id. )

Corps policy required that it designate one of the various alternatives as the “national economic development” (“NED”) plan, and that it propose that plan for implementation “unless there are overriding reasons for recommending another plan, based on other Federal, State, local and international concerns.” (Id. at 6,903, 6,914.) To designate an NED plan, Corps policy required it to analyze the alternatives to determine which option “reasonably maximizes net national economic development ... benefits consistent with protecting the environment.” (Id. at 6,903; see also id. at 6,955 (citing the “Corps of Engineers Planning Guidance Notebook”).)

176 F.Supp.3d 843

The Corps does not analyze the options according to benefit-cost ratio when determining which alternative receives the NED designation; the Corps only considers the net benefits of each option. (Id. at 6,937.) The only example relevant here of when the Corps may propose a plan other than the NED plan is if and when another plan “has positive net economic benefits and is approved by the Assistant Secretary of the Army for Civil Works.” (Id. at 6,903.) This alternative to the NED plan is referred to as the “locally preferred plan” (“LPP”). (Id. at 6,903, 6,914.)

Over months and multiple phases of analyses, the Corps initially concluded that the 25-mile (“short”) Minnesota 20,000 cfs diversion was the NED plan (id. at 1,135, 1,138), but then later, upon further study, granted the NED plan designation to the short Minnesota 40,000 cfs diversion, estimating that it would net an average of $105,600,000 in annual benefits (id. at 6, 937). The Cities of Fargo and Moorhead and Cass and Clay Counties, however, requested that the Corps consider recommending the North Dakota east 35,000 cfs diversion as the LPP. (Id. at 6,696-6,703 (reprinting resolutions supporting the North Dakota diversion as the LPP).)

On April 19, 2010, in a seven-page single-spaced letter, Theodore A. Brown of the Corps wrote to Assistant Secretary of the Army Jo-Ellen Darcy and requested that she grant an LPP-exception allowing the Corps to recommend the North Dakota plan instead of the Minnesota-alignment NED plan. (Id. at 6,687.) Brown's letter described both the LPP and the NED plan, compared the two plans, and concluded that although the NED “produces greater net benefits” than the LPP, the LPP was better because it produced “larger overall economic benefits to more people and a greater geographic area.” (Id. at 6689-91.) On April 28, 2010, Darcy issued a memorandum “grant[ing] the requested policy exception because the LPP would significantly reduce flood damages, the risk of loss of life, and the need for emergency flood fighting measures.” (Id. at 6,707.) Darcy stated the LPP would better reduce average annual damages as compared to the NED plan, benefit “6,625 more people and protect about 3,100 more structures,” and hold in place the expected costs for the federal government. (Id. )² Both Brown and Darcy acknowledged that the LPP would remove more land from the floodplain than the NED plan, but that factor did not alter their conclusion. (Id. at 6,691, 6,707.)

In May 2010, the Corps published a...