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

• Citation: 826 F.3d 1030
• Decision Date: 20 June 2016
• Docket Number: No. 15-2123,15-2123
• Parties: Richland/Wilkin Joint Powers Authority, a Minnesota–North Dakota Joint Powers Authority, Plaintiff–Appellee v. United States Army Corps of Engineers; John McHugh, Secretary of the US Army Corps of Engineers (in his official capacity); Jo-Ellen Darcy, Assistant Secretary of the Army for Civil Works (in her official capacity); Col. Dan Koprowski, District Commander, St. Paul District, US Army Corps of Engineers (in his official capacity), Defendants Fargo-Moorhead Flood Diversion Board of Authority, Intervenor Defendant-Appellant State of North Dakota, Amicus on Behalf of Appellant Minnesota Department of Natural Resources, Amicus on Behalf of Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

826 F.3d 1030

Richland/Wilkin Joint Powers Authority, a Minnesota–North Dakota Joint Powers Authority, Plaintiff–Appellee

v. United States Army Corps of Engineers; John McHugh, Secretary of the US Army Corps of Engineers (in his official capacity); Jo-Ellen Darcy, Assistant Secretary of the Army for Civil Works (in her official capacity); Col. Dan Koprowski, District Commander, St. Paul District, US Army Corps of Engineers (in his official capacity), DefendantsFargo-Moorhead Flood Diversion Board of Authority, Intervenor Defendant-AppellantState of North Dakota, Amicus on Behalf of AppellantMinnesota Department of Natural Resources, Amicus on Behalf of Appellee

No. 15-2123

United States Court of Appeals, Eighth Circuit.

Submitted: February 11, 2016

Filed: June 20, 2016

Counsel who presented argument on behalf of the appellant was Robert Edward Cattanach, Jr., of Minneapolis, MN. In addition to Mr. Cattanach, the following attorney(s) appeared on the appellant brief; Michael R. Drysdale, of Minneapolis, MN.

Counsel who presented argument on behalf of the appellee was Gerald Walter Von Korff, of Saint Cloud, MN. In addition to Mr. Von Korff, the following attorney(s) appeared on the appellee brief; Jonathan D. Wolf, of Saint Cloud, MN.

The following attorney(s) appeared on the amicus brief of State of North Dakota in support of appellant; Matthew A Sagsveen, AAG, of Bismarck, ND.

The following attorney(s) appeared on the amicus brief of MN Department of Natural Resources in support of appellee; Jill Schlick Nguyen, AAG of St. Paul, MN.

Before SHEPHERD, BEAM, and KELLY, Circuit Judges.

SHEPHERD

, Circuit Judge.

The local sponsor, the Fargo-Moorhead Diversion Board of Authority (“Authority”), in the development of a diversion project on the Red River with the United States Army Corps of Engineers (“Corps”) alleges that the district court made numerous errors in granting a preliminary injunction to the Joint Powers Authority of Richland County, North Dakota, and Wilkin County, Minnesota (“JPA”), prohibiting the Authority's continued construction of a ring levee around the communities of Oxbow, Hickson, and Bakke, North Dakota (“OHB” and “OHB ring levee”). Holding that the district court¹ did not err in determining that the OHB ring levee is a component of the larger diversion project, we affirm the district court's injunction.

I.

The north-flowing Red River runs between Minnesota and North Dakota. In the spring, snow melt contributes to the river's volume and routinely causes the river's waters to migrate suddenly and unpredictably in all directions, sometimes causing flooding as far as three miles from the river's banks throughout its flat natural flood plain, extending from Oxbow to Fargo, North Dakota. Efforts to prevent flooding on one side of the river can redirect water to the other side and cause flooding.

After the 2009 flood, several entities proposed various permanent measures to reduce the flood risk to the Fargo-Moorhead metropolitan area. The alternatives were analyzed and two were carried forward, each involving a “control structure,” or high-hazard dam. A draft Environmental Impact Statement (“EIS”) was completed, proposing three possible plans. One plan, the Locally Preferred Plan (“LPP”), would divert 35,000 cubic feet of water per second on the North Dakota side. Pursuant to the joint request of Fargo, Moorhead, as well as Clay and Cass counties, the Assistant Secretary of the Army for Civil Works approved designation of the LPP as the tentatively selected plan.

Further modeling indicated that the LPP would have a more extensive downstream impact than had been anticipated. A supplemental EIS was released, tentatively recommending several changes, including reducing the diversion channel's capacity, adding storage and staging areas, and then compensating most affected landowners within the storage and staging areas. A Final Feasibility Report and EIS was released in July 2011, and the project was recommended for authorization. Subsequent design and engineering studies led to additional modification proposals, including the OHB ring levee, which would protect the OHB communities, all now within the flood-water staging area, from flooding caused by the larger diversion project. An additional supplemental environmental assessment evaluated different versions of this modification.

The Minnesota Department of Natural Resources (“MDNR”) determined that because the larger diversion project included a high-hazard dam, it required the MDNR, as the responsible government unit, to complete a full EIS. In May 2013, Minnesota environmental review commenced. In January 2014, the MDNR decided that the OHB ring levee was a step to advance the environmentally controversial part of the larger project still under review, so any construction on the OHB ring levee before the completion of MDNR's EIS would violate the Minnesota Environmental Procedure Act (“MEPA”). In reaching this conclusion, the MDNR considered the fact that the levee was designed to reach heights nine feet above the FEMA 100-year flood event level and the communities' existing flood protection, which had been reexamined and modified in response to the 2009 flood. In August 2014, Minnesota Governor Mark Dayton wrote to the Assistant Secretary of the Army for Civil Works to express strong concern over the diversion project, including construction of the OHB ring levee. In the letter, Governor Dayton stated that “construction of the [OHB] Ring Levee, prior to the completion of Minnesota's EIS, violates our state's law.” In response, the Authority offered to build the OHB ring levee to only 100-year flood levels, but did not change the base width of the levee structure. The Authority began construction on the OHB levee in June 2014, under the Corps' supervision. The larger diversion project is not expected to be operational before 2022.

Minnesota environmental review process is still ongoing. At the time of the district court's opinion, the MDNR expected to release its own State EIS in August 2015. MEPA prohibits approval of environmentally damaging projects where feasible and prudent alternatives exist; the JPA alleges that the National Economic Development (“NED”) plan, which had been considered earlier along with the LPP, is such a prudent alternative. The NED plan would not require construction of the OHB ring levee or cause the same flooding to the JPA's members' properties.

In 2014, Congress enacted the Water Resources Reform and Development Act of 2014 (“WRRDA”), specifically authorizing the project. See Pub. L. No. 113–121, 128 Stat. 1193 (2014)

, § 7002. It authorized a total project cost of $1,924,300,000, with $846,700,000 federally funded. The law noted that the project should be “carried out by the Secretary [of the Army] substantially in accordance with the plan, and subject to the conditions, described in the respective reports designated in this section.” As of the May 13, 2015 district court's decision, the project had received $40,000,000 in federal funds. The Corps has determined that the OHB ring levee is integral to the diversion project, so the Diversion Authority would receive in-kind contribution credit for its work on the levee toward the required non-federal cost of the project. In January 2013, North Dakota enacted HB 1020, which appropriated funding for flood control, including levees. The bill conditioned expenditure for most elements of the larger project on receipt of congressional authorization, but exempted levee work from this requirement.

In November 2014, the JPA filed its third amended complaint, listing the Authority as defendant-intervenor. In the complaint, the JPA alleged that the ongoing construction of the OHB ring levee violated MEPA, specifically, its ban on starting a project before an EIS has been completed and determined adequate. See Minn. R. 4410.3100

. The JPA filed a motion for a preliminary injunction to halt construction on the OHB ring levee, claiming that construction would harm its members by prejudicing the environmental review and permitting system and forcing selection of a project which would flood its members' properties. The district court found that the OHB ring levee was an integral part of the larger diversion project and granted a preliminary injunction. No bond was required. The Authority proposes that the loss of a construction season equates to approximately $1.17 million in construction costs.

II.

“A district court has broad discretion when ruling on a request for preliminary injunction, and it will be reversed only for clearly erroneous factual determinations, an error of law, or an abuse of its discretion.” Novus Franchising, Inc. v. Dawson , 725 F.3d 885, 893 (8th Cir. 2013)

(internal citation omitted). “We will not disturb a district court's discretionary decision if such decision remains within the range of choice available to the district court, accounts for all relevant factors, does not rely on any irrelevant factors, and does not constitute a clear error of judgment.” PCTV Gold, Inc. v. SpeedNet, LLC , 508 F.3d 1137, 1142 (8th Cir. 2007). “Abuse of discretion occurs if the district court rests its conclusion on clearly erroneous factual findings or if its decision relies on erroneous legal conclusions.” Id.

Clear error exists when “despite evidence supporting the finding, the evidence as a whole leaves us with a definite and firm conviction that the finding is a mistake.” United States v. Williams , 346 F.3d 796, 798 (8th Cir. 2003) (citing United States v. U.S. Gypsum Co. , 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948) ). “In every case, an appellate court must remain mindful as to the district courts being closer to the facts and parties.” PCTV Gold, Inc. , 508 F.3d at 1142.

A district court's decision to issue a preliminary injunction “depends upon a ‘flexible’ consideration of (1) the threat of irreparable harm to the moving party; (2) balancing this harm with any injury an...