October 6th, 2014
Michael R. Drysdale, Esq.
Dorsey & Whitney, LLP
Attorneys for the FM Diversion Authority
Re: Richland/Wilkin Joint Powers Authority v. USACE, et al.
Dear Mr. Drysdale:
The Richland/Wilkin Joint Powers Authority and MnDak have asked me to respond to Mr. Vanyo’s letter offering limited representation on the Diversion Board of Authority. The Joint Powers Authority and MnDak are very interested in trying to find a strategy that can lead to an ultimate resolution of the disagreement over project configuration. We will continue to work with Governor Dayton and local Minnesota legislators to support their initiative to assure that all parties are committed to collaboration and to full cooperation with the State of Minnesota’s environmental review and permitting requirements. The proposal that Mr. Vanyo submitted falls far short of this objective. The key to the Governor’s initiative as we understand it is that members of the Diversion Authority have an obligation to complete the Minnesota environmental review and to comply with Minnesota law. We support Governor Dayton’s initiative to maintain the integrity of the environmental and permitting process, a process that was specifically recognized in the USACE’s environmental impact statement.
. . .
Placing an upstream observer with limited powers on the Diversion Authority Board doesn’t resolve the controversy; it merely places representative of the JPA and MnDak on a board that currently rejects its obligation to comply with Minnesota law. In fact, one step that could create conditions for constructive dialog would be for the Diversion Authority to agree honor the Minnesota process, and to abide by Minnesota law. This should not be viewed as a major concession. In fact:
|•||The Diversion Authority’s charter specifically obligates it to comply with Minnesota law.|
|•||Minnesota members of the Diversion Authority derive their powers from Minnesota law, and would be subject to Minnesota laws, even if they had not expressly acknowledged that responsibility in the Diversion Authority Charter.|
|•||The Environmental Impact Statement specifically acknowledged that the USACE and Diversion Authority were subject to Minnesota’s environmental review and permitting processes.|
|•||The Chief’s report and letter expressly conditions authorization of the project on compliance with State law.|
The Diversion Authority organizing agreement grants voting power based upon benefits received. Our dispute is not about benefits: it’s about the unnecessary shifting of water off of floodplain in the Fargo area onto Richland and Wilkin Counties. The framework of the organizing agreement seems to impose a straightjacket on the members that makes changing the project extremely difficult and our client organizations cannot subscribe to that principle. We are hopeful that we can find a method of effectively focusing on and addressing the issues in controversy. . .
Gerald W. Von Korff
Attorney for the Richland Wilkin JPA