Due to the repeated and incorrect public assertion, that the Richland/Wilkin County JPA, through it’s attorney, has consented to the ongoing activities at Oxbow, Rinke Noonan has submitted the following Memorandum.
Neither the Richland/Wilkin JPA or its attorney have consented, authorized or accepted the activities of the Diversion Authority in violation of the Injunction issued by Judge Tunheim. We believe the Injunction covers “all” activities.
Every effort will be pursued to ensure the Injunction is properly enforced in respect to Judge Tunheim’s decision.
View Rinke Noonan response refuting false claims made by the Fargo Diversion Authority, City of Fargo, Cass County and project management firms hired to further the project at all costs.
1015 W. St. Germain St., Ste. 300, P.O. Box 1497
St. Cloud, Minnesota 56302-1497
Telephone 320-251-6700, Fax 320-656-3500
Direct Dial: 320-656-3508
To: Joint Powers Authority
From: Gerald Von Korff
Re: Injunction Compliance
Date: May 21, 2015
On your behalf, I have written the Attorney General to examine the best alternatives to enforce
Judge Tunheim’s order. Based on the ongoing activities of the DA, the Injunction is not being
honored. In our view, the very best way to accomplish that would be for the parties to consult
with each other, so as to avoid further court action.
Several persons have indicated that members of the Diversion Authority or their consultants are
telling the public that we here at Rinke-Noonan have taken the position that certain aspects of the
construction can proceed under the Judge’s order. That is not our position, and we have never
taken that position. People who are claiming that we have “authorized” certain activities have
no basis to make that claim. It is our position that the DA activities violate the Injunction based
on the following analysis.
On May 13, 2015, the Honorable John R. Tunheim, United States District Judge, issued an order
granting the Joint Powers Authority’s motion for a preliminary injunction. The order states:
“All physical construction activities related to the OHB ring levee, if ongoing,
must cease immediately.”
The September 2013 Supplemental Environmental Assessment, which addresses the OHB Ring
Dike, makes it clear that a variety of other components to be constructed, beyond the earthen
trapezoid of the Ring Dike itself, are both logically and causally “related” to the OHB levee.
These are quotes taken from the administrative record that describe the Ring-Dike project.
|•||Impacts to roadways resulting from the Oxbow/Hlckson/Bakke ring levee
construction include reconstructing Cass County Highways 81, 18, and 25.
AR0062259 (citations to the Administrative Record)
|•||The full Oxbow, Hickson, and Bakke ring levee would be designed to provide
flood risk management for the Oxbow, Hickson, and Bakke area, transportation
improvements intended to maintain access to the communities, and infrastructure
to replace public and private infrastructure affected by the construction of the ring
|•||The new residential lots and golf holes would be constructed to mitigate those lost
due to the construction of the levee. AR0062358
|•||The construction of the ring levee would result in the removal of approximately
40 homes as well as disruptions to the Oxbow Country Club including several
golf holes and the club house. The ring levee plan includes replacement of lost
infrastructure, including residential lots and associated infrastructure and
reconfiguration of the Oxbow Country Club. AR0062359
|•||The existing storm system generally slopes from west to east and ultimately
outfalls into the Red River. To reduce the number of pipes crossing the levee, two
separate pipe network systems are proposed, one that utilizes the existing storm
pipe network and one that would be for the proposed Oxbow addition. Both
systems would outfall into a proposed ponding area within the benefited area. The
proposed ring levee does not create conflicts with the sanitary, water, or
transportation infrastructure for the Hickson or Bakke communities. AR0062360
|•||The proposed Oxbow, Hickson, and Bakke ring levee would create a need to reconfigure
the golf course as well as relocate the clubhouse and other facilities
provided by the Oxbow Country Club. Eight golf holes and the driving range
would need to be relocated and three other golf holes require alterations to
accommodate the proposed ring levee. Interior drainage would be designed to
convey water to a proposed retention basin. Sanitary sewer, storm sewer, water
lines, and parking lots needed to service the Oxbow Country Club, the golf
course, and the other amenities offered by the country club would be tied into the
new urban infrastructure along the proposed Sunset Drive alignment. AR0062360.
A narrow interpretation renders the order ineffective in advancing the clear justifications for the
injunction against the OHB Ring Dike: the cessation of work that could prejudice Minnesota’s
ongoing environmental review. The operative term “related” is construed broadly in the law.
See, e.g., Gregory v. Home Ins. Co., 876 F.2d 602, 606 (7th Cir.1989) (finding that common
understanding of the word “related” covers a very broad range of connections, both logical and
causal); Am. Commerce Ins. Brokers, Inc. v. Minnesota Mut. Fire & Cas. Co., 551 N.W.2d 224,
228 (Minn. 1996) (same).
As counsel, we initiated contact with the Diversion Authority’s attorneys seeking to enter into
joint discussions on how we might come to an agreement going forward. We envisioned a
process that would be humane to individuals who had unique circumstances. We had hoped that
the Judge’s order would lead to dialog on how the parties could cooperate to consider
alternatives that could protect Fargo without shifting floodwaters off of the floodplain South of
Fargo and onto communities and farmsteads further to the South. That is how adults resolve
disputes: by coming together and listening. Throughout this process we would have
preferred that issues be resolved by dialogue. We will continue to pursue those opportunities;
however it does not further this process for the Diversion Authority to provide inaccurate
information to citizens. It also does not further dialogue when the DA engages in activity clearly
in violation of the injunction.