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FM Diversion and Dam Increases national debt

Here Comes The Judge

Oxbow Mayor Jim Nyhof

Oxbow Mayor Jim Nyhof

In a little less than 24 hours (November 16, 2015 10:00am), Chief Judge John R. Tunheim, US District Court – District of Minnesota will be hearing final oral arguments on the Motion for Summary Judgement on the Fargo Dam and FM Diversion project including its various components.

Fargo – Cass taxpayers have spent over $2.5 million on the Dorsey & Whitney LLP firm in efforts to further the proposed project, which does not include all legal bills related to the overall project.

The Fargo Diversion Authority, in its “infinite” wisdom, opted to fund Oxbow’s legal position, which made it possible for Oxbow Mayor James Nyhof and the attorney firm Turman & Land LTD, the opportunity to file memorandums and motions that are rife with non-factual statements, or statements so intentionally misleading that the question of perjury, negligence and incompetence come into question.

Here are a few excerpts from Oxbow’s filings before Chief Judge John R. Tunheim:

CASE 0:13-cv-02262-JRT-LIB Document 294:

“When the Wild Rice River overflows its banks, it flows directly through Oxbow.”


A rather curious statement, since Oxbow, ND has never been directly affected by flood waters from the Wild Rice which is located approximately two miles west of the city.

In fact, in 2009, water only reached 914.1 feet on the western edge of the Bakke subdivision (adjacent to the north and west of Oxbow), whereas water levels at the corner of Hwy 81 and Cass 25 (NW corner of Oxbow) reached 916.24 feet. Somehow…, Oxbow Mayor Jim Nyhof has somehow found a way for water to run “uphill” over two feet and find a way to jump over Meadow Lane running north-south in Bakke, which has no east west culverts allowing water to flow towards Oxbow, ND.

CASE 0:13-cv-02262-JRT-LIB Document 294:

“Oxbow has suffered devastating impacts from past floods. Prior to the 2009 flood, Oxbow had 140 homes.”


Unfortunately, there has never been 140 homes in Oxbow, ND.

CASE 0:13-cv-02262-JRT-LIB Document 294:

In February 2012, Oxbow received notice from the North Dakota Department of Emergency Services that it needed to remove the temporary levees from two lots located on Schnell Drive within 60 days of receipt of the letter. Nyhof Decl. ¶14; TL P56. Permanent levees had been placed on properties that were bought out by FEMA. FEMA did not allow a permanent structure to be placed on a FEMA buyout property. If Oxbow failed to remove the levees, it would forfeit the reimbursement Oxbow had received for building the temporary levees on these lots. Oxbow would also risk future FEMA reimbursement for flood relief efforts.


Read Jim Nyhof (email)

Read Jim Nyhof (email)

It seems rather interesting that 306-308 Schnell Drive and 314-318 Schnell Drive had levees removed, however, Cass county purchased 314-318 Schnell Drive back from FEMA and the permanent levee was replaced, however, the same was not done at 306-308 Schell Drive. In fact, one has to question why have Oxbow, Fargo Diversion Authority and Cass county willfully concealed how the FEMA repurchased properties were handled? It is almost, as if, they were methodically designing a “trump-card” to use at their convenience…

Even more interesting is this email I received from Oxbow Mayor Jim Nyhof in 2012, clearly stating: “These lots, in Oxbow anyway, are nothing we would ever try to protect.”

So which is it Jim…, is Oxbow flood prone or not?

Download: REDACTED 2012-07-24 Jim Nyhof email

CASE 0:13-cv-02262-JRT-LIB Document 294:

Additional problems with Oxbow’s levee system surfaced. The levee was not certifiable by FEMA because of its means of construction and its lower elevation of protection, which was well below a 100-year flood event. Docket No. 156 ¶7. Unstable geotechnical conditions prevented the levee from being raised to allow the required three-feet freeboard because the levee was too close to the river bank. Nyhof Decl. at Docket No. 58 ¶2, 6. There were also eight gaps of the levee identified by the North Dakota State Water Commission as deficient. Docket No. 156 ¶¶6, 7.


FEMA does not designate “free-board” requirement.

In fact, according to “Freeboard is not required by NFIP standards, but communities are encouraged to adopt at least a one-foot freeboard to account for the one-foot rise built into the concept of designating a floodway and the encroachment requirements where floodways have not been designated. Freeboard results in significantly lower flood insurance rates due to lower flood risk.”

The Oxbow levee system constructed in 2010-2011 ranged between 917.5 to 918 feet, which is above the current 100 year FEMA flood event. As of July 31, 2015, only three properties in Oxbow carry FEMA flood insurance and one of those properties is not located near the Red River or below the 100 year BFE. Over 97 percent of Oxbow’s population is not required to carry FEMA flood insurance. The majority of the homes in Oxbow existed ABOVE the 100 year in 2009, as well as today.

Also, design “gaps” in Oxbow’s levee system constructed in 2010-2011 are outlined in Oxbow’s Operations Manual and action plan. [ read more…] These are intended design features, which are not different from operation and actions plans calling for temporary closure “gaps” of nearly all flood protection throughout the Red River Valley.

Anyone with a lick of common sense can see the pattern and judge the players accordingly.

So as Chief Judge John R. Tunheim, US District Court – District of Minnesota mires through all the perjurious hogwash presented by Oxbow and the Fargo Diversion Authority, we have to hope that the Fargo Dam and FM Diversion project does not set a precedent that unleashes the USACE to further projects and mission creep in other areas of the United States.

Regardless, we can only hope that city leaders in Fargo step up the pace on permanent internal flood protection to protect the city and residents that currently exist.

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One Response to “ Here Comes The Judge ”

  1. Thank you for the truth serum…Stunning but not surprising…..I pray the judge sees the misleading, unfactual information and disobedience of the law……This has been a circus full of monkey business. The money spent is worse than drunken sailors on leave……Cass County wants to get rid of water, yet is in dire need of water from the Missouri River…..The world values natural resources, not here in the Red River Valley……My prediction: Fargo will pay dearly in the future for allowing greed, lack of common sense planning and rubber stamping projects..its no secret anymore……
    The money spent on Oxboe is insulting…Study the rounds of golf and you understand why the financially strapped was in trouble…Of course the members don’t want to pay more….Figurate it out, the dots do not line up…..

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