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FM Diversion and Dam Increases national debt

State of Minnesota vs Fargo Moorhead Flood Diversion Board, et al.

MERA Claim
BREAKING NEWS: MERA suit filed in Minnesota against the Fargo Diversion Authority. Richland-Wilkin Joint Powers Authority files MERA suit in Minnesota, Wilkin County claiming the proposed project is; Not ecologically sustainable; Not the least impact solution; Not one in which adverse effects can and will be mitigated; and Not consistent with other standards, ordinances, and resource plans of local and regional governments.

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Case Type: 14 – Other Civil
( Condemnation/Property Damage)
STATE OF MINNESOTA IN DISTRICT COURT
COUNTY OF WILKIN EIGHTH JUDICIAL DISTRICT

 

State of Minnesota By Richland-Wilkin Joint
Powers Authority, a Minnesota-North Dakota
Joint Powers Authority and Wilkin County,
Minnesota,

Plaintiff,

Civil Action No.
vs.
Fargo-Moorhead Flood Diversion Board of
Authority, also known as Diversion Board
of Authority, also known as Flood
Diversion Board of Authority, also known
as Fargo-Moorhead Diversion Authority, a
Minnesota-North Dakota Joint Powers
Authority,

Defendants,

SUMMONS

 

THIS SUMMONS IS DIRECTED TO THE ABOVE NAMED DEFENDANT.

1. YOU ARE BEING SUED. Plaintiffs have started a lawsuit against you. The Plaintiffs’ Complaint against you is attached to this Summons. Do not throw these papers away. They are official papers that affect your rights. You must respond to this lawsuit even though it may not yet be filed with the Court and there may be no court file number on this Summons.

2. YOU MUST REPLY WITHIN 20 DAYS TO PROTECT YOUR RIGHTS. You must give or mail to the person who signed this Summons a written response called an Answer within 20 days of the date on which you received this Summons. You must send a copy of your Answer to the person who signed this Summons located at: Rinke Noonan, Ltd., 1015 West st. Germain Street, Suite 300, P.O. Box 1497, st. Cloud, MN 56302-1497.

3. YOU MUST RESPOND TO EACH CLAIM. The Answer is your written response to the Plaintiffs’ Complaint. In your Answer you must state whether you agree or disagree with each paragraph of the Complaint. If you believe Plaintiffs should not be given everything asked for in the Complaint, you must say so in your Answer.

4. YOU WILL LOSE YOUR CASE IF YOU DO NOT SEND A WRITTEN RESPONSE TO THE COMPLAINT TO THE PERSON WHO SIGNED THIS SUMMONS. If you do not Answer within 20 days, you will lose this case. You will not get to tell your side of the story, and the Court may decide against you and award the Plaintiffs everything asked for in the Complaint. If you do not want to contest the claims stated in the Complaint, you do not need to respond. A default judgment can then be entered against you for the relief requested in the Complaint.

5. LEGAL ASSISTANCE. You may wish to get legal help from a lawyer. If you do not have a lawyer, the Court Administrator may have infonnation about places where you can get legal assistance. Even if you cannot get legal help, you must still provide a written Answer to protect your rights or you may lose the case.

6. ALTERNATIVE DISPUTE RESOLUTION. The parties may agree to or be ordered to participate in an alternative dispute resolution process under Rule 114 of the Minnesota General Rules of Practice. You must still send your written response to the Complaint even if you expect to use alternative means of resolving this dispute.

Dated: June 13, 2014

RINKE NOONAN
Gerald W. Von Korff #113232
Suite 300, US Bank Plaza Building
1015 W. St. Germain st.
P.O. Box 1497
St. Cloud, MN 56302-1497
(320) 251-6700
(320) 656-3500 fax
jvonkorff@rinkenoonan.com
ATTORNEYS FOR PLAINTIFFS




Case Type: 14 – Other Civil
( Condemnation/Property Damage)
STATE OF MINNESOTA IN DISTRICT COURT
COUNTY OF WILKIN EIGHTH JUDICIAL DISTRICT

 

State of Minnesota By Richland-Wilkin Joint
Powers Authority, a Minnesota-North Dakota
Joint Powers Authority and Wilkin County,
Minnesota,

Plaintiff,

Civil Action No.
vs.
Fargo-Moorhead Flood Diversion Board of
Authority, also known as Diversion Board
of Authority, also known as Flood
Diversion Board of Authority, also known
as Fargo-Moorhead Diversion Authority, a
Minnesota-North Dakota Joint Powers
Authority,

Defendants,

COMPLAINT

 

Plaintiff Richland-Wilkin Joint Powers Authority, a Minnesota-North Dakota Joint Powers Authority (“Plaintiff’) and Wilkin County for their Complaint against Defendant, state and allege as follows:

1. Plaintiff Richland-Wilkin Joint Powers Authority is an organization representing local government in Clay and Wilkin Counties, Minnesota and Cass and Richland Counties, North Dakota, to prevent damage to lands and communities targeted for flooding by the expanded Fargo-Moorhead flood diversion project. The Joint Powers Authority was formed pursuant to Minnesota and North Dakota joint powers legislation to protect the citizens and property of its members and their citizens and to take any and all steps necessary to prevent the intentional flooding of member jurisdictions by the Fargo Metropolitan Area Flood Risk Management Project and thereby to prevent the loss of tax revenues, loss of population, damage to public structures, rights of ways and ditch systems, reduction in land values, elimination of government entities and reduction in school funding and enrollment within the boundaries of impacted governmental units. Plaintiffs bring this claim on behalf of the State of Minnesota pursuant to Minnesota Statutes Chapter 116B and in their own capacity.

2. Members of the Joint Powers Authority include over 20 cities and townships and a school district in addition to the county members. Among those are Pleasant Township in Cass County, ND and Holy Cross Township in Clay County, MN. The members and their citizens will suffer direct and indirect irreparable harm because the flood control plan proposed by Defendant has been designed almost exclusively to shift all benefits to Fargo at the expense of the rest of the Red River basin, in particular Wilkin County and Richland County. The plan would dam the Red River, causing repeated flooding of lands within Wilkin and Richland Counties. That harm includes the unnecessary, repeated, intentional flooding of large expanses of each County, the impairment of tax bases of counties, townships, cities, and school districts, the interference with governmental infrastructure, the loss of property values, and interference with local planning and zoning. Plaintiff Richland-Wilkin Joint Powers Authority brings this action on its own behalf, on behalf of its constituent member political subdivisions, and on behalf of its citizens.

3. Plaintiff Wilkin County is a Minnesota County.

4. Defendant Fargo-Moorhead Flood Diversion Board of Authority is a Minnesota North Dakota Joint Powers Authority composed of Minnesota and North Dakota political subdivisions. This joint powers authority has also used the names Diversion Board of Authority, Flood Diversion Board of Authority, and Fargo-Moorhead Diversion Authority. Under the Joint Powers Agreement, the Authority’s charter provides that the Diversion Board of Authority shall follow all laws and rules that govern a public entity in the states of Minnesota and North Dakota. Among those laws which the Diversion Board of Authority and its members must follow are Minnesota Statutes Chapters l16B, l16D, and l16F.

5. The Diversion Authority is a Governmental Unit as defined by Minnesota Statutes Section l16D.04, subdivision laCe), and a person as defined by Minnesota Statutes Section l16B.02, subdivision 2. The proposed flood control project and all of its constituent parts constitute Government Action governed by MEPA, the Minnesota Environmental Policy Act, and MERA, the Minnesota Environmental Rights Act.

DEFENDANT’S PLAN TO DAM THE RED RIVER AND FLOOD WILKIN COUNTY

6. Defendant Fargo-Moorhead Flood Diversion Board of Authority, a MinnesotaINorth Dakota Joint Powers Board composed of political subdivisions of the States of Minnesota and North Dakota, intends to construct a dam across the Red River of the North, south of Fargo, to flood Wilkin County and other geographic areas in Minnesota and North Dakota. The proposed flooding will divert water out of the natural floodplain surrounding Fargo, so as to promote commercial development in that natural floodplain at the expense of the residents of Wilkin County and other agricultural areas of Minnesota and North Dakota. This plan — to extend flood control for the purpose of attracting commercial and other development into the natural floodplain — is contrary to principles that govern Minnesota’s water law and modem sustainable flood management practices.

7. Floodplain, floodways and other natural flood storage areas, public waters, including the Red River of the North and its tributaries, wetlands, and the agricultural lands of Wilkin County are protected “natural resources,” as defined in Minnesota Statutes Section 116B.02, subdivision 4, and used in Chapter 116B and Chapter 116D.

8. The Defendant’s proposal to dam the Red River and flood Wilkin County is “governmental action” within the meaning of Minnesota Statutes Section 116D.04, subdivision la(d). The proposal to dam the Red River and flood Wilkin County will cause “pollution, impairment or destruction,” as defined in Minnesota Statutes Section 116B.02, subdivision 5, and will violate or is likely to violate an environmental quality standard, limitation, rule, order, license, stipulation agreement, or permit of the State or an instrumentality, agency, or political subdivision thereof, which was issued prior to the date the alleged violation occurred or is likely to occur and it will materially adversely affect or is likely to materially adversely affect the environment.

9. The diversion of waters from the Fargo-Moorhead area into Wilkin County will have devastating impacts on the residents and political subdivisions within Wilkin County, as well as the County itself, including flooding of prime farm land, interruption of natural hydrology, surface drainage, interference with governmental infrastructure, and damage to the economy. Defendant’s plan will also damage lands in other Minnesota and North Dakota Counties. There are feasible alternatives to causing this flooding.

10. The causes of action asserted herein, or some part thereof, arise in Wilkin County, and the conduct addressed herein will cause pollution, impairment, or destruction in Wilkin County.

11. The proposed flooding of Wilkin County results from a number of design features that are not necessary to accomplish the mission of providing flood protection to existing development in Fargo and Moorhead. They include (a) the proposal to provide protection against a flood double the maximum flow historically experienced at Fargo; (b) the attempt to provide flood protection to undeveloped natural floodplain, so as to divert commercial development away from high ground in Minnesota and West Fargo, thus destroying the flood protection afforded by the natural floodplain; ( c) the failure to use mitigation features called for in the Minnesota Mediated Flood Reduction Agreement, such as small distributed storage impoundments and other forms of passive distributed flood storage; and (d) the decision to place the proposed dam in a location that would reduce the damage to the sponsoring counties and shift the damage to Wilkin and Richland Counties.

PENDING MINNESOTA ENVIRONMENTAL REVIEW

12. The proposed Red River dam and consequent flooding of Wilkin County cannot lawfully be constructed without a number of permits by the State of Minnesota described by subsequent paragraphs in this Complaint. It will require a zoning amendment by Wilkin County and permits by a number of other political subdivisions. Under Minnesota law, these permits and other governmental approvals cannot be issued, nor can construction of any aspect of the project connected to the Red River Dam or proposed flooding begin, until an environmental review is conducted and completed by the Responsible Governmental Authority. That review, properly conducted, will establish that the permits cannot lawfully be granted.

13. The proposed project is

• Not ecologically sustainable;
• Not the least impact solution;
• Not one in which adverse effects can and will be mitigated; and
• Not consistent with other standards, ordinances, and resource plans of local and regional governments.

14. The Minnesota Department of Natural Resources (DNR) has been designated the Responsible Governmental Authority for the environmental review. The Minnesota DNR is currently considering a variety of alternatives that would eliminate the proposed flooding of Wilkin County and would also eliminate or substantially reduce the proposed flooding of Oxbow, Hickson and Bakke.

15. Options available to reduce or avoid the flooding of Wilkin County include (a) implementation of a network of small distributed storage impoundments, or other distributed storage strategies; (b) scaling back the degree of flood protection to standard levels of protection; ( c) eliminating the option to offer flood protection to natural floodplain and instead prohibit or discourage development in areas that naturally store floodwaters; and/or (d) relocate the proposed dam to the north.

16. In advancing its plan, Defendant has manipulated the fundamental information necessary for analysis of the costs, benefits and impacts of its project.

17. Completion of an environmental review before the grant of permits and construction is fundamental to the operation of the Minnesota Environmental Policy Act and its implementing regulations. The Minnesota environmental review allows a comprehensive and integrated examination of all of the potential constraints on a proposed project. It includes examination of all governmental constraints (zoning, pollution prevention, hazards caused by the proposal). Commencing the project, or any part of it, before the environmental review is completed and before issuance of permits is unlawful and would inflict irreparable harm on Wilkin County, its residents, and others adversely impacted by the proposed project. Commencing construction before grant of permits and completion of the environmental review will prejudice a fair review of options and will inflict damage on the entire river system in ways that will irreparably harm Wilkin County and other areas.

18. The Minnesota Environmental Policy Act (MEPA) and Minnesota Environmental Rights Act (MERA) impose substantive prohibitions on the permitting or authorization of actions that significantly affect the quality of the environment. Where such actions are likely to cause pollution, impairment, or destruction of water, land or other natural resources within the state, they are prohibited, so long as there is a “feasible and prudent alternative consistent with the reasonable requirements of the public health, safety, and welfare and the state’s paramount concern for the protection of its air, water, land and other natural resources from pollution, impairment, or destruction. Economic considerations alone shall not justify such conduct.” See Minn. Stat. § 116D.04, subd. 6.

19. The project proposed by the Defendant will cause pollution, impairment or destruction of water, land, and other natural resources in the state, and there exist feasible and prudent alternatives consistent with the reasonable requirements of public health, safety and the state’s paramount concern for the protection of its air, water, and other natural resources from pollution, impairment or destruction.

20. There exist viable alternatives, consistent with Minnesota law, that can meet the legitimate flood protection objectives for Fargo and Moorhead. One such alternative would eliminate the flooding of Richland and Wilkin County by some or all of the following strategies: (a) increasing flows through Fargo and Moorhead; (b) implementing a comprehensive coordinated system of smaller distributed storage across the basin; (c) retaining existing floodplain and prohibiting future development in that floodplain as contemplated by state and federal law; (d) scaling back the level of protection to a reasonable level consistent with FEMA projections and historic flood experience; and ( e) configuring the project in a way that is designed to minimize downstream flooding, instead of configuring it primarily to facilitate the future development of natural floodplain.

21. Defendant eliminated distributed storage options on the grounds that they cannot alone solve Fargo’s flood control problems. That decision violates Minnesota law. Defendant has an obligation to mitigate damage to Wilkin County, even if that mitigation is insufficient to solve Fargo’s flooding issues. Implementing distributed storage and other strategies to control water at its source will mitigate or avoid the damage caused to Wilkin County, and such strategies will not only benefit Wilkin County, but will confer benefits on sub-watersheds where distributed storage is located and will conserve the capacity of the Red River.

22. Natural floodplain is an important natural resource critical to protection of the ecology and modem sustainable flood control strategies. Undeveloped floodplain land provides many natural resources and functions of considerable economic, social, and environmental value. The nation’s coastal and riverine floodplains support large and diverse populations of plants and animals. In addition, they provide habitat and critical sources of energy and nutrients for organisms in adjacent and downstream terrestrial and aquatic ecosystems. The wide variety of plants and animals supported directly or indirectly by floodplains constitutes an extremely valuable resource important to economic welfare, enjoyment, and physical well-being. The variety of floodplains and associated wetlands across the country create habitat for many forms of fish and wildlife. Natural floodplain preservation plays a critical role in flood storage and destruction of the natural floodplain exacerbates flooding. Natural floodplain is a resource entitled to protection under Minnesota’s water law and Minnesota’s environmental law.

23. Natural floodplain is an important component of the ecology of river systems. Natural floodplain performs an important storage and conveyance function during times of flood. Elimination of floodplain, as contemplated by Defendant, makes flooding worse. Construction on and development of floodplain, as contemplated by the Defendant, is inconsistent with State law and policy. Defendant’s plan encourages development in areas with high flood hazard and inflicts flooding on land currently used for residences, farming, and other purposes. Defendant’s proposed destruction of natural floodplain is a significant contributing factor leading toward the damage that Defendant intends to inflict on Wilkin County.

24. As an alternative allegation, Plaintiff asserts that if Defendant is correct that construction of the Oxbow-Rickson-Bakke Ring Dike will protect that area from naturally occurring flood flows, then the construction of the Ring Dike will restrict the flood flow in the Red River, reduce the natural flood storage capacity, and interfere with the carrying capacity of the river system. In the event that floodwaters rise above the current diking level, the proposed Ring Dike would constrict the downstream flow of waters and reduce the natural flood storage
otherwise available causing damage to both sides of the River.

DIVERSION AUTHORITY’S PLAN TO OFFER RING DIKE PROTECTION TO
CERTAIN CASS COUNTY MUNICIPALITIES FROM FLOODING CAUSED BY
THE PROPOSED RED RIVER DAM

25. The proposed staging and storage and intentional flooding would also inflict damage on certain political subdivisions of Cass County. In 2013, the Diversion Authority proposed to protect Oxbow, Bakke and Rickson by constructing a ring dike hydro-logically designed to protect these Cass County communities from the flooding which would be caused by the Red River Dam.

26. The Ring Dike was conceived, studied, and justified by Defendant as an amendment to the Fargo-Moorhead Flood Mitigation Project to protect a selected portion of Cass County from the intentional flooding resulting from the proposed Red River Dam. The design of the Ring Dike was determined entirely by the flooding contemplated as a part of the Fargo Flood Mitigation Project.

27. In January 2014, the Minnesota DNR wrote a letter to Defendant, correctly stating that Minnesota law prohibited Defendant from beginning construction of the Ring Dike before Minnesota’s environmental review of the diversion plan could be completed. Citing Minn. R. 4410.3100, the DNR identified construction of the dike as a prejudicial action that may “limit alternatives or mitigative measures or predetermine subsequent development.”

28. In response to the DNR’s letter, Defendant changed course, concocting the claim that the Ring Dike has independent utility not connected to the overall project. Specifically, the Diversion Authority re-characterized the primary purpose of the Ring Dike from being a mitigation effort tied directly to the diversion plan, to providing protection to Oxbow, Hickson, and Bakke from naturally occurring flood waters. By so doing, Defendant seeks to prejudice the Minnesota environmental review and commence a portion of the overall project before it is determined whether the Red River Dam can be constructed and whether Defendant will be required to mitigate flooding in other ways. Proceeding with the Ring Dike will prejudice the environmental review, damage the river system’s capacity to carry flood waters, eliminate areas of natural floodplain, and cause irreparable harm to Plaintiffs.

29. Under Minnesota law, a project sponsor may not commence construction on any aspect of a project until permits have been obtained and the environmental review for all aspects of the project has been completed. Minn. Rules 4410.3100 (1). The Oxbow – Hickson – Bakke Ring Dike is part of the Fargo-Moorhead Flood Mitigation Project currently being studied by the Minnesota DNR in the pending environmental review.

30. Commencement of the Oxbow – Hickson – Bakke Ring Dike project would prejudice the ultimate decision on the environmental review and the permitting of the project. Among other prejudices, construction or permitting would utilize over $70 million dollars of project revenues that could be used to fund mitigation efforts that could otherwise avoid flooding in Wilkin County. It would cause permanent damage that need not be caused in a way that might alter the consideration of environmental harm and the ability to avoid environmental harm under MEPA.

31 . A public waters permit affecting floodwaters may be granted only if the proposal meets all other state and local requirements and, in addition, if: (1) the area covered by the public waters work permit is governed by a floodplain management ordinance approved by the commissioner; and (2) the conduct authorized by the public waters work permit is consistent with the floodplain management ordinance. In addition, a public waters work permit involving the control of floodwaters by structural means, such as dams, dikes, levees, and channel improvements, may be granted only after the commissioner has considered all other flood damage reduction alternatives. Minn. Stat. § 103G.255. The Fargo Moorhead Flood Control Project, as currently proposed, is not a lawful option under these provisions.

1 Minnesota Rule 4410.3100, subpart 1, provides: Prohibitions. If an EA W or EIS is required for a governmental action under parts 4410.0200 to 4410.6500, or if a petition for an EA W is filed under part 4410.1100 that complies with the requirements of subparts 1 and 2 of that part, a project may not be started and a final governmental decision may not be made to grant a permit, approve a project, or begin a project, until …. [the] EIS is determined adequate;

32. Minnesota Regulations 6115.410, subpart 8, bars the issuance of a permit to a dam “which inflicts economic hardship or has major adverse effects on population or socioeconomic base of the area affected.” The applicable regulation requires the dam safety permit applicant to show: (i) a lack of other suitable, feasible, and practical alternative sites, and (ii) a lack of economic hardship which would have a major adverse effect on population and
socioeconomic base of the area affected. The project as proposed is not a lawful option under these provisions.

33. The project selected thus violates the Minnesota substantive prohibitions on the permitting or authorization of actions which significantly affect the quality of the environment, and the selection of the currently proposed project is unlawful under Minnesota law.

Count I
Minnesota Environmental Rights Act
For Declaratory and Equitable Relief

34. Each Count of this complaint incorporates by reference the previous allegations of the Complaint.

35. Plaintiffs seek declaratory relief that the proposed project and its components including the Oxbow-Rickson-Bakke Ring Dike, violate Minnesota water law and Minnesota environmental law by inflicting unnecessary damage on Minnesota’s environmental resources, and seek injunctive relief to prevent commencement of construction activities towards any part of that project.

36. The conduct described in this Complaint constitutes “pollution, impairnent or destruction” in that it is “conduct by any person which violates, or is likely to violate, any environmental quality standard, limitation, rule, order, license, stipulation agreement, or permit of the state or any instrumentality, agency, or political subdivision thereof which was issued prior to the date the alleged violation occurred.” See Minn. Stat. §116B.02, subd. 5.

37. The conduct described in this Complaint will materially adversely affect or is likely to materially adversely affect the environment. See Minn. Stat. § 116B.02, subd. 5. The adverse impacts on the environment include permanent destruction of prime farm land, permanent loss of the natural flood capacity of floodplain, damage to the natural flood handling capacity of the Red River, the filling of wetlands, the damming of the Red River itself, significant permanent changes in the hydrology of multiple river systems, as well as other damages described in this Complaint.

38. “No state action significantly affecting the quality of the environment shall be allowed, nor shall any permit for natural resources management and development be granted, where such action or permit has caused or is likely to cause pollution, impairment, or destruction of the air, water, land or other natural resources located within the state, so long as there is a feasible and prudent alternative consistent with the reasonable requirements of the public health, safety, and welfare and the state’s paramount concern for the protection of its air, water, land and other natural resources from pollution, impairment, or destruction. Economic considerations
alone shall not justify such conduct.” Minn. Stat. § 116D.04, subd. 6.

39. There are feasible and prudent alternatives to the proposed action which will significantly reduce the environmental damage while providing flood protection to Fargo and Moorhead.

40. Defendant, by its actions described in this Complaint, will cause pollution, impairment and destruction of natural resources, including waters of the State, and will cause material adverse effects to the environment. Defendant’s actions described in this Complaint are likely to materially adversely affect the environment including the mineral, animal, botanical, water, land, timber, soil, quietude, recreational and historical resources protected under MERA.

41. Proceeding with the project as planned will cause irreparable harm to the Plaintiffs in Wilkin County and elsewhere.

Count II
Construction of Project Requiring Government Permits Before Completion of
Environmental Review, and State or Local Permits

42. Plaintiffs are entitled to a declaratory judgment that commencement of the any part of the Fargo-Moorhead Flood Control Project (including the Oxbow-Hickson-Bakke Ring Dike) is unlawful. Plaintiffs request temporary and permanent injunctions against that commencement until completion of the Minnesota environmental review and grant of all necessary permits. Completion of an environmental review before the grant of permits and start of construction is fundamental to the operation of the Minnesota Environmental Policy Act and its implementing regulations. The Minnesota environmental review allows a comprehensive and integrated examination of all of the potential constraints on a proposed project. It includes examination of all governmental constraints (zoning, pollution prevention, hazards caused by the proposal). Commencing the project before the environmental review is completed and before issuance of permits is unlawful and would inflict irreparable harm on Wilkin County, its residents, and upon others adverse1 y impacted by the proposed proj ect. Commencing construction before grant of permits and completion of the environmental review will prejudice a fair review of options and inflict damage on the entire river system in ways that will irreparably harm Wilkin County and other areas.

43. Under Minnesota law, a project sponsor may not commence construction on any aspect of a project until permits have been obtained, and until the environmental review for all aspects of the project have been completed. Minnesota Rule 4410.3100 (2). The Oxbow – Hickson – Bakke Ring Dike is part of the Fargo-Moorhead Flood Mitigation Project currently being studied by the Minnesota DNR in the pending environmental review. Commencement of the Oxbow – Hickson – Bakke Ring Dike project would prejudice the ultimate decision on the environmental review and permitting of the proj ect. Among other prejudices, construction or permitting would utilize over $70 million dollars of project revenues that could be used to fund mitigation efforts that could otherwise avoid flooding in Wilkin County. It would cause permanent damage that need not be caused in a way that might alter the consideration of environmental harm and the ability to avoid environmental harm under MEPA.

44. Commencing a portion of the overall project that is justified, in whole or in part, as mitigation for the staging, storage and Red River Dam, will result in irreparable harm to Wilkin County and violate Minnesota law.

2 Minnesota Rule 4410.3100, Subpart 1, provides: Prohibitions. If an EA W or EIS is required for a governmental action under parts 4410.0200 to 4410.6500, or if a petition for an EAW is filed under part 4410.1100 that complies with the requirements of subparts 1 and 2 of that part, a project may not be started and a final governmental decision may not be made to grant a permit, approve a project, or begin a project, until … [the] EIS is determined adequate[.]

Count III
Violation of State and Local Law

45. Commencement of any part of the project will violate state and local law both because state and local permits have not been issued, and because even if applied for, these permits cannot be lawfully granted. Plaintiffs are entitled to a declaratory judgment and temporary and permanent injunctions barring commencement of construction in violation of Minnesota law.

46. The construction of a Class I dam across the Red River is subject to Minnesota public waters regulations which prohibit construction of a dam without a showing of “a lack of other suitable feasible and practical alternative sites” and “[ a] lack of economic hardship which would have a major adverse effect on population and socioeconomic base of the area affected.” Minn. Regs. Section 6115.410, subpart 8. No such permit has been applied for nor can one be lawfully issued.

47. A Minnesota public waters permit is required because the project proposes to change the course, current, and cross section of public waters and otherwise impacts public waters. A public waters work permit for a project affecting floodwaters may be granted only if the proposal meets all other state, local and federal requirements and, in addition, if: “(1) the area covered by the public waters work permit is governed by a floodplain management ordinance approved by the commissioner; and (2) the conduct authorized by the public waters work permit is consistent with the floodplain management ordinance, if the commissioner has determined that enough information is available for the adoption of a floodplain ordinance.” Minn. Stat. §103G.245, subd. 9. In addition, “A public waters work permit involving the control of floodwaters by structural means, such as dams, dikes, levees, and channel improvements, may be granted only after the commissioner has considered all other flood damage reduction alternatives.” Id. No such permit has been granted, nor can one be lawfully granted.

48. The project as proposed cannot be permitted under the above cited state regulations and violates local ordinances, including the Wilkin County zoning ordinance.

49. The project violates state and local floodplain protection laws.

50. The actions of Defendant will materially adversely affect or is likely to materially adversely affect the environment.

WHEREFORE, Plaintiffs pray for the following relief:

1. Issuance of declaratory relief that the proposed project and its components, including the Oxbow-Rickson-Bakke Ring Dike, violate Minnesota water law and Minnesota environmental law by inflicting unnecessary damage on Minnesota’s environmental resources, and injunctive relief to prevent commencement of construction activities towards any part of that project.

2. Issuance of a declaratory judgment that commencement of the any part of the Fargo-Moorhead Flood Control Project (including the Oxbow-Rickson-Bakke Ring Dike) prior to completion of the Minnesota environmental review and grant of all necessary permits is unlawful. Grant of temporary and permanent injunctions against that commencement.

3. Grant of declaratory judgment that commencement of any part of project will violate state and local law both because state and local permits have not been issued, and because even if applied for, these permits cannot be lawfully granted.

4. Such other relief as may justified by the facts shown at trial.

Dated: June 13, 2014

RINKE NOONAN
Gerald W. Von Korff #113232
Suite 300, US Bank Plaza Building
1015 W. St. Germain st.
P.O. Box 1497
St. Cloud, MN 56302-1497
(320) 251-6700
(320) 656-3500 fax
jvonkorff@rinkenoonan.com
ATTORNEYS FOR PLAINTIFFS

ACKNOWLEDGMENT

The party on whose behalf the attached document is served acknowledges through its
undersigned counsel that sanctions, including reasonable attorney fees and other expenses, may
be awarded to the opposite party or parties pursuant to Minn. Stat. § 549.211.

Gerald W. Von Korff #113232

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