Every industry has its sleazy practitioners.
For instance: crooked mechanics that keep dirty motor oil in a squirt can to spray along gaskets and seals to suggest expensive problems exist, bilking the unwary owner into shelling out big bucks.
In business, it is called fraud. In big government its the routine play.
When it comes to big government, Ohnstad Twichwell has built a formidable “Municipal Law” practice that represents several municipalities adjacent to Fargo, ND.
So when Ohnstad Twichell attorney, John Shockley is quoted in a February 25, 2016 Fargo Forum article that: “…the current joint powers agreement is weak…”, one has to question the motives behind such a statement.
The current Limited Joint Powers Agreement for the Metro Flood Diversion Project was adopted in 2011. It provided a framework that loosely allowed the Fargo Dam and FM Diversion Authority to spend nearly $270 million as of February 29, 2016.
There is general sense of rules that were/are expected to be followed by the members that were never publicly elected to their seats on the diversion board. The document has been working and functional, but the powers that be are beside themselves over the Buffalo Red River Watershed District not approving the FY2016 budget. Fargo’s development machine cannot not tolerate “obstacles” and the pressure is on.
It sure would be awesome if Ohnstad Twichell attorney, John Shockley and his colleagues were tackling the overhaul of the alleged “weak” JPA document for free, but the wording of the proposed document is sending a clear message of intent. In fact, even if the re-wording has been done free of charge, the future legal battles as a result of the proposed document would most likely be on the clock.
So let’s do a quick comparison of the current and proposed JPA agreements.
| Variations “of” | Original JPA (2011) |
Proposed JPA (2016) |
| Length | 23 pages | 78 pages |
| instance of term: “whereas” | zero | 29 |
| instance of term: “P3” | zero | 111 |
| instance of term: “maintenance” | 5 | 77 |
| instance of term: “approve” | 9 | 76 |
| instance of term: “obligation” | 8 | 157 |
| instance of term: “vote” | 13 | 41 |
| instance of term: “cost” | 23 | 111 |
In the case of the proposed 2016 JPA, Ohnstad Twichell attorney, John Shockley and his colleagues are attempting to use “whereas” proclamations to establish a framework of terminology and suppositions to fabricate a purpose for an agenda that does not exists outside the diversion authority, y’know, in the real world.
Here are a few erroneous excerpts:
| 2016 JPA: Whereas: “…the Red River has exceeded the National Weather Service flood stage of 18 feet at the United States Geological Survey (USGS) gage in Fargo (Fargo gage) in 50 of the past 114 years (1902 through 2015), and recently every year except 2012 from 1993 through 2013;… |
FACT: Fargo has chosen not to adjust the minimum 18 foot flood stage to offset the effects of development encroachment into the natural flood plain that has increased base floods without additional water in the river system.
| 2016 JPA: Whereas: “…the record-setting Red River flood stage in 2009 at Fargo was 40.82 feet on the Fargo gage;… |
FACT: The USGS historical record indicates 2009 reached 40.84 feet at the Fargo gage.
| 2016 JPA: Whereas: “…and, the hydrologic record of the Red River shows a trend of increasing magnitude and frequency of flooding in recent decades;… |
FACT: the hydrologic records of the Red River upstream and downstream of Fargo, ND do not support the suggested trend. Furthermore, increases in the hydrologic record have not accurately quantified the net effects of floodway and floodplain encroachment and the augmentation of gage readings at Fargo, ND.
| 2016 JPA: Whereas: “…a five hundred (500) year event would flood nearly the entire City of Fargo and a large portion of the City of Moorhead, as well as several smaller communities surrounding the Fargo-Moorhead Metropolitan Area;… |
FACT: the original project never defined 500 year flood protection as a stated project purpose. References to a 500 year flood are arbitrary and ambiguous, as there is no indication of water depth(s) or factual mapping of a 500 year flood event tied to existing conditions that are not influenced by the theoretical EOE study. The intentional downgrading of the 2009 event by the USACE and local sponsors suggest a 500 year flood event is less likely than the greatest flood of records.
In addition; FEMA withdrew support for the Fargo Southside Flood Protection project, in Oct 2009, because the project had grown beyond the scope of the original FEMA grant from 1997.
| 2016 JPA: Whereas: “…the Office of the Chief of Engineers, Department, provided the Chief’s report to Congress dated December 19, 2011, recommending a Locally Preferred Plan to Congress;… |
FACT: The Chief’s report is based upon imperfect and incomplete hydrology, which has been revised over seven times (at least five times since it was presented to congress) and is based on unproven theoretical assumptions derived from an Expert Opinion Elicitation, that manipulated data sets to manufacture an opinion capable of advancing the USACE process.
There are 3.5 pages of “whereas” proclamations, where none existed before, in an attempt to explain how pompous and bloated the proposed JPA has become. Isn’t it ironic that the “whereas”, while functional to some degree, has been criticized within the profession as an overused legal formalism that clutters contracts and other legal documents.
Moving on…
The original 2011 JPA verbiage was centered around the structure of voting and costs, which requires approval of all members. However, the newly proposed 2016 JPA specifically states that:
| “failure of a Member Entity to approve this Agreement shall result in the Member Entity being deemed a non-party to this Agreement and all of such Member Entity’s and the Flood Diversion Board of Authority’s obligations and responsibilities with respect to the Limited Joint Powers Agreement and the Project shall terminate and be of no further force or effect. |
Isn’t it odd that if all member entities do not adopt the proposed 2016 JPA, and the previous 2011 JPA agreement does not provide verbiage for a portion of member entities to form an alternate board to advance their agenda, that all of these efforts are for not? It’s kind of like trying to remove an owners name from a house or car without their consent and against their wishes, by claiming if they don’t agree to remove their name, you can remove their name by deeming them a non-party to the matter.
But it gets worse!
| 2011 JPA: BUDGET: “…When the amounts initially approved by all members in above paragraph are expended the Diversion Authority shall propose a new budget which must be approved by all of the members through a vote of their governing bodies… |
| 2016 JPA: BUDGET: “…failure of the Flood Diversion Board to approve an annual budget shall not impair, excuse, revoke, negate, or terminate the obligation of a Member Entity to provide for and make a debt service payment on a Debt Obligation…. |
If you think that’s bad, it gets even worse!
| Proposed 2016 JPA: Section 20.04 (excerpts)
If the Member Entity does not intend to undertake and complete the Requested Project Action, it must evidence such refusal by a motion of the Members Entity’s Governing Body. Such motion must specifically state in writing and on the record the reason(s) that the Member Entity is refusing to undertake and complete the Requested Project Action. The Flood Diversion Board’s determination that a Member Entity did not have a Rational Basis for refusing to undertake and complete the Requested Project Action shall be deemed a Default by that Member Entity. If the Flood Diversion Board determines that a Member Entity is in Default pursuant to this Section 20.04, the Flood Diversion Board may institute proceedings in accordance with Section 20.05 of this Agreement to remove the Defaulting Member Entity from the Flood Diversion Board of Authority. |
So basically, if you’re not with us…, you’re against us…, and we (diversion authority) decided if your reason is good enough.
Where does the democratic process even come into play and foster an environment of control by dissenting vote?
| Proposed 2016 JPA: Section 20.05 (excerpts)
A Defaulting Member Entity can only be removed from the Flood Diversion Board of Authority and this Agreement pursuant to this Section 20.05 by an affirmative vote of a simple majority of all the Member Entities. “Event of Default” means the occurrence of any event or the existence of any condition that, with the giving of notice, the passage of time, or both, would constitute an event of default under the terms of this Agreement. |
Ahhh…, there it is! The democratic process of fascist totalitarianism.
So why stop there?
The proposed 2016 JPA states that the City of Moorhead and Buffalo Red River Watershed District will also impose, levy and collect a Storm Water Maintenance Fee for costs associated with maintaining and operating the Project. Which is nothing more than taxation without representation or ratification by property owner.
“Storm Water Maintenance Fee” Defined as: “a monthly fee imposed, levied and collected by a Member Entity for costs associated with the Project.”
The proposed 2016 JPA goes on to state: MN OBLIGATIONS: Maintenance Costs: “Minnesota Member Entities are responsible for maintenance costs of the tie-back levees and In-Town Levees located in Minnesota and HALF of maintenance costs of the Red River Control Structure.”
How magnanimous to steal land and future economic prosperity from Minnesota, shove Fargo ND flood waters onto Minnesota and then stick Minnesotans with the bill.
Perhaps the most nauseating and idiotic statements coming from Ohnstad Twichell attorney, John Shockley is his reference to the proposed 2016 JPA: “”This joint powers agreement amendment is more like the United States Constitution,”.
I’m sorry Mr. Shockley, but comparing 78 pages of contrived fascist agenda drivel to the U.S. Constitution is just shameful linear sensationalism to advance a development agenda!
The proposed 2016 JPA defies every principal of the U.S. Constitution and its Preamble, and what they stand for.
Rather disconcerting that on March 22, 2016 at 3:00 PM there will be meeting at Vogel Law with other MN entities to discuss JPA, allegedly without a full quorum, because of course, they don’t want to violate the law…, just intentionally skirt the law when convenient.
So…, about that crooked mechanic and his squirt bottle of dirty oil…
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