To the Managers, Buffalo Red River Water Resource District:
The following is a short update since the Contested Case Filing by Wolverton, Comstock and BRRWD.
The initial filing for a contested case by Wolverton and Comstock was denied. It was only after the JPA Attorney filed a direct appeal to the MN Appellate Court that the filing was accepted by the DNR. However, the DNR has not forwarded the contested case filings to the Administrative Law Judge. The new DNR strategy is to convince the BRRWD, Wolverton and Comstock to withdraw their requests for a Contested Case. While Wolverton, Comstock and Buffalo Red River Watershed were insignificant to the Diversion Authority and the Army Corps over the past 10 years, they now have an opportunity to engage in the process and shape the outcome through the Contested Case. The Richand/Wilkin JPA will lead and assume the cost of a contested case. The first phase of the Contested Case is a full disclosure by the DNR of data/communications used in arriving at the decision.
A contested hearing will allow a thorough examination of the permitting process that went from denying the permit to granting a provisional permit without explanation on the key elements set forth in the initial denial. As long as the Contested Hearing remains in place the permit is not final and in fact doesn’t exist.
The Federal Court heard a motion on April 1st, filed by the Diversion Authority/ Army Corps to have the continuing Injunction dismissed. The primary Injunction issue in the decision to be made by the Judge hinges on the Contested Hearing preventing the project from proceeding without a permit. However, there is still a pending case associated with the Injunction that alleges the project violates the Minnesota Environmental Rights Act. That Complaint has yet to be tried though filed 7 years ago.
The Contested Hearing will insure that a non-partial Judge will review all aspects of the project. The JPA will demonstrate that there are less impactful alternative and that the current project violates State and Federal law.
The Administrative Judge will submit a recommendation to the new MN DNR Commissioner for her reconsideration concerning the permit. That recommendation could include a denial or additional conditions. This is not a win or lose process. It is part of the due process, guaranteed by Minnesota Law, that has been denied to all persons who have been negatively impacted. There is a strong appearance that the current provisional permit was the result a political decision made by ex-Governor Dayton. Again, the contested case Hearing will reveal how the decision making process occurred and allow other alternatives to be considered by an impartial judge.
BRRWD is essential in the process of having the contested case continue. BRRWD has the statutory right to be a party.
I have attached the Court filings made by the JPA in the Federal case leading up to the April 1st Injunction Hearing. These may have already been provided to you by Bruce. It may take some time to read this material but it will be very informative. The Reply Memorandum provides an excellent explanation of the background and purpose of the a Contested Hearing. This will be helpful in understanding the essential nature of proceeding with the Contested Case.
The Richland/Wilkin JPA has spend over 7 years attempting to proceed in a judicial process to challenge the DA/USAC process and data, while providing evidence of least impactful solutions. With the help of BRRWD, the Richland/Wilkin JPA will continue to represent BRRWD and all other communities and families that could have their land and way of life taken from them. We will fight to insure that a complete and fair process takes place in accordance with Minnesota Law and Policy.
The BRRWD may not realize that the Richland/Wilkin JPA has fought on behalf of the BRRWD including its right to review and have permitting authority over the Diversion Authority and Corps. At one point the Army Corps was ordered by the Federal Court to participate, though they had refused to do so. The DNR permitting authority, which encompasses the local permitting authority, has been upheld by the Federal Court and the Federal Appeals Court. This authority was established by the legal efforts of the Richland/Wilkin JPA. The Federal Court in issuing the injunction exercised its authority over the Army Corps. When the Army Corps entered the Project Partnership Agreement the Army Corps’ claim of immunity was waived by the Army Corps. The Army Corps continues to argue that they are immune from any permitting process. The Richland/Wilkin JPA will continue to insure that the Army Corps is subject to the permitting process including the authority of the BRRWD. The ongoing participation of the BRRWD in the contested case will help insure the Army Corps remains under the jurisdiction of the federal court, preventing them from proceeding without all necessary permits.
After having been left on the sidelines for the last 10 years, it is hoped that the BRRWD will not return to the sidelines, but remain a participant in the most important project to ever come before them.
Tim Fox
Richland Wilkin JPA
Views: 810
Will a contested hearing take into account that the Fargo Diversion Authority with the full power and planning of the Army Corp of Engineers will sacrifice communities above and below Fargo for the purpose of development of the closest and most effective area to hold and control water above Fargo? No one is against Fargo protecting itself. The ACoE (USACE) used to open their meetings with a disclaimer that their charge can not be for the intended purpose of protecting a development area for the purpose of developing land for a few investors.
Will anyone on BRRWD feel conflicted and choose not to vote?