CASE 0:13-cv-02262-JRT-LIB Document 179 Filed 03/12/15 Page 1 of 20

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Richland/Wilkin Joint Powers Authority, a

Minnesota-North Dakota Joint Powers
Authority,

Civil File No. 0:13-CV-02262-JRT-LIB

Plaintiff,
vs.
United States Army Corps of Engineers;
John McHugh, Secretary of the U.S. Army
Corps of Engineers (in his official
capacity); Jo-Ellen Darcy, Assistant
Secretary of the Army for Civil Works (in
her official capacity); and Col. Dan
Koprowski, District Commander, St. Paul
District, U.S. Army Corps of Engineers (in
his official capacity),

AMICUS CURIAE MINNESOTA

DEPARTMENT OF NATURAL
RESOURCES MEMORANDUM
REGARDING MOTION TO DISMISS
AND MOTION FOR PRELIMINARY
INJUNCTION

Defendants,
and
Fargo-Moorhead Flood Diversion Board of
Authority,
Defendant-Intervenor.
INTRODUCTION
Pursuant to the Courts Order dated February 24, 2015, Amicus Curiae Minnesota
Department of Natural Resources (MDNR) files this Memorandum in support of the
Richland/Wilkin Joint Powers Authoritys (JPAs) motion for a preliminary injunction

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and in opposition to Fargo-Moorhead Flood Diversion Board of Authoritys (Diversion

Authoritys) motion to dismiss Counts III through V of the Third Amended Complaint.
BACKGROUND
A.

The Project and Federal Environmental Review.

In 2008, the U.S. Army Corps of Engineers (Corps), along with the Cities of
Fargo, North Dakota and Moorhead, Minnesota, began work on the Fargo-Moorhead
Metro Feasibility Report and Environmental Impact Statement (FR/EIS). (Declaration of
Nathan Hartshorn (Hartshorn Decl.), Ex. 1 [No. 82].) The FR/EIS evaluated a number
of alternatives to address recurrent flooding in the Fargo-Moorhead Metropolitan Area,
including the Locally Preferred Plan (the Project). (Declaration of Gerald Von Korff
dated July 15, 2014 (July 2014 Von Korff Decl.), Ex. A at ES-4 [No. 71].)
The Project involves the construction of a diversion channel four miles south of
the confluence of the Red and Wild Rice Rivers and south of Fargo-Moorhead.1
(July 2014 Von Korff Decl., Ex. A at ES-12-13; Ex. D. at 2-9.) The Project requires a
staging area sufficient to contain approximately 200,000 acre-feet of water immediately
south of the Red River and Wild Rice River dams. (Id.) The proposed staging area is
located in Clay and Wilkin Counties, Minnesota and in Richland and Cass Counties,
North Dakota. (Id.; see also Declaration of Randall Doneen dated July 21, 2014 (First
Doneen Decl.), 2730 [No. 81] (containing a detailed description of the Project and
its operation).) Homes, businesses, and farms in the staging area would be flooded during

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operation of the Project. (July 2014 Von Korff Decl., Ex. D at 7-8; First Doneen Decl.,
26-27.)
The Project also requires the construction of a control structure anchored on the
Minnesota side of the Red River, a structure that both the Corps and MDNR classify as a
high-hazard dam. (First Doneen Decl., 11-14.) A high-hazard dam is a dam that would
cause loss of life and property damage in the event of a failure. (Id.) Construction of a
high hazard dam in public waters requires both a MDNR permit and the preparation of a
state EIS. See generally, Minn. R. 6115.0300 to 6115.0520 (2013) (dam safety permitting
rules); Minn. R. 4410.4400, subp. 18 (2013) and First Doneen Decl., 12. The Corps
recognized the need for the State of Minnesotas environmental review and permits in its
Final FR/EIS. (First Doneen Decl., Ex. 2 at 137.)
During the public comment periods on the federal environmental review
documents, MDNR raised a number of concerns with the Project. (First Doneen Decl.,
20-24; July 2014 Von Korff Decl., Ex. B.) While the Corps responded to some of these
comments in the FR/EIS, the Corps verbally informed MDNR that there was no need to
reply to all of MDNRs comments because the requested analysis would be included in
the State of Minnesotas own environmental review process. (First Doneen Decl., 25.)
The Corps failed to adequately address MDNRs concerns regarding a number of
issues, including geomorphology, indirect wetland impacts, fish passage, compatibility
with land use regulations, cold weather impacts, and mitigation during the federal

The Project is described in more detail in MDNRs Memorandum Regarding Motion for
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environmental review process, deferring instead to the state environmental review

process. (Second Declaration of Randall Doneen (Second Doneen Decl.), 14.) For
example, while MDNR explained that the Project would not allow any fish passage at
certain river elevations and has the potential to strand fish, the Corps relied on
after-the-fact mitigation to address impacts to fish populations. (July 2014 Von Korff
Decl., Ex. B at 7-8; Declaration of Jill Schlick Nguyen (Nguyen Decl.), Ex. A.)
Further, the Corps dismissed MDNRs concerns that the Corps drastically discount[ed]
the potential for impacts caused by changes in geomorphic processes and declined to
research potential issues with river bank stability. (July 2014 Von Korff Decl., Ex. B at
6-7; Nguyen Decl., Ex. A.)
The Corps completed the FR/EIS in July 2011.

(July 2014 Von Korff Decl.,

Ex. A.) On December 19, 2011, the Corps issued the Chiefs Report for the Project.
(Declaration of Bruce Spiller dated July 8, 2014 (Spiller Decl.), Ex. A [No. 69].) The
Chiefs Report, which was transmitted to Congress, recommended construction of the
Locally Preferred Plan as the preferred alternative. (Spiller Decl., Ex. A at 1-2.)
In September 2013, the Corps issued a Supplemental Environmental Assessment
(SEA) for the Project. The SEA addressed several proposed modifications to the
Project including a ring levee around the towns of Oxbow, Hickson, and Bakke, ND.
(Ex. H filed by Corps in Opposition to Motion for Preliminary Injunction at 7 [No. 162].)
The SEA explains that while the FR/EIS contemplated acquiring this entire area in fee, an

Anti-Suit Injunction filed July 22, 2014.

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alternative is to construct a ring levee around the area. (Id. at 22.) The SEA notes that
approximately 40 residences would have to be removed to allow for construction of the
levee. New residences and a new golf course would be constructed within the levee. (Id.
at 23.)
Congress authorized, but did not appropriate funding for, the design and
construction of the Project in the Water Resources Reform and Development Act of 2014
(2014 WRRDA).

Water Resources Reform and Development Act of 2014,

P.L. 113-121, 7002(2)(4). Congress indicated that the Project should be carried out
substantially in accordance with the plan, and subject to the conditions, described in the
[final feasibility study]. Id. One of the conditions included in the FR/EIS requires the
Diversion Authority to obtain State and local permits and undertake State environmental
review.

Funding for the Project is not included in the Presidents 2015 budget.

(Declaration of Kent Lokkesmoe, 17 [No. 80].)

B.

The State Environmental Review Process.

MDNR commenced the state environmental review process in 2013.

Doneen Decl., 33.)

(First

In February 2014, MDNR issued the Scoping Environmental

Assessment Worksheet and Scoping Decision Document (Scoping EAW) for the state
EIS. (Id. at 40.) The purpose of the scoping process is to set out the scope of the issues
to be evaluated in the states EIS. (Id. at 35.) The Scoping EAW identifies twenty-eight
state and local permits or approvals required for construction and operation of the Project
including the Dam Safety permit for the dam on the Red River. (Id. at 38; July 2014

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Von Korff Decl., Ex. D at 10-12.) MDNR anticipates issuing the state Draft EIS in
August 2015. (Second Doneen Decl., 2.) MDNR will then provide the public with the
opportunity to comment on the Draft EIS. (Id.) MDNR anticipates that it will complete
the Final EIS and issue its record of decision by late fall 2015 or spring 2016. (Id. at 3.)
C.

The Diversion Authority, the Oxbow-Hickson-Bakke Ring Levee, And

Other Efforts to Start the Project Prior to Completion of the State EIS.

The Diversion Authority was formed in 2011 by the City of Fargo, North Dakota;
the City of Moorhead, Minnesota; Cass County, North Dakota; Clay County, Minnesota;
the Cass County Joint Water Resources District, a North Dakota water resources district;
and the Buffalo-Red River Watershed District, a Minnesota watershed district. (First
Doneen Decl. 34; Declaration of Gerald Von Korff dated November 1, 2013, Ex. A
[No. 23].) The purpose of the Diversion Authority is to build and operate the Project.
(Id.)
In 2013 the Diversion Authority entered into a Memorandum of Understanding
(MOU)

with

the

City

of

Oxbow

for

design

Oxbow-Hickson-Bakke Ring Levee (OHB Levee).

and

construction

of

the

The MOU indicates that the

Oxbow-Hickson-Bakke area would be affected by the Projects staging of water and that
purpose of the OHB Levee is to mitigate the Projects impacts. (Second Doneen Decl.,
9.) The Diversion Authority is seeking to apply the cost of construction of the OHB
Levee towards the Diversion Authoritys local match for the Project, that is, the share of
the total Project costs that the Diversion Authority is required to pay in order to receive
federal funding. (Id.)
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When the Corps granted the Diversion Authority a Clean Water Act section 404
permit for the OHB Levee on June 20, 2014, the Corps specifically noted that the OHB
Levee is an element of the Fargo-Moorhead Flood Risk Management Project. (Second
Doneen Decl., 9.) In fact, the Corps allowed the Diversion Authority to withdraw its
separate application for an OHB Levee permit, noting that [t]he application for a
stand-alone project is no longer necessary, as the OHB Project is part of the overall
Federal Project. (Declaration of Gerald Von Korff dated February 3, 2015, Ex. 11
[No. 170].)
The Diversion Authority originally proposed building the OHB Levee at an
elevation approximately seven feet above the 100-year flood elevation. (Second Doneen
Decl., 9.) The Diversion Authority did begin construction at this elevation, but after
MDNR and Minnesota Governor Mark Dayton objected to its construction activities, it
eventually agreed to limit its subsequent construction to a lower elevation. (Declaration
of Perry Miller, et al. 16 [No. 169]; Declaration of Gerald Von Korff dated December 9,
2014, Ex. 1 [No. 125]; Declaration of Darrell Vanyo dated January 23, 2015, Ex. A
[No. 159].)
In addition to beginning construction of the OHB Levee, the Diversion Authority
has approved the purchase of land necessary for the construction of the diversion channel.
(Second Doneen Decl., 10; see also Declaration of Jody and Karla Slusher, 3
[No. 139].)

The Diversion Authority has also expressed an interest in starting

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construction on the diversion channel in the summer of 2015. (Second Doneen Decl.,
11.)
ARGUMENT
The Diversion Authoritys arguments that Minnesota law does not extend across
the border disregard one key factthree members of the Diversion Authority are
Minnesota local governments.2 As Minnesota local governments, these entitiesand the
Diversion Authority of which they form a part are subject to regulation by the State of
Minnesota. The primary purpose of the Minnesota Environmental Policy Act (MEPA)
is to ensure that Minnesotas government entities consider the environmental impacts of
actions they propose to take. In addition, the Minnesota Environmental Rights Act
(MERA) protects natural resources in the State of Minnesota from pollution,
impairment, or destruction, even if some or all of the conduct causing such damage
occurs in another State. The Diversion Authority offers no support for its novel assertion
that the State of Minnesotas regulation of its own political subdivisions, pursuant to
MEPA and MERA, violates the dormant Commerce Clause.
Further, the actions taken by the Diversion Authority to begin construction of
portions of the Project prior to completion of environmental review undermine MEPAs
purpose of ensuring that Minnesota government entities review the impacts of a proposed
action prior to committing to that course. The Diversion Authoritys efforts to begin the
Project should be enjoined.

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I.

MEPA GOVERNS MINNESOTA GOVERNMENT ENTITIES EVEN WHEN THEIR

CONDUCT OCCURS IN ANOTHER STATE.
MEPA governs actions by the State of Minnesota and its local governments, even

when such conduct crosses State lines. MEPAs purpose is to ensure that governmental
agencies contemplating taking action on a proposed project must first consider the
projects environmental consequences.

Citizens Advocating Responsible Dev. v.

Kandiyohi Cnty. Bd. of Commrs, 713 N.W.2d 817, 823 (Minn. 2006); see also No Power
Line, Inc. v. Minn. Envtl. Quality Council, 262 N.W.2d 312, 327 (Minn. 1977) (the
purpose of MEPA is to force agencies to make their own impartial evaluation of
environmental considerations before reaching their decisions). No language in MEPA
suggests that Minnesota government entities can avoid this responsibility simply by
crossing the border, such as by building a controversial or environmentally-damaging
project in another State.3 Minn. Stat. ch. 116D.

MDNR also refers the Court to the arguments included in its Memorandum Regarding
Motion for Anti-Suit Injunction filed July 22, 2014.
3
A related question is whether MEPA requires consideration of environmental impacts in
other States that result from Minnesota governmental action. Minnesota agencies at times
have considered impacts to other States when drafting environmental impact statements.
See Minn. Ctr. for Envtl. Advocacy v. Holsten, 2009 WL 2998037, at *3 (Minn. Ct. App.)
(upholding adequacy of MDNRs discussion of projects greenhouse gas emissions but
declining to decide whether MEPA requires such discussion in an EIS). Federal courts
have ruled that the National Environmental Policy Act (NEPA) requires analysis of
regional, national, and international impacts. Mayo Found. v. Surface Transp. Bd., 472
F.3d 545, 554-55 (8th Cir. 2006) (requiring board to examine projects impacts to
regional and national air emissions); Govt of Province of Manitoba v. Salazar,
691 F. Supp. 2d 37, 51 (D.D.C. 2010) (holding that NEPA required the Bureau of
Reclamation to consider the impact to Canada resulting from a proposed North Dakota
water project). These cases demonstrate that environmental review does not stop at
borders as neatly as the Diversion Authority suggests.
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MEPA prohibits Minnesota governments from taking action to begin or approve a

project before environmental review has been completed:
If an environmental impact statement is required for a governmental
action 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 environmental impact statement has been determined adequate.
Minn. Stat. 116D.04, subd. 2b (2014).4 Regulations promulgated by the Minnesota
Environmental Quality Board further provide that beginning a project includes any
action within the meaning of construction. See Minn. R. 4410.3100, subp. 1 (2013);
see also Minn. R. 4410.0200, subp. 10 (defining construction as any activity that directly
alters the environment). Regulations also provide that a governmental unit may not take
actions such as acquisition of property that prejudice the ultimate decision on the project:
If a project subject to review under [MEPA] is proposed to be carried out or
sponsored by a governmental unit, the governmental unit shall not take any
action with respect to the project, including the acquisition of property, if
the action will prejudice the ultimate decision on the project, until the
final EIS has been determined adequate . An action prejudices the
ultimate decision on a project if it tends to determine subsequent
development or to limit alternatives or mitigation measures.
Minn. R. 4410.3100, subp. 2 (2013).
The Diversion Authority is subject to this prohibition because it meets the MEPA
definition of a governmental unit which includes Minnesota watershed districts,
counties, and cities. See Minn. R. 4410.0200, subp. 34 (2013). The Project is also a

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project or governmental action under MEPA because it would be carried out,

approved, and permitted in whole or in part by Minnesota governmental units and it
would cause physical manipulation of the environment.

See Minn. R. 4410.0200,

subps. 33, 65 (2013) (defining governmental action and project).

Further, the OHB Levee is part of the Project. The Corps describes the OHB
Levee as a Project component in the Supplemental Environmental Assessment. (Ex. H.
at 7 [No. 162].) The Diversion Authority is seeking credit for its construction of the OHB
Levee as part of its total contribution to the Project. (Second Doneen Decl., 9.) In
addition, the Corps determined that no separate Clean Water Act section 404 permit
application was required for the OHB Levee because it is part of the Project.
(Declaration of Gerald Von Korff dated February 3, 2015, Ex. 11.)
Even if the OHB Levee were not a Project component, MEPA would prohibit its
construction because it is a mitigation measure designed to minimize or rectify impacts of
the Project. (Second Doneen Decl., 9.) MEPA does not allow actions with respect to
the project that limit alternatives or mitigative measures. Minn. R. 4410.3100, subp. 2
(2013); see also Minn. R. 4410.3100, subp. 51 (defining the term mitigation). By
constructing a mitigation measure prior to the completion of environmental review, the
Diversion Authority could preclude other alternatives such as a no build alternative --

The Third Amended Complaint also cites another MEPA provision regulating

Minnesota government entities. Minn. Stat. 116D.04, subd. 6 prohibits the issuance of
permits that are likely to cause pollution, impairment, or destruction of natural resources
in the State unless there are no feasible alternatives. See Minn. Stat. 116D.04, subd. 6
(2014).
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or mitigation measures that are currently being considered in the States environmental
review or may be advanced during public comments on the review.
The Diversion Authority asserts that the prohibition on beginning a project does
not apply to the OHB Levee because no Minnesota government unit is issuing a permit
for the levee. (Diversion Authoritys Mem. in Support of Mot. To Dismiss/Remit at 18
[No. 147].) MEPAs prohibition is in fact far broader than the Diversion Authority
suggests and applies not just to permitting but also to construction, acquisition of property
and any other action that would prejudice the ultimate decision on the Project.
The Diversion Authority also incorrectly asserts that the OHB Levee has
independent utility and therefore is not subject to this prohibition. (Id. at 18 n. 7.) See
40 C.F.R. 1506.1(c) (2014) (federal agencies must not take action while a
program-wide environmental review is pending unless the action is justified
independently of the program).5

The Diversion Authoritys assertions of the OHB

Levees independent utility date only from MDNRs objections to its construction.
(Second Doneen Decl., Ex. B.) The OHB Levee was planned as part of the Project, and
until MDNR objected, the Diversion Authority intended to and indeed commenced
constructing the OHB Levee at a far higher elevation than necessary to protect the area
from natural flooding. (Ex. H. at 7 [No. 162]; Declaration of Perry Miller, et al. 16.)

No MEPA case provides that a showing of independent utility is a defense to a

violation of the prohibition on starting a project prior to completion of environmental
review.
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The facts do not support the Diversion Authoritys assertion that the OHB Levee has
independent utility.
II.

MERA APPLIES TO CONDUCT OUTSIDE THE STATES BOUNDARIES THAT

CAUSES POLLUTION, IMPAIRMENT, OR DESTRUCTION IN MINNESOTA.
MERA applies to construction of Project components in North Dakota if that

construction causes pollution, impairment, or destruction in Minnesota. MERA provides

a cause of action for the protection of the air, water, land, or other natural resources
located within the state, whether publicly or privately owned, from pollution, impairment,
or destruction. Minn. Stat. 116B.03, subd. 1 (2014); see also Minn. Stat. 116B.01,
.07 (2014).
To protect Minnesotas natural resources, MERA specifically provides that an
action can be brought against persons outside the State, relating to conduct that takes
place outside the State but causes impacts within the State. First, MERA provides that an
action may be brought against any person, and person is defined to include
out-of-state individuals and entities.

See Minn. Stat. 116B.03, subd. 1 (2014)

(describing cause of action); Minn. Stat. 116B.02, subd. 2 (2014) (defining person to
include any state, municipality or other governmental or political subdivision or other
public agency or instrumentality).

Second, MERAs long-arm statute reaches

out-of-state conduct. Minn. Stat. 116B.11, subd. 1 (2014) (allowing action against a
foreign corporation or nonresident individual who commit[s] . . . any act outside the state
which would impair, pollute or destroy natural resources within the state). The JPAs
MERA claim should not be dismissed on the basis that most of the Project would be
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constructed in North Dakota. If construction of Project segments in North Dakota would

cause environmental damage in Minnesota, that construction may form the basis for a
MERA claim.6
III.

APPLYING MEPA AND MERA TO THE DIVERSION AUTHORITYS CONDUCT IN

NORTH DAKOTA DOES NOT VIOLATE THE DORMANT COMMERCE CLAUSE.
The Diversion Authoritys construction of the OHB Levee is not conduct that takes

place wholly in North Dakota and therefore subjecting the Diversion Authority to
regulation under MEPA or MERA does not violate the dormant Commerce Clause. The
Diversion Authority includes Minnesota local governments as members. In addition, the
OHB Levee is part of a larger project that would be partly constructed in Minnesota and
likely have environmental impacts in Minnesota. (Second Doneen Decl., 13.)
The dormant Commerce Clause is an implied limitation on state authority that
prevents states from discriminating against or unduly burdening interstate commerce.
Oregon Waste Sys., Inc. v. Dept of Envtl. Quality, 511 U.S. 93, 99 (1994). There are
three tests to determine whether a statute is valid under the dormant Commerce Clause.
First, a statute is per se invalid if it regulates commerce that takes place wholly outside
of the states borders. Cotto Waxo Co. v. Williams, 46 F.3d 790, 793 (8th Cir. 1995);
N.D. v. Heydinger, 15 F. Supp. 3d 891, 911 (D. Minn. 2014).

Second, if a statute

discriminates against interstate commerce on its face or in its purpose or effect, the statute

MDNR will not address Count V of the Third Amended Complaint, which alleges that
the Project would violate State law and permits cannot be granted for the Project. (Third
Am. Compl. 134-39 [No. 112].) MDNRs environmental review is continuing, and
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is subject to strict scrutiny. Cotto Waxo Co., 46 F.3d at 793. Third, if a statute only
burdens interstate commerce indirectly, it will be upheld unless the burdens it imposes
on interstate commerce are clearly excessive in relation to the putative local benefits.
Cotto Waxo Co., 46 F.3d at 793 (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142
(1970)).
As to the first test, a state may not enact laws that regulate transactions having
absolutely no connection to a state. Am. Beverage Assn v. Snyder, 735 F.3d 362, 373
(6th Cir. 2013). A state may not, for example, enforce price-affirmation laws that directly
regulate the price an out-of-state business can charge out-of-state customers for
out-of-state transactions. See, e.g., Brown-Forman Distillers Corp. v. N.Y. State Liquor
Auth., 476 U.S. 573, 582 (1986). But states have broad regulatory authority, and mere
extraterritorial effects are not enough to invalidate a law. Instructional Sys., Inc. v.
Computer Curriculum Corp., 35 F.3d 813, 825 (3rd Cir. 1994); Natl Elec. Mfrs. Assn v.
Sorrell, 272 F.3d 104, 110 (2nd Cir. 2001). Unless a law directly regulates out-of-state
transactions, the extraterritoriality doctrine imposes no limit on state authority to legislate
over matters of local concern.

See Kassel v. Consol. Freightways Corp. of Del.,

450 U.S. 662, 669 (1981) (stating that there is a residuum of power in the state to make
laws governing matters of local concern which nevertheless affect interstate commerce
or even, to some extent, regulate it).

MDNR is precluded from making a dam safety permit decision until after the
environmental review has been completed.
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As discussed above, the Diversion Authoritys construction of the OHB Levee

cannot fairly be described as conduct occurring wholly in North Dakota. Because on the
facts presented here there are Minnesota impacts and Minnesota governments involved,
this Court need not decide whether in some hypothetical circumstance MEPA or MERA
could be applied to wholly out-of-state conduct. Further, if MEPA or MERA have some
extraterritorial effects, such as regulating the out-of-state conduct of Minnesota
governments, these laws are still valid under the dormant Commerce Clause.
As to the second test, a statute is only discriminatory if it accord[s] differential
treatment of in-state and out-of-state economic interests that benefits the former and
burdens the latter. Grand River Enter. Six Nations, Ltd. v. Beebe, 574 F.3d 929, 942
(8th Cir. 2009).

The Diversion Authority has not argued that MEPA or MERA are

discriminatory, and indeed, they are not.

MERA, for example, does not subject

out-of-state polluters causing damage in Minnesota to any greater burden than in-state
polluters.
As to the third test, MEPA and MERA survive the Pike balancing test because the
important goal of protecting Minnesotas natural resources outweighs any potential
burden on interstate commerce. The Diversion Authority has not provided any evidence
that MEPA or MERA excessively burden interstate commerce, and the local benefits of
these environmental statutes are significant. MERA seeks to ensure the protection,
preservation, and enhancement of air, water, land, and other natural resources located
within the state, while MEPA encourage[s] productive and enjoyable harmony between

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human beings and their environment. Minn. Stat. 116B.01, 116D.01 (2014). Courts
generally uphold State statutes under the Pike balancing test that are reasonably targeted
at important public health and environmental concerns. Constr. Materials Recycling
Assn. Issues and Educ. Fund, Inc. v. Burack, 686 F. Supp.2d 162, 172-3 (D.N.H. 2010).
IV.

THE JPA HAS STANDING TO BRING ITS CLAIMS AGAINST THE DIVERSION
AUTHORITY.
The JPA has standing to bring its State law claims against the Diversion Authority.

This Court should reject the Diversion Authoritys argument that if the State law claims
against the Corps are barred by sovereign immunity, none of the State law claims can be
redressed and therefore these claims should be dismissed. (Diversion Authoritys Mem.
in Support of Mot. To Dismiss/Remit at 9-15.) The Diversion Authority again seeks to
stand in the shoes of the Corps. It is the Diversion Authority, not the Corps, that is
currently acquiring land for the Project and building the OHB Levee. The Corps has not
received funding to begin constructing any part of the Project, and it is unknown whether
the Corps will ever receive such funding.

(Declaration of Kent Lokkesmoe, 17.)

Clearly, an injunction against the Diversion Authority would provide effective relief.
In Sierra Club v. Clinton, 689 F. Supp. 2d 1147, 1155 (D. Minn. 2010), this Court
rejected a similar argument to that made by the Diversion Authority. In that case, the
State Department argued the Sierra Club lacked standing because even if a State
Department permit was vacated, the President could re-authorize the permit. Id. This
Court held that the Presidents future actions or inactions are too speculative to preclude
standing in this case. Id. Similarly, it is unknown whether Congress will ever provide
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funding for the Project, but an injunction would effectively prevent the Diversion
Authority from starting construction prior to completion of environmental review.
V.

THE CORPS FAILED TO ADEQUATELY ADDRESS MDNR COMMENTS ON THE

EIS.
Though MDNR is primarily focusing its comments on the State law claims7,

MDNR does note that the Corps failed to adequately address several MDNR comments in
the FR/EIS. The Corps dismissed as insignificant or relied on after-the-fact mitigation to
address MDNRs comments on issues such as geomorphology and fish passage.
(July 2014 Von Korff Decl., Ex. B; Nguyen Decl., Ex. A.) The Corps also told MDNR
that these issues could be addressed in the state environmental review process. (First
Doneen Decl., 25.)
While it is true that NEPA requires agencies preparing environmental impact
statements to consider and respond to the comments of other agencies, not to agree with
them, it is also true that a reviewing court may properly be skeptical as to whether an
EISs conclusions have a substantial basis in fact if the responsible agency has apparently
ignored the conflicting views of other agencies having pertinent expertise. Davis v.
Mineta, 302 F.3d 1104, 1123 (10th Cir. 2002) (citations omitted); see also N.C. Wildlife
Fedn v. N.C. Dept of Transp., 677 F.3d 596, 600 (4th Cir. 2012) (overturning EIS that
failed to address significant issue raised in comments). MDNR has significant expertise

Because MDNR is focusing on the State law claims, MDNR is not taking a position on
Corps partial motion to dismiss for lack of jurisdiction.
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on issues such as fisheries and hydrology that should have been given more weight by the
Corps.
Further, the Corps failure to adequately address these issues and reliance on
MDNRs EIS is more troubling in light of the Diversion Authoritys construction
activities. As one court indicated, researching environmental effects after a project is
constructed is like locking the barn door after the horses are stolen. Lathan v. Volpe,
350 F. Supp. 262, 266 (W.D. Wash. 1972), revd in part on other grounds, Lathan v.
Brinegar, 506 F.2d 677 (9th Cir. 1974); see also Natl Wildlife Fedn v. Andrus,
440 F. Supp. 1245, 1252 (D.D.C. 1977) (The many references to future studies which
will determine later the environmental impact of the powerplant reflect the fact that
defendants have yet to make the sort of probing examination that is required by NEPA.).
The JPAs National Environmental Policy Act claims are supported by the Corps failure
to adequately address MDNRs comments throughout the federal environmental review.
CONCLUSION
Starting a project before environmental review is completed undercuts the very
purpose of environmental review by foreclosing alternatives and mitigation measures.
Though the Diversion Authority asserts that all alternatives under consideration by
MDNR would require the OHB Levee and acquisition of property in the path of the
diversion channel, the Diversion Authority forgets that MDNR has not yet made its
determination on distributed storage and that the alternatives under consideration include
a no action alternative. (Second Doneen Decl., 6-8.) The Diversion Authoritys work

19

CASE 0:13-cv-02262-JRT-LIB Document 179 Filed 03/12/15 Page 20 of 20

on the Project forecloses other alternatives under consideration in the States

environmental review process rendering that process meaningless.
Dated: March 12, 2015.

OFFICE OF THE ATTORNEY GENERAL

State of Minnesota
s/ Jill Schlick Nguyen
Jill Schlick Nguyen
Assistant Attorney General
Atty. Reg. No. 0292874
445 Minnesota Street, Suite 1800
St. Paul, Minnesota 55101-2134
Telephone: (651) 757-1325
Fax: (651) 297-1235
[email protected]
ATTORNEY FOR MINNESOTA
DEPARTMENT OF NATURAL RESOURCES

20

CASE 0:13-cv-02262-JRT-LIB Document 179-1 Filed 03/12/15 Page 1 of 2

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA
Richland/Wilkin Joint Powers Authority, a
Minnesota-North Dakota Joint Powers
Authority,
Plaintiff,
LR 7.1(f)
CERTIFICATE OF COMPLIANCE

vs.
United States Army Corps of Engineers;
John McHugh, Secretary of the U.S. Army
Corps of Engineers (in his official
capacity); Jo-Ellen Darcy, Assistant
Secretary of the Army for Civil Works (in
her official capacity); and Col. Dan
Koprowski, District Commander, St. Paul
District, U.S. Army Corps of Engineers (in
his official capacity),

AMICUS CURIAE MINNESOTA

DEPARTMENT OF NATURAL
RESOURCES MEMORANDUM
REGARDING MOTION TO DISMISS
AND MOTION FOR PRELIMINARY
INJUNCTION
Case Number: 0:13-cv-02262-JRT LIB

Defendants,
and
Fargo-Moorhead Flood Diversion Board
of Authority,
Defendant-Intervenor.

I, Jill Schlick Nguyen, certify that the Memorandum titled Amicus Curiae
Minnesota Department of Natural Resources Memorandum Regarding Motion to
Dismiss and Motion for Preliminary Injunction complies with Local Rule 7.1(f).
I further certify that, in preparation of this document, I used Microsoft Word
Version 2010, and that this word processing program has been applied specifically to

CASE 0:13-cv-02262-JRT-LIB Document 179-1 Filed 03/12/15 Page 2 of 2

include all text, including headings, footnotes, and quotations in the following word
count.
I further certify that the above document contains 4,833 words.
Dated: March 12, 2015.

OFFICE OF THE ATTORNEY GENERAL

State of Minnesota
s/ Jill Schlick Nguyen
Jill Schlick Nguyen
Assistant Attorney General
Atty. Reg. No. 0292874
445 Minnesota Street, Suite 1800
St. Paul, Minnesota 55101-2134
Telephone: (651) 757-1325
Fax: (651) 297-1235
[email protected]
ATTORNEY FOR MINNESOTA
DEPARTMENT OF NATURAL RESOURCES