Minn. legislator backs DNR’s bid to intervene in lawsuit against diversion
FARGO — The Minnesota Department of Natural Resources’ bid to enter the legal fray over the proposed $1.8 billion Fargo-Moorhead diversion highlights an issue that has lurked beneath the surface: Can Minnesota assert legal authority over the federal flood control project?
The DNR on Tuesday filed papers in U.S. District Court seeking to intervene in the lawsuit against the U.S. Army Corps of Engineers seeking to stop the project.
The Minnesota agency is asking for permission to file a “friend of the court” brief in the lawsuit, filed by the Richland-Wilkin Joint Powers Authority formed by upstream counties seeking to block the project’s staging project, which would temporarily store water during significant floods.
Rep. Paul Marquart, DFL-Dilworth, an outspoken critic of the Diversion Authority’s decision to start construction on a ring dike to protect Oxbow, Bakke subdivision and Hickson before Minnesota completes its environmental review, welcomed the court action.
“It gets to the fundamental question: Does Minnesota’s input matter?” Marquart said Wednesday, referring to the DNR’s motion to intervene in the litigation.
“We want the court to know that we feel Minnesota’s input does matter,” he said.
In its court filing, the agency argues that the Diversion Authority should not contend it is immune to state law because the corps is leading the project. In the corps’ planning documents, it acknowledged Minnesota’s permitting authority, the state contends.
A lawyer for the Diversion Authority said Wednesday that raising the question of “federal preemption” — a doctrine giving federal government supremacy when conflicts arise with a state — is an issue the judge likely would try to avoid.
“I think raising the concern is premature,” said Robert Cattanach, a Minneapolis lawyer for the Diversion Authority.
The Corps of Engineers and DNR have worked together on the project, and that can continue, he said.
“Everyone has tried to make things work,” Cattanach said. “I think we’re going to do everything possible to work cooperatively.”
Courts generally have held that states have regulatory authority unless it “derogates,” or diminishes, federal authority, Cattanach said.
The Diversion Authority welcomes the Minnesota Department of Natural Resources’ expertise on environmental issues, but not necessarily on procedural matters in the lawsuit, he said.
Darrell Vanyo, chairman of the Diversion Authority, said the DNR’s decision to join the upstream opposition in the lawsuit calls into question its unbiased environmental review.
Echoing recent comments by Aaron Snyder, a corps official involved in the project, Vanyo said the Minnesota review will cover ground already covered by the corps and two independent reviewers, and likely will come to the same conclusions.
“We certainly are not snubbing our nose at the DNR when we’re paying $1.2 million for the study and very well could pay more,” Vanyo said.
Kent Lokkesmoe, an administrator for the DNR, denied that the agency was acting prematurely or in a biased fashion by seeking to join the diversion litigation.
“Just because we have authority doesn’t mean we’re saying it’s good, bad or indifferent,” he said. “We’re saying we have the authority.”
The DNR has helped pay more than $100 million for levees to protect Moorhead, he added, and is not opposed to flood hazard mitigation.