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Judge tosses part of flood diversion suit, finds that Corps did not act illegally

FARGO -- A part of the lawsuit filed against the Fargo-Moorhead flood diversion project has been dismissed by a federal judge, leaving two of five original counts unresolved.

The U.S. Army Corps of Engineers has also been dismissed from the case, leaving the Diversion Authority as the primary defendant.

In the two counts that Judge John R. Tunheim's order on Thursday dismissed, upstream opponents of the project, the Richland-Wilkin Joint Powers Authority, had argued that the corps failed to follow federal environmental review procedures.

The judge dismissed another count a year ago.

The two counts that remain argue that the Diversion Authority must wait for an environmental review and a permit from the Minnesota Department of Natural Resources before beginning work on the project, even on parts of the project in North Dakota.

"It was a favorable ruling that we hoped to get, so we're very pleased about it," said Fargo Mayor Tim Mahoney, a member of the Diversion Authority. He said the authority is complying with DNR requirements and there is a good working relationship between the two.

JPA Chairman Sid Berg didn't reply to a request for comment.

The corps expects to break ground on the $2.1 billion project in the fall if all the legal hurdles fall.

The JPA alleged in its suit that the corps ignored a diversion route through Minnesota that its own staff determined had a better cost-benefit ratio and lower environmental impact than the North Dakota route that it ultimately chose. This, the plaintiffs said, was an "arbitrary and capricious" departure from the process laid out in national environmental laws.

Tunheim rejected the JPA arguments.

A 1977 executive order the JPA relied on is not a law and therefore outside the court's purview, he wrote. In addition, he wrote, the corps did, in fact, consider the Minnesota route and found the North Dakota route was better. "While reasonable people can and will disagree as to whether the Corps made a good or bad decision in deciding against the Minnesota option, the Corps' process was not illegal."

The two remaining counts focus on a ring dike around the Oxbow area south of Fargo. The dike protects an area in North Dakota that's behind a proposed dam stretching into Minnesota that would reduce the flow into the diversion channel. The JPA argued the dike is part of the dam, which requires DNR permission. The judge agreed and forced the authority to stop construction.

The authority continues to argue that the DNR has no jurisdiction on projects taking place on North Dakota soil. However, the authority has cooperated with the DNR.

"We want (Minnesota) Gov. (Mark) Dayton happy that we're complying with the things he wants us to comply with," Mahoney said.

The authority is hoping Minnesota will pay $100 million for the project as it indicated it would early on. The diversion would protect Fargo, Moorhead, West Fargo and surrounding areas.

The JPA, which represents upstream areas affected by the dam, filed suit in August 2013.