FARGO — A rural Cass County couple who won a North Dakota Supreme Court decision forcing land negotiators for the diversion to drop expedited “quick take” eminent domain proceedings has reached a settlement.
Gene and Brenda Sauvageau agreed to a $975,000 settlement, which an official said includes payment of legal expenses and a relocation benefit, after rejecting the Cass County Joint Water Resource District’s initial $460,000 offer.
A lawyer for the Sauvageaus, who owned an 8-acre farmstead in the St. Benedict Catholic Church area near Horace, said the decision taking away the expedited eminent domain process made negotiations more attractive to representatives of the $3.2 billion flood control project.
“The Supreme Court decision put some pressure on,” said Cash Aaland, the Sauvageaus’ lawyer. “That’s how litigation works. It doesn’t move until there’s pressure on one side or another.”
The Sauvageaus have vacated the property and are staying on family land — but that property also is slated for condemnation for the diversion, so the accommodations are temporary, Aaland said.
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“They would have preferred to stay there and have their beautiful eight acres,” but agreed to the settlement offer by the Cass County Joint Water Resources District. “They made a fair settlement.”
Although the Cass County District Court docket lists 22 pending eminent domain cases involving land needed for the diversion, 10 of those cases have settled, but the final paperwork has yet to be filed, said Jodi Smith, the Metro Flood Diversion Authority’s director of lands and compliance.
The remaining 12 eminent domain cases are in “active settlement negotiations,” she said.
“Since I came on board late last year, we have made a concerted effort towards settling eminent domain cases,” Smith said. “This is a direct result of the landowners being willing to sit with us and have an open dialogue. By working with their independent land agents and discussing and negotiating their concerns and terms, we are able to reach agreements faster and avoid eminent domain.”
Under North Dakota law, landowners facing quick take eminent domain can charge the public entity seeking their land to pay their attorneys’ fees. In the Sauvageau case, the North Dakota Supreme Court decided the expedited “quick take” process wasn’t proper because the case was complicated and involved their residence.
The massive diversion project, scheduled for completion in time to defend against a spring flood in 2027, includes a 20-mile earthen embankment with three gated control structures that temporarily impound water to control releases through a 30-mile diversion channel during extreme floods.
Property acquisition and easements for the project are well along, according to figures from the Metro Flood Diversion Authority:
- Construction footprint, 82.5% complete
- Upstream mitigation area, 24% complete
- Environmental monitoring easements, 72% complete
- Diversion channel, 99.5% complete
- Southern embankment and associated infrastructure, 76% complete
- Oxbow-Hickson-Bakke area, 100% complete
Except for a “handful of quick take eminent domain cases remaining on parcels associated with the Diversion Channel,” all of the land for the channel has been acquired, Smith said. Ground was broken on the diversion channel earlier this month by the Red River Valley Alliance, an international consortium of companies that will design, build, maintain and operate the channel.
The U.S. Army Corps of Engineers is building the embankment and three gated control structures.
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More than 100 easements needed to secure rights for the diversion project to temporarily store water upstream of the embankment still await appraisals, Smith said.
In cases that fail to settle, judges or juries will decide the value of the land or easements. Aaland, whose firm is representing three dozen landowners with disputed land values, believes agreements will be reached in most cases.
“I think ultimately the majority of cases will settle,” he said, noting that North Dakota law requires the acquiring public entity to pay landowners’ legal costs.
The Sauvageaus petitioned the court for reimbursement of legal fees and costs of $212,538 and the Cass County Joint Water Resource District paid its lawyers more than $137,000, according to court records.
“So it will be quite expensive for Cass to take cases to judges,” Aaland said.
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