Richland/Wilkin Joint Powers Authority v. United States Army Corps of Engineers

Background

The court had issued a preliminary injunction on September 7, 2017, ordering the defendants to stop all construction work on the Fargo-Moorhead Flood Risk Management Project. The injunction was based in part on concerns that construction under the original Plan A could cause procedural and environmental harm to the Minnesota Department of Natural Resources (DNR) and the Richland/Wilkin Joint Powers Authority (JPA), including harm to Minnesota waters before the DNR completed its permitting responsibilities.

After the injunction, officials and representatives from Minnesota and North Dakota developed Plan B through an interstate task force. The DNR conducted supplemental environmental review, determined that the review was adequate, and issued Plan B a Dam Safety and Public Waters Work Permit on December 27, 2018. Several local government units then requested a contested-case hearing to challenge the permit before an administrative law judge. The court noted that the parties disagreed about the legal effect of that hearing on the permit, but concluded that it did not need to decide that question because the defendants were not seeking permission to begin the entire project.

Motions and arguments

The Fargo-Moorhead Flood Diversion Board of Authority moved to modify or dissolve the preliminary injunction, and the United States Army Corps of Engineers moved to alter, amend, or correct it. The defendants requested permission to manufacture components and begin construction of the Diversion Inlet Structure and Wild Rice River Structure, begin construction of the Western Tieback, commence the public-private partnership process for the diversion channel and associated infrastructure in North Dakota, and perform non-construction design and mitigation work in Minnesota and North Dakota.

The defendants argued that circumstances had materially changed because Plan B differed from the rejected Plan A, had received DNR approval, and resulted from cooperation between the two states. They also argued that the limited work would take place in North Dakota or would not involve construction and therefore would not affect Minnesota waters. The DNR largely agreed, but asked the court to require compliance with the permit. The JPA continued to oppose modification, primarily because of the pending contested-case hearing and the possibility that the permit could later be overturned.

Court’s analysis

The court applied the standard for modifying an injunction based on changed circumstances. Under that standard, a court may make equitable changes to an injunction in light of later changes in facts or law, or for another good reason. The court did not apply the factors used when the preliminary injunction was originally issued because the defendants ultimately sought modification rather than rescission of the injunction.

The court concluded that modification was appropriate. The DNR supported Plan B, had conducted environmental review, and determined that the plan protected Minnesota’s environmental interests. The court also found that the JPA had not shown clear harm from the specific, limited requests at issue. The court emphasized that it was not deciding whether the entire Plan B project should proceed or whether Plan B would ultimately be selected.

The court did not resolve the Corps’ arguments that it was not subject to the permit, was not a proper permittee, and had sovereign immunity from state permitting requirements. Based on the defendants’ representations about their roles and intentions, the court expected the permit conditions to be followed. The order also relied on the court’s prior statement that the Corps had an independent duty to monitor and audit the Diversion Authority for compliance with applicable permit requirements.

Disposition

The court granted the Diversion Authority’s Motion to Modify or Dissolve the Preliminary Injunction. It also granted the Corps’ Motion to Alter/Amend/Correct. The court modified the September 7, 2017 injunction to allow the defendants to:

- manufacture components and begin construction of the Diversion Inlet Structure; - manufacture components and begin construction of the Wild Rice River Structure; - commence the public-private partnership process for the Diversion Channel and Associated Infrastructure element of Plan B in North Dakota; - begin construction of the Western Tieback; and - undertake the requested non-construction design and mitigation work in North Dakota and Minnesota.

The order provided a process for addressing alleged violations of the permit. A party or other person could notify the DNR of alleged noncompliance, or the DNR could raise the issue itself. If the DNR found noncompliance, it would notify the Diversion Authority and provide a reasonable opportunity to correct it. If the issue was not corrected to the DNR’s satisfaction, the DNR could seek appropriate relief from the court. The court retained jurisdiction over the injunction and could consider future motions to reinstate it or enjoin particular project activities.