Judge says corps should be reinstated in diversion lawsuit

FARGO, N.D. (AP) - A federal judge said Friday that the U.S. Army Corps of Engineers should be brought back as a defendant in a lawsuit against a Red River diversion project around the Fargo and Moorhead, Minnesota area, although it’s not clear how that will affect plans to start construction.

U.S. District Judge John Tunheim ruled last year that the corps couldn’t be sued in the case, which diversion supporters have cited to start the project over objections from the state of Minnesota. The corps said in a release last week that work has begun on stabilizing the ground for a gated inlet structure, considered the first phase of construction.

But Tunheim said circumstances have changed, most notably a decision by the Minnesota Department of Natural Resources to deny a permit for the project and the follow-up announcement by the corps that it planned to start construction anyway.

“The court, therefore, reinstates the corps as an active defendant in litigation,” Tunheim said in his order.

The suit was filed in 2013 by a group of upstream opponents who believe there’s a better alternative than the $2.2 billion project that would flood land south of the Fargo-Moorhead area during times of serious flooding.

Gerald Van Korff, attorney for the group of upstream residents who filed the suit, said the Fargo-Moorhead Diversion Authority incorrectly interpreted the ruling excusing the corps from the complaint as a reason to start the project without all the necessary permits.

“The federal government is not above the law,” Van Korff said. “While major issues remain in this case, it is our hope that the diversion authority will rethink its posture regarding finding a consensus solution that will work for the entire region.”

Robert Cattanach, a Minneapolis attorney who represents the diversion authority, said the ruling “is not all the bad for us” because it will give the corps a chance to show the country what is happening to a project that has been authorized by Congress.

“I think it underscores that if a state, any state, is allowed to frustrate the will of Congress, that’s a matter of national significance,” Cattanach said. “We think the corps will make that case pretty convincingly.”

Cattanach said he doesn’t think the ruling will affect the timing of the project because the soil still has to sit for 280 days once it’s stabilized.

“We should have a lot of things sorted out in the next nine months on the litigation itself and kind of getting the MDNR permit back on track,” Cattanach said.