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A federal hearing on the F-M Area Diversion Project was held on April 3, 2014 in Duluth, MN, at the Gerald W. Heaney Federal Building and Courthouse. The hearing was on the Diversion Authority’s motion to dismiss three of four counts of a complaint filed by the Richland/Wilkin Joint Powers Authority (JPA).

Magistrate Judge Leo Brisbois heard arguments from attorneys from both the Diversion Authority and the Richland/Wilkin JPA. Representatives of the Army Corps of Engineers and the Department of Justice, entities also named in the lawsuit, were also in attendance.

The Diversion Authority argued that three of the four counts in the JPA’s lawsuit are defective and should be dismissed from the lawsuit, leaving a single count to be adjudicated at a later date. After hearing the arguments from the Diversion Authority and the JPA, Judge Brisbois asked the JPA if it would be able to fix the complaint by removing the three defective counts, assuming that the Diversion Authority would agree to not object to the introduction of certain evidence, to which both parties agreed. Judge Brisbois then gave the JPA 14 days to amend its complaint to exclude the three defective counts, and to obtain approval of the amendment from all parties.

Assuming that occurs, the case will then be in a position to move forward on the merits. The first step will be to determine the extent of the administrative record to be considered, which the Department of Justice attorney indicated was currently estimated to be one terabyte of data.

“I think yesterday’s court proceedings were a positive step forward to ultimately resolving the issues addressed in the lawsuit,” said Diversion Authority Chairman Darrell Vanyo.

Apparently in reaction to the results of the hearing, representatives of the Richland/Wilkin JPA immediately issued a press release stating that they will try to find another way to attempt to block ongoing efforts to provide immediate flood protection for Oxbow, Hickson, and Bakke by seeking an injunction. North Dakota members of the Diversion Authority have been moving forward to begin constructing the ring levee after funding was appropriated by the North Dakota legislature last year to provide protection to these communities, regardless of the outcome of other plans for a Diversion project.

In order for an injunction to be successful, the Richland/Wilkin JPA would have to establish, among other things, that the irreparable harm that would threaten Oxbow, Hickson, and Bakke if the construction of the ring levee is halted would be outweighed by some other undefined, irreparable harm to Richland and Wilkin County if the construction of these levees goes forward as planned.

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