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Judge Narrows Scope of JPA’s Challenge to Permit

Read the Ruling

In the matter challenging the issuance of the Dam Safety and Public Waters Work Permit No. 2018-0819 previously granted to the FM Area Diversion Project (Project), Administrative Law Judge Ann O’Reilly ruled on two motions Sept. 27, 2019. The ruling found the motions by the Diversion Authority to be not yet ripe since specific evidence had not been actually offered by the Richland/Wilkin JPA (JPA). In her analysis, the Judge significantly narrowed the scope of future arguments that can be made by the JPA, calling their requests “non-sensical” and “improper”.

“The Plan A Project is not the subject of this hearing and its denial does not dictate the fate of the Plan B Project. Put simply, this proceeding will not be used to litigate issues related to the Plan A Project, nor to compare or contrast the two projects,” said Judge Ann O’Reilly.

“It’s clear that those opposed to flood protection want to continue to waste the Judge’s time and taxpayer dollar in continuing to debate a version of the Diversion Project that no longer exists,” said Commissioner Mary Scherling, Chair of the Diversion Authority. “Thanks to the effort of both State Governors, we have a permitable Project. It’s time to put aside old grudges and tired arguments and provide for the safety of our citizens and regional economy they deserve.”

The Judge notes that the requests made by the JPA were related to a previous order from 2016 on a previous project application and did not relate to the Plan B Project developed in part by Governor Doug Burgum and Governor Mark Dayton through the Governors’ Task Force. On the requests, Judge O’Reilly notes, “many of those requests are improper as to form.” She further comments in her analysis that the JPA’s “requests are non-sensical.”

On the ability to make future, similar motions, the Judge stated, “the denial of the Diversion Authority’s Motion in Limine does not preclude the Diversion Authority from making a motion to exclude evidence later in this proceeding once evidence or testimony is identified.”