279 F.Supp.3d 846
D. Minnesota2017Background
- The Fargo‑Moorhead Flood Risk Project (Project) is a cross‑border flood control plan developed by the U.S. Army Corps of Engineers (Corps) and a non‑Federal sponsor, the Fargo‑Moorhead Flood Diversion Board of Authority (Diversion Authority); Corps issued feasibility/NEPA documents and Congress authorized the Project in WRRDA‑2014.
- The Diversion Authority applied to Minnesota DNR for a Dam Safety and Public Waters Work Permit; DNR denied the Permit in October 2016, finding the Project did not adequately protect Minnesota public interests and violated state environmental/floodplain requirements.
- Despite the denial, the Corps and Diversion Authority executed a Project Partnership Agreement (PPA) allocating Federal and Non‑Federal work and indicating split delivery of construction responsibilities; parties began project activities on the North Dakota side.
- Richland/Wilkin Joint Powers Authority (JPA) and Minnesota DNR sued, alleging among other claims that the Corps and Diversion Authority violated WRRDA‑2014, 33 U.S.C. § 2232, MERA, Minnesota water statutes, and NEPA; they sought preliminary injunctions to halt construction until Minnesota permits issued.
- The Corps moved to dismiss on sovereign immunity, lack of final agency action, prudential standing, statutory inapplicability, and NEPA grounds; Diversion Authority moved to dismiss JPA’s WRRDA claim for lack of private right of action. The Court granted preliminary injunctive relief and resolved several motions to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the PPA is a "final agency action" for APA review | PPA is a binding agreement that consummates agency decisionmaking and creates rights/obligations | Corps: PPA is implementation step; final action were ROD/Chief’s Report | Held: PPA is a final agency action under Bennett; APA review available |
| Whether sovereign immunity bars APA claims against Corps | DNR/JPA rely on APA review of PPA; sovereign immunity waived for final agency actions | Corps: no final agency action identified, so immunity bars suit | Held: APA waiver applies because PPA is final action; dismissal denied as to WRRDA/§2232 claims (some NEPA claim dismissed) |
| Whether 33 U.S.C. § 2232 applies to split‑delivery projects and requires state permits before non‑Federal work begins | DNR/JPA: §2232 covers "water resources development projects" including split delivery; non‑Federal sponsor must obtain any required state/federal permits before carrying out project; Corps must monitor | Corps: §2232 limited to independent non‑Federal conduct or does not apply here | Held: §2232 unambiguously applies to projects as defined and requires permits; Corps’ monitoring duty exists; plaintiffs likely to succeed on §2232 claim |
| Whether WRRDA §7002 precludes application of state permitting or otherwise preempts state law | DNR/JPA: §7002 conditions and Chief’s Report require compliance with state laws; Corps signing PPA before permits was arbitrary/capricious | Corps/Diversion Auth: congressional authorization and "substantially in accordance with" language allow flexibility; federal law preempts state permitting | Held: §7002 requires compliance with conditions in Chief’s Report, including state law; WRRDA does not preempt Minnesota permitting; plaintiffs have a fair chance of success |
| Whether NEPA requires a supplemental EIS given DNR permit denial | JPA: new circumstances (permit denial) trigger SEIS duty | Corps: Corps already considered DNR concerns in FEIS/FFREIS; no new significant information requiring SEIS | Held: JPA failed to plausibly allege SEIS necessity; NEPA claim dismissed against Corps |
| Whether WRRDA/§2232 creates a private right of action enforceable against Diversion Authority | JPA: WRRDA contemplates state compliance and benefits state/local entities; implies enforceable rights | Diversion Auth: No express private right; statutes do not imply cause of action against non‑Federal sponsor | Held: WRRDA does not create an implied private right of action against Diversion Authority; that count dismissed against Diversion Authority |
Key Cases Cited
- FDIC v. Meyer, 510 U.S. 471 (immunity of the United States unless waived)
- Bennett v. Spear, 520 U.S. 154 (two‑part test for final agency action under APA)
- Hawkes Co. v. U.S. Army Corps of Engineers, 782 F.3d 994 (reviewability of Corps jurisdictional determinations; discussion of finality issues)
- Louisiana State v. U.S. Army Corps of Engineers, 834 F.3d 574 (contract/agreement can constitute final agency action)
- Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (standard for when an agency must prepare a supplemental EIS)
- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (scope of arbitrary and capricious review under APA)