Richland/Wilkin Joint Powers Authority v. United States Army Corps of Engineers
826 F.3d 1030
| 8th Cir. | 2016Background
- The Fargo-Moorhead Diversion Authority (Authority) began building an OHB ring levee in North Dakota as a modification to a larger interstate Red River diversion project supervised by the U.S. Army Corps of Engineers. Minnesota review (MEPA) of the larger project remained incomplete.
- The OHB levee was designed to protect Oxbow/Hickson/Bakke from flooding that would be caused by the diversion project; Corps documents characterize the levee as a project component and the Authority sought credit toward non-federal cost-share for the work.
- Minnesota’s DNR concluded construction of the OHB levee before Minnesota completed its EIS would violate MEPA; Governor Dayton objected and the Authority began construction in 2014, offering to limit initial height to the FEMA 100-year level but keeping structure dimensions allowing future height increases.
- The Joint Powers Authority (JPA) (Richland County ND and Wilkin County MN) sued under MEPA and obtained a preliminary injunction from the district court halting OHB levee construction pending Minnesota environmental review; the court found the levee integral to the larger project and that JPA showed irreparable environmental and procedural harm.
- The Authority appealed, arguing the levee is independent (not subject to MEPA), that JPA showed only procedural harm (insufficient for irreparable harm), that MEPA cannot apply extraterritorially or under the dormant Commerce Clause, that the wrong injunction standard was used, and that the district court abused discretion by waiving a bond.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OHB ring levee is part of the larger diversion project | JPA: levee is an integral component of the diversion; construction prejudices Minnesota review | Authority: levee has independent utility and is a North Dakota project outside MEPA | Court: levee is part of the larger project; finding not clearly erroneous |
| Irreparable harm (procedural + substantive) | JPA: construction before MEPA causes procedural injury and foreseeable flooding to JPA members’ lands | Authority: only procedural or speculative future harm; too remote to be irreparable | Court: procedural harm plus specific environmental risk (flooding) sufficed for irreparable harm |
| Balance of harms and injunction duration | JPA: brief pause pending EIS protects public/environmental interests | Authority: injury from lost construction season and OHB communities’ flood risk | Court: harms to JPA and public outweigh Authority’s economic/temporary harms; injunction appropriate and likely short-lived |
| Likelihood of success on merits; standard; extraterritoriality and dormant Commerce Clause | JPA: fair chance to prevail under MEPA because levee is a connected action and Minnesota has strong interest | Authority: wrong standard (should be "likely to prevail"), MEPA cannot apply out-of-state, violates dormant Commerce Clause | Court: "fair chance of prevailing" standard appropriate here; MEPA applies because project crosses state border; dormant Commerce Clause not violated |
| Bond requirement | JPA: public-interest environmental suit justifies waiver/minimal bond | Authority: court should have required adequate security | Court: waiver of bond was within discretion given public-interest nature and precedent in NEPA-type cases |
Key Cases Cited
- Novus Franchising, Inc. v. Dawson, 725 F.3d 885 (8th Cir. 2013) (standard of review for preliminary injunctions)
- PCTV Gold, Inc. v. SpeedNet, LLC, 508 F.3d 1137 (8th Cir. 2007) (abuse-of-discretion and preliminary injunction framework)
- Rounds v. Planned Parenthood Minn., N.D., S.D., 530 F.3d 724 (8th Cir. 2008) (preliminary injunction standards and when heightened likelihood standard applies)
- Sierra Club v. U.S. Army Corps of Eng’rs, 645 F.3d 978 (8th Cir. 2011) (procedural NEPA failures can create presumptive environmental harm supporting injunctive relief)
- Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (U.S. 2010) (NEPA noncompliance does not automatically mandate injunction)
- Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (U.S. 2008) (irreparable harm standard in injunction analysis)
- Healy v. Beer Inst., 491 U.S. 324 (U.S. 1989) (extraterritoriality principle under dormant Commerce Clause)
- Pike v. Bruce Church, Inc., 397 U.S. 137 (U.S. 1970) (Pike balancing test for dormant Commerce Clause)
- Michigan v. U.S. Army Corps of Eng’rs, 667 F.3d 765 (7th Cir. 2011) (injunctive relief principles in environmental review contexts)
- James River Flood Control Ass’n v. Watt, 680 F.2d 543 (8th Cir. 1982) (future flooding claims and injunctions)