On January 23, 2014 Rocky Schneider advanced the usurping of 2/3 of a property owners vote. This action created the looming DPAC property special assessment for property owners and it was quickly moved to a committee vote by Mary Scherling and seconded by Michael Montplaisir.

Property owners that are not aware of the looming tax assessment can view the amount on following document. The amount of tax assessment has not been adjusted to inflation and are represented in 2015 dollars.

Use the following links to assist you in researching property encumbrances relating to the FM Flood Risk Management District No.1 a.k.a DPAC Special Assessment.

Use this CPI Inflation Calculator tool to determine the potential FM Flood Risk Management District No.1 Special Assessment amount adjusted to today’s dollars.

Alternate Link: https://www.bls.gov/data/inflation_calculator.htm

View and Download (DPAC) FM Flood Risk Management District No. 1 – Assessment List:
FM FRM District No 1 – Assessment List – February 10, 2015 | 431 pages – 2.6 MB

To locate your property parcel number or legal description refer to your Cass County Property Tax Statement or use this Cass County Property Research Tool.

Alternate Link: https://proptax.casscountynd.gov/#Search

View FM Flood Risk Management District No.1 Benefit Region Map to determine the level of benefit and reduction in flood risk.

If you need additional assistance in determining whick benefit region your property is located within, contact the Cass County Assessors Office (701)-241-5617.

Alternate Link: Fargo Dam and Diversion Assessment Map

View Fargo-Moorhead Area Diversion Project Assessment District Engineer’s Report Cass County Joint Water Resource District relating to DPAC a.k.a. FM Flood Risk Management District No.1.

Alternate Link: FM FRM District No 1 – Engineer’s Report – 121114

Views: 430

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You may have seen the article in the Fargo Forum on Wednesday Feb. 26. Landowners in Richland County have begun to file lawsuits to get compensation from the FM Diversion Authority for the impacts/damages caused by the FM Diversion’s dam. One of the maps that was in the Forum Article showing the full extent of the inundation area that will be created when the FM Diversion Dam is filled to capacity. The inundation area will cover a large area from the Red River to the Wild Rice River extending south all the way to Abercrombie, ND. The Diversion Authority is compensating landowners in Minnesota south to Abercrombie but has refused to compensate Richland County landowners impacted in the same way.

Cash Aaland, Aaland Law Firm, has teamed up with Attorney Al Baker, and the Attorneys at O’Keefe O’Brian Lyson to represent landowners and residents impacted by the Diversion. They are working as a team and their contact information is below.
If you have property located in this inundation/reservoir area, call any one of these lawyers to get an appointment to assess your situation without any obligation.

Please note that in cases involving the taking or damaging of property because of the construction of a dam, North Dakota Statute provides that the Diversion Authority may have to pay the landowners’ attorney fees.

The attorneys listed below will further explain this when they meet with you.

O’Keefe O’Brian Lyson Attorneys: 701-235-8000
Email: contact@okeeffeattorneys.com
Tim O’Keefe
Sarah Aaberg
Theodore W. Ramage

Aaland Law Firm: 701-232-7944
Cash H. Aaland
Email: officemanager@aalandlaw.com

Al Baker, Attorney: 701-630-1846
Email: al@elawpros. com

Views: 778

The post New Lawsuits Filed in FM Diversion Project first appeared on FMDam.org.

IN THE SUPREME COURT
STATE OF NORTH DAKOTA


2022 ND 86


Gene J. Sauvageau
and
Brenda J. Sauvageau,
v.
The Honorable
Susan L. Bailey,
District Court Judge,
East Central Judicial District,
and
Cass County
Water Resource District,

Petitioners







Respondents


No. 20220080


View ND Supreme Court Docket No. 20220080

Download PDF: ND Supreme Court Sauvageau vs CCJWRD – Case 20220080

Petition for Supervisory Writ.

PETITION FOR SUPERVISORY WRIT GRANTED.

Opinion of the Court by Crothers, Justice.

Alan Baker (argued) and Cash H. Aaland (on brief), Fargo, ND, for petitioners.
Christopher M. McShane, West Fargo, ND, for respondent Cass County Water
Resource District.

Sauvageau, et al. v. Bailey, et al.
No. 20220080

Crothers, Justice.

[1] Brenda and Gene Sauvageau petition this Court to exercise our original jurisdiction and issue a writ of supervision directing the district court to stop the Cass County Joint Water Resource District from using quick take eminent domain to acquire their property. The Sauvageaus claim the District is prohibited from using quick take eminent domain to acquire a permanent right of way easement over their entire property. We conclude the quick take process is not available because the District is taking more than a right of way in the Sauvageaus’ property. We grant the Sauvageaus’ petition, direct the district court to vacate its order denying the Sauvageaus’ motion to dismiss the District’s complaint and remand for further proceedings.

I

[2] The Sauvageaus own 7.8 acres of property in Cass County. In 2019, the Sauvageaus learned the Fargo-Moorhead Diversion flood control project would flood their property. In December 2020 the fair market value of the fee simple interest of the Sauvageaus’ property was appraised at $460,000. On February 1,2021, the District offered the Sauvageaus $460,000 to purchase the property in fee simple. On April 14, 2021, the District offered the Sauvageaus $460,000 to purchase a right of way easement over their property. The Sauvageaus declined the District’s offers.

[3] In October 2021, the District sued the Sauvageaus, seeking to use the quick take eminent domain power under N.D.C.C. ch. 61-16.1 to acquire a permanent right of way easement covering all of the Sauvageaus’ property. The District claimed a permanent right of way easement over the Sauvageaus’ property was necessary for the Fargo-Moorhead Diversion flood control project.   On November 11, 2021, the District sent the Sauvageaus a letter notifying them “they will be required to vacate their home [on] March 15, 2022.”

[4] The Sauvageaus moved to dismiss the District’s complaint, claiming the District could not use quick take because it sought to take more than an easement. The Sauvageaus also moved for a preliminary injunction prohibiting the District from evicting them from their property on March 15, 2022. The Sauvageaus argued the District lacked authority to take their property through quick take eminent domain and an injunction was necessary to prevent the destruction of their home and other buildings on the property.

[5] The district court denied the Sauvageaus’ motion to dismiss, concluding the District had authority to acquire the Sauvageaus’ property through quick take eminent domain. The court also denied the motion for a preliminary injunction, concluding the Sauvageaus did not demonstrate a likelihood they would prevail on the merits of their claim that the District was precluded from using quick take to acquire their property.

[6] On March 7, 2022, the Sauvageaus petitioned this Court to exercise our supervisory jurisdiction. On March 14, 2022, we entered an order preventing the District “from evicting or otherwise preventing Gene and Brenda Sauvageau from the quiet enjoyment of their home.”

II

[7] The Sauvageaus have petitioned this Court to exercise our supervisory jurisdiction.

Wilkinson v. Bd. of Univ., 2020 ND 179,  17, 947 N.W.2d 910 (quoting Nygaard v. Taylor, 2017 ND 206,  11, 900 N.W.2d 833).

[8] This case presents a significant issue regarding the District’s use of its quick take eminent domain powers under N.D.C.C. § 61-16.1-09(2)(b). The District’s attempt to use quick take under N.D.C.C. § 61-16.1-09(2)(b) relates to matters of important public interest and our case law provides little guidance on the issue.

[9] Article I, § 16, N.D. Const., states “[p]rivate property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for the owner.” Ajury decides the amount of compensation due for the taking, unless a jury is waived. Id. Section 16 also authorizes the state to acquire a right of way by quick take. Quick take allows the state to “take possession upon making an offer to purchase and by depositing the amount of such offer with the clerk of the district court of the county wherein the right of way is located.” Id. The owner of the right of way may have a jury decide the quick take damages. Id. Quick take offers an owner less protection because the condemnor can take possession of the property before trial on the amount of just compensation due. Johnson v. Wells Cty. Water Res. Bd., 410 N.W.2d 525, 529 (N.D. 1987).

[10] Taking private property for public use involves a conflict between public interests and private property rights. The public interest in this case involves construction of flood controls, as reflected in N.D.C.C. § 61-16.1-01:

III

[11] The Sauvageaus concede the District has authority to take their property through eminent domain. However, the Sauvageaus claim the District must acquire their property in fee simple under the eminent domain provisions of N.D.C.C. ch. 32-15 rather than a permanent right of way easement by quick take under N.D.C.C. § 61-16.1-09(2)(b).

[12] Chapter 32-15, N.D.C.C., governs eminent domain. Under N.D. Const. art. I, § 16 and N.D.C.C. § 32-15-01(2), private property may not be taken for public use without just compensation. The interests in land subject to taking by eminent domain include fee simple, easements, and the right of entry. N.D.C.C. § 32-15-03. A fee simple interest may be taken “for reservoirs and dams and permanent flooding occasioned thereby.” N.D.C.C. § 32-15-03(1). A governmental entity taking property by eminent domain may take possession of the property after entry of judgment. N.D.C.C. § 32-15-29.

[13] Article I, § 16, N.D. Const., authorizes quick take for the acquisition of a right of way:

“The general objective of § 16 was to … make quick take available to the state, its departments, agencies and political subdivisions.” Johnson, 410 N.W.2d at 528. Section 16 provides the state or a political subdivision “may take property via quick take if the Legislature sees fit to so provide.” Id. Quick take offers less protection to property owners than possession after judgment under N.D.C.C. § 32-15-29. Id. at 529.

[14] The legislature granted the District eminent domain powers to acquire private property for flood control projects. N.D.C.C. § 61-16.1-09(2). Under N.D.C.C. § 61-16.1-09(2)(a), the District may use eminent domain to acquire property in fee simple by complying with the requirements of N.D.C.C. ch. 32-15.

[15] The legislature also granted the District the power to acquIre an easement for a right of way for flood control projects by quick take eminent domain as authorized by N.D. Const. art. I, § 16. N.D.C.C. § 61-16.1-09(2)(b). Before acquiring an easement for a right of way by quick take, a water resource district must attempt to purchase the easement by engaging in informal and formal negotiations. N.D.C.C. § 61-16.1-09(2)(b)(1).

[16] This Court has addressed the acquisition of a right of way by quick take for highway purposes. In Tormaschy v. Hjelle, 210 N.W.2d 100, 101 (N.D. 1973), the State sought to acquire a 2.44 acre parcel of land for a rest area sewage lagoon near Interstate 94. This Court held the term “right of way” as used in the constitutional quick take provision “was meant to include not only that strip of land necessary for driving lanes, but also other land necessary for the construction of accommodations reasonably necessary to make driving safe, comfortable, and helpful.” Id. at 103.

[17] In Minot Sand & Gravel Company v. Hjelle, 231 N.W.2d 716, 720 (N.D. 1975), the State used quick take to acquire a fee simple interest in strips of land abutting and adjacent to a section line easement for purposes of widening the road. The owner, who was involved in the commercial aggregate business, claimed the State also became the fee simple owner of the land within the section line easement. Id. at 721. This Court concluded the State acquired fee simple in the land described in the instrument, which did not include the property within the section line easement. Id. at 722. This Court also held that although the State did not acquire the section line easement, its taking of the adjacent land “may have deprived the owner of many, if not all, benefits and uses of the property in the section line easement, particularly as to the aggregate lying beneath the section line easement.” Id. We stated “the damages sustained by the landowner could be the equivalent of the State taking a fee simple of the section line easement.” Id.

[18] This Court discussed quick take by a water resource board in Johnson v. Wells County Water Resource Board, 410 N.W.2d 525. In Johnson, at 526, a water resource board sought to acquire flowage easements by quick take under N.D. Const. art. I, § 16. This Court concluded art. I, § 16 was not self-executing, and the legislature had not yet authorized quick take for a water resource board. Id. at 528-29. Johnson was decided before the legislature enacted the quick take provisions of N.D.C.C. § 61-16.1-09(2). 1989 N.D. 8ess. Laws ch. 746, § 2.

[19] Here, the District’s complaint alleges it followed the procedures enumerated in N.D.C.C. § 61-16.1-09(2)(b) to acquire the 8auvageaus’ property by quick take. The complaint includes the legal description of the 8auvageaus’ property and alleges the right of way will encompass the entire property. See N.D.C.C. § 47-05-02.1(1) (requiring “[t]he area of land covered by the easement … on the use of real property shall be properly described and shall set out the
area of land covered by the interest in real property”).

[20] The District’s complaint sought a permanent right of way easement “upon, over, in, under, across, and through the [8auvageaus’ property] for the following purposes:

The complaint requested the court to immediately condemn the permanent right of way and order the “Permanent Right of Way Easement be the dominant estate as to the Owner and all other defendants with an interest in the Property.”

[21] In denying the Sauvageaus’ motion to dismiss, the district court concluded that on the basis of the pleadings the District could use quick take to acquire a permanent right of way easement over the Sauvageaus’ property:

The court concluded the Sauvageaus’ argument that the District’s taking left them with no value in the property went to the issue of damages because the District had authority to take a right of way easement.

[22] In their motion for a preliminary injunction, the Sauvageaus submitted the appraisal report for their property. The District appraised the Sauvageaus’ property at $460,000. The appraisers hired by the District valued the property “based on the fee simple interest.” The appraisal report discussed the District’s acquisition of a permanent right of way easement:

[23] The District’s complaint includes numerous purposes for which the Sauvageaus’ property will be used. Some specific uses include “inundating the Property with water,” “excavating, piling, storing, depositing, spoiling, spreading, and removing excavated dirt, soil, clay, silt, and other materials,” and “removing trees, underbrush, obstructions, and any other vegetation, structures, or obstacles from the Property,” including the Sauvageaus’ home and other structures. The appraisal valued the Sauvageaus’ reverter interest in the property at $0. At oral argument the District’s attorney stated the Sauvageaus could use their property for bird watching or hunting but only to the extent their use did not conflict with the District’s use.

[24] In Cass County Joint Water Resource District v. Aaland, 2021 ND 57, ¶13, 956 N.W.2d 395, we discussed “the harm presented by a permanent physical occupation” of one’s property:

(quoting Loretto v. Teleprompter Manhattan CATV Corp. , 458 U.S. 419, 435-36 (1982)).

[25] The Sauvageaus also submitted evidence establishing the public road to their property will be closed. A property owner is entitled to reasonable and convenient access to his or her property considering all of the uses to which the property is needed or likely to be needed. Sauvageau v. Hjelle, 213 N.W.2d 381, 390-91 (N.D. 1973) (citing Chandler v. Hjelle , 126 N.W.2d 141 (N.D. 1964)).

[26] On the basis of the pleadings and the facts in the record, as a matter of law the District is taking much more than an easement or right of way in the Sauvageaus’ property. The District is not acquiring a strip or a parcel of the Sauvageaus’ property for a right of way. The District intends to close the public road, remove all structures from the property, engage in disturbance of the surface and subsurface, and inundate the property with water. The District is taking the entire property for full value while leaving the Sauvageaus with only a reverter interest with no value.

[27] The District’s taking here goes beyond the scope of N.D.C.C. § 61-16.1-09(2)(b) for acquiring a right of way easement by quick take. Under N.D.C.C. § 61-16.1-09(2)(a), the District is required to use the eminent domain procedures ofN.D.C.C. ch. 32-15 when acquiring a greater interest in property. By labeling the interest in the Sauvageaus’ property as a “permanent right of way easement,” the District is attempting to evade the requirements and property owner protections of N.D.C.C. § 61-16.1-09(2)(a).

IV

[28] We grant the Sauvageaus’ petition, direct the district court to vacate its order denying the Sauvageaus’ motion to dismiss the District’s complaint and remand for further proceedings. We decline to address the Sauvageaus’ remaining arguments.

[30] The Honorable James S. Hill, D.J., sitting in place of McEvers, J., disqualified.

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October 11, 2021

Cass County Commission
211 9th Street South
Fargo, ND 58103
SENT VIA EMAIL TO: albrechtt@casscountynd.gov

Dear Board of Commissioners:

Attorney Al Baker and I represent Gene and Brenda Sauvageau whose property is the subject of the Cass County Joint Water Resource District’s (CCJWRD) application for quick take eminent domain authority. CCJWRD is applying for approval from the Cass County Commission, as required by Section 61-16.1-09 of the North Dakota Century Code, to take possession of the property of Gene and Brenda Sauvageau by quick take eminent domain, to remove them from their home and to demolish their buildings. CCJWRD contends the condemnation of the Sauvageau property is necessary to enable the FM Diversion Project to proceed on a timely basis. The Commission should disapprove the application for the following reasons:

Gene and Brenda Sauvageau own and reside on a farmstead located approximately 1.5 miles west of St. Benedict. Their residence is unique and includes a 3,340 square foot home with an attached three stall garage, one unattached garage, another building that was used for grain storage, and a 30 by 40 foot bam that Gene renovated inside and out, with steel siding, concrete floor and foundation, hydraulic floor lift and hoist, power, heat and air conditioning. Gene is a machinist and uses his renovated shop/bam to work on his 56 Ford Thunderbird, his other hobbies, and the equipment he uses to maintain his home and yard. Gene and Brenda chose their rural residence in Gene’s historic community as a life choice. Their 7.78 acre yard, maintained like a park with space and privacy necessary to their chosen lifestyle, was an essential part of their decision to purchase the property 37 years ago.

Gene’s connection to the St. Benedict community is five generations deep and began in 1871. His great grandfather and his father were French Canadian immigrants that settled the St. Benedict area and established the church and town. Gene grew up on the family farm that was located approximately one mile south of Gene and Brenda’s current residence. Gene and his siblings still own farmland in the community and have already surrendered some of their grandfather’s land to CCJWRD as result of the Diversion Project. Gene’s grandfather and father were educated in the St. Joseph’s Catholic School in St. Benedict. Gene attended that same school through the fifth grade, after which he attended and graduated from the Kindred School District. Gene chose his residence because of its location in his family community and within the Kindred School District, where his daughter attended and graduated. Gene and Brenda raised their daughter as members of the St. Benedict Catholic Church, just as Gene, his father and grandfather were. Brenda and Gene purchased their rural residence from the Trottier family in 1984. They chose the Trottier farmstead which is within walking distance of the town his family founded and his family’s land, to raise their daughter and live in the community they love. They are surrounded by relatives and friends that share their heritage and ties to the community. Gene is related to many of his neighbors, who are also descendants of the French-Canadian homesteaders who founded the St. Benedict community, and who include the Cossettes, Dubords, Duvals, Richards, Rheaults, and the Trottiers. The CCJWRD Board is familiar with these community names as most of these families will also be displaced or forced to surrender property rights to CCJWRD as a result of the Diversion Project.

Section 61-16.l-09(2)(b)(3) of the North Dakota Century Code provides that a water resource district may not use quick take eminent domain against a landowner unless the district first applies and receives authorization from the county commission in which the right of way is located. The statute further provides that the county commission may not even vote on the issue before first receiving verification “that there has been no reference or threat of quick take eminent domain by the district during negotiations.” The communications and negotiations occurring between the Sauvageaus and CCJWRD, through the resource district’s agent Lisa Kilde of SRF Consulting, contained several threats and references to CCJWRD’s published plan to use quick take eminent domain against the Sauvageau’s unless they agreed to the terms offered to them by Ms. Kilde for the purchase of their property. CCJWRD opened negotiations with a letter and offer to purchase dated February 1,2021, from Lisa Kilde on behalf of the CCJWRD. (See attached Exhibit 1). In the letter, Ms. Kilde directed Brenda and Gene to the property acquisition schedule and Cass County Joint Board information on the FM Diversion website. (Exhibit 1). The schedule contained in the Property Rights Acquisition Manual published on that site, which is of particular interest to anyone whose property was being acquired by CCJWRD/Diversion Authority, informs all landowners, including Brenda and Gene Sauvageau, that unless they agree to sell their property to CCJWRD within 160 days, CCJWRD will seek to take their property by quick take eminent domain. (See attached Exhibit 2 – Acquisition Timeline).

Not only did land agent Lisa Kilde direct the Sauvageau’s to the quick take timeline in her letter and offer to purchase of February 1, 2021, she repeated the direction in every email she sent to Gene and Brenda’s brother-in-law, Roel Ronken, who was their power of attorney for purposes of negotiating with Ms. Kilde. All of Ms. Kilde’s emails contained the following: “Required Notice: Schedule and Cass County Joint Board Information can be found at: http://fmdiversion.gov/lands-schedule/” (See attached Exhibit 3).

CCJWRD, through their agent Lisa Kilde of SRF Consulting, repeatedly directed the Sauvageaus to the Diversion Authority website and that informed them that unless they agreed to her offers to purchase their residence, quick take eminent domain would be used against them to take it. For these reasons, the mandatory requirement of the statute that no reference to quick take eminent domain be made during negotiation by the water district cannot be met and CCJWRD’s request for authorization to use quick take eminent domain against Gene and Brenda Sauvageau must be declined.

Section 54-01.1-07 of the North Dakota Century Code provides, in relevant part, as follows:

Id.

The United States Code contains a parallel provision: “No person shall be required to move from his dwelling on account of any program or project undertaken by a Federal agency or with Federal financial assistance, unless the head of the displacing agency is satisfied that comparable replacement housing is available to such person.” 42 U.S.C 4626. Comparable replacement housing is defined by Section 54-01.1-02(2) of the North Dakota Century Code as follows:

Id. (emphasis added).

Cass County Water Resource District has established precedent for determining what constitutes comparable replacement housing. When the Diversion Authority managers determined that approximately 42 residences in the Oxbow/Hickson/Bakke community needed to be acquired in order for the FM Diversion Project to proceed in a timely manner, they evaluated whether there was available replacement housing in that community. (See attached Exhibit 4). In that case, the community was Oxbow/Hickson/Bakke. The Cass County Joint Water Resource District determined that available comparable replacement dwellings were not available in the Oxbow/Hickson/Bakke neighborhood. (See attached Exhibit 5). Because of this lack of comparable replacement housing, CCJWRD acknowledged that federal law required that the displaced persons from Oxbow/Hickson/Bakke had a right to remain in their community and receive replacement housing. CCJWRD formalized these findings in a resolution executed August 14, 2014, that provided as follows:

(See attached Exhibit 5) (emphasis added).

When the CCJWRD provided replacement housing to the individual displaced persons in the Oxbow/Hickson/Bakke Community, they included the following statement in their agreements:

(See attached Exhibit 6).

The CCJWRD Board seeks to quick take Gene and Brenda’s residence and, according to its attorney, demolish their home before next summer. The Sauvageaus are therefore “displaced persons” within the meaning of the federal Uniform Relocation Act and North Dakota Statute. N.D. C. C. Section 54-01.1-02. As displaced persons they are entitled to: 1) just compensation for the value of their residence; and 2) comparable placement housing within their community, and their community is rural St. Benedict. No comparable replacement housing is available in their community and CCJWRD Board, through its agent SRF Consulting, refuse to provide replacement housing as required by state and federal law, even though CCJWRD repeatedly acknowledged and conceded its obligation to provide replacement housing in its earlier resolutions and agreements.

CCJWRD’s agents refuse to acknowledge that the state and federal law protects the Sauvageaus in the same manner as it did the members of the Oxbow/Hickson/Bakke community. Instead, CCJWRD has falsely claimed to the Sauvageaus that they must accept urban housing that is available in the City of Fargo. (See attached Exhibit 7 – Benefits Notification from SRF). State and federal laws guarantee that the Sauvageaus cannot be forced to move from their home until a comparable replacement home in their community is available that is the “functional equivalent” of their current residence. Section 54-01.1-02(2) N.D.C.C. A house on a small city lot in Fargo is in no way the “functional equivalent” of their rural residence in the St. Benedict community Gene’s forefathers established. Counsel has learned that there is evidence to establish that CCJWRD has made a blanket determination to deny all the residents of rural communities such as Horace, St. Benedict, and Christine replacement housing by asserting that houses in the City of Fargo are “comparable” within the meaning of North Dakota Statute and the Federal Uniform Relocation Act. By this unlawful blanket determination, the managers of the FM Diversion Project intend to minimize mitigation costs by denying rural residents their rights.

Until the CCJWRD provides the Sauvageaus: 1) just compensation for the value of their residence; and 2) legitimate comparable placement housing within their community, in the same manner it did so for the Oxbow/Hickson/Bakke community, approval of CCJWRD’s request for quick take eminent domain authority must be denied.

North Dakota’s eminent domain laws require a condemning authority to “make every reasonable and diligent effort to acquire property by negotiation.” N.D.C.C. § 32-15-06.1(1). For the reasons stated in the previous section CCJWRD has wholly failed to negotiate with the Sauvageaus in a reasonable and fair manner. At no point did the District even acknowledge that the Sauvageaus were entitled to remain in their community and receive replacement housing. Consequently, CCJWRD’s request for quick take eminent domain authority must be denied.

Federal law requires that “relocation assistance policies must provide fair, uniform and equitable treatment of all affected persons.” 42 USC 4621(a)(2) (emphasis added). North Dakota Statute has a similar requirement which provides as follows:

Id. (emphasis added).

Attached hereto as Exhibit 7 is the February 11,2021 letter from CCJWRD’s agent, Lisa Kilde of SRF Consulting, advising Gene and Brenda Sauvageau that the amount of the relocation assistance that they were entitled to was based upon a determination that they were not entitled to relocate in their community. Ms. Kilde wrote: “We have chosen the listed property at 4241 54th Ave South, ND to use as your “comparable” home in determining your replacement house benefits … ” This is a house located not in their rural community but in Fargo City with a .28 acre lot. Based upon CCJWRD’s calculation, the Sauvageaus would not be provided funds to replace their residence in their community but would only receive a payment of $54,315 for their total relocation assistance.

The Cass County Commissioners are invited to compare the amount of relocation assistance CCJWRD offered the Sauvageaus with the assistance awarded to Michael Bindas to provide him comparable housing and to remain in his community. (See attached Exhibit 6). Bindas is one of 40 families that were given replacement housing to allow them to remain in their community of Oxbow/Hickson/Bakke. Attached as Exhibit 6 is a representative copy of the two agreements CCJWRD made with the Oxbow families to pay then for 1) for the value of their residence, and 2) to provide benefits for replacement housing. As you can see from the last page, CCJWRD paid Bindas $692,439.00 in replacement housing assistance over and above the acquisition price of his home, so that he could construct comparable housing in his community to replace the residence demolished in order for the Diversion project to proceed. CCJWRD gave Bindas $692,439.00 for comparable replacement housing benefits to remain in his community. CCJWRD are denying the Sauvageaus the very same benefit, comparable replacement housing in their community, and offering them only $54,315 in relocation benefits. This is unconscionable, in bad faith and violates state and federal law requiring the “the uniform and equitable treatment of all affected persons.” Until CCJWRD remedies this gross disparate treatment of Cass County citizens, its request for quick take eminent domain must be denied.

Current and Former Cass County Commissioners have already weighed in on this very issue. Speaking at a Land Management Committee meeting on July 9, 2015, and discussing replacement housing for Oxbow/Hickson/Bakke, Commissioner Chad Peterson stated: “… a blessed construction climate exists now where all builders, plumbers, etc. are swelling with work; however the ramification of that are that it costs more to build. To replace a house costs what it costs…regardless of its assessed value and the reality is that it is likely no one at this table could rebuild their existing home at its assessed value in today’s market.” Speaking at the same meeting Commissioner Ken Pawluk saw the issue clearly: “the same federal process used in the past will be used for homes, businesses and farmsteads in the staging area … the provision of Last Resort Housing is a factor in Oxbow and those displaced by the project should not be asked to dig into their own pocket for equivalent replacement property.” (See attached Exhibit 8) (emphasis added).

Conclusion.

The law requires the CCJWRD to provide relocation assistance to persons displaced by the FM Diversion Project in a uniform equitable manner. CCJWRD’s attempt to treat these citizens in a disparate and unconscionable manner should not be condoned. Until CCJWRD agrees to provide relocation and replacement housing to the Sauvageaus in the same manner as was provided to the 40 Oxbow families displaced by the FM Diversion Project, CCJWRD’s request for quick take eminent domain authority must be denied. Requiring the Sauvageaus to be removed from their dwelling under these circumstances would violate state and federal law. The Sauvageaus and other residents of rural communities displaced by Fargo’s diversion project are not looking for excess, but they are entitled to remain in their communities, receive replacement housing, and fair and equitable treatment from CCJWRD as the law requires.

Sincerely,

Cash H. Aaland

Enclosures
cc: Gene and Brenda Sauvageau

Download: Aaland Law – Sauvageau Letter to Commissioners

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Fargo Dam and Diversion Costs as of February 28, 2021

Don’t forget, Fargo and Cass County have taken out
$ 150,250,000.00 in loans without voter consent,
which are not listed above and held “off books”.

Cumulative Vendor Payments Detail Fargo Dam and FM Diversion as of 2021-02-28

Fargo Diversion Authority increased contracts by $ 64,641,868.10 from February 29, 2020 to February 28, 2021 Still, NO congressional funding, Still, NO congressional funding, now topping 40 percent of the original projected cost. The Fargo Diversion Authority has pumped over $133.5 million into OHB ring-dike-levee and private country club ($32.05 million), which provides ZERO FLOOD PROTECTION BENEFIT TO FARGO, all courtesy of state and local taxpayers. With unfinished internal flood protection projects the Fargo Diversion Authority continues to pump millions into the non-flood prone OHB ring-dike-levee and private Oxbow Country Club, courtesy of state and local taxpayers.

The Covid-19 (coronavirus) situation complicates local, state and federal funding options which could take more than a decade of recovery.

Imperial Fargo – Imperial Cass continue to mire taxpayer into debt that may cripple the regional economy and have spent more than $50 million in loan interest and legal fees searching for a P3 funding source to bail them out.

Views: 648

The post Fargo Dam and FM Diversion Costs as of February 28, 2021 first appeared on FMDam.org.

If you have received letters -or- coercive pressure from the FMDA regarding easements or the threat of eminent domain, you owe it to yourself to contact Al Baker 701-630-1846 to ensure your property rights are preserved.

In a strongly worded decision intended to protect property owners from the injury and damage caused by the Cass County Joint Water Resource District (CCJWRD) the North Dakota Supreme Court has stated:

In its March 24, 2021 decision in Cass County Joint Water Resource District v. Aaland et al., 2021 ND 57, the North Dakota Supreme Court reversed a district court decision that allowed the CCJWRD to conducting examinations, surveys and mapping, that included the placement of permanent survey monuments for bathometric surveys, under a North Dakota statute that allows entry onto property to conduct preliminary examinations before starting formal condemnation proceedings. The decision can be found on the North Dakota Supreme Court’s website at:

https://www.ndcourts.gov/supreme-court/opinion/2021ND57

In 2017 the CCJWRD obtained a permit from the Richland County District Court under N.D.C.C. § 32-15-06 to conduct examinations and mapping for the FM diversion project. The permit included the “installation of survey monuments.” The permit was granted in August 2017 and allowed access to property through December 2018. In 2019 the CCJWRD began to obtain easements from landowners to allow long-term access to property. When the CCJWRD failed to obtain easements from property owners it applied for a second permit to conduct examinations. The district court granted the second permit in May 2020 allowing CCJWRD access to property until December 2021.

The North Dakota Supreme Court, in protecting the private property rights of North Dakota citizens, relied on the United States Supreme Court decision in Loreto v. Teleprompter Manhattan CATV Corp.

The North Dakota Supreme Court held that when a government agency permanently occupies property, it effectively destroys the property owners’ rights to possess, use and dispose of the property. The government’s permanent occupation of the property destroys the landowner’s right to exclude non-owners from possession and use of the property. The landowner’s power to exclude other from the property “has traditionally been considered one of the most treasured strands in an owner’s bundle of property rights.” Also, permanent physical occupation of the property “forever denies the owner any power to control the use of the property.”

The North Dakota Supreme Court reversed the district court’s May 2020 order allowing the CCJWRD a right of entry onto property to place permanent survey monuments and conduct bathometric surveys and also remanded the case back to the district court to consider the landowners’ request for an award on attorney’s fees and cost under N.D.C.C. § 32-15-32.

There is no doubt that landowners can successfully fight and prevail against the CCJWRD’s willingness to trample on the well established property rights of landowners being injured by CCJWRD’s unrelenting misuse of government power to do the bidding of the Fargo Flood Diversion Project.

PDF Download Decision 2021ND57 – ( 706 kb )

Appeal from the District Court of Richland County, Southeast Judicial District,
the Honorable John A. Thelen, Judge.

REVERSED AND REMANDED.

Opinion of the Court by Tufte, Justice.

Rob A. Stefonowicz, Minneapolis, Minnesota, for plaintiff and appellee.

Jennifer A. Braun, Fargo, North Dakota, for defendants and appellants.

Cass County Joint Water Resource District v. Aaland
No. 20200171

Tufte, Justice.

[¶1] Cash Aaland, Larry Bakko, and Penny Cirks (the “Landowners”) appeal from orders granting the Cass County Joint Water Resource District (the “District”) a right of entry onto their properties to conduct surveys and examinations related to the Fargo-Moorhead Flood Diversion Project. The Landowners argue these surveys and examinations are beyond the scope of N.D.C.C. § 32-15-06. We reverse, concluding the District’s right of entry exceeds the limited testing permitted under N.D.C.C. § 32-15-06, and remand for a determination on attorney’s fees and costs.

I

[¶2] In April 2017, the District applied for a permit to enter certain lands, including the Landowners’ properties, to conduct examinations, surveys, and mapping for the evaluation and design of a proposed flood control project in the Fargo-Moorhead metropolitan area. One such examination was a geomorphic examination requiring the installation of survey monuments on the properties. In August 2017, the district court granted the application and allowed the District entry onto the Landowners’ properties through December 2018.

[¶3] In 2019, the District contacted the Landowners seeking to purchase easements on their properties to conduct long-term monitoring for the Fargo-Moorhead flood diversion project. After the District failed to obtain these easements, it applied for a second permit to enter the Landowners’ properties to monitor environmental impacts in connection with the project through December 2021. The application provides that access to the Landowners’ properties is once again necessary to conduct examinations, surveys, and mapping, including geomorphic examinations requiring installation of survey monuments on certain properties. The Landowners opposed the District’s application. In May 2020, following two hearings, the district court granted the application, allowing the District entry on the Landowners’ properties through December 2021.

II

[¶4] The Landowners argue the district court erred by granting the District a right of entry onto their properties under N.D.C.C. § 32-15-06. Statutory interpretation is a question of law, which is fully reviewable on appeal. Minnkota Power Coop., Inc. v. Anderson, 2012 ND 105, ¶ 6, 817 N.W.2d 325. The primary objective in interpreting a statute is to determine the legislature’s intended meaning from the language of the statute. Id. “Words in a statute are to be given their ordinary and commonly understood meaning unless defined by statute or a contrary intention is clearly evident.” Id. (citing N.D.C.C. § 1-02-02).

[¶5] Section 32-15-06, N.D.C.C., provides:

“[A] proceeding for a court order authorizing examinations and surveys under N.D.C.C. § 32-15-06 is ‘preliminary to the condemnation action itself’ and is not a condemnation proceeding.” Alliance Pipeline L.P. v. Smith, 2013 ND 117, ¶ 15, 833 N.W.2d 464 (quoting Square Butte Elec. Coop. v. Dohn, 219 N.W.2d 877, 883 (N.D. 1974)).

[¶6] The Landowners contend the District’s 2020 right of entry onto their properties goes beyond making examinations, surveys, and maps permitted by N.D.C.C. § 32-15-06.

[¶7] In Square Butte Electric Cooperative v. Dohn, the district court granted an electric cooperative permission under N.D.C.C. § 32-15-06 to enter lands for the purpose of making surveys, including soil testing and ground resistance measurements. 219 N.W.2d 877, 879 (N.D. 1974). The surveys and testing were necessary to determine the route of a planned electrical line. Id. at 884. This Court affirmed, holding, in relevant part, the electric cooperative “established a sufficient basis for an appropriate order permitting such a survey and limited testing under reasonable conditions and with reasonable protection to the landowner.” Id.

[¶8] In 2016, this Court reviewed the meaning of “examinations” as it appears in N.D.C.C. § 32-15-06. See In re 2015 Application for Permit to Enter Land for Surveys and Examination Associated with a Proposed North Dakota Diversion and Associated Structures, 2016 ND 165, 883 N.W.2d 844. In In re 2015 Application, this Court held the District’s soil borings test was an examination under N.D.C.C. § 32-15-06. 2016 ND 165, ¶ 14. The soil borings removed one to two pints of soil for testing, and the District was required to pay $250 for each hole bored and to fill in the hole after testing. Id. at ¶ 9. We concluded, “Although the proposed soil borings penetrate the ground’s surface, the testing is nevertheless minimally invasive, or ‘limited.’” Id. at ¶ 14 (citing Square Butte, 219 N.W.2d at 883).

[¶9] Before 1963, California had a statute nearly identical to N.D.C.C. § 32-15-06, authorizing state agents to enter private land required for public use to “make examinations, surveys and maps thereof.” See Prop. Reserve, Inc. v. Superior Court, 375 P.3d 887, 901 (Cal. 2016) (quoting Cal. Civ. Proc. Code § 1242 (amended 1963 and 1970; repealed 1975)). Section 32-15-06, N.D.C.C., is derived from Cal. Civ. Proc. Code § 1242. See City of Grafton v. St. Paul M. & M. Ry., 113 N.W. 598, 599 (N.D. 1907) (stating our eminent domain statute, chapter 36 of the Code of Civil Procedure (Rev. Codes 1905), “was, no doubt, borrowed from” California); N.D.R.C. § 7579 (1905) (identifying the former N.D.C.C. § 32-15-06 as a part of the eminent domain statute in the Code of Civil Procedure). In construing Cal. Civ. Proc. Code § 1242, the Supreme Court of California concluded that it permitted only “such innocuous entry and superficial examination as would suffice for the making of surveys or maps and as would not in the nature of things seriously impinge upon or impair the rights of the owner to the use and enjoyment of his property.” Jacobsen v. Superior Court of Sonoma County, 219 P. 986, 991 (Cal. 1923), superseded by statute, Cal. Civ. Proc. Code §§ 1245.010-1245.060, as recognized in Prop. Reserve, 375 P.3d at 905. [1 see footnote] Because N.D.C.C. § 32-15-06 is derived from, and nearly identical to, California’s prior statute, Cal. Civ. Proc. Code § 1242, the Supreme Court of California’s construction of Cal. Civ. Proc. Code § 1242 in Jacobsen is particularly persuasive to this Court. Estate of Zins v. Zins, 420 N.W.2d 729, 731 (N.D. 1988) (“While we are not compelled to interpret our statute in the same way as the State from which our law is derived, such decisions are highly persuasive.”).

[¶10] On August 15, 2017, the district court granted the District entry to the Landowners’ properties through December 2018. For sixteen and one-half months this order granting right of entry gave the District access to the land to make examinations, surveys, and maps thereof. As a part of the 2017 order, the District was allowed to perform geomorphic examinations, which required the installation of survey monuments on the properties. The District conceded at oral argument that these monuments were in fact installed pursuant to the 2017 order.

[¶11] After the 2017 order expired and the District had failed to obtain easements from the Landowners, it applied for a second order permitting entry on the Landowners’ properties to further monitor environmental impacts in connection with the Fargo-Moorhead flood diversion project. In orders dated May 12, 2020, as amended on May 13, 2020, and May 29, 2020, the district court granted the District permission to enter the Landowners’ properties through December 2021. Accordingly, the District was given at least an additional nineteen months to once again make examinations, surveys, and maps of the land, including the use of survey monuments. Upon expiration of the 2020 orders, the District will have had access to the Landowners’ properties for approximately thirty-five and one-half months.

[¶12] The District’s application states it must install permanent survey monuments on the properties:

[¶13] The placement of survey monuments are unlike the limited soil testing and ground resistance measurements in Square Butte and unlike the soil borings test in In re 2015 Application. In In re 2015 Application, the District’s application provided it “must bore a limited number of holes on certain properties to obtain subsurface soil samples.” 2016 ND 165, ¶ 9. Here, the District was permitted to install its survey monuments for almost three years. The Supreme Court of the United States has described the harm presented by a permanent physical occupation:

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435-36 (1982) (cleaned up).

[¶14] Section 32-15-06, N.D.C.C., permits entry upon the land to make examinations, surveys, and maps thereof, which is “preliminary to the condemnation action itself.” Alliance Pipeline, 2013 ND 117, ¶ 15. Under the 2017 order, the District was afforded sixteen and one-half months to perform its examinations and surveys. Placement of survey monuments on the Landowners’ properties for as long as three years is not an “innocuous entry” and would seriously impinge upon or impair the rights of the Landowners to the use and enjoyment of their properties. See Jacobsen, 219 P. at 991. A physical occupation of this duration goes beyond the minimally invasive examination and testing permitted under N.D.C.C. § 32-15-06. Accordingly, we reverse the district court’s May 2020 orders granting the District a right of entry onto the Landowners’ properties.

III

[¶15] The Landowners request attorney’s fees and costs under N.D.C.C. § 32-15-32, which provides in relevant part:

The district court did not rule on the issue. Therefore, we remand for a determination of whether the Landowners are entitled to attorney’s fees and costs under N.D.C.C. § 32-15-32.

IV

[¶16] We reverse the district court’s May 13, 2020 and May 29, 2020 orders granting the District a right of entry onto the Landowners’ properties, and remand for a determination on attorney’s fees and costs.

[1] California has since expanded the scope of activities permitted in its pre-condemnation entry statute, see Cal. Civ. Proc. Code § 1245.010, and the protections provided to the landowner, see Cal. Civ. Proc. Code §§ 1245.020-1245.060. Unlike California, North Dakota has not expanded the scope of activities permitted or the protections afforded to landowners under N.D.C.C. § 32-15-06.

Views: 1561

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Did Oxbow, ND get thrown under the bus by the FMDA (Fargo Moorhead Diversion Authority), ND State Engineer and the USACE (United States Army Corps of Engineers)?

Having served as the Bakke OHB-PDT representative since 2013, I have watched the OHB (Oxbow, Hickson, Bakke) ring dike-levee project develop over the course of 56 teleconferences and other face to face meetings.

OHB stands as a testament to the FMDA trying to buy-off an upstream community’s leadership and silence to claim upstream concerns were addressed. The initial $65 million project is currently 100 percent over budget ($132.5 million) with the potential of another $40 million to complete.

The OHB component construction began prematurely ~ long before overall designs were finalized or any shovel of dirt was turned for any other aspect of the FMDA project which placed the OHB project on a collision course with the man-made flood-way being created around the communities left within the dam staging and storage reservoir.

The USACE report stated that the top of levee for OHB must be adequately above the overflow spillway embankment along of 922.5 feet (read more…) (located to the west along Cass 17) and designated the OHB ring-dike levee with a top elevation of 926.5 feet and a 2,300 foot section along the western edge at 925.5 feet as an overflow section (read more…) to allow the OHB protected area to fill to prevent failure of the OHB ring dike levee from reaching the top of the OHB ring-dike levee.

FMDA Plan A, which was denied a MN DNR permit, morphed into FMDA Plan B after the Governors Task Force meetings in 2017 which removed considerable impacts from Minnesota but at the same time creates new severe impacts for some Minnesota property owners not previously impacted by the FMDA project.

The biggest issues created for Oxbow, ND between Plan A and Plan B is that there is a minimum 1 foot loss of free-board for the communities that remain within the staging and storage reservoir of Fargo’s dam, placing the entire OHB project at risk if not properly addressed and the alleged removal of the non-mechanical emergency spillway prevent water to rise beyond the elevation presented in all previous documentation.

So where does that leave Oxbow, ND?

Both FEMA (read more…) and the USACE (read more…) indicate that a minimum of 3 feet of free-board or greater is required, yet the water elevations from the USACE indicate much less protection for Oxbow, ND.

If FEMA and the USACE use the lowest possible elevation of a dam or levee as stated level of protection, then the same must be applied to OHB ring-dike levee.   The Western Tie-Back plans released in March 2021 indicate the lowest reach of the dam at the Western Tie-Back dam location to be 924 feet, which is arguably the reference control point for the flood threat potential posed to Oxbow, ND because the water can keep rising in the reservoir until in begins to overflow at 924 feet. Keep in mind, the water surface increases along a general profile  per mile upstream of Fargo’s Dam.

Even more concerning is the effect of wind wave run-up, over-topping and potential failure (read more…) that could occur at OHB, given the shallow nature of the reservoir (read more…) surrounding the communities and the winds that drive wave action. A small pond in Oxbow, ND along Hwy 81 routinely experiences white-cap waves and that pond is approximately 300 feet long. The reservoir around OHB extends for miles in all directions.

The entire “southern embankment” consists of three concrete dam control structures with operable tainter gates and nearly 12 miles of earthen dam with 5 feet of freeboard and a Western Tie-Back and Eastern Tie-Back over-top reach (read more…) to prevent water from reaching Fargo.

The water in the reservoir is expected to surround the communities of Oxbow, Hickson and Bakke with mere inches of free-board and the USACE, ND State Engineer and FMDA proponents have chosen to disregard vital free-board standards creating a new design risk for Oxbow, ND as a result of the Class 5 – High Hazard Dam being constructed for the primary benefit of Fargo, ND.

On March 3, 2021 Terry Williams, USACE acknowledged (read more…) that the pool elevations at the OHB ring levee are slightly higher with Plan B than with Plan A but she claimed the freeboard is still sufficient.

Sufficient to what standard?

The USACE has a long history of kicking the can down the road when the hard questions are asked. Yet, all of the data provided by the USACE, ND State Engineer and FMDA illustrate a different scenario for Oxbow, Hickson and Bakke. Why does it feel like the USACE is going to design the very least protection for Oxbow, ND?

When the USACE released OHB Appendix C on March 21, 2014 – the Final Recommendation (read more…Page 38) was to set top of the Oxbow/Hickson/Bakke Ring Levee Elevation 4 feet above pool elevation of 922.5 feet, but the USACE seems to have ignored that limitation when they designed the Western Tie-Back with the lowest reach of 924 feet.

What was the ND State Engineer thinking when they gave the green light to a construction permit without setting restrictions that would respect the elevation limits at Oxbow, ND?

FEMA must determine if the man-made barriers (read more…) that comprise the man-made reservoir create significantly greater potential impacts that could/would not occur naturally. All of the projections are done on theoretical modeling that cannot be proven accurate until the 100yr, 500yr or PMF event have occurred.

The undeniable fact is that the design plans provided by the USACE indicate a reservoir minimum over-top elevation of 924 feet which directly affects the lowest top elevation of the OHB ring-dike levee.

When/If the overall project is completed;

The USACE is specifically vague when it comes the FEMA flood insurance issue and getting a straight answer from FEMA is near impossible on a project that is not yet completed?

The standard answer from the USACE is that in the end there should be “certifiable” flood protection, absent any guarantee.

The vague answer, if any, from FEMA is that they will consider all aspects when remapping is done after the project is completed.

So lets look towards Wahpeton, ND and Breckenridge, MN. After the 1997 flood the communities worked with the USACE to design and build certifiable flood protection, which was largely completed in 2005.

To date, FEMA has not removed the mandatory FEMA flood insurance requirement (read more…) and the certification is not complete.

Over 15 years have passed and the issue of certifiable flood protection still hangs in the balance for areas of Wahpeton/Breckenridge – which are not communities that are going to exist within a staging and storage reservoir behind a Class 5 High Hazard Dam.

Stop and think about this for just a moment…, this has NEVER been done before.

The USACE has never designed a project that crosses multiple river systems with the intentions of leaving 3 communities within the staging and storage reservoir of a dam. There is no precedent for the USACE to rely on that offers any confidence that the OHB project is sound or certifiable with mere inches of free-board.

The question still remains…, how can any property owner within Oxbow, Hickson and Bakke feel confident they won’t face mandatory FEMA flood insurance requirements -or- suffer financial losses due to inadequate free-board in the future, as the slow wheels of certification sit and spin?

If you have concerns regarding loss of freeboard contact:

Representative Jim Schmidt
Chairman, Water Topics Overview Committee
jeschmidt@nd.gov

Senator David Hogue
Vice Chairman, Water Topics Overview Committee
dhogue@nd.gov

Sen. Larry Luick
District 25
lluick@nd.gov

Rep. Alisa Mitskog
District 25
amitskog@nd.gov

Rep. Cynthia Schreiber-Beck
District 25
cschreiberbeck@nd.gov

Rep. Mark Sanford
District 17
masanford@nd.gov

Views: 1452

The post Did Oxbow, ND Just Get Thrown Under the Bus? first appeared on FMDam.org.

Yesterday – January 5, 2021 marked the beginning of the 67th North Dakota Legislative Assembly.

Will Fargo extend their hand and twist elbows for another wealthy welfare check, as they have done for the past 5 legislative sessions?

The $7.89 billion ND Legacy Fund could be a likely target. With $5.9+ billion in historical legacy fund deposits and a modicum of interest, is it really fair for Fargo to expect a financial windfall when Fargo rarely acknowledges evidence of life west of Casselton, ND?

Constitutional language states that after July 1, 2017 – the state legislature can spend up to 15 percent of the principal balance of the Legacy Fund per biennium, if two thirds of each house of the legislature agrees to the spending.

That means up to $946.9 million could be siphoned off the ND Legacy Fund at the will of those that wield the most power in the legislature.

Fargo has two major big ticket projects they are obsessed with.

$2.75 billion Fargo Moorhead Dam and Diversion
$1.19 billion Red River Valley Water Supply Project

That’s $3.94 billion dollars in projects for a city that has averaged a paltry $47.8 million in annual sales tax over the past decade. That translates to spending the entire sales tax proceeds for 82.31 years on just these two projects.

For the purposes of this article, the focus will be the Fargo Moorhead Dam and Diversion project, which is based upon an alchemy of junk science, overstated flood forecast, fiscal irresponsibility and legal intimidation.

The first two made it possible for the latter two which all started with Junk Science. The EOE (Expert Opinion Elicitation): a theoretical hypothesis based on incomplete data weighted to favor the project.

Then comes the Overstated Flood Forecast. How is it possible for the National Weather Service to get the forecasting so horribly wrong? They claim to have the tools and the data but shrug their shoulders and cite a perfect thaw when they get it wrong.

How wrong were the forecasts? 100 percent of the spring flood forecasts issued in 2020 were wrong, errors ranging from as little as 3.67 feet to as high as 12.37 feet. Fargo locked onto the 5 percent worst case scenario like a guided missile and coerced West Fargo and Moorhead to join into a preemptive Emergency Declaration to tap into federal and state funds. Not to worry, its not a fluke ~ the past decade is riddled with overstated flood forecasts with the worst being 2016 when the Red River never reached flood stage the entire year. They only missed 2016 by 16.08 feet.

The propensity for Fargo to spend money that Fargo doesn’t have.

Let’s look at some water related project and cost over-runs for perspective…

With the last outdated project cost estimate of $2.75 billion dating back to 2018, will Fargo and county leaders pump to brakes or the gas on the arguably$5-7 billion project? As of 1/3/2021, the FM area carries debt obligations over $3.4 billion with the 2+ year old cost estimate because there is essentially ZERO CHANCE the FMDA project will come in on budget with the miserable track record of projects, such as the aforementioned. This suggests the $2.75 billion FMDA project could end up somewhere between $4.6 billion to $6.9 billion dollars.

10 years of Fargo and Cass county diversion sales tax collections and it appears the FMDA has spent more than they collected.

As of November 30, 2020

$ 736,313,540.56 in Approved Contract/Invoice.
$ 602,885,091.17 in Liquidated money out of pocket.
$ 133,428,449.39 in Outstanding Encumbrance yet to pay.
$ 150,250,000.00 in loans taken without voter consent.

The FMDA ilk sells fear because it coerces the taxpayer into believing the decision makers have property owners best interests at heart. If this was truly about Fargo being flood-prone, then Fargo should have completed internal flood protections to ensure that the group they say are at risk of flooding have been protected. However, this is about future development and the local decision makers dragging their feet in completing the remaining 20+ miles of flood-walls, dikes and levees to foster support for the FMDA project.

The FMDA talking heads recite their script about FEMA Flood Insurance costing thousands per year without the FMDA project, yet the average price in Fargo, ND – $618.14 as of November 30, 2020. The most insane part is Fargo and Cass county encouraging growth into areas flooded in 2009.

So how much have past flood fights cost?

Wow! Over the past 27 years, Fargo has spent $38.3 million fighting floods to protect the most risky development projects and was reimbursed $21.9 million thus far, leaving Fargo taxpayers on the hook for $16.3 million in costs (avg 600k/year) to justify a $5-$7 billion dollar boon-doggle.

Just in case it’s hard to wrap your head around how much $1 billion dollars is…, you would need to earn $100,000 per year for 10,000 years to equal $1 billion. Which is ironically about how long ago Glacial Lake Agassiz drained, as theorized by North Dakota State Geologist John Bluemle (1990-2004) (read more…).

The staggering part is Fargo’s development plan disguised as flood control could require 5 to 7 times that amount.

Views: 803

The post ND Lawmakers Should Ignore Fargo Demands for Dam and Diversion Funding first appeared on FMDam.org.

What we do in little, we do in great…

When the FMDA (Fargo Moorhead Diversion Authority) is unjust in the little things the FMDA is unjust also in the big things.

3,691 days have passed since the USACE and local leaders arguably unveiled what was talked about during their “closed door meeting” held 6 days after the first Cass county sales tax vote in Nov 2010.

Reckless FMDA behavior, for over 10 years, would be an understatement monumental proportion. The monitoring, easements and acquisitions should have been item #1 on the FMDA “todo” list…, not an inconvenient term to make legal challenges go away. The FMDA didn’t want upstream interests at the table because they expected everyone to roll over for pennies on the dollar.

Oxbow, ND stands as testament that pennies on the dollar are not enough. Oxbow – touted as a $65 million dollar project morphed into a $132+ million dollar boondoggle with another $30-40 million needed for completion. The entire debacle that transpired with Oxbow was a smokescreen to convince lawmakers that upstream issues had been resolved.

All property owners affected by the FMDA project have just as much right to be made whole as those that benefited at Oxbow.

Call it a belated Christmas gift – there is a local attorney willing to stand up for property owners feeling overwhelmed by the high pressure tactics employed by the FMDA and/or its agents.

The FMDA is not your friend, they DO NOT have your best interests at heart and they always start with the low offer in search of low hanging fruit. If they have lawyers and you have none – you’re out-gunned…

Nobody deserves to be swindled – the following letter is one way to deal with the FMDA.

Don’t sign anything with the FMDA until you’ve spoken to Al Baker – one attorney that seems willing to fight for the little guy.

DOWNLOAD: 2020-12-14 Baker ltr to HDR [ re monitoring ] pdf ↴

Al Baker Attorney at Law PO Box 1780 Fargo, North Dakota 58107-1780 Phone: 701-630-1846 Email: al@elawpros.com Licensed in North Dakota and Minnesota

Stefan Olafson HDR, Inc. 51 N Broadway, Suite 550 Fargo, ND 58102 Re:Dear Mr. Olafson: I have reviewed your December 2, 2020 letter and the attached proposed Environmental Monitoring Easement. I have not discussed the proposed easement with [PROPERTY OWNER] and will do so in the near future. However, there are some issues that I have concerns about, that will need to be resolved before I can fully advise [PROPERTY OWNER] concerning the proposed easement. #1. Your letter states: “They will travel by boat along the Red River and only enter [PROPERTY OWNER] property off the boat, there will be no vehicle traffic and only foot traffic on her property along the river.” Your statement is inconsistent with the proposed easement. The Easement states: “Access to the Easement Property will be by river and street.” The Easement does not restrict access to “foot traffic.” The Easement provides for access “upon, over, in, under, across, and through” and also “ingress and egress in, on, over, across, and through the Easement Property.” We both know that your statements are of no value in determining the rights that [PROPERTY OWNER] loses if she agrees to an easement. Your misrepresentation of the terms of the easement is problematic. #2. The easement is granted to “the Cass County Joint Water Resource District” but is for the benefit and use of the “Grantee, its officers, employees, agents, representatives, contractors, and subcontractors, and the United States” with only the Cass County Joint Water Resource District being responsible for any damage caused to [PROPERTY OWNER] as a result of the use of the easement. This is troublesome because it appears that the Cass County Joint Water Resource District was created to obtain the property rights from [PROPERTY OWNER] and others for the benefit of the “Project.” For all intents and purposes the Cass County Joint Water Resource District is like a shell corporation established for the sole purpose of shielding other entities from liability. The easement is for a period of 50 years, there is no reasonable expectation that the Cass County Joint Water Resource District will remain in existence for 50 years. Even if it remains in existence, I do not believe the Cass County Joint Water Resource District will have the resources to answer any damage claims that may arise out of the easements it seeks from [PROPERTY OWNER] and others. To resolve the liability issue, I would suggest two possible alternatives. One the Cass County Joint Water Resource District obtain a bond from an appropriate commercial insurance company or that suitable beneficiaries of the easement such as the City of Fargo, the City of Moorhead and Cass County agree to be responsible and pay for any damage that [PROPERTY OWNER] suffers as a result of the easement. I believe it much more likely that the City of Fargo, the City of Moorhead and Cass County will be in existence for the next 50 years and have the resources to pay any damages that [PROPERTY OWNER] or subsequent owners will incur, than the Cass County Joint Water Resource District will be a credible insurer for [PROPERTY OWNER] potential damages. #3. The easement itself is incomprehensively vague. It allows “performing any other testing, surveys, and analysis” which means that Grantees can do anything they want to the property in the name of environmental testing. The activity could be destructive, as collecting soil samples is allowed without any limitation or restrictions to the area or volume of the sample being removed. The Easement is defectively indefinite because it incorporates terms and conditions contained in “the Adaptive Management Plan” and “revisions thereto.” The AMP is controlled by the beneficiaries of the diversion project and allows terms and conditions of the easement to be fundamentally changed without the consent of [PROPERTY OWNER] . It is impossible for [PROPERTY OWNER] to know and understand what she is agreeing to give up when the Grantee can unilaterally change the terms and conditions of the agreement. #4. The proposed easement creates unreasonable and uncertain potential liabilities for [PROPERTY OWNER]. The easement allows Cass County Joint Water Resource District to place semi-permanent survey monuments on the property to remain in place for 50 years. There are no limits as to the number of the monuments. The monuments are not described. The location of the monuments is not determined. However, [PROPERTY OWNER] is liable for any damage she may cause to the monuments and also liable for any damage anyone entering her property with her permission may cause to the monuments. How can [PROPERTY OWNER] be expected to agree to be liable for damage or replacement of the monuments when she is not provided with any information concerning the number, location of cost of the monuments? #5. While the proposed easement subjects [PROPERTY OWNER] to unlimited liability it limits the liability of the Cass County Joint Water Resource District to the amount paid to [PROPERTY OWNER] for the easement: “Grantor specifically acknowledges the consideration paid represents full and final consideration to Grantor as compensation or damages regarding the Easement Property, any of Grantor’s remaining property, or the Project, and that Grantor is not entitled to any further payments, tax reductions, or damages under any state or federal statute, constitutional provision, rule or regulation, or other legal authority related to this Environmental Monitoring Easement.” Regardless of how much damage the Cass County Joint Water Resource District or its agents cause [PROPERTY OWNER] property under the pretext of environmental monitoring the only responsibility of the Cass County Joint Water Resource District is the illusory promise to repair the damage “as best as practical.” Even the illusory promise is contingent on the existence and resources available to the Cass County Joint Water Resource District during the next 50 years as discussed above. #6. The language used in Paragraph 3 of the proposed easement is overly broad and unclear and could be used to deny [PROPERTY OWNER] for damages caused by diversion project flooding on other parts of her property: “the consideration paid represents full and final consideration to Grantor as compensation or damages regarding the Easement Property, any of Grantor’s remaining property, or the Project.” The easement property and other property owned by [PROPERTY OWNER] are subject to flowage easements caused by diversion project flooding and the proposed Environmental Monitoring Easement must make it clear that it does not include any flowage easement or flooding rights. #7. The limitations of use of the easement property substantially impacts the use and value of all of [PROPERTY OWNER] property. As shown by the previously provided FM Area Diversion, Property Owner: [PROPERTY OWNER] map it is clear that the value of [PROPERTY OWNER] property is substantially enhanced and dependent on the fact that her property includes direct access to the Red River. For the next 50 years [PROPERTY OWNER] use of the easement property will be severely restricted to the point of her losing all access to the river: “Grantor will not use, or permit use of, the Easement Property in any manner that disrupts or interferes with Grantee’s use of the Easement Property, Grantee’s rights and privileges under this Easement, or with the Project. Grantor may plant or farm on the Easement Property at Grantor’s sole risk (subject to the provisions of Section 4 above), but only to the extent Grantor’s use does not disrupt or interfere with Grantee’s use of the Easement Property, Grantee’s rights and privileges under this Easement, or with the Project. Grantor shall not remove of destroy any survey markers placed in accordance with this Environmental Monitoring Easement. Grantor will promptly cease any activities and remove any structures or obstructions that interfere with Grantee’s use of the Easement Property, Grantee’s rights and privileges under this Easement, or with the Project, when directed by Grantee, at Grantor’s sole cost.” The easement admits that it may result in [PROPERTY OWNER] total loss of access and use of the easement property: “The parties specifically agree neither Grantee nor any of its agents or representatives have made any representations or warranties in any way regarding the Project; Grantor’s ability to use the Easement Property following construction of the Project.” #8. I cannot recommend that [PROPERTY OWNER] agree to paragraph 7 of the proposed easement. The Cass County Joint Water Resource District is requesting the easement from [PROPERTY OWNER] It is the Cass County Joint Water Resource District’s obligation to determine the owner of the easement property and not [PROPERTY OWNER] obligation to warrant her ownership. #9. I cannot recommend that [PROPERTY OWNER] agree to paragraph 15. Paragraph 15 is antagonistic to the purpose of paragraph 16. All parts of the proposed easement are critical to the whole and would be relied on by [PROPERTY OWNER] in giving up her valuable property rights. If any part of the contract is invalid, then the whole agreement is invalid. Finally, as written the proposed easement is unconscionable and unenforceable. The proposed easement unfairly protects the Cass County Joint Water Resource District by transferring all risk to [PROPERTY OWNER]. The Cass County Joint Water Resource District obtains all the benefits of the easement by giving it unlimited power to use the easement property in any manner it wants while severely limiting [PROPERTY OWNER] use of the easement property. I look forward to discussing the proposed easement and appropriate compensation for the easement in the near future. Sincerely Al Baker

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Fargo Dam and Diversion Costs as of August 31, 2020

Don’t forget, Fargo and Cass County have taken out
$ 150,250,000.00 in loans without voter consent,
which are not listed above and held “off books”.

Cumulative Vendor Payments Detail Fargo Dam and FM Diversion as of 2020-08-31

Fargo Diversion Authority increased contracts by $ 211,969,827.32 from January 31, 2019 to August 31, 2020. Still, NO congressional funding, now topping 40 percent of the original projected cost. The Fargo Diversion Authority has pumped over $132.3 million into OHB ring-dike-levee and private country club ($32.05 million), which provides ZERO FLOOD PROTECTION BENEFIT TO FARGO, all courtesy of state and local taxpayers. With unfinished internal flood protection projects the Fargo Diversion Authority continues to pump millions into the non-flood prone OHB ring-dike-levee and private Oxbow Country Club, courtesy of state and local taxpayers.

The preliminary injunction remains in place against the project with 5 limited actions allowed in 2019. The contested case filed by the Buffalo Red River Watershed District, City of Comstock Minnesota, City of Wolverton Minnesota and the Richland Wilkin Joint Powers Authority renders the MN DNR Conditional Permit invalid under Minnesota Statutes Section 103G.311. “Upon the filing of a valid contested case hearing, the order issuing the permit is no longer final, and the permit is put into abeyance and ceases to be valid – MN DNR”

The Covid-19 (coronavirus) situation complicates local, state and federal funding options which could take more than a decade of recovery.

Imperial Fargo – Imperial Cass continue to mire taxpayer into debt that may cripple the regional economy and expect a P3 funding source to bail them out

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