Guest Post: Fargo Flood Diversion Would Use Federal Eminent Domain Powers To Get Around North Dakota Law


We hold dear the rights enumerated by the founders, chief among them the rights to life, liberty and property. Our laws limit when and how our government, whether state, federal or municipal, may separate us from those rights. As residents of North Dakota we are protected by both a state constitution and the federal constitution. They are not the same, and the protections are not equal. A state agency is limited by both the state and federal constitutions. A federal agency is often bound only by federal law.

One example of the difference involves North Dakota’s law on entrapment. Some years ago Fargo police set up a “reverse sting”, involving undercover agents selling previously seized cocaine. When the suspect left the hotel room after the purchase he was arrested for felony drug possession. His state conviction was overturned by the North Dakota Supreme Court, which ruled as a matter of state law that “the methods employed by the State must measure up to commonly accepted standards of decency of conduct to which government must adhere.

“The manufacture or creation of a crime by law enforcement authorities cannot be tolerated.” State v. Kummer, 481 N.W.2d 437 (ND 1992).

No similar protection exists under federal law. Following the dismissal in state court, federal prosecutors charged and convicted Kummer in federal court, which is not bound by North Dakota law.

Similarly, our property rights have greater protection under North Dakota’s Constitution. The state power of eminent domain, the power of the government to deprive persons of their real property, is limited by North Dakota’s Constitution. Our constitution provides that the government can only take private property for a “public use” or purpose.

Article I, Section 16, of the North Dakota Constitution specifically provides that a public use or purpose “does not include public benefits of economic development, including an increase in tax base, tax revenues, employment, or general economic health.” No such protection exists under federal eminent domain law. The lack of this protection under federal law is what prompted our state lawmakers to add this guarantee to our state constitution.

Imagine a city using the power of eminent domain to take a family farm against the owner’s wishes only to turn it over to private developers to build an exclusive private golf course. This would be unconscionable under ND law, but perfectly acceptable under federal law. Likewise Fargo’s plan to dam the Red and Wild Rice rivers, flooding 50,000 acres, and “taking” the property of hundreds of citizens, is motivated and justified by Fargo’s future economic development of the natural flood plain by expanding south into Cass County. As such it would be prohibited by ND law.

Cass County Commissioner Daryl Vanyo and Army Corps project manager Aaron Snyder are both on record stating that Fargo intends to have the Army Corps, a federal agency and Fargo’s contractor, employ federal eminent domain authority to take the property under federal law in federal court. Fargo’s leaders can thereby avoid the more stringent protections of North Dakota law and sidestep our state constitutional rights. We will ask our state legislators to consider this issue when Fargo submits its request for 550 million dollars, and refuse to fund a plan that can only proceed by circumventing the rights guaranteed to their constituents by the North Dakota Constitution.

Cash Aaland is a resident of rural Richland County, near Christine, North Dakota. He is an attorney practicing in Fargo, ND. He is a board member of the Mndak Upstream Coalition, a non-profit organization composed of 100s of residents and property owners in harm’s way of Fargo-Moorhead and the US Army Corps’ plans to construct dams on the Wild Rice and Red rivers south of Fargo. Cash is also a committee members of the Richland-Wilkin Joint Powers Authority, a political organization made up of 36 political entitles from Richland and Cass County, North Dakota, and Wilkin and Clay Counties in Minnesota. Members include 3 counties, 9 cities, a water-resource district, two school districts and numerous townships.

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  • Ed

    The Army Corps is Fargo’s contractor, paid by Fargo to satisfy Fargo. The Corps has suggested more cost effective solutions with far fewer impacts. They abandoned those option because, in the Corps’ own words they: “conflicted with the sponsor’s [Fargo’s] plans for future development.” These alternatives, by the Corps’ own admissions, would have saved hundreds of millions of tax dollars and tens of thousands of acres of farmland.

  • Guest

    “‘taking’ the property of hundreds of citizens, is motivated and justified by Fargo’s future economic development.”

    Did you write that with a straight face? Flood protection is much more than about economic development. Fargo could’ve easily been severely damaged or destroyed by the flood back in 2009. Saying it is motivated for economic development is an understatement at the very least. If preventing the future destruction of a city is not a valid use a taking power, than its hard to imagine what is.

    • Roy_Bean

      That presents 2 choices, someone in Fargo could move to allow a flow area large enough to handle the water or someone up stream could move to allow a permanent flood to protect Fargo. Keeping in mind that Minot was protected by 4 dams upstream and Bismarck was protected by 2, I think the best plan is to tell Fargo to move people away from the river.

      • Guest

        Yes, you make perfect sense. Why should one hick farmer, who exacerbates the problem by draining his land into the river, move when thousands of Fargoans can!

        • Roy_Bean

          “…one hick farmer…”

          That pretty much sums up the thinking of Imperial Cass for the last hundred years.

          • Guest

            What sums up the problem is hick farmers creating the problem than then insisting others sacrifice to solve it.

          • Thresherman

            What nitwits like you tend to forget is that while the valley may be flat, it is far from level. Fargo sits at a much lower elevation than farms even a few miles away. But self interested, narrow minded fools such as you blame the farmer because water runs down hill. Furthermore, you fail to recognize that one of the reasons that a farmer drains his land is that roads and highways, which were constructed to bring commerce to Fargo, have restricted the natural drainage of water from his lands. Even further, the fact that slope of the land may be 3 to 10 feet over the length of a mile belies the commonly held idea that a farmer’s fields are level retaining ponds. All one has to do is drive out into the country during a spring flood and see that the northwest corner of a field in MN and the northeast corner in ND are flooding over the road while the opposite corners are relatively unflooded and you will understand that the land is far from level. In fact, the section line roads that surround a farmer’s fields act as a series of coffer dams and retard the flow of runoff into the Red.

            But no, the people who build in the flood prone areas need to be protected from their poor decisions by punishing those who did not choose so poorly.

          • Guest

            Glad you abandoned any semblance of the argument that it was solely economic and is all about pushing the cost of solving the problem onto the victims instead of the hicks who caused it!

          • Marcus


            If you have any genuine study that supports your theory I am willing to consider it. However, your references to the “hicks” that caused, one can only assume, you must mean Walaker, Vanyo, Mahoney, Berndt…Fargo developers…et al

        • Ed

          No Guest, not the bare minimum. I propose we follow the recommendations of the engineers, make it the size the Army Corp preferred, employing the flood plain in a way that benefits the entire RR basin. What we shouldn’t do is allow political interests and land developers flood 50,000 acres upstream that doesn’t normally flood, to develop 20,000 acres that does.

          • Ed

            I hope all the “hick farmers” east and west, north and south, especially all those in the legislature, see this plan for what it is, a tax subsidized development plan and an ego trip for arrogant Fargo leaders looking to create a legacy.

          • Guest

            Luckily all three of them don’t have much influence.

        • Marcus


          I am genuinely curious how a farmer has a greater impact per acre than city dwellers with multiple sump pumps per lot, city storm drains and hard surface street to speed water directly into the river?

          At least farmers can turn the pumps off in drain tile systems. Also, by adding water capacity to the farmland in the fall, allows for greater absorption in the spring. Farmers generally are dealing with surface water, or that water that is within 3 ft of the surface.

          Whereas, city lots are pumping water from the water table 4-9 feet under the surface and adding “non-natural” water to the river channel.

    • Ed

      Guest: Fargo rejected a plan that would have equally protected Fargo, at half the price, without a dam and 80 square mile reservoir. Like Fargo leaders you ignore that fact or pretend it isn’t so. The difference between the two plans, other than the cost and the impacts, is the 20,000 acres it drains for future development. If its just about protection why not go back to a 31 sq mile plan as opposed to this 71 sq mile boondoggle?

      • Guest

        Yes, you’re so right. We should do the bare minimum so that we get to have the same debate again when the smaller project becomes insufficient in the near future.

        • ACF1

          How Would you like to be the owner of a farm that’s going to be bought out in the land south of Fargo? Many of the farms down there payed out of their own pocket to build their own ring dikes around their homes. And now you want to use other peoples money (tax dollars) to buy out the farms that people have built their lives around just for your protection and future growth.

          • Guest

            How would you like it if your all neighborhood was destroyed because some hillbilly didn’t want to move?

          • Ed

            Guest, you are starting to sound just like a certain Cass County Commissioner who’s name rhymes with yo-yo.

          • yy4u2

            I wouldn’t build in a flood plain nor expect someone else to give up their property so I could live in my poor decision. Is it the property owners right for hundreds if not thousands of poor planning?

          • toppr8

            Guest, that farmer is a land owner who has every right to prosperity and the American Dream. He did Not make the poor decision to build along the river, and should not be required to sacrifice his land for one or many who did. Having a nice place along the river entitles you to have a a place along the river…….if something about your decision is not well thought out and you later have water in your front yard, well it should be of no surprise that the Red River has flooded many times in the spring of the year……..You might have thought about that before buidling there, and now you have to talk repsonsibilty for your poor decision and not expect someone else to bail you out…..

          • ACF1

            Go ahead and spend your own money to protect your land (at the same time not flooding anyone else and keeping all of the flood protection on your own land).

        • Marcus


          Regarding “sufficient”…

          Fargo would have had “sufficient” protection in 2009, had they not continued destroying the natural flood plain after the 1997 flood.

          Deputy Mayor Tim Mahoney has a home built in a natural flood plain along Rose Coulee and the drains supplying the watershed.

          In 1997 the property was feet under water…

          Then came the expensive home in the flood plain…

          Then came the need to protect those homes…

          Which cause the water to be relocated onto others.

          The “insufficiency” that you are arguing is a result of Deputy Mayor Tim Mahoney and others destroying the natural flood plain buffer that Fargo needs for adequate protection.

          Using irresponsible development as the basis to justify an unconstitutional land grab with the sole objective resulting in the destruction of the last natural flood plain adjacent seems rather mis-guided and a huge waste of taxpayer resources.

          • Guest

            What as irresponsible was those hick farmers draining their land into the river and then demanding Fargoans pay the full cost of the consequences.

          • Marcus


            No…, more along the lines of the irresponsible relocation of natural flood plain water into the Red River channel, being choked by development lowering the effective conveyance of water south to north via the metro area.

            More akin to the irresponsible development behavior of Fargo pushing it’s water onto Moorhead resulting in extensive buyouts throughout the city.

            Fargo pushed the water in the channel higher causing direct impacts to Moorhead.

            I don’t disagree that farmland drainage has an effect, it has been a part of the equation of 5-6 decades. However, your circular reasoning is attempting to suggest that it’s a new concept.

            Consider a Red River valley with no roads of restrictive culverts holding water back. Where would Fargo be then? The mere fact that water is detained by a road on farmland undermines your suggestion that farmers are root cause in the matter.

            Farmland drainage DID NOT cause the restriction or elevation of water on the Red River since the 1997 flood. Fargo’s irresponsible development is the bullet, smoking gun and body.

            Every sq foot of natural flood plain water south of 26th ave and west of 18th street in Fargo that has been displaced into the Red River mainstem is Fargo’s fault…not farmers.

            Fargo built itself into a corner….and did so without observing the direct effect it had on the Red River mainstem.

            That, my dear sir, is the irresponsibility.

    • Marcus


      Fargo placed itself at risk in 2009 as a result of their irresponsible economic development.

      Fargo can adequately protect itself without building multiple high risk dams and destroying communities that have existed longer Fargo’s expansion since 1973.

      And yes, I agree, Fargo should complete all of the takings necessary within Fargo to protection future protection while strictly observing ZERO IMPACT development of surround flood plain to ensure that future destruction of Fargo is not caused by irresponsible development.

      It is reprehensible for Fargo, Cass County, the Diversion Authority or the Corps of Engineers to suggest that relocation of the natural flood plain is justified when they are the nature of the causality.

    • guest

      how many homes are being taken from outside the devilish fargo area?

      • Marcus

        Irrelevant. You’re trying to argue a subjective goal with inequitable metrics.

        Fargo can solve it’s assumed flood threat without destroying upstream communities and spending $2-4 billion in the process.

  • Roy_Bean

    This explains why the mayor and police chief want to disarm the citizens of North Dakota. It’s easier to steal land from unarmed peasants.

    • headward

      Back to work Peasant! Idle hands = broken fingers!

    • opinion8ed

      Perfect response…

  • jimmypop

    how many people inside fargo have lost their homes? and how many outside will lose their homes?

    • Rob

      How many people in Fargo chose to live by a river?

      How many people outside Fargo choose to live by a river?

      Why should Fargo be able to “solve” their flood problems by sending their flood to other people’s homes?

      Does Fargo get to win that argument because they have more people?

      You’ll say yes, Jimmy, because you live in a Fargo- centric bubble, but you’re wrong.

      • Guest

        Rob is such a hypocrite. He’s for using eminent domain when it’s used solely for the benefit of an oil company like the Keystone Pipeline but against it when it comes to protecting our cities. What a hack!

        • Ed

          Fargo’s plan, taking the property of upstream landowners to provide for its own future development, violates our state constitution. This plan only succeeds if Fargo can use the Corps to end run our constitutional rights. The question for our lawmakers is whether they will fund this plan when the money will be used in such a way.

          • Guest

            Thank you for your completely irrelevant tangnet that has nothing to do with how Rob could possibly support eminent domain for a privately owned pipeline but not to protect a city from getting destroyed by a flood.

          • Marcus


            Please explain the logic behind your post?

            It appears that Ed is commenting specifically about the article and topic at hand.

            Whereas, you seem to be making personal digs at Rob on a completely different matter and using subjective reasoning to postulate hyperbole of your own device.

            If this were truly a matter of protecting a city from a flood then two of Fargo’s objectives would need to be taken off the table.

            1) removal of the land grab Fargo is attempting.

            2) removal of multiple class 1 high risk dams.

            Fargo can have a diversion without both of the above agendas…

            However, Fargo is far too arrogant to allow reason and accountability to enter into the discussion.

            In reality, Fargo could care less about the rest of North Dakota. It’s evident is their flimsy argument that 1 in 5 North Dakota’s would be protected by the proposed dam(s) and diversion.

            Y’see the other side of that equation is that 4 out of 5 North Dakotan’s are being asked to pay for a project they receive no direct benefit from.

          • Guest


            Stop being a dumbf*ck and read what the context of the post is. Rob apparently objects to eminent domain usage in this case but favors is use for the Pipeline. Even if any of your unfounded contentions had evidentiary merit or factual support, they would be completely irrelevant to this particular line of responses concerns: whether it’s possible to believe eminent domain is reasonable for a private pipeline but not to protect a city from flooding. If you want to post your completely unfounded allegations in this thread that Fargo’s “arrogance” being the problem , that’s certainly fine and on topic in my view, but they would have absolutely no bearing on the issue of whether favoring eminent domain for a private economic use is compatible with opposing it for flood protection.

          • Ed

            Guest: the dam and 50,000 acre reservoir are not necessary to protect Fargo. Fargo can be better protected without that feature. They are only necessary for future economic development. Thus your analogy is nonsense. Like Fargo leaders you seem to have your fingers in your ears while shouting “nanannana”. No matter how many times you say it 2 + 2 will never equal 5.

          • Guest

            Wow, you sure persuaded me that it’s not necessary but just assuming it is. I shouldn’t be too hard on you though, since your position has no evidentiary or factual support, so it’s pretty much the only type of argument you can make!

          • Ed

            Guest: The evidence and facts are all in the FINAL ENVIRONMENTAL IMPACT STATEMENT, July 2011, published by the Army Corps. There You will find the evidence that supports all my factual assertions. However, from the wit and intelligence you have thus far demonstrated, I doubt you will take your blinders off long enough to read it.

          • Guest

            Thy Army Corps made absolutely zero statement about whether Fargo’s plan was solely for economic use or prohibited by North Dakota law, but a typical hick lack you who hasn’t even read the report obviously doesn’t know that. How incredibly unsurprising you couldn’t explain how the report supports your positions, but what can you do when it doesn’t?

          • Ed

            Guest: the entire project is justified by the cash benefit of eliminating the cost of making the development land compliant with FEMA requirements. Corps estimated that this benefit amounts to $30,000.00 per acre for over 14,000 currently in the flood plain. Without the dam and resevoir no benefit and the project costs exceed the benefit. Without dam and reservoir there will be no tax subsidized development of the flood plain. All Fargo would have left is flood protection. All this can be found in the FEIS. No surprise you are ignorant of these facts. I expect is hard to read when you have to hold the page closer than the tip of your nose. I’m thinking this site might be too difficult for you. Maybe you should switch to a blog designed for Junior High kids.

          • Guest

            Wow, another uncited, unfounded post that is completely irrelevant to to how Rob could possibly favor eminent domain for a privately owned oil pipeline but not to protect Fargo from flooding. I’d say maybe you should switch to a blog for retarded rhesus monkies, but you’d just invariably dumb down the conversation like you do here!

          • Marcus


            The answer to your personal protest against Rob is within your own reply.

            “…in this case…”, Fargo’s land grab and the pipleline are unique and separate issues.

            Is it fair to assume that you are not in favor of eminent domain?

            As for the remaining rhetoric in your rant…, you are entitled to your opinion…, no matter how misguided it may be.

            Fargo’s arrogance is at the heart of this discussions. Imperial Fargo, Imperial Cass assume they are entitled to land they cannot acquire legally under the North Dakota Constitution. They along with the USACE have commiserated on how to dismiss state law and take land for an unnecessary end at the detriment of upstream land owners.

            Pure arrogance, imperiousness, pompousness, presumptuousness, pretentiousness, self-importance, corrupt…, any term applies.

            The proposed Fargo Dam and FM Diversion has been presented under a set of false pretenses with manipulated data orchestrated by the Fargo and Corps via the Diversion Authority under the watchful eye of Cass County commissioners aligned with Fargo.

          • Guest

            Wow, way to cite Rob’s post about what’s relevant to my question. Thank you again for your irrelevant, uncited, unfounded diatribe, that has no basis in reality, though!

        • opinion8ed

          The keystone pipeline will bring cheap energy to all citizens and take a lot of truck traffic on the roads and transport this god given oil safely past the citizens out of sight and mind

          • WOOF

            Keystone will take Canadian oil to South Americans and Chinese. The US is just a loading dock and processing plant.

      • guest

        what about grand forks, minot, bismarck, jamestown, devils lake and valley city?

    • Marcus


      How many people have been allowed to build in harms way in Fargo?

      How many building permits were irresponsibly issued by Fargo and Cass County in the natural flood plain without consideration of the water being displaced into the river?

      How many homes have been repurchased as a result of that irresponsibility.

      How many schools in Fargo have been built purposely, without taxpayer consent, below the 100 yr flood plain to drive further development into the flood plain.

      My apologies for harping on Deputy Mayor Tim Mahoney, but after receiving a buyout he relocates to a known flood plain under feet of water in 1997…, only to sit at the table to further more destruction of natural flood plain to force more buyouts and additional waste of billions in tax dollars on a the proposed multiple class 1 high hazard dams and a diversion channel that has a 99.98% chance of never being utilized to intended capacity.

      Just stop, think and realize that every inch of water that Fargo has displaced from the natural flood plain has created a direct threat to the remaining residents of Fargo/Moorhead.

      The 125+ year 2009 flood would have been roughly 18 inches lower. Making a 40.8 crest – approx 39.3

      Fargo has already lived through two 100+ year floods. 1997 & 2009

      The best way to protect Fargo is to remove the irresponsible leaders that are bent on irresponsible development of the last natural flood plain buffer adjacent to Fargo.

      There is much more viable alternatives that Fargo, the Corps and Diversion Authority intentionally squelch.

      That should be the paramount question to have answered…

      • guest

        we cant do anything about what was built in the past. its done. get over it. just as we could never have guessed a flood like we’ve seen would ever happen. twice.

        regardless, it comes down to common sense. affect 50 homes or affect 2,000 and endless acres commercial property ready to go? and after oxbow votes to ring dike itself, we are looking at almost NOBODY being affected. so, nobody or thousands? like where the interstate highways were built, common sense must win the day. some must ‘lose’ (by getting overpaid 1.5x on the value of their homes and land) so that many can win.

        • Marcus


          Sorry buddy, you can’t offer a flip answer and have it both ways.

          Fargo, Cass County, the Diversion Authority and the USACE are trying to use the past as a basis for their future projections and assumptions with regards to flooding.

          Fargo has built itself into a corner…, and Fargo needs to fix that problem FIRST before looking to push their problem elsewhere.

          The rest of your post is woefully misinformed.

  • Lynn Bergman

    This is only part of the reason why the North Dakota Tea Party Caucus reported the following on their web page after polling their membership:

    “Q9. More urgency must be given to infrastructure needs in the Bakken (72%) and legislative support of Red River flood control, as currently proposed, should be seriously questioned, if not completely re-thought (66%)”.