Municipal Law and Water LawNews

Ohnstad Twichell Facilitates Diversion Authority Settlement

By November 11, 2020No Comments

On October 27, 2020, the Metro Flood Diversion Authority (“Diversion Authority”) and several upstream entities signed a binding and enforceable Term Sheet to resolve all disputes and litigation related to the Fargo-Moorhead Metropolitan Area Flood Risk Management Project (“Project”). The agreement between the Diversion Authority, the Richland-Wilkin Joint Powers Authority, the Buffalo-Red River Watershed District (“BRRWD”), and the Cities of Comstock and Wolverton, Minnesota, comes after weeks of intense negotiation.

The agreement includes a joint submittal to dismiss the federal lawsuit and any pending appeals, the Minnesota Contested Case Hearing challenging the Minnesota DNR issuance of the Dam Safety and Public Waters Work Permit No. 2018-0819, and the case in Minnesota state court related to the BRRWD permit. Each party will benefit through lower litigation costs and peace of mind that the parties came to an agreement that works for all sides. This opens the door for future communication that is more collaborative than adversarial.

John Shockley, General Counsel and Bond Counsel for the Diversion Authority is a shareholder at Ohnstad Twichell, P.C., and acted as lead negotiator in the recent settlement discussions. “Conducting negotiations in normal circumstances is challenging in its own right but when multiple parties come together each with their own financial interests and mitigation and property rights concerns, it is much more challenging.” Mr. Shockley said. “Having the ability to identify the problems and solutions that work for all parties involved is critical.”

The agreement signifies tremendous efforts to reach a common ground that will benefit the parties for decades. By coming together, the parties found a resolution to move forward with flood protection for the Fargo-Moorhead metropolitan area while taking into consideration the concerns of school districts, townships, and other local political subdivisions. Local concerns will be addressed through mitigation of impacts to cemeteries and businesses, and funding to complete or construct flood reduction projects in the Cities of Christine, Comstock, Georgetown, and Wolverton. Other provisions relate to an Economic Impact Relief Fund, development of a crop insurance program, and a debris removal program following operation of the Diversion Channel.

Joel Paulsen, Executive Director for the Diversion Authority, explained, “[John Shockley] was instrumental in the negotiations among the parties. Without his foresight, compassion, and innovation, I could not be certain that we could have reached a compromise.” Fargo Mayor Timothy Mahoney echoed these comments, acknowledging John Shockley’s ability to be flexible and innovative while communicating with the parties.

The Diversion Authority, Richland-Wilkin JPA, BRRWD, Comstock, and Wolverton are now working to expand on the terms of the binding and enforceable Term Sheet to create a more comprehensive settlement agreement.

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Attorney John T. Shockley is Nationally Recognized Bond Counsel who holds Special Assistant Attorney General status in North Dakota. He has specialized in the areas of public infrastructure and public finance for the past fifteen years. He is an active member of the National Association of Bond Lawyers and has served as bond counsel for numerous multi-million-dollar bond issues, tackling tough issues on the cutting edge of bond law.

Mr. Shockley was hired as an associate attorney at Ohnstad Twichell, P.C., in 2005. He was promoted to shareholder in 2010, and he now serves as Vice President of the firm. With his practice entirely devoted to public infrastructure and public finance, Mr. Shockley has extensive knowledge and experience in public projects. As Nationally Recognized Bond Counsel, Mr. Shockley possesses specialized expertise in the area of municipal bonds. He is recognized bond counsel for the United States Department of Agriculture, Rural Development and was appointed Special Assistant North Dakota Attorney General for the Bank of North Dakota Rural Development loan division in 2008. Mr. Shockley serves as General Counsel and Bond Counsel for the Metro Flood Diversion Authority, which is facilitating the first public-private partnership in conjunction with the U.S. Army Corps of Engineers.