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Fox Island

Fox Island, center, and the confluence of the Missouri and Heart Rivers, top, are shown in this aerial photograph in June 2011. The only access to Fox Island was Tavis Road shown in the lower center.

The North Dakota Supreme Court heard arguments on Thursday in a lawsuit south Bismarck residents filed against Burleigh County officials over a $3.92 million Fox Island flood protection project.

In February, the Burleigh County Commission granted the Burleigh County Water Resource District an easement for the project. About a month later, more than 20 Fox Island residents filed a lawsuit, requesting a preliminary injunction to stop the project's construction.

Following the Missouri River floods in 2009 and 2011, the project, which was approved in 2016 by 80 percent of the 91 property owners who voted, involves building a levee by raising public roadways in the southwest subdivision to safeguard against a 20-foot flood.

The 3,500-foot-long levee would extend west from Gallatin Loop to the Missouri River bank, then run north to the Whispering Bay accessory channel. It will average 2.3 feet above natural ground in height and stand no taller than 7.6 feet.


The homeowners living on Gallatin Drive, located southwest of Bismarck near the Missouri River, are on the outside looking in from the approved flood protection project set to get underway in the fall.

The state Legislature committed $2.8 million toward the project's completion, with the county providing $920,000 in yearly installments. Fox Island residents with property located inside the levee will pay the balance.

About 22 property owners on Fox Island opposed the project, as their homes would be outside the levee. Because they remain outside the levee, residents claim this would negatively impact their property values.

In June, South Central District Judge James Hill sided with county officials and denied the homeowners' request for a preliminary injunction, also ordering the homeowners to pay $18,756 to the county for court-related costs.

The homeowners' attorneys then appealed the decision to the Supreme Court.

On Thursday, Sean Foss, the homeowners' attorney argued to the justices that, when Fox Island was created in 1994, it was dedicated by a plat, with a dedication of the streets to public use. He cited similar Supreme Court cases, including a decision dating back to 1906, where public use is "confined to travel and transportation," not flood protection.


Justices of the North Dakota Supreme Court are from left Jon J. Jensen, Daniel Crothers, Gerald VandeWalle, Lisa Fair McEvers and Jerod Tufte.

"The legal issue isn't whether they're raising (the road) two inches or 200 feet, the question is whether flood protection for private residences is consistent with the dedication of public use," he said.

Scott Porsborg, the county's attorney, said in court that the streets of Fox Island were originally designed for flood control purposes, and that public use includes construction of a levee.

"The project ... closed the circle and protects the entire south Bismarck, including the wastewater treatment plant," Porsborg said.

Several homeowners attended the Supreme Court hearing on Thursday, including Howard and Lori Malloy, who have lived in their home on Gallatin Drive since 2000.

The Malloys saw minor property damages from the 2011 flood, then deciding to build a small dike around their home for protection.

"The odds of this happening again at the island are very, very low. We think (the project) is unnecessary. It's a government boondoggle, and the only reason it's gotten this far is the money that has been raised in the Legislature by the people who are getting the dike," Howard Malloy said after the hearing.

Howard and Lori Malloy fear that their property value will take a hit with the construction of the levee, as several appraisers have indicated to them they live on the "wet side" of the levee.

The Malloys signed a petition in 2012 against the initial flood control project, which they said would have involved construction of a levee in people's backyards by the river. Homeowners signed the petition asking the county to consider other options. Lori Malloy said the county then took the petition as the homeowners opting out of the project.

"We didn't opt out of it, we asked for a different option," she said, adding that the project has "ruined our neighborhood" by pitting neighbors on either side of the soon-to-be-constructed levee against each other.

Only light construction of the flood protection project has occurred, including clearing trees. Full construction of the levee is slated to begin this spring.

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