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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 has affirmed a district court's decision to allow the multi-million Fox Island flood protection project to move forward.

The Supreme Court issued an opinion on Wednesday, agreeing with South Central District Judge James Hill's decision to allow the project to proceed.

In February 2018, the Burleigh County Commission granted an easement to the Burleigh County Water Resource District to build a levee by raising public roadways in the southwest subdivision to safeguard against a 20-foot flood.

The $3.92 million project involves a 3,500-foot-long levee that will extend west from Gallatin Loop to the Missouri River bank, then run north to the Whispering Bay accessory channel.

The levee is expected to average 2.3 feet above natural ground in height and stand no higher than 7.6 feet.

Some Fox Island residents opposed the project, as their homes will be outside the levee, and, therefore, their property values could be adversely impacted.

In March 2018, more than 20 Fox Island residents filed a lawsuit against the county requesting a preliminary injunction to stop the project.

Hill sided with county officials in June 2018 and allowed construction to proceed. In November, residents filed an appeal to the state Supreme Court.

Sean Foss, an attorney for the Fox Island homeowners, argued to the justices that when Fox Island was created in 1994, its roads were dedicated to public use, specifically for transportation and travel, not flood protection.

But the county's attorney, Scott Porsborg, argued otherwise. He stated that the roads were originally intended for flood control purposes, and public use includes the construction of the levee.

In an opinion signed by all five justices, they write that municipalities have the right to improve the use of streets, and thus agreed the county can legally raise the grades of the streets.

"We're pleased by the decision," Porsburg said Thursday.

Greg Larson, chairman of the Burleigh County Water Resource District, said officials believed they obtained the easement "legally and properly" and, therefore, is happy with the Supreme Court's decision.

"The thing I keep trying to point out is this (project) is at the request of residents down here. So, they're the ones that really benefit from the decision, because they can get the protection. We're just the folks that do it," Larson said.

Foss said most of the Fox Island homeowners who are his clients are not shielded from flooding, because they live outside the intended protection zone.

"Most of my clients are on the exterior, so they don't feel this will provide them with any benefits and wish the Water Resource District would have worked harder to find a plan that would work for everyone," he said.

Foss said he and his clients are considering their next options, which may include filing a petition for a rehearing with the Supreme Court, as well as looking at other avenues to stop the project or work with the Water Resource District.

Larson said some construction of the levee has already begun, including tree removal. Full construction is scheduled to take place this spring.

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(Reach Blair Emerson at 701-250-8251 or Blair.Emerson@bismarcktribune.com)

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