An appeal to the Supreme Court of Canada is in the works by American interests who brought forward a lawsuit against the Province and Municipality of Rhineland regarding the Border Road. The case was first brought forward last year with a Federal Court in Winnipeg ruling it had no jurisdiction on the matter, and the Federal Court of Appeals upholding that ruling earlier this summer.
"The plaintiffs, the American interests, they are seeking it to be heard under the International Boundary Waters Treaty Act, and under that there is another underlying treaty," explained Rhineland Municipality Reeve Don Wiebe. "They are going to use that as the basis, trying to argue that it's of public importance, so that it warrants consideration by the Supreme Court of Canada."
A group of North Dakota farmers and municipalities allege the Border Road is responsible for decades of damage to crops, fields and municipal infrastructure during spring flood events, contending it's actually a dike that prevents the natural northward flow of water from the Pembina River into Manitoba.
"Our lawyer has been apprised of the presentation from the American interests, and he's in the process of filing a response which we have not seen yet, but we will get a chance to comment on before it goes in, so that's part of the process," noted Wiebe. "It's complicated, and it takes a lot of time."
The Municipality and Province have until September 5th to file their response to the U.S. plaintiffs application for leave to appeal. The Supreme Court of Canada will then issue a decision on the leave application within approximately three months.
If the Supreme Court of Canada was to grant the leave to appeal, the American argument presented would centre on whether the Federal court and the appeal court erred in their judgment on the issue of jurisdiction. It would not focus on the original issue of compensation for the North Dakota litigants.