Government of the Province of Manitoba v. Zinke
2017 U.S. App. LEXIS 3829
D.C. Cir.2017Background
- NAWS is a multi-decade Bureau of Reclamation project to pipe Missouri River water ~45 miles into the Hudson Bay Basin to serve ~81,000 North Dakotans; the Project is subject to NEPA and requires careful review of cross‑basin biota transfer and other impacts.
- The Bureau’s initial EA/FONSI (2001) and later EIS (2009) were judicially remanded for inadequate analysis of transfer of treatment‑resistant biota and cumulative water‑withdrawal impacts; the district court in 2005 entered a tailored injunction permitting only construction that would not affect NEPA decisionmaking and required court review before further work.
- The Bureau completed a Final Supplemental EIS (FSEIS) in April 2015 and issued a Record of Decision (ROD) in August 2015 selecting the Missouri River source and including plans for a North Dakota treatment plant to address resistant biota.
- North Dakota moved (Mar. 1, 2016) under Fed. R. Civ. P. 60(b)(5) to modify the 2005 injunction to permit “paper design” of a biota water‑treatment plant (to be funded by the State) before physical construction; the district court summarily denied the motion, adopting appellees’ arguments.
- On appeal the D.C. Circuit found the district court abused its discretion by summarily adopting the nonmovants’ positions without explaining factual findings on contested data (e.g., which aquifers are project‑relevant) and remanded with instructions to grant the narrow modification.
- The appellate court concluded North Dakota demonstrated two changed circumstances sufficient to modify the injunction: (1) issuance of the FSEIS and ROD (finalization of the Bureau’s NEPA decisionmaking), and (2) a substantial increase in arsenic levels in Minot’s drinking water during the injunction’s term, creating a public‑health urgency; paper design posed no present risk to NEPA and would be funded by the State.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper legal standard to evaluate modification of long‑running injunction | Apply Rule 60(b)(5) flexible standard; modification permitted for significant change in facts or law | Plaintiffs (Manitoba/Missouri) opposed modification; district court relied on their arguments | Court applied Rule 60(b)(5)/Rufo standard and remanded with instruction to grant modification |
| Whether the Bureau’s FSEIS/ROD is a significant changed circumstance | FSEIS/ROD consummated NEPA decisionmaking such that limited paper design will not influence agency choices | Opponents argued FSEIS/ROD may still be inadequate and litigation ongoing, so risk of undue influence persists | Court: FSEIS/ROD is a significant changed circumstance; paper design, funded by State and non‑physical, is suitably tailored and poses no current harm to NEPA process |
| Whether groundwater quantity/quality changes justify modification | ND: water quantity/quality has deteriorated and delays in design will push construction years out; need to start paper design now | Opponents presented mixed aquifer hydrographs and argued data irrelevant or inconclusive; disputed which aquifers serve NAWS | Court: limited data showed arsenic nearly tripled in Minot over injunction duration; arsenic increase is a significant changed circumstance supporting narrow modification; quantity data disputed but did not defeat modification |
| Whether paper design constitutes "construction" prohibited by injunction | ND: paper design is non‑physical and distinct from construction; thus allowed if tailored | Opponents: design could influence agency decisionmaking; district court found no changed circumstances | Court: paper design is not physical construction prohibited by injunction; with FSEIS/ROD and State funding, modification warranted and narrowly tailored |
Key Cases Cited
- Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367 (1992) (Rule 60(b)(5) standard: modification permitted for significant change in law or facts and must be suitably tailored)
- Horne v. Flores, 557 U.S. 433 (2009) (flexible approach to modification; public interest inquiry under Rule 60(b)(5))
- Bennett v. Spear, 520 U.S. 154 (1997) (ROD as consummation of agency decisionmaking and final agency action)
- Agostini v. Felton, 521 U.S. 203 (1997) (courts should modify injunctions when changes in law or facts make continued relief inequitable)
- Department of Transportation v. Public Citizen, 541 U.S. 752 (2004) (NEPA mandates agency "hard look" and information disclosure)
- Natural Resources Defense Council v. U.S. Nuclear Regulatory Comm’n, 606 F.2d 1261 (D.C. Cir. 1979) (balance public interest and economic/social costs when considering injunction over construction)
- Petties ex rel. Martin v. District of Columbia, 662 F.3d 564 (D.C. Cir. 2011) (apply flexible modification standard where injunctions last many years)