State of North Dakota, Appellant v. Ryan ZINKE, Secretary, U.S. Department of the Interior, et al., Appellees; GOVERNMENT OF the PROVINCE OF MANITOBA and State of Missouri, ex rel. Chris Koster, Missouri Attorney General‘s Office, Appellees v. Ryan ZINKE, Secretary, U.S. Department of the Interior, et al., Appellees
No. 16-5203
United States Court of Appeals, District of Columbia Circuit.
Argued January 13, 2017; Decided March 3, 2017
1111
V.
The district court erred in striking “harangue” and “oration” as unconstitutionally vague. We therefore reverse and remand for furthеr proceedings in accordance with this opinion.
Reversed.
Scott M. DuBoff argued the cause for appellees the Government of the Province of Manitoba and the State of Missouri. With him on the brief were Benjamin J. Lambiotte, Chris Koster, Attorney General, Office of the Attorney General for the State of Missouri, James R. Layton, Solicitor General, and Laura E. Elsbury, Assistant Attorney General. Eldon V. Greenberg, Washington, DC, entered an appearance.
Before: BROWN and WILKINS, Circuit Judges, and EDWARDS, Senior Circuit Judge.
BROWN, Circuit Judge:
On March 1, 2016, North Dakota filed a motion to modify an injunction governing the Northwest Area Water Supply Project (“NAWS” or “the Project“). In a minute order, the district court stated North Dakota did not “present either changes in law or facts sufficient to warrant modifying the injunction” and summarily denied the motion “for the reasons argued by the [nonmovants].” J.A. 45. North Dakota appealed, and we remand with directions to grant thе modification. See
I.
A.
For at least twenty years, North Dakota and the Bureau of Reclamation (“the Bureau“)—a unit within the Department of the Interior—have attempted to design and construct NAWS, a project designed to ameliorate North Dakota‘s longstanding difficulties in obtaining sufficient quantities of high-quality drinking water.1 See Gov‘t of Manitoba v. Norton, 398 F.Supp.2d 41, 48 (D.D.C. 2005) (stating development of the first Environmental Assessment began in June 1997). If approved, the Project would withdraw water from the Missouri River Basin and transport it via a 45-mile-long pipeline to the Hudson Bay Basin located in Northwest North Dakota. Id. at 44. Thus, it would provide а new water source to approximately 81,000 citizens of North Dakota living within the Project
The Project falls under the auspices of the National Environmental Policy Act (“NEPA“).
One of NEPA‘s “action-forcing” procedures directs agencies to prepare an environmental impact statement (“EIS“) for “major [f]ederal actions significantly affecting the quality of the human environment.”
After issuing an EIS, the agency must also issue a record of decision (“ROD“), which is a “concise public record” that describes the agency‘s decision, “[i]dentif[ies] all alternatives considered by the agency,” and states “whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted.”
B.
In 2001, the Bureau issued an EA and FONSI for NAWS. Construction began in 2002, but, six months later, the Province of Manitoba challenged the sufficiency of the EA and FONSI on the grounds that they did not adequately grapple with potential ecological problems caused by transferring treatment-resistant biota into the Hudson Bаy Basin. Gov‘t of Manitoba v. Norton, 398 F.Supp.2d 41, 44-45, 49 (D.D.C. 2005). According to the 2001 EA, water would be withdrawn from the Missouri River, “partially disinfected and pre-treated,” travel via buried pipeline across the continental divide into the Hudson Bay Basin, and then receive final treatment. Id. at 46. Project water “would drain into the Souris
After the remand, Manitoba asked the district court to grant a permanent injunction governing all NAWS-related activities. Otherwise, it argued North Dakota would “plunge ahead” with construction so as to “create a fait accompli, limit the ‘freedom of choice’ essential to sound decision-making under NEPA[,] and risk irreversible environmental consequences.” J.A. 53. Though the court noted the importance of “preserv[ing] for the agency the widеst freedom of choice when it reconsiders its action after coming into compliance with NEPA,” J.A. 53, it weighed that interest against “the avoidance of unnecessary delay in the delivery of a reliable source of high quality water to approximately 81,000 people,” J.A. 54. The court also noted “the public interest is best preserved by ensuring attention to environmentally sensitive decision-making through the least-intrusive means necessary.” J.A. 55. Thus, rather than granting a full injunction, it permitted North Dakota to move forward with construction that would not impact the “opportunity for sound decision-making under NEPA.” J.A. 55. Additionally, “[b]efore any other NAWS construction may proceed, the government must return to the Court to demonstrate why the proposed additional construction would not influence or alter the agency‘s ability to choose between water treatment options.” J.A. 55 (emphasis added).
The Bureau completed its next NEPA analysis in January 2009. This time, the Bureau prepared an EIS rather than a FONSI, but it still identified the Missouri River as the Project source. However, its second attempt fared no better when subjected to judicial review.
Manitoba claimed the EIS still did not adequately address the transfer of treatment-resistant bacteria. Missouri filed a separate challenge, alleging the EIS did not properly account for cumulative effects of water withdrawal from the Missouri River. See Complaint, Missouri ex rel. Koster v. U.S. Dep‘t of Interior, Bureau of Reclamation, No. 1:09-cv-00373 (D.D.C. Feb. 24, 2009), ECF No. 1. The cases were consolidated in 2009 and, together, Manitoba and Missouri moved for summary judgment. They argued the Bureau had not taken a hard look at (1) reasonable alternatives to the Project, (2) “the cumulative impacts of thе Project on Missouri River water levels,” and (3) the consequences of bacteria transfer. Gov‘t of Manitoba v. Salazar, 691 F.Supp.2d 37, 45 (D.D.C. 2010). On March 5, 2010, the court again remanded to the Bureau for further consideration of the second and third issues. Id. at 51. The court chastised the Bureau for “wast[ing] years by cutting corners and looking for short cuts,” id. as well as its “breathtaking” misreading of the court‘s 2005 opinion, id. at 50.
After the second remand, the Bureau engaged in a third, full-blown NEPA analysis that not only considered the two remanded issues, but also “reexamin[ed] and updat[ed] all prior NEPA analyses” associated with the Project. J.A. 719. The Bureаu issued the final supplemental EIS (“FSEIS“) in April 2015, and the ROD followed in August. The documents again identified the Missouri River as the select-
In January 2016, Missouri and Manitoba challenged the FSEIS once again. Summary judgment motions are currently pending befоre the district court.
C.
On March 1, 2016, North Dakota filed a motion to modify the 2005 injunction, seeking permission to begin “paper design” of the proposed water-treatment plant. On June 14, 2016, the district court issued the following minute order (“Order“) denying North Dakota‘s request:
North Dakota asks this Court to further modify an injunction first issued in 2005 “to permit it only to undertake design work for the biota water treatment plant (‘Biota WTP‘) to be located in Max, North Dakota,” once a federal [FEIS] has been reviewed and approved. North Dakota assumes its own victory defending the FEIS. Since that briefing has just bеgun, the Court intimates no view on the matter but sees nothing in the Motion to present either changes in law or facts sufficient to warrant modifying the injunction again now. This motion is denied for the reasons argued by the Province of Manitoba and the State of Missouri.
J.A. 45.
On appeal,2 North Dakota now asks for a remand with instructions to grant its requested modification. We have jurisdiction under
II.
A.
Under
B.
We review a district court‘s denial of a
18. Likewise,
Even so, in this circumstance, we conclude the district court did abuse its discretion. Its Order denied North Dakota‘s motion for the “reasons argued” by the nonmovants. J.A. 45. This explanation can only be interpreted as a wholesale adoption of the nonmovants’ arguments, which contain a number of dubious factual claims. For instance, Manitoba argued that, “[a]fter more than fifteen years[,] the Bureau has still not produced an environmental analysis that passes NEPA muster,” J.A. 137, but this is the very question at issue in the summary judgment motions currently pending before the court. See also J.A. 142 n.10 (attacking the sufficiency of the FSEIS on the merits). Additionally, as will be discussed further below, the quantity of water within the Project community became a central issue in the modification request. But Manitoba sought to demonstrate water quantity had not diminished by presenting data from aquifers
III.
A.
At the outset, we note North Dakota significantly handicapped its own mo-
tion by erroneously asking the district court to apply the four factors set out in Winter v. Natural Resources Defense Council, 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008),5 as opposed to the standards under
Despite its legal еrror, North Dakota‘s opening and reply briefs before the district court identified three changed circumstances that the state claimed justified a modification. First, water quality and quantity concerns had become more acute and “continued to deteriorate.” J.A. 86-87 (listing examples of deterioration). Second, the Bureau‘s completed FSEIS and ROD eliminated any concern that the modification would compromise the NEPA decisionmaking process.6 Third, “[d]ue to the state‘s biennial budget cycle, if funding requests for this design work [were] not submitted by [Summer of 2016], funding may not become available until mid-2019.” J.A. 82; see also J.A. 165 (noting,
In support of its motion, North Dakota attached a declaration submitted by Timothy Freije—NAWS‘s Project Manager—stating the paper design work would take approximately twenty months to complete, and physical construction would require an additional two years. Thus, at a minimum, the plant would take four years to construct. Freije also stated the plant‘s paper design was the most time-consuming Project component. North Dakota also attached a copy of a Memorandum of Understanding (“the MOU“) it had entered into with the Bureau, wherein North Dakota agreed to fund the paper design work at its own expense “until the NAWS injunction is lifted or the litigation is otherwise resolved.” J.A. 106. It did not, however, attach any concrete data demonstrating decreased water quantity or quality.
To counter North Dakota‘s water quantity argument, Manitoba presented daily water level data from the years 2000 to 2016 for the Sundre, Little Muddy, and New Rockford aquifers. Each graph depicts significant variety in water levels, but all three show a general trend downward until about 2009, followed by a general upward trajectory that peaks between 2012 and 2014. See J.A. 144-46. Water levels in the Sundre and Little Muddy aquifers currently sit above where they rested in 2005.8
North Dakota rebutted the relevance of this data by noting the Little Muddy aquifer lies outside the Project area. It also provided a second declaration from Freije, which stated the New Rockford aquifer “is already heavily appropriated . . . and is therefore inсapable of serving as a useful municipal water supply.” J.A. 163. Additionally, in its reply brief to the district court, North Dakota described the upward trend in water levels as temporary, noting the state experienced significant flooding during 2011. It presented hydrograph data demonstrating water levels had subsequently dropped and argued 2011‘s anomaly could not be used to predict water levels going forward.
However, comparing the 2002 and 2013 water-quality reports indicates arsenic levels have risen from 1.23 parts per billion in 2002 to 3.41 parts per billion in 2013.9 Though still falling within the Safe Drinking Water Act‘s sаfe drinking water standards, see
B.
We conclude North Dakota presented two changed circumstances sufficient to justify granting its narrow modification.
First, issuance of the FSEIS and ROD constitutes a “significant change . . . in factual conditions” that “renders continued enforcement of the judgment detrimental to the public interest.” Horne, 557 U.S. at 453. In its initial injunction decision, the court justified the tailored injunction by emphasizing the need to protect the integrity of the NEPA decisionmaking process. However, it did not consider this interest in isolation; instead, it weighed that interest against the need to “avoid[] . . . unnecessary delay in the delivery of a reliable source of high quality water to approximately 81,000 people.” J.A. 54; see also Gov‘t of Manitoba v. Salazar, 926 F.Supp.2d 189, 192 (D.D.C. 2013) (noting, in its 2013 injunction review, that its analysis reflected an “identical” purpose to its 2005 decision). The completion of the FSEIS and ROD marks the “consummation” of the Bureau‘s decisionmaking process regarding the Project‘s primary water source. See Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Appellees’ legal challenge dоes nothing to undermine the finality of the decision; for the moment, at least, the Bureau has come to the end of the NEPA road.
Given this changed circumstance, we next ask whether North Dakota‘s requested modification was suitably tailored. The issuance of the FSEIS and ROD significantly eliminated—at least temporarily—the court‘s concerns about North Dakota‘s ability to exert influence over the Bureau‘s NEPA decisions.10 This risk is
further mitigated by North Dakota‘s agreement to incur all costs associated with the proposed paper design work until the injunction is lifted “or the litigation is otherwise resolved.” J.A. 106. See Petties, 662 F.3d at 571 (noting the significant change in factual conditions inquiry should include whether the risks that led to injunctive relief have been “ameliorated, if not eliminated, as a result of changed circumstances“). On the other side of the scale, beneficiaries of NAWS necessarily face, at minimum, a four-year-long delay before North Dakota can finish construction of the plant. With these two considerations in mind, we conclude North Dakota‘s requested modification poses no current harm to the NEPA process, but it will forward the goal оf protecting the Project‘s population from unnecessary delay. See Nat. Res. Def. Council, Inc. v. U.S. Nuclear Regulatory Comm‘n, 606 F.2d 1261, 1272-73 (D.C. Cir. 1979) (declining injunction over project construction despite NEPA violations after considering “the social and economic costs of delay” and “[t]he public interest to be served in the continued construction“); Alaska v. Andrus, 580 F.2d 465, 485 (D.C. Cir. 1978), vacated in part on other grounds sub nom., W. Oil & Gas Ass‘n v. Alaska, 439 U.S. 922, 99 S.Ct. 303, 58 L.Ed.2d 315 (1978). Since North Dakota will fund the design work, and because
In sum, the modification meets both the public interest and tailoring prongs of the
Second, the increase in arsenic levels over the course of the injunction‘s lifespan also constitutes a significant changed circumstance warranting revision of the injunction. Rufo, 502 U.S. at 383. Exposure to arsenic in drinking water has been linked with cancer of the skin, liver, kidney, bladder, and lung.12 Though Minot‘s water levels still fall within safe drinking water standards, this toxin has nearly tripled during the course of the injunction. Further, the community must wait at least four years before any treatment plant can be built, during which time arsenic levels may continue to rise. Givеn the narrow scope of North Dakota‘s proposed design work, we conclude the modification serves the public interest because it allows the State to attempt to reduce the duration of these exposure risks while causing no current harm to the NEPA process. See Rufo, 502 U.S. at 381 (noting “the public interest is a particularly significant reason for applying a flexible modification standard” where the injunction “reach[es] beyond the parties involved directly in the suit“); Petties, 662 F.3d at 569; see also Horne, 557 U.S. at 447 n.3 (describing the potential for courts to “substantially restrict[] the ability of [a] State . . . to mаke basic decisions” as one of the “features and risks” of long-term injunctions). Thus, here, too, the modification is suitably tailored to the changed circumstance, and the modification should be granted.
IV.
We conclude North Dakota met its burden of presenting two significant changed circumstances that warranted modifying the 2005 injunction. It also requested a modification suitably tailored to those circumstances. We therefore remand to the district court with instructions to grant the motion.
In so holding, we recognize our review has benefitted significantly from the rectificаtion of North Dakota‘s legal error, as well as a more cogent presentation of its arguments. We are also mindful that
So ordered.