Government of the Province of Manitoba v. Zinke , 849 F.3d 1111 ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 13, 2017 Decided March 3, 2017
No. 16-5203
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
STATE OF NORTH DAKOTA,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:02-cv-02057)
Nessa Horewitch Coppinger argued the cause for
appellant. With her on the briefs were Fred R. Wagner and
Jennifer L. Verleger, Assistant Attorney General, Office of
the Attorney General for the State of North Dakota.
Scott M. DuBoff argued the cause for appellees the
Government of the Province of Manitoba and the State of
2
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 entered an appearance.
Before: BROWN and WILKINS, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by BROWN, 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 the modification. See 28
U.S.C. § 2106; Pasadena City Bd. of Educ. v. Spangler, 427
U.S. 424, 440 (1976).
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.
1
The Project will cost approximately $145 million to construct.
North Dakota will provide thirty-five percent of the funding, and
3
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 a new water
source to approximately 81,000 citizens of North Dakota
living within the Project communities. Gov’t of Manitoba v.
Salazar, 691 F. Supp. 2d 37, 43 (D.D.C. 2010).
The Project falls under the auspices of the National
Environmental Policy Act (“NEPA”). 42 U.S.C. § 4321, et
seq. NEPA imposes “a set of action-forcing procedures”
requiring federal agencies to take a “hard look” at any
potential environmental consequences associated with their
“proposals and actions” and to broadly disseminate relevant
environmental information. Dep’t of Transp. v. Pub. Citizen,
541 U.S. 752, 756–57 (2004); Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 350 (1989). Unfortunately
for those living within the Project communities, the Bureau’s
repeated failures to comply with NEPA’s requirements have
left the Project mired in legal challenges for fourteen years
(and counting).
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.” 42 U.S.C. § 4332(C). To
determine whether a project constitutes a “major federal
action,” agencies begin by preparing an environmental
assessment (“EA”). See 40 C.F.R. § 1508.9; see also Nat’l
Audubon Soc’y v. Hoffman, 132 F.3d 7, 12 (2d Cir. 1997). If
the proposed action is not a “major federal action,” the agency
the federal government will provide sixty-five percent. Gov’t of
Manitoba v. Norton, 398 F. Supp. 2d 41, 54 (D.D.C. 2005).
4
issues a finding of no significant impact (“FONSI”), which
“briefly present[s] the reasons why an action . . . will not have
a significant effect on the human environment.” 40 C.F.R.
§ 1508.13. If it is a major federal action, the agency prepares
the EIS, which must discuss the action’s general impact, its
unavoidable adverse impacts, its alternatives, the relationship
between short-term environmental use and the “maintenance
and enhancement of long-term productivity,” and “any
irreversible or irretrievable commitments of resources” should
the proposal be implemented. 42 U.S.C. § 4332(C); see also
id. § 4332(E) (“[A]ll agencies of the Federal Government
shall . . . study, develop, and describe appropriate alternatives
to recommended courses of action in any proposal which
involves unresolved conflicts concerning alternative uses of
available resources.”).
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.” 40 C.F.R. § 1505.2.
An agency must publish notice in the Federal Register that it
has filed a final EIS (“FEIS”) with the Environmental
Protection Agency, and it cannot approve the ROD until thirty
days have passed from the date of that notice. 40 C.F.R.
§ 1506.10(b)(2); 23 C.F.R. § 771.127(a). The issuance of a
ROD constitutes final agency action.
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
5
grapple with potential ecological problems caused by
transferring treatment-resistant biota into the Hudson Bay
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 River, which flows into Manitoba.” Id. at 47–
48. Manitoba claimed the Project would not adequately treat
the water, resulting in the transfer of non-native biota into the
Hudson Bay Basin. This could “eliminate indigenous species,
cause reduced growth and survival rates in indigenous
species, and change the trophic structure of fish
communities.” Id. at 45. North Dakota intervened as a
Defendant. In February 2005, on cross-motions for summary
judgment, the district court agreed with Manitoba, remanding
the case to the Bureau for further NEPA work on this point.
Id. at 66.
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 widest
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-
6
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 the 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.
7
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 Bureau issued the final supplemental EIS (“FSEIS”) in
April 2015, and the ROD followed in August. The documents
again identified the Missouri River as the selected Project
alternative, with supplemental water taken from the Minot
and Sundre aquifers, both of which are located in North
Dakota. The FSEIS also included provisions for a water-
treatment plant in North Dakota that, among other things,
would inactivate treatment-resistant bacteria before the water
transferred to the Hudson Bay Basin.
In January 2016, Missouri and Manitoba challenged the
FSEIS once again. Summary judgment motions are currently
pending before 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 begun, the Court intimates no view on the
matter but sees nothing in the Motion to
8
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 28 U.S.C. § 1292(a)(1).
II.
A.
Under Federal Rule of Civil Procedure 60(b)(5), courts
may afford relief from an injunction, including modification,
where prospective application of the order is “no longer
equitable.” The party seeking modification “bears the burden
of establishing that a significant change in circumstances
warrants [its] revision.” Rufo v. Inmates of Suffolk Cty. Jail,
502 U.S. 367, 383 (1992); Horne v. Flores, 557 U.S. 433, 447
(2009). “A party . . . may meet [this] initial burden by
showing . . . a significant change either in factual conditions
or in law.” Rufo, 502 U.S. at 384. In particular, modification
is appropriate “when enforcement . . . without modification
would be detrimental to the public interest.” Id.; Horne, 557
U.S. at 453 (noting the Rule 60(b)(5) inquiry “asks only
whether a significant change either in factual conditions or in
law renders continued enforcement of the judgment
detrimental to the public interest”). If a movant meets this
burden, the Court has even opined “a court abuses its
discretion when it refuses to modify an injunction . . . in light
2
The federal defendants are not participating in this appeal.
9
of such changes.” Horne, 557 U.S. at 447; Agostini v. Felton,
521 U.S. 203, 215 (1997); see also Valero Terrestrial Corp. v.
Paige, 211 F.3d 112, 122 (4th Cir. 2011) (noting modification
“is required where there has been a significant change either
in factual conditions or in law” (emphasis added)). At the
very least, “the court should consider whether the proposed
modification is suitably tailored to the changed
circumstance.” Rufo, 502 U.S. at 383.
In the context of institutional reform litigation, where, as
here, injunctions typically remain in place for many years,
this Court and the Supreme Court have also recognized the
need to employ a “flexible” approach to modification
requests. See id. at 380 (noting that, “[b]ecause such decrees
often remain in place for extended periods of time, the
likelihood of significant changes occurring during the life of
the decree is increased”); Horne, 557 U.S. at 453 (same);
Petties ex rel. Martin v. District of Columbia, 662 F.3d 564,
568–69 (D.C. Cir. 2011) (same). 3 “[T]he public interest is a
3
The district court has followed this guidance, as it has revisited
and considered modifications to the injunction on five previous
occasions. Most recently, in 2013—i.e., after the 2010 remand and
before the 2015 FSEIS—the court undertook a sua sponte review of
the injunction. The parties had submitted a joint status report in
October 2012, which had provided information about the Bureau’s
plans to engage in additional pipeline construction in 2013. The
court held it would not permit Project work that could influence the
Bureau’s choices about how to address treatment-resistant bacteria,
as well as the “fundamental question of the water source for
NAWS.” Gov’t of Manitoba v. Salazar, 926 F. Supp. 2d 189, 192–
93 (D.D.C. 2013) (noting that, because of the consolidation with
Missouri’s separate challenge, “the question of the source of the
water is now part of the focus as well”). The court also stated its
opinion reflected an “identical” purpose to its 2005 decision: “to
fashion a more tailored remedy that permits the [P]roject to move
10
particularly significant reason for applying a flexible
modification standard” where, as here, the injunction
“reach[es] beyond the parties involved directly in the suit.”
Rufo, 502 U.S. at 381; Petties, 662 F.3d at 569. Finally,
courts should keep in mind how long-term injunctions can
impact a State’s ability “to make basic decisions” for itself
and its citizens. See Horne, 557 U.S. at 447 n.3 (describing
this as one of the “features and risks” of long-term
institutional reform litigation).
B.
We review a district court’s denial of a 60(b)(5) motion
for abuse of discretion. Pigford v. Johanns, 416 F.3d 12, 20
(D.C. Cir. 2005). Mere brevity does not provide sufficient
grounds to find an abuse of discretion has occurred. See, e.g.,
id. at 18. Likewise, Federal Rule of Civil Procedure
52(a)(3)—which applies to rulings on Rule 60(b) motions—
does not require written findings and conclusions. See also
FED. R. CIV. P. 52(a) advisory committee’s note to 1946
amendment (noting “the judge need only make brief, definite,
pertinent findings and conclusions upon the contested matters;
there is no necessity for over-elaboration of detail or
particularization of facts”).
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
forward . . . while preserving the opportunity for sound decision-
making under NEPA.” Id. at 192.
11
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 that
North Dakota argued were not part of NAWS. Compare J.A.
145 (Manitoba’s water-quantity data from the Little Muddy
aquifer), with J.A. 1200–10 (list of Project aquifers from the
FSEIS, which does not include Little Muddy), and Gov’t of
Manitoba v. Norton, No. 1:02-cv-02057 (Apr. 25, 2016), ECF
No. 233-2 ¶ 3 (declaration of NAWS Project Manager stating
“[t]he Little Muddy aquifer is not located in an area expected
to be served by NAWS”); compare J.A. 146 (Manitoba’s
water-quantity data from New Rockford aquifer), with Gov’t
of Manitoba, No. 1:02-cv-0205, ECF No. 233-2 ¶ 3
(declaration of NAWS Project Manager stating “[t]he New
Rockford aquifer is heavily appropriated and incapable of
providing useful water supplies in the project area”). The
Order does not explain why, despite this factual dispute, the
court found Manitoba’s presentation of data not only relevant,
but also more persuasive. 4 Without a more nuanced and
detailed explanation, the district court’s acceptance of the
nonmovants’ arguments in toto constitutes an abuse of
discretion. We therefore turn next to determining whether
North Dakota met its burden under Rule 60(b)(5).
4
The district court also does not explain why it believes paper
design work constitutes “construction” under the terms of the
original injunction. See J.A. 55.
12
III.
A.
At the outset, we note North Dakota significantly
handicapped its own motion 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 (2008), 5 as
opposed to the standards under Rule 60(b)(5). This forced
Manitoba and Missouri to respond not only by rebutting
North Dakota’s Winter arguments, but also by anticipating
and defending against North Dakota’s assertions as though
they had been presented through the proper framework. The
error also undisputedly impacted the district court’s ability to
evaluate the parties’ competing claims. Analyzing North
Dakota’s request thus necessitates fleshing out its arguments
in some detail.
Despite its legal error, 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
5
These factors include (1) the likelihood of success on the merits;
(2) whether plaintiffs are likely to suffer irreparable harm in the
absence of injunctive relief; (3) whether the balance of the equities
tips in the plaintiffs’ favor; and (4) whether the injunction is in the
public interest). 555 U.S. at 20.
13
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.” 7 J.A. 82; see also J.A. 165 (noting, in its reply
brief to the district court, that “if the injunction is not
modified before budget submissions in July, the available
funds will likely remain unspent, leading to further budget
reductions in 2017–19”).
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.
6
Though not presented as a stand-alone argument until its reply
brief, North Dakota discussed the FSEIS and ROD sufficiently in
its opening brief to avoid waiver. For instance, it argued “the
requested design work cannot create an undue influence on [the
Bureau’s] NEPA review, which is complete.” J.A. 93. Elsewhere,
it noted “[t]his requested relief presents zero risk of environmental
harm to any party and will in no way influence the [NEPA] process
that was completed with [the Bureau’s] issuance in 2015 of a
[FSEIS] and ROD.” J.A. 81.
7
North Dakota abandoned this claim at argument. See Oral Arg.
Recording 0:59–1:17; 1:17–1:35; 3:39–4:02.
14
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.
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 incapable 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. 8
Regarding water quality, North Dakota referenced
(without supporting data) increased levels of arsenic, total
8
These hydrographs were for the Minot and Sundre aquifers. The
Minot hydrograph indicates water levels rose in 2011 from
approximately 1500 feet above NAVD88 to 1520 feet. By 2016,
that level had dropped to 1507 feet. J.A. 173. At the Sundre
aquifer, water levels rose in 2011 from approximately 1485 feet
above NAVD88 to approximately 1510 feet. In 2016, that level
hovered around 1508 feet. J.A. 174. At oral argument, counsel
stated “two thirds” of the water gained through flooding had
already been lost at the Minot aquifer. See Oral Arg. Recording
3:47–4:11.
15
dissolved solids (“TDS”), sodium, iron, and manganese in its
opening brief to the district court. In response, Manitoba
presented water-quality tables from Minot, one of the areas
served by the Project, spanning the years 2011 to 2014.
These tables reflect that sodium and TDS levels remained
constant throughout this timeframe, and a 2002 Minot water-
quality report attached to North Dakota’s reply brief also
recorded the same levels for these minerals. J.A. 134–35,
176.
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 safe drinking
water standards, see 42 U.S.C. § 300f, et seq., the reports
nevertheless demonstrate an almost threefold increase in
arsenic during the course of the injunction’s lifespan.
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
9
Compare J.A. 176, with J.A. 135 n.6, available at
http://www.minotnd.org/documentcenter/view/420.
16
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 (1997).
Appellees’ legal challenge does 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
10
In its sur-reply to the district court, Manitoba suggested that, “[i]f
the Bureau’s actions were a sufficient basis for modifying the
Court’s injunction, that would also have been true at various prior
points in this litigation as well.” J.A. 189. This is not entirely true.
Only one of the five previous modifications occurred while a
completed FEIS was in place. That request occurred in February
2010, and it was granted because it was unopposed. See Appellees
Br. 8.
17
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 of 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. Since North Dakota will fund the design work, and
because the design work does not even involve physical
“construction”—the term used in the original injunction—we
conclude the modification is “suitably tailored to the changed
circumstance.” Rufo, 502 U.S. at 383.
In sum, the modification meets both the public interest
and tailoring prongs of the Rule 60(b)(5) inquiry, and it
therefore should be granted. 11
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
11
Should the district court find for Manitoba and Missouri on
summary judgment, it can ameliorate any concern that North
Dakota’s independent expenditures will influence the ongoing
NEPA process by specifically ordering the Bureau to disregard
those costs.
18
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. Given
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 make 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 rectification of North Dakota’s legal
error, as well as a more cogent presentation of its arguments.
12
See also U.S. ENVTL. PROTECTION AGENCY OFFICE OF WATER,
FACT SHEET, EPA DRINKING WATER STANDARD FOR ARSENIC 1
(2001).
19
We are also mindful that Rule 52(a) seeks “to lighten the
burden on the trial court” by alleviating the need for lengthy
written opinions and extensive factual findings in the majority
of circumstances. See FED. R. CIV. P. 52 advisory
committee’s note to 1983 amendment. Nevertheless, the
district court abused its discretion by summarily accepting the
nonmovants’ arguments. Furthermore, the relief North
Dakota seeks is exceedingly narrow, and—at its own
expense—it will use the modification to address an imminent
public health crisis faced by its citizens. We find it
appropriate under these circumstances to grant its request.
So ordered.