Changed Circumstances Warrant Modifications To Injunction


In Government of the Province of Manitoba v. Zinke, the U.S. Court of Appeals for the DC Circuit reversed the U.S. District Court for the District of Columbia and held that the State of North Dakota could begin designing a water treatment plant for an area of North Dakota whose public drinking water quality has been substandard for a long time. The project is known as the Northwest Area Water Supply Project. The District Court had rejected the State’s request to modify an injunction that kept the project from moving forward. Reviewing the District Court’s ruling, the DC Circuit has held that the District Court abused its discretion in not accepting North Dakota’s argument that a significant change in circumstances warranted this relief.

The Northwest Area Water Supply Project will take water from the Missouri River Basin and transport it via a 45 mile pipeline to a basin in Northwest North Dakota. The project is subject to the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA) review, which the DC Circuit noted has been plagued by legal challenges to the reviews conducted by the Bureau of Reclamation for several years. The Province of Manitoba has been concerned that the water taken from the Missouri River Basin would not be adequately treated and it could adversely affect Manitoba’s own water quality and ecology.

Finally, in 2015, a much more comprehensive NEPA analysis was completed, and North Dakota asked the lower court to modify its long-standing injunction to allow design planning to begin. The District Court refused. The DC Circuit noted that “[u]nder 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 DC Circuit noted that the District Court’s order “does not explain why, despite this factual dispute, the court found Manitoba’s presentation of data not only relevant, but also more persuasive.” “Without a more nuanced and detailed explanation,” this amounts to an abuse of discretion.

The DC Circuit went on to consider State’s grounds for seeking relief and concluded that 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.'” “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.”  The DC Circuit remanded the matter to the District Court to grant North Dakota’s motion for modification of the injunction suitably tailored to the changed circumstances that exist.