GOVERNMENT OF THE PROVINCE OF MANITOBA v. NORTON et al

Filing 207

MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 3/1/2013. (lcrmc3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________
)
THE GOVERNMENT OF THE
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PROVINCE OF MANITOBA,
)
)
Plaintiff,
)
)
v.
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Civil Action No. 02-2057 (RMC)
)
KEN SALAZAR, Secretary,
)
Department of the Interior, et al.,
)
)
Defendants.
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_________________________________
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OPINION
In this longstanding case concerning the National Environmental Policy Act, we
await an Environmental Impact Statement (EIS) promised by the Bureau of Reclamation, a
constituent agency of the Department of the Interior. The underlying federal action requiring
environmental study is the Northwest Area Water Supply (NAWS) Project in North Dakota that
is designed to bring several billion gallons of Missouri River water across the continental divide
into the Hudson Bay Basin and into homes in northern North Dakota. The Province of Manitoba
sued because Interior issued only an Environmental Assessment (EA) and a Finding of No
Significant Impact (FONSI). That conclusion was so preposterous given the scope of NAWS,
this Court remanded for a hard look at the issue. See February 3, 2005 Memo Op. & Order
[Dkts. 87 & 88]. Since then, the case has been before the Court a second time and remanded a
second time for a full EIS. See March 5, 2010 Memo Op. & Order [Dkts. 175 & 176]. A partial
injunction was entered by this Court in 2005 to ensure that actions by the federal and state
governments, while waiting for an environmental analysis, would not influence any final
decision but still allow certain aspects of the Project to proceed. The partial injunction has been
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modified many times since.1 Upon reviewing a joint status report filed by the parties in October
2012, the Court expressed concern to the parties that the construction proposed for 2013 could
impact the EIS and sought briefing from the parties regarding whether a modification to the
injunction should issue in 2013.
The Court concludes that North Dakota can finish the Minot treatment plant
upgrade but is enjoined from new pipeline construction and new pipeline construction contracts
until a full EIS is completed and approved. If there are other outstanding contracts on which
work might be done, North Dakota should further describe them explicitly to the Court.
I. FACTS
The Court hastens this decision to advise North Dakota before work is to begin on
awarding contracts for the 2013 construction season. Therefore, this decision is abbreviated and
the Court refers readers to its prior decisions for the full history of the matter. In sum, the
Bureau of Reclamation is trying to assist the State of North Dakota by bringing an improved
water supply to the citizens in the northern parts of the State. The plan is to remove water from
the Missouri River, where it flows through the northwest corner of North Dakota before entering
Missouri, and pipe it across the continental divide to a treatment plant in Minot. The Province of
Manitoba objects that an EIS is needed to ensure that foreign biota from the Missouri River
Basin will not be released into the Hudson Bay Basin and flow north to Manitoba. This Court
has ruled twice already that Reclamation has been too hasty and insufficient in its adherence to
the dictates of the National Environmental Policy Act of 1969, 42 U.S.C. § 4321, et seq.

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The complexities of the issues are detailed in this Court’s prior Opinions and Orders. See
March 5, 2010 Memo Op. & Order [Dkts. 175 & 176]; February 3, 2005 Memo Op. & Order
[Dkts. 87 & 88]; see also Gov’t of the Province of Manitoba v. Salazar, 691 F. Supp. 2d 37
(D.D.C. 2010); Gov’t of the Province of Manitoba v. Norton, 398 F. Supp. 2d 41 (D.D.C. 2005).
For purposes of the instant Order, the Court assumes familiarity with the entire history.
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(“NEPA”). Although active work has been underway on the NAWS Project since 2002, the
Bureau of Reclamation has yet to produce a complete EIS.
The Court consolidated two civil actions on March 11, 2009, bringing the State of
Missouri into the present case as a plaintiff. See March 11, 2009 Order [Dkt. 113]. Missouri
protests the intention to remove water from the Missouri River, to the alleged environmental
detriment of its citizens. Thus, the entire Project must be evaluated by the Bureau of
Reclamation: from the choice of a water source to the environmental consequences of
transporting it.
Following the issuance of its first opinion, this Court drew a tailored injunction to
allow North Dakota to proceed with such construction as would not influence the environmental
analysis. See Memo. Op. & Order [Dkt. 95]. It has been modified on several occasions. See
March 24, 2006 Minute Order (granting Defendants’ motion to modify the injunction); March
18, 2010 Minute Order (granting North Dakota’s unopposed motion to modify the injunction);
October 25, 2010 Order [Dkt. 193] (granting in part and denying in part North Dakota’s motion
to modify the injunction). The parties filed a joint status report on October 19, 2012, stating that
additional construction on the Northern Tier pipeline is scheduled for 2013. See Dkt. 195. Upon
review of the status report, the Court sua sponte ordered the parties to show cause why such
activity would not impact the environmental analysis. See November 16, 2012 Order [Dkt. 196].
The United States takes no position on the substance of the question but frankly advises the
Court that:
Analysis in the [Supplemental Environmental Impact Statement] of the no
action/no project alternative may include consideration of the
environmental and economic consequences of not completing the project.
Thus, for instance, Reclamation’s analysis in the SEIS may acknowledge
the existence of already-constructed project components as part of its
description of the affected environment pursuant to 40 C.F.R. § 1502.15.
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Fed. Defs.’ Resp. [Dkt. 198] at 2. This compares, with unfortunate overtones, to the Federal
Defendants’ assurances in October 2010 that “[r]eview of the issues and preparation of the
supplemental EIS will be conducted notwithstanding any part of the NAWS project that has been
designed or constructed.” Fed. Defs.’ Resp. [Dkt. 192] at 2.
II. ANALYSIS
The question presented by Manitoba was whether the scope of NAWS is such that
Reclamation is required by NEPA to perform a more searching environmental analysis. The
answer was decidedly yes, and the case was remanded for that purpose. See Gov’t of the
Province of Manitoba v. Norton, 398 F. Supp. 2d at 67. During the remand, Reclamation
announced that it would perform an EIS. The resulting “EIS,” however, was limited to water
treatment issues in the Missouri River Basin and did not adequately address the cumulative
impacts of water withdrawal on the water levels of Lake Sakakawea and the Missouri River or
the fundamental issue of biota transfer across the continental divide into the Hudson Bay Basin.
See Gov’t of the Province of Manitoba v. Salazar, 691 F. Supp. 2d at 51. Thus, Reclamation has
twice now snubbed its obligations under NEPA in its haste to work with the State of North
Dakota.
North Dakota has been an impatient participant. It now reminds the Court most
vociferously that NEPA is merely a procedural statute that only requires certain analyses before a
project may proceed. While the Court well appreciates—and shares—the State’s impatience, it
is wrongly directed towards any but Reclamation which has not yet fulfilled its statutory duty.
Properly understood, NEPA requires an environmental analysis of the full consequences of a
large federal project—with the inevitable, and necessary, possibility that those consequences will
result in a no-project determination. Not having received any semblance of a full EIS on NAWS,
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the Court has no opinion on the validity of future analyses or whether, with full analyses, NAWS
should or should not proceed. The Court’s duty, however, is to ensure that a no-go option
receives the complete consideration it requires without undue influence from North Dakota’s
impatience.2
This conclusion is especially pertinent now that the State of Missouri has
complained that the reduction of upstream water from the Missouri River, as required by the
NAWS design, will have deleterious environmental impacts downstream in Missouri. While the
case brought by Manitoba focused on water treatment, the addition of the State of Missouri adds
the fundamental question of the water source for NAWS.
The purpose of the Court’s injunction in April 2005 was to fashion “a more
tailored remedy . . . that permits the project to move forward in 2005 while preserving the
opportunity for sound decision-making under NEPA.” Memo. Op. & Order [Dkt. 95] at 6.
While none of us expected the NEPA process to take so long, the Court’s purpose remains
identical today. When it authorized limited construction in 2005, the Court also ordered that
“[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 . . . .” Id. Federal Defendants are
advised that this injunction remains in place and the status of construction cannot influence or
alter the choice between water treatment options. And, as made clear by the Court’s refusal in
2010 to authorize design work for the water intake element at Lake Sakakawea while work on
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Timothy Freije, North Dakota’s NAWS Project Manager, states that the planned 2013 pipeline
construction “does not affect the alternatives that may be examined in the [Supplemental
Environmental Impact Statement].” N.D. Resp., Decl. of Timothy Freije [Dkt. 199-1] ¶ 5.
Given the change in the position of the Federal Defendants, who are actually preparing the
complete EIS, the Court is not assured.
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the Minot treatment plant could continue, the question of the source of the water is now part of
the focus as well. See October 25, 2010 Order [Dkt. 193] at 1.
For immediate purposes, the Court concludes that the 2005 injunction should
remain in place and be modified only in part. The injunction will be modified to permit North
Dakota to finish the Minot treatment plant upgrade. The injunction will not permit new pipeline
construction or new pipeline construction contracts.
III. CONCLUSION
Pursuant to the discussion above, the Court will order a partial modification of the
2005 injunction, which otherwise remains in place and runs to all Defendants.

DATE: March 1, 2013
/s/
ROSEMARY M. COLLYER
United States District Judge

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