                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA
__________________________________
                                     )
THE GOVERNMENT OF THE                )
PROVINCE OF MANITOBA,                )
                                     )
            Plaintiff,               )
                                     )
      v.                             )    Civil Action No. 02-2057 (RMC)
                                     )
KEN SALAZAR, Secretary,              )
Department of the Interior, et al.,  )
                                     )
            Defendants.              )
_________________________________    )

                                            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


                                                 1
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.


1
  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.

                                                  2
(“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.

                                                     3
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,


                                                4
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


2
 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.

                                                 5
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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