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-milelong 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 watertreatment 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 decisionmaking 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 timeconsuming 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 waterquality 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.