[00:00:01] Speaker 02:
Case 16-5203, Government of the Province of Manitoba and State of Missouri, X-Rail Chris Koster, Missouri Attorney General's Office, the Sally Jewell, Secretary, U.S.

[00:00:13] Speaker 02:
Department of the Interior et al., State of North Dakota Appellant, Ms.

[00:00:17] Speaker 02:
Coppinger for the Appellant, Mr. Duboff for the Athlete.

[00:00:24] Speaker 00:
May it please the court.

[00:00:25] Speaker 00:
Good morning.

[00:00:25] Speaker 00:
My name is Nessa Coppinger, and I'm here on behalf of the state of North Dakota.

[00:00:29] Speaker 00:
With me today on behalf of the state is Assistant Attorney General Jen Verlacher.

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I would like to reserve two minutes for rebuttal, please.

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We appreciate you hearing this appeal on an expedited basis.

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North Dakota is facing a serious drinking water crisis.

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The injunction modification at issue is extremely minor but of great consequence to the people of North Dakota.

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The court should reverse and remand the district court's minute order with instructions to modify the injunction to permit paper design work on the biota water treatment plant.

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The District Court made no findings of fact to which this Court can defer.

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Nonetheless, there are certain undisputed facts and two legal grounds that we believe require reversal and entry of the modification.

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Your Honors, today I will address those two legal grounds briefly and then return to discuss each in more detail.

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First, when an injunction was issued to preserve the integrity of agency decision-making process, the completion of that process is sufficient evidence of changed circumstances under Rule 60B-5 to warrant evaluating whether it is still equitable to apply the injunction without modification.

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There is no dispute over the fact that Reclamation has completed a supplemental EIS and issued a record of decision.

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The legal question for this Court to decide is whether, given the basis for the injunction here, completion of NEPA review is sufficient evidence of changed circumstances to move on to the equitable inquiry.

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Isn't our standard of review abuse of discretion?

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Where a district court has made findings of fact, it is an abuse of discretion standard.

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We believe the de novo review standard applies here because of the court's failure to make findings of fact.

[00:02:10] Speaker 03:
The court isn't required to make findings of fact under the rule, right?

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Here, where there's no distinction between the findings of fact and the legal conclusion, there's no basis to understand what the district court's opinion was.

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We believe the standard of review is de novo, but we also believe that even under an abuse of discretion standard, the district court's order can't stand.

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So how is there, assuming we find that the standard of review is abuse of discretion, where is the abuse of discretion?

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The abuse of discretion is because to the extent that the court wholesale adopted Manitoba and Missouri's opposition to the request for modification to the injunction, it also adopted

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errors.

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Some of those errors include the fact that the hydrographs, for example, presented by Manitoba as evidence that there was enough water for North Dakotans to get through this period.

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Those hydrographs don't relate to the

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the project area at all.

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One of those hydrographs relates to an aquifer that is in an unrelated part of the state.

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The other relates to an aquifer that is fully appropriated and has no excess water.

[00:03:26] Speaker 03:
But you have the burden and what evidence did you present that the water was not sufficient?

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I guess as far as changed circumstances since the last time the court examined the injunction

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So two things, Your Honor.

[00:03:41] Speaker 00:
One is that in terms of change circumstances, specifically with respect to water supply, the hydrographs that appendix page 173 and 174 that relate to the Minot and Sundry aquifers, those are the two aquifers that supply the project area that's at issue.

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Those clearly show the renewed decline of the aquifer since the catastrophic 2011 flooding.

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And that decline has been precipitous, particularly in the Minot aquifer, which has already lost two-thirds of the water gains from that flooding in the four years.

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And just from a time frame perspective, it would take four years

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It would take 20 months to design the biota water treatment plant and another two years after that to actually construct the plant.

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We're not seeking construction here, but the total time frame is four years.

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In that period of time, two-thirds of the water gained from the most catastrophic flooding ever recorded in North Dakota has already been lost.

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Also, in terms of change circumstances, we don't believe that we have to show specifically just that the change circumstances relate to the water supply.

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We believe the agency's conclusion of its decision-making process is sufficient to move on to the equitable analysis.

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And once you get to that equitable analysis,

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All that Manitoba and Missouri have presented is some hypothetical risk of a future NEPA review that may never actually take place.

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In comparing that to the real risk that's facing North Dakotans where they're facing water shortages, boil orders, bottled water,

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Those are real and concrete concerns against which the irreparable harm allegations that Manitoba and Missouri have made carry no weight.

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Remember, the allegations of irreparable harm that are relevant here relate to the modification request, not to the project itself as we're not seeking any construction.

[00:05:28] Speaker 01:
You have cited two change circumstances.

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One is that the reclamations process is completed.

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The other is that the urgency with which North Dakota needs to get this project finished has increased because of changes in the water table and so forth.

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Do you need both of those change circumstances and do they go to different aspects of what the court would be looking at?

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or would either one of them, in your view, be sufficient?

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In our view, either one would be sufficient.

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I think the other aspect of the change circumstance that relates to the water supply that's really important to keep in mind and is undisputed is that Minot, the City of Minot, which has its own issues with water quality and quantity, has contracts to supply water to the surrounding communities.

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which have worse water.

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Those contracts will end in 2018.

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The difference between 2013 and 2017 is that we are now one year away from those water supply contracts ending.

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That is a significantly changed circumstance that increases the urgency of resolving the situation or at least starting to plan for how we can move forward.

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So it's also undisputed that 80,000 residents of Northwest North Dakota need a reliable and adequate drinking water supply.

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Manitoba and Missouri have not disputed that fact.

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At least one project community in the area, Kenmare, has a local water supply that has primary drinking water violations for arsenic, which is a known carcinogen.

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This is another issue that was presented to the district court that, to the extent the court did not resolve this issue,

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If it was an error in the district courts, to the extent that they adopted Manitoba and Missouri's presentation of the issue, that would be an abuse of discretion because it's a clear error.

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The briefing implied by Manitoba and Missouri implied that Kenmare's water supply is fine.

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Well, the reason it doesn't have a violation now is because it's relying on Minot's water.

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If it has to go back to relying on its own water, its water violates a primary drinking water standard for a known carcinogen.

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That is clear in the record.

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Almost all of the water in the area does not meet one or more secondary drinking water standards, and all of the communities face significant water shortages.

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The district court's order contained no legal analysis or finding of fact, and under this circuit's precedent, in cases like in-ray Navy chaplaincy, this alone means that the minute order cannot be affirmed.

[00:08:10] Speaker 00:
When you combine all of these factors together, the changed circumstances, the urgent public need, and the public interest in providing safe and clean drinking water mean the decision should be reversed and remanded back to the district court with instructions to grant North Dakota's motion.

[00:08:26] Speaker 00:
I'll reserve my time for rebuttal.

[00:08:33] Speaker 05:
Good morning, Your Honors.

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My name is Scott Duboff.

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I represent Council for the Province of Manitoba and the State of Missouri.

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With me in the courtroom are my colleagues Ben Lombiat, Gene Barinholtz, and Aaron Edelman.

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Manitoba and Missouri are plaintiffs in the proceeding below, which involves the Bureau of Reclamation's NAWS project.

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Manitoba's long-standing concern regarding the NAWS project is aquatic invasive species which could be transported from the basin in which the Missouri River is located over the Continental Bight into the Hudson Bay Basin and transport aquatic invasive species could be a devastating impact in Manitoba and elsewhere in Canada.

[00:09:20] Speaker 05:
state of Missouri's concern relates to the cumulative impact of water withdrawals from NAWS and other projects, particularly during times of drought, and what the impact that would follow on downstream availability of water from the Missouri River.

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Judge Collier has presided in this case since 2002.

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During that time, she has

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reviewed and revised on a number of occasions the injunction that she initially issued in April of 2005.

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In the June 14th minute order at issue, Judge Collier made a finding

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and her reasoning was very clear.

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She said she sees nothing in North Dakota's motion, I'm quoting her, to present either changes in law or facts sufficient to warrant modifying the injunction again now.

[00:10:18] Speaker 05:
It's the injunction she had previously modified on a number of occasions.

[00:10:23] Speaker 05:
summary judgment briefing is complete before Judge Collier and oral argument remains to be heard.

[00:10:33] Speaker 04:
Well, if a party has presented a list of potential change circumstances, and they have, and they're not insignificant, and the district court's response without in any way alluding to those things and explaining what the district court thinks about it merely says, I don't see anything that presents changes in law or facts.

[00:10:53] Speaker 04:
And I, as an appellate judge, say to myself, sure looks like a change to me, and it looks pretty significant in light of what they're worried about.

[00:11:02] Speaker 04:
Am I not obliged at least to say to the district court, there's no explanation here that I can deal with?

[00:11:08] Speaker 04:
Well it's not enough for you to simply say this is a really important issue.

[00:11:12] Speaker 04:
Now I realize you think it's important from your side, but they obviously think it's incredibly important from their side to have water supply that's clean and safe.

[00:11:21] Speaker 04:
And all they're asking for is the right to design.

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That's all.

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That's all.

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And there's no question that the longer you delay that, the more likely it is that the stated problems will exacerbate.

[00:11:35] Speaker 04:
Design doesn't mean the end of it.

[00:11:37] Speaker 04:
The district court judge has always got control over that.

[00:11:43] Speaker 04:
Let me just be very clear to you.

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I don't get it.

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I do not comprehend why there would be a refusal, simply saying I don't see anything, when all the request is is to design.

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And the district court would be giving nothing more than that.

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And the request for design is based on

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circumstances that appear to be different than the last time the district court looked at it, and significantly so.

[00:12:13] Speaker 05:
With all respect, Your Honor, the circumstances are not different.

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The last time that Judge Collier looked at the injunction was in the early part of 2013.

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And at that time, she ruled under very similar circumstances

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There was a request before her at that time to allow design of, in 2010, a request to allow design of the Lake Sakakawea intake.

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She denied that.

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In 2013, there was, on a sua sponte,

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the judge ordered the parties to brief whether there should be additional changes in the injunction because she was concerned that too much activity and construction had taken place and was concerned that it was inconsistent with her then-excent injunction.

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And in 2013, the judge made a finding in her published opinion that's quite relevant today.

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she recognized that, and she had actually, in her show cause order, in the response from the Department of Justice, she inquired how additional expenditures, if they were to take place, as one of the parties requested, they should take place, and others opposed it.

[00:13:47] Speaker 05:
The Department of Justice didn't take a position on whether the injunction should be modified, but the Department of Justice said that

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We may consider those expenditures as part of the cost-benefit balance when we consider what the future of this project should be, what our decision on the alternatives before us should be.

[00:14:12] Speaker 05:
The Department of Justice said we consider it appropriate to consider those additional expenditures in the cost-benefit balance.

[00:14:19] Speaker 01:
Had Reclamation's decision issued at the time that you were talking about?

[00:14:24] Speaker 05:
Reclamation's decision issued about two years later.

[00:14:27] Speaker 05:
It was then on remand from the 2010 remand order, and it issued in 2015.

[00:14:39] Speaker 05:
There were several points made earlier regarding changed circumstances, and I want to take just a moment to put this case in context.

[00:14:50] Speaker 04:
Your answer to me did not respond to my question.

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What the district court judge did in 2013 doesn't address

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For example, the Monoet Water Quality Report, their claims that the change in water quality, this report doesn't say, no, you're wrong.

[00:15:06] Speaker 04:
There isn't any significant change in water quality.

[00:15:08] Speaker 04:
There isn't any concern about supply.

[00:15:11] Speaker 04:
You've just glossed right over it.

[00:15:12] Speaker 04:
Reference back to 2013 is of no moment to me as an appellate judge, because we're in 2017 now.

[00:15:20] Speaker 05:
Well, Your Honor, if I may refer to this Court's decision in Di Medina versus Reinhart, where the Court said although discussion of the specific evidence, I'm quoting the Court, on which the District Court relied in that case, would have aided review, the Court upheld because, and this is where the quote begins, we find in the record evidence that supports the District Court's findings.

[00:15:45] Speaker 05:
I don't.

[00:15:47] Speaker 04:
Okay, so I don't know why you won't answer my question.

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They've either got changed circumstances that are viable, and I think they are based on what they're saying.

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The district court didn't respond to them.

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I'm not satisfied as my appellate colleagues were in the case that you cited.

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They looked at the record and felt, I can understand why the district court did what the district court did.

[00:16:11] Speaker 04:
I don't understand why the district court did what it did in this case when the request is simply for design.

[00:16:18] Speaker 04:
And you spent seven minutes and haven't answered my question.

[00:16:21] Speaker 05:
If I may refer to the evidence on change circumstance, the lead-off argument by

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state of North Dakota.

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Their first argument was, if we don't get this injunction modified, our state will not authorize funding for the project.

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That was fallacious.

[00:16:37] Speaker 05:
We showed it was fallacious.

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It's no longer their lead-off argument.

[00:16:41] Speaker 05:
The state has been, despite the injunction... Go to the water supply.

[00:16:45] Speaker 04:
Go to the arsenic.

[00:16:46] Speaker 04:
I understand what you're saying.

[00:16:47] Speaker 04:
All right, I'll go to arsenic.

[00:16:48] Speaker 04:
Yes.

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And the water supply.

[00:16:49] Speaker 05:
Kenmar doesn't get... Kenmar's aquifer apparently has an arsenic concentration above the federal standard.

[00:16:57] Speaker 05:
Kenmar does not use its aquifer for its water supply.

[00:17:00] Speaker 05:
Kenmar's water comes from the city of Minot, I believe, which meets the arsenic standard.

[00:17:06] Speaker 05:
There are many communities throughout the country, if they were to use their local aquifer, they might exceed arsenic, the arsenic standard.

[00:17:14] Speaker 05:
They don't use their aquifer, or they treat it to remove the arsenic.

[00:17:18] Speaker 05:
The water quantity issue, which was one of the change circumstances suggested, the

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All that North Dakota presented in its motion to the court was a contention about aquifer levels.

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They presented no data, showed no aquifer levels, just a paragraph and a declaration by one of their employees.

[00:17:43] Speaker 05:
In response, in our opposition, we looked to USGS data, which was publicly available, and the USGS, and this is in the appendix,

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The USGS has a map, appendix 148.

[00:18:00] Speaker 05:
USGS shows aquifers in northwest North Dakota.

[00:18:04] Speaker 05:
One of the aquifers, they don't show all aquifers, they show several aquifers.

[00:18:08] Speaker 05:
They only monitor certain aquifers, not all.

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And the ones that they show, all of those are at or above normal water levels.

[00:18:19] Speaker 05:
The USGS also found that in the NOS Project area, aquifer levels have improved because that part of the state is in what the USGS referred to as a wet climate period and will be at high flood risk for some time to come.

[00:18:39] Speaker 05:
North Dakota had presented no data.

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in its motion to support that contention.

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We were forced to do the research and found other data.

[00:18:50] Speaker 03:
What about what your friend on the other side cited at JA 173 and 174?

[00:18:58] Speaker 05:
I believe those were hydrographs from the two that was in their reply and those aquifers show that water levels

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in this part of North Dakota are higher than they had been since the 1980s.

[00:19:19] Speaker 05:
Now, I want to make it clear, neither Manitoba or Missouri oppose North Dakota's need for an alternative water supply.

[00:19:32] Speaker 05:
The issue here is whether the current injunction should be modified at this time, and whether changed circumstances have been shown.

[00:19:41] Speaker 05:
The third change circumstance that is offered by the appellant is that there has now been a decision by the Bureau of Reclamation.

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That is not a change circumstance at all.

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The context here is a case which has gone on since 2002.

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The district court has had to twice remand the matter to the agency for insufficient NEPA analysis.

[00:20:11] Speaker 05:
There is no reason to assume, for purposes of this motion, that the decision by the Bureau

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is not going to be subject to further challenge.

[00:20:27] Speaker 05:
In fact, it already has been subject to challenge.

[00:20:29] Speaker 05:
That's why we are briefing summary judgment before the district court.

[00:20:34] Speaker 01:
If you don't oppose the NAAS project, which I thought is what you said.

[00:20:39] Speaker 05:
No, we don't oppose an alternative water supply.

[00:20:41] Speaker 01:
I'm sorry to interrupt.

[00:20:42] Speaker 01:
Okay, you don't oppose an alternative water supply, but you oppose this project.

[00:20:48] Speaker 05:
The Interbasin Transfer, Your Honor.

[00:20:50] Speaker 01:
Because my question is...

[00:20:54] Speaker 01:
If you don't oppose it, what is the problem with design?

[00:20:59] Speaker 01:
You oppose that because it's for this project.

[00:21:03] Speaker 05:
The design is for the alternative, the specific alternative that was selected in the record of decision.

[00:21:09] Speaker 05:
It will be an interbasin water transfer from the Missouri River over the Continental Abye into northwest North Dakota.

[00:21:18] Speaker 05:
Well, the river actually isn't northwest Dakota, just be over the Continental Abye.

[00:21:22] Speaker 05:
And that

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from Manitoba's standpoint, presents a very serious risk of aquatic invasive species transfer.

[00:21:32] Speaker 05:
This has been the heart of our dispute with the Bureau of Reclamation for over 15 years.

[00:21:40] Speaker 04:
And isn't that any proposed design that they offer subject to review?

[00:21:46] Speaker 05:
Any proposed design they offer is subject to review by the district court and ultimately by this court, yes.

[00:21:51] Speaker 04:
So then why?

[00:21:52] Speaker 04:
See, underlying their arguments throughout all this, you can take each one one by one and nitpick it.

[00:21:58] Speaker 04:
And I understand what you've done.

[00:21:59] Speaker 04:
I understand how the district court might respond to it.

[00:22:02] Speaker 04:
But there's an underlying concern about time is passing.

[00:22:06] Speaker 04:
And you don't object to their suggestion that there is a need.

[00:22:09] Speaker 04:
There is a need that must be addressed.

[00:22:11] Speaker 04:
And the more time you waste back and forth without proceeding in a way that doesn't affect your interests,

[00:22:20] Speaker 05:
it doesn't make sense when you look at it does affect our interest because the expenditures state funds which are estimated five million dollars plus the expenditure of federal funds

[00:22:36] Speaker 05:
There's an issue which I won't take time to go into about whether their memorandum of understanding with the federal government means that they will forever be bound to pay that five million as opposed to a car sharing.

[00:22:46] Speaker 05:
But in addition, there will be federal funds, even with their MOU as they interpret it.

[00:22:50] Speaker 05:
Federal government employees are going to be reviewing everything that's done.

[00:22:53] Speaker 05:
There'll be travel expense, employee time.

[00:22:55] Speaker 05:
There'll be federal dollars spent as well.

[00:22:57] Speaker 05:
And all of those dollars, if we are successful on summary judgment, and there's another remand,

[00:23:06] Speaker 05:
and the agency has to decide again, all of those dollars will, in the cost benefit analysis, the Bureau will then take up again, all of those dollars can be counted by the Bureau on the side that is more beneficial to proceed with this alternative as opposed to, because those dollars are only related to this alternative.

[00:23:31] Speaker 03:
Could the court enter, could the district court enter an order

[00:23:35] Speaker 03:
enjoining the bureau from doing that.

[00:23:40] Speaker 05:
I don't believe the district court would have authority to enjoin the bureau from considering those dollars.

[00:23:48] Speaker 03:
Why not?

[00:23:50] Speaker 03:
Courts have lots of authority.

[00:23:54] Speaker 05:
I think the Court would have to await the outcome of the, if there was another remand, and I hope there will be another remand to the Bureau, I don't think the District Court would have, respectfully, Your Honor, I don't believe the District Court would have authority to determine in advance how the Bureau should analyze the issues before it.

[00:24:19] Speaker 05:
But when I mentioned earlier a quotation in

[00:24:25] Speaker 05:
Judge Collier's 2013 opinion, when she quoted a statement by the Department of Justice that in a different context, very different specific facts, but a very similar context, the Department of Justice said, yes, we will consider these additional expenditures as part of the cost-benefit analysis.

[00:24:48] Speaker 05:
And that is our concern.

[00:24:49] Speaker 05:
It becomes a self-fulfilling prophecy.

[00:24:53] Speaker 04:
I suppose the district court's order said, go ahead and design, but I want you to be very clear.

[00:24:58] Speaker 04:
My order is telling you this is not a self-fulfilling prophecy.

[00:25:02] Speaker 04:
There's no guarantee that this is the correct design.

[00:25:05] Speaker 04:
But if you think it makes sense at this point because of the time concerns, go ahead.

[00:25:09] Speaker 04:
But I'm not going to let it count.

[00:25:12] Speaker 04:
I mean, courts do this all the time.

[00:25:15] Speaker 04:
I just don't get it.

[00:25:17] Speaker 04:
You're talking about time that's just going to go on and on and on.

[00:25:22] Speaker 04:
We've seen these cases, these NEPA reviews.

[00:25:24] Speaker 04:
The way you're posturing the case, you're talking another 10 years.

[00:25:29] Speaker 04:
There's no question that's what will happen.

[00:25:31] Speaker 04:
It'll be another 10 years.

[00:25:32] Speaker 04:
You say, I'm hoping for another remand, change of administration, new people.

[00:25:37] Speaker 04:
They linger over.

[00:25:38] Speaker 04:
It'll be two, three years fooling around there back to the district court.

[00:25:41] Speaker 04:
And before we know it, a decade's gone.

[00:25:44] Speaker 04:
and all they're asking for is design.

[00:25:46] Speaker 04:
The district court can say, you can do the design, but don't think it's a winner.

[00:25:51] Speaker 05:
Your Honor, the district court, my time is obviously long expired now.

[00:25:59] Speaker 04:
You mean you wanted to expire, right?

[00:26:03] Speaker 05:
Sometimes that's true, Your Honor, but I'm enjoying my discussion with you this morning.

[00:26:08] Speaker 05:
The district court

[00:26:13] Speaker 05:
in her order also recognized that summary judgment briefing at the time of the order had begun, had just begun.

[00:26:22] Speaker 05:
It is now complete.

[00:26:23] Speaker 05:
As I said earlier, oral argument still has to be held before the district court and the

[00:26:31] Speaker 05:
I should also mention in that connection another point that was made by Appellant's Council is that the Minot contract will expire in 2018.

[00:26:47] Speaker 05:
The design that they're talking about will take 86 weeks

[00:26:51] Speaker 05:
and construction will take, according to their papers, another two years.

[00:26:55] Speaker 05:
So the Minot contract doesn't really seem to be relevant.

[00:26:58] Speaker 05:
It's not going to change the need for interim solutions during that time.

[00:27:05] Speaker 01:
I just have a practical question, which is

[00:27:08] Speaker 01:
I think they've done this, well, they've done an EIS.

[00:27:11] Speaker 01:
This is the second one.

[00:27:13] Speaker 01:
They've looked at this at least three times.

[00:27:17] Speaker 01:
This has been going on for 30 years.

[00:27:20] Speaker 01:
This argument has been going on for more than a decade.

[00:27:23] Speaker 01:
Every time the reclamation has come back with

[00:27:26] Speaker 01:
a response.

[00:27:29] Speaker 01:
It has been Missouri water is a primary source.

[00:27:34] Speaker 01:
So what is the alternative?

[00:27:37] Speaker 05:
One of the alternatives would be in basin sources, use of reverse osmosis to treat using local aquifers.

[00:27:50] Speaker 05:
In the final supplemental environmental impact statement,

[00:27:54] Speaker 05:
This is discussed as an alternative.

[00:27:57] Speaker 05:
It's referred to at times by the Bureau as too costly and the small communities involved said it was too costly for them.

[00:28:07] Speaker 05:
Communities far smaller in the province of Manitoba

[00:28:12] Speaker 05:
use reverse osmosis.

[00:28:14] Speaker 05:
Because it's a similar part of the continent, similar geology, the record shows that there are a number of small communities in Manitoba that are using reverse osmosis.

[00:28:28] Speaker 01:
Thank you.

[00:28:29] Speaker 05:
Thank you, Your Honors.

[00:28:32] Speaker 05:
And I would simply request that the order of Judge Collier, June 14, 2016, be affirmed.

[00:28:39] Speaker 05:
Thank you.

[00:28:46] Speaker 01:
I'd like to focus on three particular points that my opposing... Before you start, could you just let me know what has happened in terms of the budget problem that was at issue initially?

[00:28:59] Speaker 00:
Sure.

[00:29:00] Speaker 00:
So the budgeting process is ongoing right now.

[00:29:04] Speaker 00:
The legislature is in session, and this is the biennial budgeting process that's happening now.

[00:29:11] Speaker 00:
That process should be concluded by the end of April.

[00:29:14] Speaker 00:
So a ruling would be timely here from this court.

[00:29:19] Speaker 00:
Frankly, the reason that we didn't continue to pursue that is we think that argument is that although the timing is important of that budgeting process, this is such a significant problem that

[00:29:29] Speaker 00:
We believe the legislature will hopefully find the money, even if it's out of session.

[00:29:35] Speaker 00:
It would be a much easier process if it happened in the legislative session.

[00:29:41] Speaker 00:
First of all, opposing counsel says there's no reason to assume there won't be another challenge.

[00:29:46] Speaker 00:
And in fact, they've already brought a challenge.

[00:29:47] Speaker 00:
Well, first of all, that argument that you can assume another NEPA violation is contrary to precedent of this court.

[00:29:56] Speaker 00:
That's the Ethel Court case.

[00:30:00] Speaker 00:
An agency action is entitled to a presumption of regularity.

[00:30:03] Speaker 00:
This is a new agency action and it cannot be assumed that it is deficient.

[00:30:09] Speaker 00:
In addition, the Pacific Rivers case tells us even where there's been a NEPA violation in the past, you cannot assume a future NEPA violation.

[00:30:18] Speaker 00:
The second issue that I wanted to address is that opposing counsel says, you know, the federal government said they might consider expenditures as part of the cost benefit balance.

[00:30:28] Speaker 00:
That is completely incorrect.

[00:30:31] Speaker 00:
That is not what the federal government said.

[00:30:33] Speaker 00:
What they said is they would acknowledge that those elements that had already been built existed in the EIS.

[00:30:40] Speaker 00:
And that is exactly what they did.

[00:30:41] Speaker 00:
They did not weigh them in the cost-benefit analysis, nor did they pretend that nothing had ever happened and it was a blank slate.

[00:30:48] Speaker 00:
It's not a blank slate.

[00:30:49] Speaker 00:
And had the agency simply pretended that they didn't even exist, I guarantee you we'd be standing here trying to justify why we put our blinders on and pretended that there wasn't even a pipeline in the ground.

[00:31:01] Speaker 00:
It's not a cost benefit analysis.

[00:31:03] Speaker 00:
Also, there are no federal dollars.

[00:31:04] Speaker 03:
But I guess your friend on the other side says that even if it's just an acknowledgement, it tips the scales because it's an acknowledgement of a resource that's there.

[00:31:16] Speaker 03:
And if that's factored in, then that tips the scales.

[00:31:21] Speaker 03:
And that seemed to be what was animating the district courts thinking here.

[00:31:26] Speaker 00:
Well, first of all, I think right now we're talking about the merits of the underlying review, right?

[00:31:31] Speaker 00:
NEPA is a procedural issue.

[00:31:33] Speaker 00:
Second of all, I just think that's a fallacy, a logical fallacy in terms of saying if I acknowledge it exists, it tips

[00:31:42] Speaker 00:
The entire review process is identifying what the lay of the land is, what exists, what considerations are out there.

[00:31:51] Speaker 00:
The agency actually in this NEPA review process selected the most expensive option that it considered.

[00:31:59] Speaker 00:
So it's not a matter of, well, there's some pipeline in the ground.

[00:32:02] Speaker 00:
This is the most expensive option that they selected.

[00:32:05] Speaker 00:
And it includes the exact treatment technology advocated for by Manitoba as the best means to address its concerns about biota water, about biota invasive species.

[00:32:17] Speaker 00:
There are no federal funds that will be spent on this design work.

[00:32:21] Speaker 00:
Manitoba and Missouri's description of the memorandum of understanding is just not accurate.

[00:32:27] Speaker 00:
It plainly says North Dakota will not be reimbursed for any dollars spent up until the litigation is concluded with respect to the design work that we're talking about.

[00:32:39] Speaker 00:
My third point is that

[00:32:42] Speaker 00:
They mentioned, well, they might not contract because it expires next year and the design work will take longer than the contract will expire.

[00:32:51] Speaker 00:
It doesn't change the needs for the solutions.

[00:32:53] Speaker 00:
Two points on that.

[00:32:55] Speaker 00:
First of all,

[00:32:56] Speaker 00:
If we're in a 10-story building and the first floor of the building is on fire, we don't say, let's just wait until our floor of the building is on fire before we start making a plan for how to get out of it, even if we know that three more floors of the building are going to burn before we can get out.

[00:33:13] Speaker 00:
That's what we're talking about here.

[00:33:15] Speaker 00:
Even if there's going to be a crisis, we have to start doing something to shorten the time of that crisis.

[00:33:21] Speaker 00:
Second of all, MINOT, if they know that there's an endpoint, might be willing to extend those contracts for some short period of time, but they're not going to do it indefinitely at the risk of their own water supply.

[00:33:33] Speaker 00:
My final point in rebuttal is that they mentioned, Judge Brown, you asked about the alternatives.

[00:33:40] Speaker 00:
What's the alternative to Missouri River water?

[00:33:42] Speaker 00:
And now we're definitely getting into the merits of the underlying issue.

[00:33:46] Speaker 00:
My friend says, well, there are in-basin alternatives like reverse osmosis.

[00:33:51] Speaker 00:
First of all, the district court has already ruled on that specific issue in a prior NEPA review.

[00:33:56] Speaker 00:
That is law of the case.

[00:33:58] Speaker 00:
Reverse osmosis is not a reasonable alternative.

[00:34:01] Speaker 00:
The court already ruled that.

[00:34:03] Speaker 00:
Second of all, even if we were to somehow reconsider it here, outside of the merits context, reverse osmosis loses 20% of the water that it treats.

[00:34:13] Speaker 00:
That may be fine for whatever's going on in Manitoba, but when you're talking about an area that has water shortages, that undermines the entire purpose of that treatment technology.

[00:34:25] Speaker 00:
We would request respectfully, Judge Edwards, you said why can't we just remand and tell the court to look.

[00:34:30] Speaker 00:
We would request that you remand with instructions to find at least changed circumstances.

[00:34:37] Speaker 00:
And we also believe that the public interest is so significant that it clearly demands a reversal here.

[00:34:43] Speaker 03:
Do you agree with your friend on the other side that the district court would be without authority to make as part of an order if

[00:34:55] Speaker 03:
if it were so inclined that the design could not be taken into account in any future study by the Bureau of Reclamation?

[00:35:09] Speaker 00:
To be honest with you, I'm not totally sure about whether the court has that authority.

[00:35:14] Speaker 00:
I would think that it probably does.

[00:35:16] Speaker 00:
But I can also tell you that if this design work is authorized to go forward and

[00:35:23] Speaker 00:
there's another NEPA review that has to take place.

[00:35:26] Speaker 00:
All those hypotheticals line up.

[00:35:29] Speaker 00:
The design work provides additional information that the agency could consider in addressing additional design needs or additional elements of the project.

[00:35:39] Speaker 00:
If the court says you shouldn't consider it,

[00:35:42] Speaker 00:
That's okay, I guess, in terms of a future NEPA review, but I think it's also worth considering whether that is just creating more information that the agency could consider in terms of understanding what would work best in terms of controlling potential invasive species.

[00:36:00] Speaker 00:
Thank you.

[00:36:01] Speaker 01:
Thank you.

[00:36:03] Speaker 01:
The case will be submitted.