The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT (DOCS. 52, 60,62) )) AND MOTION TO STRIKE (DOC.77)
I. INTRODUCTION II. JURISDICTION .. A. 5 U.S.C. § 706(2).. B. 5 U.S.C. § 706(1)..
III. HISTORICAL BACKGROUND...
A. CREATION OF THE CVP...
C. ALLOCATION OF CVP WATER
D. STATE LAW AREA OF ORIGIN STATUTES..
1. THE CALIFORNIA ATTORNEY GENERAL ANALYZES THE AREA .
2. THE BUREAU'S PERMITS FOR CVP WATER SUPPLY ARE OF ORIGIN STATUTES.
CONDITIONED TO PROTECT APPROPRIATION OF
3. WITHIN THE AREA OF ORIGIN...
APPLICATION OF THE AREA OF ORIGIN STATUTES BY
. . . . . . . . . 17 SWRCB AND REJECTION OF TCAA CLAIM FOR PREFERENCE
1. TCCA MEMBERS' RIGHT TO CVP WATER UNDER THEIR LONG-. . . E. THE DISPUTED CVP WATER SERVICE CONTRACTS... TO CVP WATER.. . . .
2. TERM CVP WATER SERVICE CONTRACTS.. INTERIM CONTRACTS...
3. NEGOTIATION OF CURRENTLY OPERATIVE TCCA RENEWAL .
CONTRACTS: THE BUREAU'S INTERPRETATION AND
4. TCCA ACCEPTS LONG-TERM RENEWAL CONTRACTS WITHOUT
PRIORITY ALLOCATION TERMS: THE SHORTAGE TCCA MEMBERS' VALIDATION OF ALL RENEWAL CONTRACTS
6. EXECUTION BY PERFORMANCE AND CONDUCT UNDER THE IN STATE COURT.. . .
TCCA RENEWAL CONTRACTS..
IV. PROCEDURAL BACKGROUND. .
V. STANDARDS OF DECISION.. .
A. STATUTE OF LIMITATIONS
B. CVP STATUTES AND SECTION 11460 DO NOT CONTAIN OR .
SUPPORT THE PRIORITY ALLOCATION RIGHT TO CVP WATER THAT
1. STATUTORY INTERPRETATION OF THE CVP STATUTES..
Legislative History of the CVP Statutes..
STATUTORY INTERPRETATION OF SECTION 11460...
Decades of Consistent Interpretation By the b.the Bureau is That Section 11460 Governs California Attorney General, the SWRCB, and Appropriation Not Allocation of Water in the
Area of Origin... i. Attorney General Opinion. ii. ..The Bureau's Interpretation of iii. The SWRCB Has Independently Interpreted Reclamation Law... . . . . . . . . . 42 Section 11460 in the same manner as the3. SECTION 11460's INTERPRETATION BY THE AG Op, AG Op SWRCB, AND THE BUREAU ARE ALL CONSISTENT WITH THE 4. PERMIT TERMS..
SUBSEQUENT LEGISLATIVE ACTS...
5. CALIFORNIA CASE LAW...
The El Dorado and Phelps Decisions.
b. The SWRCB Cases Provide No Binding Or
6. Plaintiff's Interpretation of Section 11460 Persuasive Precedent.
Conflicts With The Congressional Directive of the
C. CONCLUSION RE: STATUTES.. 1950 Act .
D. INTERPRETATION OF LONG-TERM CVP WATER SERVICE . . . .
STANDARDS RE: THE BUREAU'S STATUTORY DISCRETION TO
2. . 57 APPORTION CVP WATER IN TIMES OF SHORTAGE.
3. TCCA MEMBER LONG-TERM CVP CONTRACTS: SHORTAGE TERMS...
a. Discretionary Interpretive Authority
b. Renewal Contract Shortage Provisions... The Renewal Contract's Shortage Provisions.
Are Not a Limitation on the Bureau's
c. Discretion to Apportion Contract Water... Article 18(a) in Not a Limitation on the 65 Bureau's Discretion to Apportion Contract the Bureau's Discretion to Apportion Contract
d. Water.. Article 3 and 1(u) Are Not a Limitation on
4. CONTRACT NEGOTIATION AND PERFORMANCE.. Water
5.CONCLUSION RE: INTERPRETATION OF THE CONTRACT.
6. EFFECT OF TCCA RENEWAL CONTRACT VALIDATION.. RENEWAL TERMS... . .
E. THE BAR OF EQUITABLE ESTOPPEL..
PLAINTIFF'S FUTILITY ARGUMENT IS WITHOUT MERIT...
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
TEHAMA-COLUSA CANAL AUTHORITY, Plaintiff, ) ) v. ) (DOCS 52, 60, 62) AND MOTION UNITED STATES DEPARTMENT OF ) TO STRIKE (DOC. 77) MOTIONS FOR SUMMARY JUDGMENT MEMORANDUM DECISION ON CROSS THE INTERIOR; KENNETH LEE SALAZAR, in his official ) capacity as Secretary of the ) OF RECLAMATION; MICHAEL L. Interior; UNITED STATES BUREAU ) CONNOR, in his official of Reclamation, and DONALD R. capacity as the Commissioner ) GLASER, in his official ) capacity as Regional Director )of the Bureau of Reclamation for the Mid-Pacific Region, Defendants, WATER AUTHORITY, SAN LUIS & DELTA-MENDOTA Defendant-Intervenor, WESTLANDS WATER DISTRICT, Defendant-Intervenor.
This lawsuit is brought by an association of Federal Water Contractors for federal water from the Sacramento River Division of the Central Valley Project ("CVP") north of the San Joaquin-Sacramento Delta against the United States Department of the Interior ("Interior"), its Secretary, the Bureau of Reclamation ("Bureau"), and its Regional Director of the Mid-Pacific Region, and by Defendant-Intervenors, San Luis & Delta-Mendota Water Authority and Westlands Water District, Federal Contractors, who use CVP water on lands south of the Sacramento-San Joaquin Delta, seeks to establish superior water rights under CVP water service contracts in the Sacramento Valley, which would limit and exclude export of CVP water south of the Delta, until after Plaintiff and its Members first receive 100% of their allocated CVP contractual water supply.
The Plaintiff, Tehama Colusa Canal Authority, ("TCCA") is a Joint Powers Authority organized under the laws of the State of California, is comprised of 16 water agency members on whose behalf the case is brought. Cal. Gov't Code § 6500, et seq. Plaintiff filed this suit on February 11, 2010, seeking injunctive and declaratory relief against implementation of the shortage provisions of Federal water service contracts under the Federal Administrative Procedure Act ("APA"), 5 U.S.C. §§ 702 to 706. Specifically, §§ 706(1) and 706(2).
Jurisdiction exists under 28 U.S.C. § 1331, as this case arises under the laws of the United States, specifically, § 8 of the United States Reclamation Act of 1902. Reclamation Act of 1902, ch. 1093, § 8, 32 Stat. 390 (codified at 43 U.S.C. § 383 (2006)). Section 8 is part of Federal Reclamation law thatgoverns the Bureau's operation of the CVP Act, authorizing the construction, repair, and preservation of certain public works on rivers and harbors, Pub. L. No. 75-392, § 2, 50 Stat. 844, 850 (1937), as amended and supplemented, August 4, 1939 (53 Stat. 1187), as amended and supplemented, July 2, 1956 (70 Stat. 483), as amended and supplemented, June 21, 1963 (77 Stat. 68), as amended and supplemented, October 12, 1982 (96 Stat. 1263), as amended and supplemented October 27, 1986 (100 Stat. 3050), and Title XXXIV of the Act of October 30, 1992 (106 Stat. 4706) (Central Valley Project Improvement Act ("CVPIA")) collectively referred to as "Reclamation Law;" (authorizing the Central Valley Project); South Delta Water Agency v. United States, 767 F.2d 531, 536 (9th Cir. 1985).
Jurisdiction is also invoked under the United States APA. Section 702 of the APA waives the sovereign immunity of the United States, its agencies, and its individual officers acting in their official capacity. U.S. v. Park Place Associates, Ltd., 563 F.3d 907, 929, n.15 (9th Cir. 2009) (APA waives sovereign immunity but does not confer federal jurisdiction). APA Section 704 authorizes review of "final agency action for which there is no other adequate remedy in a court." Because neither Federal Reclamation law nor California Water Code ("CWC") § 11460 ("Section 11460") grants a right of judicial review, the APA provides the appropriate cause of action. South Delta Water Agency, 767 F.2d at 536-541 (holding that a claim that the Bureau's operation of the CVP violated Section 11460 was reviewable under the APA.)
Plaintiff's declaratory and injunctive relief claims are under 28 U.S.C. § 1361, 43 U.S.C. § 383, 28 U.S.C. § 2201 (declaratory relief) and Fed. R. Civ. Proc. 65 (injunctive relief).
Plaintiff claims 16 of its public agency members that supply water to agricultural or municipal and industrial water users or to both, received water from the CVP through the CVP's TehamaColusa and/or Corning Canals pursuant to a "Long-Term Renewal Contract Providing for Project Water Service From the Sacramento River Division" between each member and the Bureau. TCCA, in turn, has a separate contract with the Bureau under which TCCA operates and maintains the Tehama-Colusa and Corning Canals and their related facilities on behalf of its members. All Defendants' water service contracts are entered into and performed under Reclamation law.
Plaintiff and its Members' first claim is based on the Bureau allegedly:
a) Reducing Plaintiff's water allocations under their water service contracts in times of "water shortage" disregarding area of origin protections and alleged priority right of Plaintiff's provided by CWC §§ 11460, 11463 and 11128; Reclamation Law; denial of Fifth Amendment due process; and protection of state law water rights under California v. United States, 438 U.S. 645 (1978);
b) Improperly declaring conditions of shortage as to Plaintiff while exporting CVP water outside the Sacramento River watershed and reducing Plaintiff's full contractual water allocations;
c) Arbitrarily allocating pro rata water allocations and/or shortages among all CVP water service contractors without applying area of origin protections and Plaintiff's "priority rights" to CVP water;
d) Violating the terms of Reclamation's State-issued permits to operate the CVP by ignoring area of origin protection; and
e) Announcing conditions of water shortage, issuing a statement of legal authority to allocate CVP supply without compliance with area of origin protections, thereby issuing unlawfully restricted licenses to CVP supply, imposing an order or sanctions on Plaintiff as to its supply, and denying relief to Plaintiff.
The second claim is for injunctive relief under Fed. R. Civ.P. 65.
The third claim is for declaratory judgment under 28 U.S.C.§ 2201.
The fourth claim seeks attorney's fees pursuant to 5 U.S.C. §§ 504(a)(1) and 504(b)(1)(C) and the Equal Access to Justice Act, 28 U.S.C. §§ 2412(b) and (d).
Plaintiff asserts its claims are for violation of 5 U.S.C.
§ 706(2) for alleged agency actions that are arbitrary, capricious, unlawful, and in excess of statutory authority.
Defendants concede that review is available under Section 706(2), but is limited to the six year statute of limitations under the APA. Hells Canyon Preservation Council v. U.S. Forest Service, 593 F.3d 923, 930 (9th Cir 2010).
TCCA further asserts that jurisdiction is proper under 5
U.S.C. § 706(1). Section 706(1) applies to compel agency action unlawfully withheld or unreasonably delayed. Pursuant to Section 11460, Plaintiff seeks to preclude the export of CVP project water necessary to preserve sufficient supply to meet TCCA Members' and the area of origin's present and future needs to the extent of their full contractual supplies. Judicial intervention under § 706(1) to compel action only applies to discrete agency action the agency is required to take. Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004). A required "ministerial or non-discretionary act on which an agency can be ordered "to take action upon a matter, without directing how it shall act." Center for Biological Diversity v. Veneman, 394 F.3d 1108, 1112 (9th Cir. 2005). Plaintiff suggests that water deliveries under the water service contracts is only ministerial. The Bureau's annual water allocations under the CVP water service contracts are not ministerial, but rather entail uniquely discretionary action that requires it to interpret CVP contracts and balance all competing interests under operational constraints, to comply with other statutory requirements, including but not limited to, decisions of the SWRCB, the CVPIA, Reclamation law and the ESA. Westlands Water Dist. v. U.S., 153 F.Supp.2d 1133, 1144 (2001) ("Westlands 2001") ("[the Bureau] has contractual authority and administrative discretion over how it provides water service among the CVP's water and power-users, and how it picks its priorities among them.")
Plaintiff invokes Natural Resources Defense Council v. Patterson, 333 F.Supp.2d 906 (E.D. Cal. 2004) as authority for section 706(1)'s application because Section 11460's "plain meaning, legislative history, and construction by the state court" all confirm Plaintiff's interpretation. Patterson is distinguishable as Cal. Water Code § 5937, at issue in that case, expressly required the Bureau to comply with its mandate to release water from Friant Dam. Id. at 916. Here, Congress leaves "to Interior the use of its considerable experience and expertise to implement CVP water supply allocations." Central Valley Water Agency v. United States, 327 F.Supp.2d 1180, 1206 (E.D. Cal. 2004), San Luis & Delta-Mendota Water Authority v.U.S. Dept. of Int., 637 F.Supp.2d 777, 805 (E.D. Cal. 2008) (Bureau's accounting [is] a complex process within the agency's discretion).
Section 11460 does not provide a mandatory duty or ministerial discretion. Although § 11460 instructs that areas of origin are not to be "denied" of the "prior right" to "the water reasonably required to adequately supply the beneficial needs of the watershed," it does not specifically identify what action the Bureau is required to take to protect such "prior right." Section 11460 does not address whether: 1) the "prior right" is protectable by a requirement that limits the Bureau's ability to divert water for export as the SWRCB has continuously interpreted the statute, or 2) whether the Bureau must provide CVP contractors within an area of origin a preference to CVP water at the expense of other CVP contractors. Without a mandatory duty or ministerial action, the Court is limited to the inquiry whether the Bureau has made a discretionary decision, not to second guess whether the agency should have made a different decision. Coos County Board of Commissioners v. Kempthorne, 531 F.3d 792, 883 (9th Cir. 2008). The Bureau makes discretionary allocation determinations in performing all its CVP water service contracts. Plaintiff is not entitled to relief under § 706(1).
Relief by way of writ of mandate is equally unavailable under 28 U.S.C. § 1361 because that extraordinary remedy lies only to compel the performance of a clear non-discretionary duty. Pittston Cost Group v. Sebben, 48 U.S. 105, 121 (1988).
III. HISTORICAL BACKGROUND.
California's two largest rivers, the Sacramento and the San Joaquin, meet to form the Sacramento-San Joaquin Delta ("Delta") south of the City of Sacramento. Their combined waters, if not diverted, flow through the Delta, Suisan Bay, and San Francisco Bay, to the Pacific Ocean. This region, commonly known as the Bay-Delta, is the hub of California's two largest water distribution systems, the CVP, operated by the Bureau, and the State Water Project ("SWP"), operated by the California Department of Water Resources ("DWR"). In re Bay Delta Programmatic Environmental Impact Report Coordinated Proceedings,43 Cal.4th 1143, 1151 (2008). Plaintiff makes no claims against the DWR or its operation of the SWP. The CVP and SWP are operated in a coordinated manner under the Coordinated Operating Agreement, (Administrative Record ("AR") at 5046, et seq.), and State Water Resources Control Board ("SWRCB") Decision 1641(d), AR at 4106.
The California Legislature originally conceived the CVP "to conserve and put to maximum beneficial use the waters of the Central Valley of California." South Delta Water Agency, 767 F.2d at 533-34. Maximizing the use of the Central Valley's water would be achieved by constructing an irrigation project capable of moving water from where water was plentiful in the north part of California above the Sacramento Valley, to the San Joaquin Valley, south of the Delta, which had abundant land but a shortage of water. United States v. Gerlach Live Stock Co., 339 U.S. 725, 728 (1950); see also, California State Engineer Bulletin 12 at 22, Supplemental Administrative Record ("SAR") at 3136.
The first step in development of the Projects was the California legislature's enactment of the Central Valley Project Act of 1933, ch. 1042, 1933 Cal. Stat. 2643 (1933), which authorized construction of Kennett Dam and Reservoir (now Shasta Dam and Shasta Lake) on the Sacramento River, to pump water from the lower Sacramento River to the lower San Joaquin River, and Friant Dam on the San Joaquin River, with canals to carry water to the southern San Joaquin Valley. The Act also included the area of origin statutes, codified as CWC sections 11460-11463 and intended to ...