The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER RE DEFENDANTS' MOTION TO DISMISS (DOC. 56)
This case presents a conflict between two provisions of the 1992 Central Valley Improvement Act ("CVPIA"), Pub. L. No. 102-575, 106 Stat. 4700 (1992). CVPIA § 3406(b)(2) requires the Secretary of the Interior to dedicate 800,000 acre feet ("AF") of water to serve certain fish and wildlife restoration purposes. CVPIA § 3411(b) requires the Secretary to comply with a 1985 Agreement Between the United States of America and the Department of Water Resources of the State of California for Coordinated Operation of the Central Valley Project and the State Water Project (otherwise referenced as "Coordinated Operations Agreement" or "COA")*fn1 , which in turn requires the Bureau of Reclamation ("Bureau") to export as much water as possible when the Delta is in "excess water"*fn2 conditions.
Plaintiffs, San Luis & Delta-Mendota Water Authority ("Authority") and one of the Authority's Member Districts, Westlands Water District ("Westlands"), filed this lawsuit on June 6, 2011, during a period when the Delta was in "excess water conditions," complaining that, contrary to the mandate in CVPIA § 3411(b) to export as much water as possible, Defendants ordered reduced export pumping for a two-week period starting on June 8, 2011, pursuant to the Secretary's authority under § 3406(b)(2). Plaintiffs' motion for preliminary injunctive relief was denied, see Doc. 38 & 49, and the pumping reduction expired of its own accord.
Defendants now move to dismiss this case as moot. Doc. 56. Plaintiffs oppose the motion and attach the supporting declaration of James Snow. Docs. 57 & 57-1. Defendants replied. Doc. 58. The motion was originally set for hearing on February 24, 2012, but the hearing was vacated and the matter submitted for decision on the papers. On March 5, 2012, supplemental declarations were requested to address the narrow issue of whether Federal Defendants have ever before, apart from the June 2011 instance that is the subject of the Complaint, ordered reduced pumping during excess conditions based purely on the Secretary's authority under CVPIA § 3406(b)(2). Doc. 61. In accordance with the deadlines set forth in the March 5, 2012 Order, Plaintiffs filed the Supplemental Declaration of James Snow on March 30, 2012. Doc. 64. Federal Defendants filed the Supplemental Declaration of Paul Fujitani on April 9, 2012. The matter is now ripe for decision.
CVPIA § 3406 (b)(2) has been extensively litigated in this Court and the Ninth Circuit. A brief primer on that provision and related litigation provides context for this case.
CVPIA section 3406(b)(2) provides:
(b) FISH AND WILDLIFE RESTORATION ACTIVITIES.--The Secretary [of the Interior], immediately upon the enactment of this title, shall operate the Central Valley Project to meet all obligations under state and Federal law, including but not limited to the Federal Endangered Species Act, 16 U.S.C. 1531, et seq., and all decisions of the California State Water Resources Control Board establishing conditions on applicable licenses and permits for the project. The Secretary, in consultation with other State and Federal agencies, Indian tribes, and affected interest, is further authorized and directed to:
(2) upon enactment of this title dedicate and manage annually eight hundred thousand acre-feet of Central Valley Project yield for the primary purpose of implementing the fish, wildlife, and habitat restoration purposes and measures authorized by this title; to assist the State of California in its efforts to protect the waters of the San Francisco Bay/Sacramento-San Joaquin Estuary; and to help meet such obligations as may be legally imposed upon the Central Valley Project under state or federal law following the date of enactment of this title, including but not limited to additional obligations under the federal Endangered Species Act....
Pub. L. No. 102-575, § 3406(b)(2), 106 Stat. 4700, 4714 (1992).
B.Prior District Court and Ninth Circuit Rulings.
Decisions in consolidated cases concerning § 3506(b)(2) comprehensively recount this history of previous litigation:
The CVPIA took effect October 31, 1992. In 1998, Plaintiffs in [San Luis & Delta-Mendota Water Authority, et al. v. United States Dept. of the Interior, et al., 1:97-cv-6140] challenged Federal Defendants' October 5, 1999 "Final Decision on Implementation of Section 3406(b)(2)...," contending that Federal Defendants were required to credit against the 800,000 AF allocation of CVP yield all water used to satisfy either the 1995 Water Quality Control Program for the San Francisco Bay/ Sacramento-San Joaquin Estuary ("1995 WQCP") or post-CVPIA Endangered Species Act ("ESA") requirements. See Doc. 466 at 26. The district court granted Plaintiffs' motion for summary judgment, concluding: "[A]s a matter of law, [the statutory] language is not ambiguous -- water used to meet WQCP or post-CVPIA ESA requirements is an additional (b)(2) purpose and must be charged against the 800 TAF [thousand acre-feet] (b)(2) mandate if so used." Id. at 33. The district court further found that to "hold otherwise would render the 800 TAF figure superfluous." Id. at 35. On March 20, 2002, partial final judgment was entered in favor of Plaintiffs on that claim, and the issue was certified for interlocutory appeal to the Ninth Circuit. Doc. 491 at 4.
On appeal, Environmental Plaintiffs [in a consolidated action] argued that the district court "improperly elevated the subordinate purpose of the (b)(2) dedication over the primary purpose." Envt'l Appellants' Opening Brief, 2002 WL 32123196 *36 (9th Cir. Dec. 23, 2002). In response, Plaintiffs argued that "the plain words of the statute dictate and Congress intended that all water used to assist the State in protection of the Bay/Delta, or to meet obligations (including ESA obligations) legally imposed upon the CVP under State or Federal law following the date of enactment of CVPIA, would be counted toward the 800,000 acre-feet limit." Appellants' Brief in Answer to Envt'l Appellants' Opening Brief, 2003 WL 21471613 *27, (9th Cir. Jan. 30, 2003). In reply, Environmental Plaintiffs emphasized that "the CVPIA cannot defeat the statute's specific and non-discretionary directions to Interior to use the 800,000 AF for the 'primary purpose' of implementing the CVPIA's new restoration measures, and to achieve the CVPIA's salmon doubling mandate." Envt'l Appellants' Reply Brief, 2003 WL 21471615 *13 (9th Cir. Feb. 18, 2003).
The Ninth Circuit, in a ruling initially issued June 3, 2003 and amended January 23, 2004, affirmed the district court's partial final judgment on four of five issues, but reversed regarding (b)(2) accounting discretion:
The district court erred in concluding that Interior lacks discretion to refrain from crediting the amount of Project yield actually used for any (b)(2) purpose against the designated 800,000 acre feet of Project yield. To hold otherwise would defeat the primary purpose for which the 800,000 acre feet were designated-fish, wildlife, and habitat restoration. Section 3406(b)(2) provides that the "primary purpose" to which the 800,000 acre feet should be dedicated is the implementation of "fish, wildlife, and habitat restoration purposes authorized by this title..." Section 3406(b)(2) also provides that the 800,000 acre feet may be used to "help" meet obligations under the Endangered Species Act and to "assist" in meeting water quality standards. If Interior were required to deduct some or all the water it uses for water quality and Endangered Species Act purposes from the (b)(2) dedication, the water needed for implementation of the  Act's restoration mandate could be relegated to a secondary role, or perhaps no role at all. Such a scenario would directly conflict with the Interior's mandate to give effect to the hierarchy of purposes established in Section 3406(b)(2).
Bay Institute of San Francisco v. United States, 87 Fed. Appx. 637 at 639-40 (9th Cir. 2004).
San Luis & Delta-Mendota Water Authority, et al. v. United States Dept. of the Interior, et al., 1:97-cv-6140, Doc. 711, at 1-5 ("(b)(2) Case").
After remand, a September 19, 2008 ruling in the (b)(2) Case addressed cross-motions for summary judgment in light of the Ninth Circuit's ruling:
Plaintiffs [in San Luis & Delta-Mendota Water Authority, 1:97-cv-6140] assert that "primary purpose" should be interpreted broadly, to include the 159,200 AF designated as "Non-B2 Fishery Actions" in late June and August/September 2004, because those actions benefitted fish. (Doc. 681 at 9.) They suggest that any water used to meet WQCP and/or ESA purposes must be counted unless doing so would not serve any fish, wildlife, and habitat restoration purposes, or if counting the water toward the 800,000 AF limit would "significantly impair" the primary restoration purposes. (Id.) However, when "water is used pursuant to the mandates of the [WQCP] or the ESA to further fish and wildlife restoration," Plaintiffs maintain that such use "serves the primary purpose and effectuates the hierarchy of purposes set in section 3406(b)(2)." (Id. at 7.) Plaintiffs maintain that the Ninth Circuit could not have intended to emasculate the 800,000 AF limit by granting Interior "unfettered discretion to exclude from its accounting of (b)(2) water any water dedicated to fulfill environmental obligations emanating from other statutes." (Id. at 8.) This, they argue, would run afoul of the cannon of statutory construction that requires effect be given to every provision in a statute.
Federal Defendants rejoin that Interior properly exercised its discretion to designate the 159,200 AF as "Non-B2 Fishery Actions" in late June and August/September 2004, because that water did not serve the "primary purpose" of the CVPIA. (See Doc. 658-3 at 24.) Federal Defendants argue that the Ninth Circuit's decision construed (b)(2) broadly to uphold the agency's ability to carry out the CVPIA's "restoration mandate," holding that if "Interior were required to deduct some or all of the water it uses for water quality and Endangered Species Act purposes from the (b)(2) dedication," then the water needed to implement the restoration mandate could be relegated to a secondary role, or perhaps no role at all." 87 Fed. Appx. at 640. That result, "would directly conflict with Interior's mandate to give effect to the hierarchy of purposes established in Section 3406(b)(2)." Id. Federal defendants insist that the Court of Appeals' decision must be read as a command to Interior to ensure that it exercises its discretion in a manner that will not frustrate the primary purpose of fish, wildlife and habitat restoration. This is a partial truth, as the 800,000 AF cap on CVP yield that must be annually dedicated to (b)(2) purposes is not discretionary and can only be reduced in times of water shortage. Environmental Plaintiffs add that the primary purpose of the CVPIA is anadromous fish doubling and that Interior retains the discretion to refrain from counting actions that use CVP yield for other purposes if doing so would give effect to the hierarchy of purposes. (Doc. 686 at 9.) Environmental Plaintiffs [in the consolidated action] emphasize that "since the Ninth Circuit has expressly held that Interior may -- indeed must -- prioritize (b)(2) water for the CVPIA's restoration mandate beyond mere compliance with the CVP's water quality obligations, there will be years in which the sum of the actions taken under Section 3406(b)(2), the WQCP, and the ESA will exceed 800,000 AF." (Id. at 6.) Environmental Plaintiffs maintain that "[t]here is nothing illegal or inappropriate about this. Interior is required to provide water for fishery purposes under several statutes. As the appellate court decided, Section 3406(b)(2) did not simply subsume the CVP's water quality obligations. Contrary to the position of [the Authority], the 800,000 AF dedication is not a cap on the CVP's environmental water obligations." (Id.)
The parties all agree that under the Ninth Circuit's decision, Interior retains some degree of discretion to refrain from deducting water from the (b)(2) account if doing so will give effect to the hierarchy of purposes in the CVPIA. The dispute in this case arises over the nature and extent of that discretion. The fundamental disagreement is, essentially, over the scope and meaning of the phrase "primary purpose," as that term is used in the Ninth Circuit's decision. 1:97-cv-06140, Doc. 711 at 33-36 (footnotes omitted).
The September 19 Decision in the (b)(2) Case defined the scope and meaning of the phrase "primary purpose":
The Ninth Circuit explained in general that the "primary purpose to which the 800,000 acre feet should be dedicated is the implementation of 'fish, wildlife, and habitat restoration purposes authorized by this title....'" Bay Institute, 87 Fed. Appx. 639-40 (quoting CVPIA 3406(b)(2)). Plaintiffs suggest that the "primary purpose" includes any action designed to help fish, while Environmental Plaintiffs and Federal Defendants suggest that the "primary purpose" is the anadromous fish doubling program set forth in section 3406(b)(1). (Doc. 686 at 9; Doc. 696 at 19 n.3 (Federal Defendants "generally agree" with Environmental Plaintiffs' position on this issue).)
The "primary purpose" includes all those fish and wildlife restoration activities specifically described in section 3406(b). This includes water dedicated to accomplish the anadromous fish doubling goal set forth in section 3406(b)(1), but also includes water needed to accomplish any of the other specifically enumerated programs listed in section 3406(b) (e.g., 3406(b)(4), (5), (8), (9), (12), (18) & (19)).
Under the Ninth Circuit Decision, Interior has discretion not to count water used for any of the (b)(2) "secondary" purposes, so long as that water is "needed" to effectuate the "primary" restoration programs specifically enumerated in section 3406(b), including the fish doubling program contained within 3406(b)(1). The primary purpose language does not globally encompass every action that benefits fish. Rather, it applies only to those actions that support the specifically enumerated fish and wildlife restoration programs contained within 3406(b).
Id. at 36, 43, 45 (emphasis added).
The Decision also recognized that there is "potential for overlap between the 'primary' purpose and actions taken pursuant to the fisheries purposes of the WQCP and ESA."
For example, 3406(b)(1)(c) provides:
The Secretary shall cooperate with the State of California to ensure that, to the greatest degree practicable, the specific quantities of yield dedicated to and managed for fish and wildlife purposes under this title are credited against any additional obligations of the Central Valley Project which may be imposed by the State of California following enactment of this title, including but not limited to increased flow and reduced export obligations which may be imposed by the California State Water Resources Control Board in implementing San Francisco Bay/Sacramento-San Joaquin Delta Estuary standards pursuant to the review ordered by the California Court of Appeals in United States v. State Water Resources Control Board, 182 Cal. App. 3d 82 (1986), and that, to the greatest degree practicable, the programs and plans required by this title are developed and implemented in a way that avoids inconsistent or duplicative obligations from being imposed upon Central Valley Project water and power contractors. (Emphasis added.)
Interior recognized the potential for this overlap in its December 2003 Guidance, which provides:
[A]ctions taken pursuant to the 1995 Water Quality Control Plan and State Water Resources Control Board Decision D-1641 ("the 1995 WQCP") involve the dedication and management of Central Valley Project yield for long-term fishery beneficial use and protection. Such actions are not taken to help meet agricultural or municipal and industrial water quality standards that are set forth in the 1995 WQCP. Most of the fishery beneficial uses and objectives under the 1995 WQCP and in Reclamation's water rights permits help fulfill the fish, wildlife, and habitat restoration purposes and measures authorized by Section 3406(b). Consistent with the June 3, 2003 Ninth Circuit decision, much of the (b)(2) water that is dedicated and managed annually to help meet fishery beneficial use and protection objectives of the 1995 WQCP serves Section 3406(b)(2)'s "primary purpose" of fish, wildlife, and habitat restoration. Therefore the implementation of Section 3406(b)(2) in accordance with the May 9, 2003 Decision and with this supplemental guidance effectuates the "hierarchy of purposes" in Section 3406(b)(2). (AR 2156-57 .)
In practice, many actions taken to fulfill the fishery beneficial uses and objectives of the WQCP and/or actions taken to comply with the ESA may serve the primary purpose of the CVPIA. In keeping with the general structure of the CVPIA's language, if the "primary" purpose of any action taken under the WQCP and/or the ESA is to support or effectuate a "primary purpose" program, such action must be counted toward the (b)(2) account. Environmental Plaintiffs advance a helpful definition of the term "primary," the ordinary meaning of which is "predominant," of "first importance," or "principal." See Malat v. Riddell, 383 U.S. 569, 572 (1966). Applying this definition, if an action taken under the WQCP and/or the ESA predominantly contributes to one of the primary purpose programs (e.g., fish doubling), it must be counted toward the 800,000 AF limit. Interior retains the discretion not to count other secondary actions, so long as doing so is necessary to give effect to the hierarchy of purposes.
Id. at 46-48 (footnotes omitted).
This "primary purpose" definition was applied, resulting in a finding that Interior did not abuse its discretion in connection with two sets of actions for which water was released but not charged against the annual (b)(2) "account" of 800,000 AF of water:
From June 17 through June 24, 2004 Interior allocated 9,100 AF to Non-B2 Fishery Actions. The daily accounting for June 17 through June 30, 2004 indicates that water costs were being incurred for changes in operations at Nimbus, Clear Creek, and New Melones. (First Fujitani Decl. at ¶17.) Only those costs incurred at Nimbus and New Melones were accounted for as Non-B2 Fishery Actions. (Id.) A draft document entitled "Summary of (b)(2) Fish Actions for Water Year 2004," dated December 1, 2004, specifies that releases from Nimbus during the "latter part" of June were "to meet Delta demands." (AR 1521.) Mr. Fujitani states that releases from Nimbus were required to meet the June Delta outflow standard. (First Fujitani Decl. at ¶17.) Releases from New Melones were needed to meet San Joaquin River flow requirements at Vernalis. (Id.) Interior did not count these releases as "(b)(2)" releases, but instead as "Non-B2 Fishery Actions." (Id.)
The question presented is: Did either of these actions predominantly contribute to one of the (b)(2) primary purpose programs (e.g., fish doubling)? The Delta outflow standard was promulgated as part of the 1995 WQCP (D-1641). The stated purpose of the outflow standard is to protect "estuarine habitat for anadromous fishes and other estuarine-dependent species." (1995 WQCP at 15.) The Vernalis flow requirement on the San Joaquin River, along with similar flow requirement on the Sacramento River, originate in the WQCP. The stated purpose of the Vernalis flow requirements are "to provide ...