The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
(Partially Consolidated) MEMORANDUM DECISION DENYING FIREBAUGH PLAINTIFFS' MOTION FOR ATTORNEY'S FEES, EXPERT WITNESS FEES, AND COSTS UNDER THE EQUAL ACCESS TO JUSTICE ACT (DOCS 949, 952)
These consolidated cases concern a long-standing dispute over the provision of drainage to landowners on the west side of California's San Joaquin Valley. Upslope landowners and recipients of water from the San Luis Unit ("SLU") of the Central Valley Project ("CVP") claimed Section 1(a) of the San Luis Act (the "Act"), P.L. 86-488, 74 Stat. 156, obligated Federal Defendants to construct the "San Luis Drain" called for in the Act. Firebaugh Canal Water District ("Firebaugh") and Central California Irrigation District ("CCID") (collectively, "Firebaugh Plaintiffs"), which represented downslope landowners outside the SLU service area, alleged, among other things, that Federal Defendants' should not be permitted to provide irrigation water to the SLU unless and until drainage was provided. Doc. 1 at
Before the Court for decision is Firebaugh Plaintiffs' application for an award of attorneys fees, expert witness fees, and costs under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. Doc. 949-52. Federal Defendants oppose on the grounds that (1) the application is untimely; (2) Firebaugh Plaintiffs are not prevailing parties; and (3) applicants do not meet the statutory requirements. Doc. 954. In the alternative, if the Court is inclined to grant the application, Federal Defendants maintain the award should be reduced in various ways. Id. Plaintiffs replied. Doc. 956. The application was set for hearing on May 17, 2012, but the hearing was vacated and the matter submitted for decision on the papers. Doc. 957.
A.Origins of the San Luis Unit and the Drainage Dispute.
The 1960 San Luis Act provided for the construction and operation of the SLU and associated drainage facilities:
The principal engineering features of said unit shall be a dam and reservoir at or near the San Luis site . drains, channels, levees, flood works, and related facilities.. Construction of the San Luis unit shall not be commenced until the Secretary has. (2) . made provision for constructing the San Luis interceptor drain to the delta designed to meet the drainage requirements of the San Luis unit as generally outlined in the report of the Department of the Interior, entitled "San Luis Unit, Central Valley Project," dated December 17, 1956.
Pub. L. No. 86-488, 74 Stat. 156. Even at that time, it was well understood that when irrigation water was applied to the SLU lands, saline drainage would be produced and that "it would be necessary to provide facilities for disposing of these waters." Supplemental Administrative Record ("SAR"), Document 815 at Bates # 38846 (Doc. 767).
In 1963, Firebaugh and CCID sought an injunction in federal court to prevent delivery of water to the SLU until drainage had been provided. Then-presiding District Judge Crocker entered an order finding that the San Luis Act "clearly requires a drainage system to protect plaintiffs' land and must be complied with and drainage provided before water is delivered to and stored in the San Luis Dam," but that the evidence then before the Court "indicates that the Secretary of the Interior has made provision for constructing the interceptor drain required by the [San Luis Act], and will have it completed by the time water is furnished to the [SLU]." Doc. 950, Ex. A (Bates # 39366). Accordingly, Judge Crocker denied the request for injunctive relief. Id. at Bates # 39367.
The Bureau of Reclamation ("Reclamation") commenced construction of the San Luis Drain, originally designed to transport drainage water from the SLU north toward the Sacramento-San Joaquin Delta ("Delta"). However, construction stopped in 1975, with the drain only reaching as far as Kesterson Reservoir, approximately 18 miles north of Los Banos, California, and approximately 60 miles south of the Drain's originally-planned terminus in the Delta. See Doc. 954, Ex. 3 (Doc. 379 (Amended Complaint)) at ¶¶ 26-30. In 1976, Reclamation began construction of a drainage collection system designed to collect subsurface drainage water from farmland in Westlands Water District ("Westlands"), one of the Districts in the SLU, and to carry the drainage to the San Luis Drain. Id. at ¶ 30. Flow of drainage to Kesterson began in 1980, but was halted in 1985 when it was discovered that, among other things, the young of wildlife residing in Kesterson were suffering from deformities caused by high concentrations of selenium concentrating in the Reservoir. See id. at ¶ 34 (citing State Water Resources Control Board Water Quality Order 85-1). In March of 1985, Reclamation announced it would take steps to close Kesterson. Id. The subsurface collection system was also plugged in 1985. Id. at ¶ 35.
In 1988, Firebaugh and CCID filed a complaint for damages and injunctive relief against the United States. Doc. 1. The original complaint alleged (1) continuing negligence; (2) continuing nuisance; (3) continuing trespass; and (4) a violation of the Administrative Procedure Act ("APA"), alleging that Reclamation's delivery of irrigation water to the SLU in the absence of drainage violated the San Luis Act. Firebaugh Plaintiffs sought to recover damages in tort and requested an injunction directing Reclamation to cease water deliveries to the SLU until adequate drainage facilities were in operation. Id. at p. 16. Westlands intervened as a defendant in the Firebaugh suit by stipulation of all parties. Doc. 21 (filed Apr. 25 1990).
In 1991, a group of landowners within the boundaries of Westlands, the "Sumner Peck Plaintiffs," sued the United States and Westlands for the government's failure to provide statutorily required drainage service, and for Westlands' failure to provide water service in a way that did not damage the Sumner Peck Plaintiffs' lands.
On May 26, 1992, the Court partially consolidated the Firebaugh (1:88-cv-00624) and Sumner Peck (1:91-cv-00048) cases "for purposes of determining the obligation imposed by the San Luis Act.. on the United States Department of the Interior, Bureau of Reclamation, to provide drainage service." Doc. 954, Ex. 1.
B.Phase I Motion for Partial Summary Judgment, Trial & Partial Judgment.
Both sets of plaintiffs moved for partial summary judgment as to Reclamation's drainage obligations under the San Luis Act. The Sumner Peck Plaintiffs sought only a declaration that the San Luis Act required Reclamation to construct the San Luis Drain and a drainage collector system. The Firebaugh Plaintiffs sought a declaration that the Act required Reclamation to provide drainage as a condition to supplying irrigation water to Westlands and that continuing to deliver water to the SLU without drainage violated the APA. The Firebaugh Plaintiffs further sought an injunction suspending delivery of irrigation water to Westlands' lands until adequate drainage facilities were in operation. See Doc. 954, Ex. 2 (May 17, 1993 Decision), at 2-3; see also Doc. 192. On May 14, 1993, the Court granted the Sumner Peck Plaintiffs' motion as to the drainage obligation under the San Luis Act, but denied the Firebaugh Plaintiffs' motion in its entirety, finding that the San Luis Act does not require the provision of drainage as a precondition of Reclamation's delivery of irrigation water. Id. at 17, 21 & n. 12, 22.
In granting the Sumner Peck Plaintiffs' motion for partial summary judgment, one issue remained to be determined: "whether the Secretary's statutory duty has been excused, and if not, how the duty can be performed." Id. at 22. The Court conducted a trial in 1994 to address whether the government's drainage obligation had been excused by reason of impossibility, supervening illegality, implied repeal, or other reason. Docs. 381-82, 385-86, 391-98, 416-17, 424. On the eve of trial, the Firebaugh Plaintiffs filed a First Amended Complaint, re-alleging that the San Luis Act required the United States to have drainage facilities "in place and operating at all times when the United States is delivering agricultural water to the San Luis Unit and Broadview District lands which cause rising groundwater levels in Firebaugh and CCID or drain into those areas" and that the United States' failure to do so was arbitrary and capricious in violation of the APA. Doc. 954, Ex. 3 at ¶¶ 48-49; see also Doc. 379 ¶¶ 47-49.
While the Firebaugh Plaintiffs did join the claims of the Sumner Peck Plaintiffs and Westlands calling for completion of the San Luis Drain, Firebaugh Plaintiffs participation in the trial was limited to an argument that if the drain was ordered constructed, it should be designed with sufficient capacity to permit Firebaugh Plaintiffs to utilize it under a contract with Reclamation. See Doc. 473 at 6.
"Partial Judgment" was entered March 10, 1995 on the issues raised during the cross motions for summary judgment decided in 1993 and the 1994 trial. Doc. 954, Ex. 4 (Doc. 422 ) ("1995 Partial Judgment"). The 1995 Partial Judgment held that the San Luis Act obligated Federal Defendants to construct the San Luis Drain and the drainage collector system in Westlands and to provide necessary drains as engineering features of the San Luis Unit. Id. at 5. It further held that the drainage obligation had not been excused. Id. at 5-7. The 1995 Partial Judgment also recognized a need for drainage service in Firebaugh Plaintiffs' lands, and indicated that Section 5 of the San Luis Act authorizes the Secretary of the Interior to permit use of the San Luis Drain by other parties. Id. at 8. The district court made explicit findings under Rule 54, concluding these "right-to-drainage claims" were clearly separable from the remaining claims; there was no just reason for delay in the entry of judgment; and entry of judgment would aid in the expeditious resolution of the case. Id. at 4-5. Federal Defendants were ordered to "without delay, take such reasonable and necessary actions to promptly prepare, file, and pursue an application for a discharge permit for the San Luis Drain to comply with section 1(a) of the San Luis Act to provide drainage to the San Luis Unit." Id. at 11-12. The district court also specifically "reserve[d] jurisdiction to enforce compliance with [its] order and to enable the parties to apply to this court for such other orders as may be necessary for the implementation of [the] judgment." Id. at 12.
C.Appeal from the 1995 Partial Judgment.
Federal Defendants appealed.*fn1 Briefing on the appeal was stayed more than a year while a Ninth Circuit mediator worked with the parties in an effort to reach a settlement. See Doc. 954, Ex. 5 (Doc. 504), at 3. While the mediation process was underway, Firebaugh Plaintiffs filed a motion seeking to amend the May 17, 1993 Decision denying Firebaugh Plaintiffs' motion for partial summary judgment. Id. at 2. Firebaugh Plaintiffs argued that the May ...