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San Luis & Delta-Mendota Water Authority v. United States Department of Interior

United States District Court, E.D. California

October 17, 2012

SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, et al., Plaintiffs,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants.

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Andrew Paul Tauriainen, Hanspeter Walter, Rebecca Rose Akroyd, Daniel Joseph O'Hanlon, Kronick Moskovitz Tiedemann & Girard, Sacramento, CA, for Plaintiffs.

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Charles Ray Shockey, United States Department of Justice, Sacramento, CA, for Defendants.

ORDER RE DEFENDANTS' MOTION TO DISMISS FOR LACK OF STANDING AND FOR FAILURE TO CHALLENGE A FINAL AGENCY ACTION (DOC. 69)

LAWRENCE J. O'NEILL, District Judge.

I. INTRODUCTION

This case presents a conflict between two provisions of the 1992 Central Valley Project Improvement Act (" CVPIA" ), Pub. L. No. 102-575, 106 Stat. 4700 (1992). CVPIA § 3406(b)(2) requires the Secretary of the Interior (the " Secretary" ) 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" ), which in turn requires the Bureau of Reclamation (" Reclamation" ) to export as much water as possible when the Delta is in " excess water" [1] 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 9, 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 move to dismiss this case pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, arguing: (a) that Plaintiffs lack Article III standing; and (b) have failed to challenge a final agency action. Doc. 60. Plaintiffs opposed the motion and attached the supporting declarations of Russell Freeman, Daniel G. Nelson, and James Snow. Docs. 70-70-5. Defendants replied and attached the Third Declaration of Paul Fujitani. Doc. 71-71-2. The motion was originally set for hearing on February October 1, 2012, but the hearing was vacated and the matter submitted for decision on the papers. Doc. 72.

II. BACKGROUND

A. CVPIA § 3406(b)(2).

CVPIA § 3406(b)(2), which has been extensively litigated in this Court and the Ninth Circuit, provides:

(b) FISH AND WILDLIFE RESTORATION ACTIVITIES.— The Secretary, 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

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interest, is further authorized and directed to:

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(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).

Previous decisions in this case and in consolidated cases concerning § 3506(b)(2) comprehensively recount more than ten years of litigation on this subject, which need not be repeated herein. See Doc. 66; 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" ). It is against this backdrop that Plaintiffs now complain for the first time that Federal Defendants acted unlawfully by allocating water pursuant to (b)(2) during periods when the Delta is in " excess water conditions."

B. The Coordinated Operations Agreement.

The COA, adopted by both the federal government and the State of California, was enacted as federal law in 1986 as Pub. L. No. 99-546, § 103, which amended § 2 of the Act of August 26, 1937, 50 Stat. 850, by inserting the following new subsection: " (d) The Secretary is authorized and directed to execute and implement the ‘ 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’ dated May 20, 1985." The United States and the State of California signed the COA, effective on November 24, 1986. COA, § 1.

This statutory directive for the Secretary to comply with the COA was enacted as part of the 1992 CVPIA. Section 3411(b) of the CVPIA states:

SEC. 3411— COMPLIANCE WITH STATE WATER LAW AND COORDINATED OPERATIONS AGREEMENT.
(b) The Secretary, in the implementation of the provisions of this title, shall fully comply with the United States' obligations as set forth in the " 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" dated May 20, 1985, and the provisions of Public Law 99-546; and shall take no action which shifts an obligation ...

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