The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
MEMORANDUM DECISION AND ORDER RE MOTIONS TO DISMISS (DOCS. 45 & 46)
This case concerns approval by the United States Department of the Interior and its member agency the United States Bureau of Reclamation (collectively, "Federal Defendants," "Reclamation," or the "Bureau") of eight (8) interim renewal contracts ("Interim Contracts") which authorize delivery of water from federal reclamation facilities to certain water districts served by the federal Central Valley Project ("CVP") and provide for repayment of capital construction costs, as well as operational and maintenance expenses associated with CVP facilities. First Amended Complaint ("FAC"), Doc. 47 at ¶ 2. Plaintiffs allege that Federal Defendants' issued a deficient Environmental Assessment ("EA") and associated Finding of No Significant Impact ("FONSI") prior to approval of the Interim Contracts in violation of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. Plaintiffs also allege that Federal Defendants should have prepared an Environmental Impact Statement ("EIS"), rather than an EA/FONSI, in connection with approval of the Interim Contracts.
Before the Court for decision is Federal Defendants' motion to dismiss the FAC pursuant to Fed. R. Civ. P. 12(b)(1), (6), and/or (7). Doc. 45. Intervenor Defendants Westlands Water District, San Luis Water District, and Panoche Water District join the Federal Defendants and add one unique argument to the dispute. Doc. 46. Plaintiffs oppose. Doc. 48. The Bureau and Defendant Intervenors replied. Docs. 49 & 50. The motions were taken under submission on the record without a hearing pursuant to Local Rule 230(g). Doc. 43 at 2.
The CVP is "a system of dams, reservoirs, levees, canals, pumping stations, hydropower plants, and other infrastructure that distributes water throughout California's vast Central Valley." San Luis Unit Food Producers v. United States, --- F.3d ---, 2013 WL 765206, *1 (9th Cir. Mar. 1, 2013) (internal citation and quotation omitted). "The Bureau is the agency within the Department of the Interior charged with administering the CVP." Id.
Congress initially prioritized the purposes of the CVP as follows: "[T]he said dam and reservoirs shall be used, first, for river regulation, improvement of navigation, and flood control; second, for irrigation and domestic uses; and, third, for power." CVP Act § 2 (1937) (emphasis added). However, Congress amended the CVP Act in 1992 with the Central Valley Project Improvement Act, Pub. L. No. 102--575, 106 Stat. 4600 ("CVPIA"), which re-prioritized the purposes of the CVP. O'Neill v. United States, 50 F.3d 677, 686 (9th Cir. 1995). The hierarchy of purposes now reads, "[T]he said dam and reservoirs shall be used, first, for river regulation, improvement of navigation, and flood control; second, for irrigation and domestic uses and fish and wildlife mitigation, protection and restoration purposes; and, third, for power and fish and wildlife enhancement." CVPIA § 3406(a)(2) (emphasis added); CVP Act § 2. The CVPIA also requires that the Bureau operate the CVP 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." CVPIA § 3406(b).
The CVPIA also provides for renewal of existing long-term water service contracts for successive periods of up to 25 years. CVPIA § 3404(c)(1), Pub. L. No. 102--575, 106 Stat. 4600 (1992).
The CVPIA specifically called for completion of a programmatic EIS pursuant to NEPA that would analyze the direct and indirect impacts and benefits of implementing this title, including all fish, wildlife, and habitat restoration actions and the potential renewal of all existing Central Valley Project water contracts. Such statement shall consider impacts and benefits within the Sacramento, San Joaquin, and Trinity River basins, and the San Francisco Bay/Sacramento-San Joaquin River Delta Estuary.
CVPIA § 3409. Renewal of any long-term (i.e., 25-year) contract may not be authorized by Reclamation "until appropriate environmental review, including the preparation of the [PEIS] required in section 3409... has been completed." CVPIA § 3404(c)(1). This requirement culminated in adoption of the Central Valley Project Improvement Act Final Programmatic Environmental Impact Statement ("CVPIA PEIS"), which was completed in 1999. FAC at p.12. In addition, Reclamation began the process of preparing project-level EISs for long-term contract renewals for the West San Joaquin Division and San Luis Contractors. Id. In September 2005, Reclamation prepared and released a draft EIS for these long-term contract renewals, but no final EIS has yet been adopted. See id.
The CVPIA provides for the eventuality that long-term contracts might expire prior to completion of appropriate environmental review:
Contracts which expire prior to the completion of the environmental impact statement required by section 3409 may be renewed for an interim period not to exceed three years in length, and for successive interim periods of not more than two years in length, until the environmental impact statement required by section 3409 has been finally completed, at which time such interim renewal contracts shall be eligible for long-term renewal as provided above. Such interim renewal contracts shall be modified to comply with existing law, including provisions of this title.
On or about February 29, 2012, Reclamation issued a FONSI and EA regarding the "Three Delta Division and Five San Luis Unit Water Service Interim Renewal Contracts 2012-2014." FAC ¶ 25. These documents purport to "tier" off of the CVPIA PEIS. Doc. 4-1, FONSI at 2.*fn1 Based on the FONSI and EA, Reclamation approved the eight Interim Contracts at issue in this case.*fn2 Id. Water delivery pursuant to the new two-year Interim Contracts commenced on March 1, 2012. Id.
Federal Defendants appear to invoke Federal Rule of Civil Procedure 12(b)(1), which provides for dismissal of an action for "lack of subject-matter jurisdiction," to argue that the FAC should be dismissed because Plaintiffs' failed to exhaust their administrative remedies. Although "[t]here is some uncertainty regarding whether a failure to exhaust administrative remedies is properly brought in a Rule 12(b)(1) motion as a jurisdictional defect, or in a Rule 12(b)(6) motion for failure to state a claim," Hall
v. Sebelius, 689 F.Supp.2d 10, 21-22 (D.D.C. 2009) (citing cases), the Ninth Circuit appears to treat failure to exhaust under the Administrative Procedure Act ("APA")*fn3 as a "legal question," subject to Rule 12(b)(6), rather than as a jurisdictional issue, see Nw. Envtl. Advocates v. E.P.A., 537 F.3d 1006, 1014 (9th Cir. 2008) (distinguishing between review of questions of subject matter jurisdiction and the "legal question of whether a plaintiff has exhausted the necessary administrative remedies").
Dismissal under Rule 12(b)(6) is proper where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In considering a motion to dismiss for failure to state a claim, the court generally accepts as true the allegations in the complaint, construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in the pleader's favor.
Lazy Y. Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). To survive a 12(b)(6) motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Even if this aspect of Federal Defendants' motion is subject to the Rule 12(b)(1) standard, this would be of little practical import. Faced with a Rule 12(b)(1) motion, a plaintiff bears the burden of proving the existence of the court's subject matter jurisdiction. Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996). A challenge to subject matter jurisdiction may be facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). As explained in Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1038 (9th Cir. 2004):
In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction. "If the challenge to jurisdiction is a facial attack, i.e., the defendant contends that the allegations of jurisdiction contained in the complaint are insufficient on their face to demonstrate the existence of jurisdiction, the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made." Cervantez v. Sullivan, 719 F. Supp. 899, 903 (E.D. Cal. 1989), rev'd on other grounds, 963 F.2d 229 (9th Cir. 1992). "The factual allegations of the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction." Id.; see also Cassirer v. Kingdom of Spain, 580 F.3d 1048, 1052 n. 2 (9th Cir. 2009), rev'd on other grounds en banc, 616 F.3d 1019 (9th Cir. 2010) (applying Iqbal, 556 U.S. 662, to a facial motion to dismiss for lack of subject matter jurisdiction). Here, although the parties do reference documents subject to judicial notice and/or attached to the Complaint, Defendant does not offer any additional evidence in support of its jurisdictional arguments. This is a facial Rule 12(b)(1) attack.
2.Exhaustion Requirement and Waiver Jurisprudence.
The APA requires that plaintiffs exhaust administrative remedies before bringing suit in federal court. Great Basin Mine Watch v. Hankins, 456 F.3d 955, 965 (9th Cir. 2006). In the NEPA context, this means that a plaintiff "must structure [its] participation so that it ... alerts the agency [of its] positions and contentions, in order to allow the agency to give the issue[s] meaningful consideration." Id. (quoting Dep't of Transp. v. Public Citizen, 541 U.S. 752, 764--65 (2004)). The purpose of the exhaustion requirement is to avoid premature claims and to ensure the agency is given "a chance to bring its expertise to bear to resolve a claim." Id. "[A] claimant need not raise an issue using precise legal formulations, as long as enough clarity is provided that the decision maker understands the issue raised." Lands Council v. McNair, 629 F.3d 1070, 1076 (9th Cir. 2010)(internal quotation and citation omitted). Accordingly, "alerting the agency in general terms will be enough if the agency has been given a chance to bring its expertise to bear to resolve the claim." Id. If a plaintiff fails to meet exhaustion requirements, its claim is waived. See Public Citizen, 541 U.S. at 764--65.
Several district courts, including several within this Circuit and one within this District, have concluded that comments submitted by third parties may form the basis of a NEPA lawsuit, so long as the comments brought sufficient attention to the issue. See Wyoming Lodging and Restaurants Ass'n v. United States Dep't of Interior, 398 F. Supp. 2d 1197, 1210 (D. Wyo. 2005) ("[S]o long as the agency is informed of a particular position and has a chance to address that particular position, any party may challenge the action based upon such position whether or not they actually submitted a comment asserting that position."); Benton County v. United States Dept. of Energy, 256 F. Supp. 2d 1195, 1198-99 (E.D. Wash. 2003) ("[A] plaintiff, or another, must bring sufficient attention to an issue to stimulate the agency's attention and consideration of the issue during the environmental analysis comment process.")(emphasis added); Conservation Congress v. United States Forest Service, 555 F. Supp. 2d 1093, 1106 (E.D. Cal. 2008)(rejecting agency argument that plaintiffs failed to raise an issue at the administrative level because "[t]here is no need for a litigant to have personally raised the issue, so long as the issue was raised by another party and the agency had the opportunity to consider the objection"); see also Kern v. Bureau of Land Management, 38 F. Supp. 2d 1174, 1180 (D. Or. 1999)("There is no need for a litigant to have personally raised the issue, so long as the issue was raised by another party and the agency had the opportunity to consider the objection."), rev'd on other grounds 284 F.3d 1062 (9th Cir.); see also City of Sausalito v. O'Neill, 211 F. Supp. 2d 1175, 1198, n. 3 (N.D. Cal. 2002), aff'd in part and rev'd in part on other grounds 386 F.3d 1186 (9th Cir. 2004) (where "all the issues were raised by some participant in the proceedings," this "gave the agency an opportunity to address them in the administrative process prior to litigation).*fn4
Here, Plaintiffs point to a comment letter submitted by a coalition of other environmental groups on the "Draft EA/FONSI for the Three Delta Division and Five San Luis Unit Water Service Interim Renewal Contracts 2012-2014." Doc. 34-4.*fn5 The content of the FAC appears to track the letter almost exactly, and the letter, although it "need not raise an issue using precise legal formulations," certainly provides "enough clarity [to ensure] the decision maker understands the issue raised." Lands Council, 629 F.3d at 1076. Defendants do not suggest otherwise.
Federal Defendants' motion to dismiss the FAC for failure to exhaust, which has been joined by Defendant Intervenors, is DENIED.
B.Motion to Dismiss NEPA Claims.*fn6
"NEPA is our 'basic national charter for protection of the environment.' " Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin., 538 F.3d 1172, 1185(9th Cir. 2008) (quoting 40 C.F.R. § 1500.1). "Although NEPA does not impose any substantive requirements on federal agencies, it does impose procedural requirements." N. Idaho Cmty. Action Network v. U.S. Dept. of Transp., 545 F.3d 1147, 1153 (9th Cir. 2008). "Through these procedural requirements, NEPA seeks to make certain that agencies will have available, and will carefully consider, detailed information concerning significant environmental impacts, and that the relevant information will be made available to the larger public audience. " Id. (internal citations and quotations omitted).
NEPA requires federal agencies to analyze the potential environmental impacts of any "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). Federal Defendants do not here dispute that approval of the Interim Contracts constituted a "major federal action."*fn7 When an agency takes major federal action, the agency must prepare an EIS "where there are substantial questions about whether a project may cause significant degradation of the human environment." Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1239 (9th Cir. 2005). An agency may choose to prepare an environmental assessment ("EA") to determine whether an EIS is needed. 40 C.F.R. §§ 1501.4, 1508.9(b). An EA is meant to be a "concise public document . that serves to," among other things "[b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact." 40 C.F.R. § 1508.9; see also Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1225 (9th Cir.1988); 40 C.F.R. 1501.4(e).
2.The NEPA Claims in this Case.
The FAC contains two separate NEPA claims. The first alleges Federal Defendants violated NEPA by preparing an inadequate EA. Specifically, Plaintiffs allege that the EA and FONSI were unlawful because:
(1) "The EA fails to identify and analyze the interim contracts' principal environmental impacts because it assumes incorrectly that Reclamation's continued delivery of water in the same quantities is the baseline or background against which to measure the interim contracts' impacts." FAC ¶ 33a.
(2) The EA fails to consider a reasonable range of alternatives, having considered only the Proposed Action and the No Action Alternative, which are effectively the same with one small pricing difference. Alternatives proposing reduced "quantities of water deliveries" and/or "alternatives that increased prices and thereby reduced the interim contractors' demand for CVP water" were eliminated from consideration. FAC ¶ 33b; see also FAC ¶ 31 (the EA and FONSI are based "on the false premise that in renewing the interim contracts it had no discretion to reduce or eliminate water deliveries").
(3) The EA uses an "unduly narrow" study area, thereby ignoring the environmental impacts of the interim contracts' water deliveries on the source watersheds, imperiled fish and wildlife living there, water quality and fish species in San Joaquin Valley watercourses, and on the Delta. FAC ¶ 33c.
(4) The EA failed to consider the effect of water deliveries on Reclamation's compliance with other environmental laws, such as the ESA, the Clean Water Act, 33 U.S.C. § 1251 et seq., and the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq. FAC ¶ 33d.
(5) The EA ignores the cumulative impacts of all the interim contract renewals. FAC ¶ 33e.
The Second Claim for Relief alleges generally that approval of each of the Interim Contracts "is a major federal action that may significantly affect the quality of the human environment" requiring preparation of an EIS, which indisputably has not occurred. FAC ¶¶ 35-37.
3.The No Action Alternative.*fn8
Federal Defendants directly challenge Plaintiffs' allegation that the EA utilized an improper "no action" alternative. Doc. 45 at 10-12. Among the alternatives required to be discussed in every EA or EIS is the "no action" alternative. 40 C.F.R. § 1502.14.*fn9 "A no action alternative in an [EA or] EIS allows policymakers and the public to compare the environmental consequences of the status quo to the consequences of the proposed action." Ctr. for Biological Diversity v. U.S. Dept. of Interior, 623 F.3d 633, 642 (9th Cir. 2010). "The no action ...