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San Luis & Delta-Mendota Water Authority v. Jewell

United States District Court, E.D. California

April 17, 2017

SAN LUIS & DELTA-MENDOTA WATER AUTHORITY and WESTLANDS WATER DISTRICT, Plaintiffs,
v.
SALLY JEWELL, et al., Defendants, THE HOOPA VALLEY TRIBE; THE YUROK TRIBE; PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS; and INSTITUTE FOR FISHERIES RESOURCES, Defendant-Intervenors.

          MEMORANDUM DECISION AND ORDER DISMISSING FIRST THROUGH FIFTH CLAIMS AS MOOT AND REQUESTING SUPPLEMENTAL BRIEFING ON PLAINTIFFS' STANDING TO PURSUE SIXTH THROUGH EIGHTH CLAIMS

          LAWRENCE J. O'NEILL, UNITED STATES CHIEF DISTRICT JUDGE

         I. INTRODUCTION

         This case concerns the U.S. Bureau of Reclamation's (“Reclamation” or “the Bureau”) decision to make certain “Flow Augmentation” releases (“FARs”) of water in August 2014 (“2014 FARs”) and 2015 (“2015 FARs”) from Lewiston Dam, a feature of the Trinity River Division (“TRD”) of the Central Valley Project (“CVP”). ECF No. 1. The stated purpose of FARs is to “reduce the risk of an adult fish kill in the lower Klamath River.” Environmental Assessment, 2015 Lower Klamath River Late-Summer Flow Augmentation from Lewiston Dam, EA-15-04-NCAO (August 2015) (“2015 EA”), Administrative Record (“AR”) 1189; AR 5170 (Decision Memorandum Re 2014 FARs). Plaintiffs, the San Luis & Delta Mendota Water Authority (“Authority”) and Westlands Water District (“Westlands”), allege that by approving and implementing the 2014 and 2015 FARs, Reclamation and its parent agency, the U.S. Department of the Interior (“Interior”) (collectively, “Federal Defendants”), acted in excess of existing statutory authorities (First and Second Claims for Relief); violated reclamation law by delivering water as part of the 2015 FARs pursuant to the second proviso of Section 2 of the Act of August 12, 1955, Pub. L. No. 84-386, 69 Stat. 719 (“1955 Act”), without first entering into a contract for delivery of that water that meets the requirements of reclamation law and policy (Third Claim for Relief); violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., by, among other things, approving and implementing the 2014 and 2015 FARs without first preparing an Environmental Impact Statement (“EIS”) (Fourth and Fifth Claim for Relief); and violated the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531 et seq., and the Magnuson-Stevens Fishery Conservation and Management Act of 1976 (“MSA”), 16 U.S.C. §§ 1801 et seq., by implementing the 2015 FARs without first engaging in required consultation with relevant federal wildlife agencies (Sixth, Seventh, and Eighth Claims for Relief). ECF No. 1.

         II. BACKGROUND

         This case follows on the heels of a closely related case, San Luis & Delta Mendota Water Auth., et al. v. Jewell, et al., 1:13-cv-01232 LJO GSA (“Jewell I”), which involved similar claims challenging FARs in 2012 and 2013, a series of emergency motions filed and decided in the late summer of 2013 and 2014, as well as a highly complex round of motions for summary judgment, decided October 1, 2014. See San Luis & Delta Mendota Water Auth. v. Jewell, 52 F.Supp.3d 1020 (E.D. Cal. 2014) (“Jewell I MSJ Order”), aff'd in part and rev'd in part sub nom. by San Luis & Delta-Mendota Water Auth. v. Haugrud, 848 F.3d 1216, 1221 (9th Cir. 2017). The Jewell I MSJ Order held that while the Trinity River Record of Decision (“TRROD”) did set maximum limits on, as well as minimum requirements for, releases from TRD, because the TRROD was limited in geographic scope to the Trinity River basin, the TRROD's maximum flow limitations did not absolutely preclude Federal Defendants from releasing water from TRD above and beyond those maximums, if the releases were intended to benefit interests outside the Trinity River basin. 52 F.Supp.3d at 1045-51. The Jewell I MSJ Order then examined the alternative sources of authority cited by Federal Defendants, including the first proviso of Section 2 of the 1955 Act (“Proviso 1”), which states that the Secretary of the Interior is “authorized and directed to adopt appropriate measures to insure the preservation and propagation of fish and wildlife, including, but not limited to the maintenance of the flow of the Trinity River below the diversion point....” Id. at 1059-60. The Jewell I MSJ Order concluded that the authority provided by Proviso 1 was similarly limited to the Trinity River basin and therefore was capped in practical effect by the TRROD's maximum flow prescriptions. Id. at1057-63. The Court noted the absence of any indication in the plain language or legislative history of the 1955 Act of intent to extend the reach of the Act beyond the Trinity River basin. Critical to the Court's reasoning was the fact that an important study that formed the underpinning of the TRROD indicated its recommendations, which were eventually incorporated into the TRROD, were “designed to fulfill fish and wildlife protection mandates of the 1955 Act.” Id. at 1059. This unequivocal statement that the study underpinning the TRROD was designed to “fulfill” the mandates of Proviso 1 undercut the rational validity of Federal Defendants' position to the contrary in the prior lawsuit (and reiterated in this one) that Proviso 1 provides authority to make releases above and beyond the TRROD's maximums to benefit fish in the lower Klamath. Id. An appeal from this decision was timely taken.

         In the late summer of 2014, Reclamation finalized plans to make FARs from the TRD to prevent a salmon kill on the lower Klamath River. AR 5170. Reclamation released a total of 64, 000 acre-feet (“AF”) from TRD storage in connection with the 2014 FARs. AR 1188.

         Toward the end of the following summer of 2015, Reclamation again made plans to make FARs from the TRD. See AR 1187-1198. For this planned set of FARs, Reclamation prepared an EA pursuant to NEPA. AR 1182-1243 (dated August 18, 2015). The EA specifically relied upon both Proviso 1 (noting that the Jewell I MSJ Decision was on appeal) and, as an alternative basis for the FARs, the second proviso of the 1955 Act (“Proviso 2”), which provides that “not less than 50, 000 acre-feet shall be released annually from the Trinity Reservoir and made available to Humboldt County and downstream users.” AR 1191. The EA cited as support for this reliance a December 23, 2014 Opinion of the Office of the Solicitor of the Department of Interior, which concluded that Proviso 2 represents a separate and independent limitation on the integration of the TRD, and thus the diversion of water to, the CVP. See AR 1189 (citing Solicitor's Opinion M-37030, available at https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37030.pdf (last visited April 14, 2017)).

         Shortly after the EA was released, Plaintiffs filed this lawsuit along with motions for a temporary restraining order and preliminary injunction on August 24, 2015. ECF Nos. 1, 2, 5. On August 26, 2015, the Court denied Plaintiffs' requests for injunctive relief, finding Plaintiffs' likelihood of success on the merits to be “far from clear” and that the “balance of the harms tips strongly in favor of allowing the FARs to proceed.” ECF No. 45 at 6. The case proceeded, with the Court resolving a motion to complete the administrative record in June 2016. ECF No. 88. Opening briefs in connection with the now-pending cross-motions for summary judgment were filed in August 2016, with the final brief filed in early November 2016.

         While the cross motions were under submission, in February 2017, the Ninth Circuit affirmed in part and reversed in part the Jewell I MSJ Decision, finding that Proviso 1 was unambiguous and “intended to delegate broad authority, ” including authority to make the FARs “to protect fish downstream from Lewiston Dam, which includes the lower Klamath River.” Haugrud, 848 F.3d at 1231. Among other things, the Ninth Circuit addressed the asserted ESA claim, finding Plaintiffs lacked standing to bring that claim because they “have not demonstrated a reasonable probability that the alleged failure to conduct an [ESA] section 7 consultation will threaten their economic interests.” Id. at 1234.

         On February 24, 2017, the Court ordered the parties to submit a status report addressing the Court's tentative finding that, in light of Haugrud, “a substantial majority of the issues raised in the pending cross-motions for summary judgment may now be moot.” ECF No. 119. The responsive joint status report was filed March 31, 2017. ECF No. 122.

         III. ANALYSIS

         A. The First through Fifth Claims are Moot

         1. Mootness Standard Generally

         An issue is moot “when the issues presented are no longer ‘live' or the parties lack a legally cognizable interest in the outcome.” City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000). “The underlying concern is that, when the challenged conduct ceases such that there is no reasonable expectation that the wrong will be repeated, then it becomes impossible for the court to grant any effectual relief whatever to the prevailing party.” Id. (internal citations and quotations omitted). If the parties cannot obtain any effective relief, any opinion about the legality of a challenged action is impermissibly advisory. Id. “Mootness has been described as the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n. 22 (1997) (internal citation and quotation omitted). “[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Id. at 67.

         “The party asserting mootness has a heavy burden to establish that there is no effective relief remaining for a court to provide.” In re Palmdale Hills Property, LLC, 654 F.3d 868, 874 (9th Cir. 2011). Mootness is evaluated on a claim-by-claim basis. Pac. Nw. Generating Co-op. v. Brown, 822 F.Supp. 1479, 1506 (D. Or. 1993), aff'd, 38 F.3d 1058 (9th Cir. 1994) (citing Headwaters, Inc. v. Bureau of Land Management, 893 F.2d 1012, 1015-16 (9th Cir. 1989) (separately addressing mootness as to different forms of relief requested)); see also In re Pac. Lumber Co., 584 F.3d 229, 251 (5th Cir. 2009) (evaluating mootness on a claim-by-claim basis).

         An otherwise moot claim may nevertheless be justiciable if one of three exceptions to the mootness doctrine applies: (1) where a plaintiff “would suffer collateral legal consequences if the actions being appealed were allowed to stand”; (2) where defendant voluntarily ceased the challenged practice; or (3) for “wrongs capable of repetition yet evading review.” Ctr. for Biological Diversity v. Lohn, 511 F.3d 960, 964-66 (9th Cir. 2007).

         2. Claims Challenging the ...


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