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United States v. State Water Resources Control Board

United States District Court, E.D. California

December 2, 2019

UNITED STATES OF AMERICA, Plaintiffs,
v.
STATE WATER RESOURCES CONTROL BOARD & STATE WATER RESOURCES CONTROL BOARD CHAIR E. JOAQUIN ESOUIVEL, in his official capacity, Defendants.

          ORDER RE MOTION TO DISMISS, RESOLVING ABSTENTION ISSUES AND REQUIRING FURTHER BRIEFING ON CERTAIN REMAINING ISSUES (ECF NO. 17)

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

         I. INTRODUCTION

         On March 28, 2019, Plaintiff United States of America filed two similar lawsuits, one in Sacramento County Superior Court, the other in this Court, concerning amendments adopted by Defendant State Water Resources Control Board (“State Water Board” or “the Board”) to the Water Quality Control Plan for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary (“Bay-Delta Plan Amendments, ” “Amendments, ” or “Amended Plan”). See ECF No. 1; ECF No. 18 (Request for Judicial Notice (“RJN”)), Ex. 6. The First Amended Complaint (“FAC”) in this (the federal) action raises three causes of action under the California Environmental Quality Act (“CEQA”), Cal. Pub. Res. Code §§ 21000 et seq.-(1) failure to provide an accurate, stable and finite project description; (2) improper compression of impacts and mitigation; and (3) failure to adequately evaluate impacts-along with (4) a cause of action based upon the federal constitutional intergovernmental immunity (“IGI”) doctrine. ECF No. 14. The United States' state court complaint alleges the same three causes of action under CEQA but omits the IGI claim. RJN, Ex. 6 (ECF No. 18-6).

         Before the Court for decision is Defendants' motion to dismiss. ECF No. 17. The motion argues dismissal of the entire lawsuit is warranted under four separate abstention doctrines: Brillhart/Wilton, Burford, Pullman, and Colorado River. The motion also argues that the IGI claim is unripe and fails as a matter of law on various grounds. Plaintiff opposed the motion. ECF No. 20, and Defendants replied, ECF No. 21. On November 4, 2019, the Court ordered supplemental filings on one of the abstention issues, resulting in additional briefing. See ECF Nos. 26 & 27. The matter was taken under submission on the papers pursuant to Local Rule 230(g). ECF No. 22.

         II. BACKGROUND

         A. Factual Background

         The history of regulation and litigation of issues related to the San Francisco Bay/Sacramento-San Joaquin Delta Estuary (“Bay-Delta”) is long, wide, and deep. Without question, the Bay-Delta itself is a critically important natural resource that is both the hub of California's water supply and a vital estuary and wetland supporting numerous beneficial uses. RJN, Ex. 1 at p. ES-1. Central to the present dispute is the fact that the State Water Board holds authority under California's Porter-Cologne Water Quality Control Act, Cal. Water Code § 13000, et seq., to adopt water quality control plans to protect the waters of California. The Board adopted its original Water Quality Control Plan for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary (“Bay-Delta Plan”) in 1978, and amended that plan in 1991, 1995, and 2006. RJN, Ex. 2, ¶ 3. The most recent effort to amend the Bay-Delta Plan began in 2009, and, over a nine-year period, the Board considered various amendments and prepared environmental documentation analyzing the potential environmental impacts of the Bay Delta Plan Amendments under CEQA. RJN Ex. 2, at ¶ 7; FAC ¶ 30.

         The Board held numerous publicly-noticed meetings and reviewed thousands of comments regarding the proposed Amendments and related drafts of the Substitute Environmental Document (“SED”) prepared in accordance with CEQA. RJN Ex. 2, at ¶ 7; FAC ¶ 30. On December 12, 2018, the Board adopted the SED and Amended Plan. RJN Ex. 2, at ¶ 7(g); FAC ¶ 31.

         In general, the Amendments are designed to accomplish several goals relevant to this case. First, they increase the flows required to be left in the three main salmon-bearing tributaries to the San Joaquin River (the Stanislaus, Tuolumne, and Merced Rivers) during critical months (February through June) RJN, Ex. 3, at 15, 25-27; FAC ¶¶ 32-34. These flow increases are designed to improve spawning, rearing, and migratory habitat conditions in the Lower San Joaquin River. RJN Ex. 1, at ES-8, n. 6, ES-12. The Board plans to implement the flow objectives “adaptively, ” within broad constraints, to adjust timing and flow patterns to better balance multiple beneficial uses when scientific information indicates doing so is appropriate. See RJN, Ex. 3, at 25-26.

         Second, the Amendments provide that the Board will include minimum reservoir carryover storage targets or other requirements to ensure that providing the flows to meet the objectives will not have adverse temperature or other impacts on fish and wildlife. RJN Ex. 3, at 24; FAC ¶¶ 38-39.

         Third, the Amendments revise southern Delta salinity objectives for agriculture by adjusting the salinity requirements/restrictions to a slightly higher level, ostensibly to reflect updated scientific knowledge of southern Delta salt levels that reasonably protect agriculture. RJN Eh. 3, at 34-35; Ex. 1, at ES-5. More specifically, the Amended Plan revises the salinity objective for agricultural beneficial uses by increasing the April through August salinity objective from a mean daily electrical conductivity (“EC”) of 0.7 deciSiemens per meter (“dS/m”) to 1.0 dS/m, resulting in a 1.0 dS/m salinity objective for the four compliance locations year-round. RJN Ex. 3, at 12-13, Table 2; see also FAC ¶ 14 (explaining that dS/m is a “widely accepted indirect method of determining the salinity of water”).

         Reclamation's existing water rights to operate the federal Central Valley Project (“CVP”), including its permits to operate the New Melones Project, a component of the CVP, currently require Reclamation to meet the existing salinity objective of 0.7 dS/m at these locations. FAC at ¶ 48; see RJN Ex. 3, at 34. The Amended Plan proposes to implement the salinity objective for the interior southern Delta by requiring Reclamation to continue operating to meet the 0.7 dS/m salinity limit at Vernalis as required by its existing water rights. RJN Exh. 3, at 34. The Amended Plan also proposes to implement the salinity objective through increased inflows provided by application of flow-based (as opposed to salinity-based) objectives for the Lower San Joaquin River. Id. at 38, ¶ vi.

         B. Procedural History in State Court

         On March 28, 2019, the United States filed substantially similar actions in Sacramento County Superior Court, RJN Ex. 6 (Sacramento Cty. Sup. Court No. 34-2019-80003111-CU-WM-GDS), and this Courtk, ECF No. 1. The action here invokes the jurisdiction of this court pursuant to 28 U.S.C. § 1345 (United States as Plaintiff), among other bases.

         The United States is not alone in challenging the Board's adoption of the Bay-Delta Plan Amendments. A total of twelve lawsuits were filed in state court between December 21, 2018, and April 22, 2019. RJN Ex. 4 (Order Granting Petition for Coordination and Motion for Stay), at 2-4; Ex. 5, at ¶ 5; Exs. 6-17. On February 21, 2019, the State Water Board filed a petition with the Judicial Council of California for coordination of the first nine cases. RJN Ex. 4.

         On May 29, 2019, the Board filed a motion to dismiss in this case, raising various abstention arguments. ECF No. 9. On June 19, 2019, the United States filed its FAC, adding the single IGI claim. ECF No. 14. With respect to the CEQA claims, the FAC seeks a declaratory judgment that the State Water Board violated CEQA and an injunction preventing implementation or enforcement of the Bay-Delta Plan Amendments. FAC, at 20 (Prayer). In the alternative, the FAC seeks a mandamus writ directing the board to vacate the SED, suspend all activity under the Amended Plan, and prepare, circulate, and consider a revised and legally adequate SED. Id. With respect to the IGI claim, the FAC seeks declaratory and injunctive relief. Id.

         On May 3, 2019, the United States filed a motion in state court to stay its state case pending resolution of its federal case.[1] On May 8, 2019, the coordination motion judge ordered eleven of the twelve cases coordinated, leaving the United States' case to be considered separately for coordination. RJN Ex. 4, at 5-6. On May 24, 2019, the State Water Board filed a Petition for Coordination of the United States case as an Add-on case. RJN Ex. 22. That motion is still pending.

         III. ANALYSIS

         A. Order of Analysis

         The focus of the pending motions is application of a variety of abstention doctrines. In addition, the Board has argued, primarily on ripeness grounds, that the Court lacks subject matter jurisdiction over the sole federal claim arising under the IGI doctrine. Normally, the Court would tackle the jurisdictional question first, for a variety of reasons. However, as discussed below, the Court is unable to decide definitively the ripeness question without further briefing. Moreover, because the United States invokes 28 U.S.C. § 1345 as a basis for jurisdiction, this Court arguably would have jurisdiction to hear the indisputably ripe CEQA claims even if no federal claim remained in the case. As such, the Court would be required to evaluate whether it should abstain from hearing the CEQA claims, even if the IGI claim were dismissed. In addition, the Court understands that the Superior Court for the County of Sacramento is awaiting this Court's decision on abstention before proceeding to rule on a motion to consolidate the United States' state CEQA claims with the numerous other CEQA cases challenging the Amended Plan which are already proceeding in that court. Finally, the Court believes the disposition of the IGI claim will make little or no difference to the outcome of the abstention analysis. As a result, the Court decides the abstention issues herein, declining to apply Brillhart/Wilton, Burford, or Pullman, but invoking Colorado River to stay only the CEQA claims in the FAC. The Court declines to stay the IGI claim and orders supplemental briefing on the justiciability issues raised in the pending motion.

         B. Abstention Doctrine Analysis

         The Court notes that the United States appears to suggest that Federal Rule of Civil Procedure 12(b)(6) provides the rule of decision for its various abstention doctrine arguments. See ECF No. 17 at 1-3. In Courthouse News Serv. v. Planet, 750 F.3d 776, 779 n. 2 (9th Cir. 2014), when discussing abstention under Pullman and O'Shea v. Littleton, 414 U.S. 488 (1974), the Ninth Circuit noted that it has “not squarely held whether abstention is properly raised under Rule 12(b)(6), Rule 12(b)(1), both, or neither.” In Courthouse, the Ninth Circuit determined it did not need to grapple with this distinction, because the defendant did not offer any evidence to contest the allegations in the complaint. Therefore, whether treated under Rule 12(b)(6), Rule 12(b)(1), or some other rubric, the abstention issues could be evaluated assuming the truth of the complaint's alleged facts. Id. at 779-80 & 779 n.2. This approach is appropriate here; the United States' invocation of only Rule 12(b)(6) in the context of its abstention doctrine arguments makes it clear that it does not intend to offer evidence in connection with these arguments.

         1. Brillhart/Wilton

         Defendants first argue that the abstention doctrine set forth in Brillhart v. Excess Insurance Co. of America, 316 U.S. 491 (1942), and its progeny, including Wilton v. Seven Falls Co., 515 U.S. 277 (1995), compels dismissal of the United States' complaint.

         The Declaratory Judgment Act (“DJA”) provides that “[i]n a case of actual controversy within its jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201(a) (emphasis added). If a lawsuit seeking federal declaratory relief meets the constitutional requirements of presenting an actual case and controversy and fulfills statutory jurisdictional prerequisites, the district court must also be satisfied, in its discretion, that entertaining the action is appropriate. Gov't Employees Ins. Co. v. Dizol, 133 F.3d 1220, 1222-23 (9th Cir. 1998) (en banc). “[T]he Declaratory Judgment Act is ‘deliberately cast in terms of permissive, rather than mandatory, authority'” and gives federal courts discretion to make a declaration of rights but does not impose a duty to do so. Id. at 1223 (quoting Public Serv. Comm 'n of Utah v. Wycoff Co., 344 U.S. 237, 250 (1952) (J. Reed, concurring)). The district court's discretion is not “unfettered”; instead, “[p]rudential guidance for retention of the district court's authority is found in Brillhart [], 316 U.S. 491');">316 U.S. 491 [ ], and its progeny.” Id. at 1223; Am. States Ins. Co. v. Kearns, 15 F.3d 142, 144 (9th Cir. 1994) (In Brillhart, “[t]he Supreme Court has provided guidance for the exercise of the district court's discretionary decision whether to entertain declaratory relief.”).

         The Ninth Circuit has read Brillhart to articulate three factors courts should consider when examining the propriety of entertaining a declaratory judgment action: (1) avoiding needless determination of state law issues; (2) discouraging litigants from filing declaratory actions as a means of forum shopping; and (3) avoiding duplicative litigation. Dizol, 133 F.3d at 1225; R.R. St. & Co. Inc. v. Transp. Ins. Co., 656 F.3d 966, 975 (9th Cir. 2011). These Brillhart factors are not exclusive and other factors for consideration when determining whether to exercise jurisdiction in declaratory judgment actions include:

whether the declaratory action will settle all aspects of the controversy; whether the declaratory action will serve a useful purpose in clarifying the legal relations at issue; whether the declaratory action is being sought merely for the purposes of procedural fencing or to obtain a ‘res judicata' advantage; or whether the use of a declaratory action will result in entanglement between the federal and state court systems. In addition, the district court might also consider the convenience of the parties, and the availability and relative convenience of other remedies.

Principal Life Ins. Co. v. Robinson, 394 F.3d 665, 672 (9th Cir. 2005) (quoting Dizol, 133 F.3d at 1225 n. 5). “Although courts may also consider a number of other factors, the three ‘Brillhart factors remain the philosophic touchstone'” for the analysis. RR. St. & Co., 656 F.3d at 975 (quoting Dizol, 133 F.3d at 1225). “Essentially, the district court ‘must balance concerns of judicial administration, comity, and fairness to the litigants.'” Robinson, 394 F.3d at 672 (quoting Kearns, 15 F.3d at 144).

         However, Brillhart only applies where the plaintiff exclusively seeks declaratory relief. Seneca Ins. Co., Inc. v. Strange Land, Inc., 862 F.3d 835, 840 (9th Cir. 2017) (“So long as the suit seeks more than merely declaratory relief, . . . the entire action should be analyzed under the Colorado River [Water Conservation District v. United States, 424 U.S. 800 (1976), ] framework.”). Where a complaint contains claims for both declaratory and other forms of relief, a court must determine whether a suit “exclusively seeks declaratory relief, ” by asking “whether there are claims in the case that exist independent of any request for purely declaratory relief, that is, claims that would continue to exist if the request for a declaration simply dropped from the case.” Id.

         Here, the FAC seeks both declaratory and injunctive relief as to each claim. FAC at 20-21. The Ninth Circuit provided some guidance about how to evaluate such claims in Scotts Co. LLC v. Seeds, Inc., 688 F.3d 1154, 1158-59 (9th Cir. 2012). There, a district court examined a complaint that sought both declaratory and non-declaratory relief, finding that all the claims shared a common request for an audit and that the plaintiff would have a basis for its non-declaratory claims only if the audit showed improprieties. Id. at 1159. The Ninth Circuit found this analytical approach inappropriate. Rather than searching for “overlapping facts, ” the question should have been whether the damages claim would be “viable without the declaratory claim.” Id.

         Here, with respect to the CEQA claims, the FAC does seek a declaratory judgment that the Board violated CEQA in its approval and adoption of the Amended Plan and Final SED. FAC at 20. But, the FAC also seeks preliminary and permanent injunctive relief that would prohibit the Board from taking any action to implement and/or enforce the Amended Plan unless and until the Board complies with CEQA. Id. In the alternative, the FAC seeks a mandamus writ directing the board to vacate and set aside its Final SED, suspend all activity under the Amended Plan and/or Final SED until the Board has complied with CEQA, and prepare and circulate a legally adequate SED or otherwise comply with CEQA in any subsequent action taken to approve the Amended Plan. Id. The injunctive and mandamus relief requested is not contingent upon the Court issuing a favorable declaration under the DJA. The Ninth Circuit has indicated in Vasquez v. Rackauckas, 734 F.3d 1025, 1040 (9th Cir. 2013), that the presence of a claim for injunctive relief is “independent” of a claim for declaratory relief. In Vasquez, the plaintiffs sought injunctive and declaratory relief in connection with their federal procedural due process claims. See Id. 1035, 1039-40. The defendants argued that, despite the presence of a prayer for injunctive relief, the case was subject to Brillhart abstention because injunctive relief would be predicated on an initial declaration that plaintiffs suffered a violation of their constitutional rights. Id. at 1040. The Ninth Circuit disagreed, finding the claim for injunctive relief to be “independent” of the claim for declaratory relief because “it would be viable without the declaratory claim.” Id. Other Ninth Circuit cases have clarified this analysis by pointing out how courts should not approach this issue. For example, in United National Insurance Co. v. R&D Latex Corp., 242 F.3d 1102, 1108-09, 1112 (9th Cir. 2001), the district court declined to exercise jurisdiction over case involving a request for a declaratory judgment on an insurer's duty to defend, even though the insurer had also filed a counterclaim for reimbursement. The Ninth Circuit noted that “[i]t appears the district court believed that, for purposes of this analysis, two claims are ‘independent of one another only if one can be resolved without disposing of the legal issues raised in the other.” Id. at 1112. “The proper analysis, ” according to the Ninth Circuit, is whether the non-declaratory claim is “independent in the sense that it could be litigated in federal court even if no declaratory claim had been filed.” Id. at 1113.[2]

         This reasoning seals the deal here. The request for injunctive relief against implementation of the Amended Plan until the Board complies with CEQA is no more contingent upon the declaratory relief than was the injunctive relief claim in Vasquez. In other words, the request for injunctive relief in the CEQA claims could be litigated even if no declaratory claim had been filed. No. doubt, the issuance of injunctive relief requiring compliance with CEQA would require a finding that the Board violated CEQA, but Vasquez makes it clear that this is not dispositive.

         Moreover, a Court has statutory authority under CEQA to require a public agency to void its decision, suspend project activities, or take specific action as may be required to bring the agency into compliance with CEQA. Cal. Pub. Res. Code § 21168.9; see, e.g., Seirra Club v. Tahoe Reg'l Planning Agency, 916 F.Supp.2d 1098, 1160 (E.D. Cal. 2013) (district court re-affirming its prior order under CEQA to require revision of a CEQA document as a remedy). Here, the alternative remedies requested in the CEQA claim are supported by statutory authority and do not depend on the issuance of declaratory relief.

         The United States' seeks both a declaratory judgment and preliminary and permanent injunctive relief in connection with its fourth claim based upon the IGI doctrine. FAC at 20-21. Vasquez controls as to that claim as well because the injunctive relief claim could be litigated in federal court even if the declaratory judgment claim did not exist. Even assuming, arguendo, that the IGI doctrine claim sought only declaratory relief, it would be of no moment to the applicability of Brillhart, because “[w]hen other claims are joined with an action for declaratory relief . . ., the district court should not, as a general rule, remand or decline to entertain the claim for declaratory relief.” Gov't Emps. Ins. Co. v. Dizol, 133 F.3d 1220, 1225 (9th Cir. 1998).

         The Board does not even attempt to address the above authorities in its reply. For all these reasons, the Court finds that Brillhart abstention does not apply to this case and declines to address the other Brillhart factors.

         2. Burford

         Defendants also contend abstention is appropriate here under Burford v. Sun Oil Co., 319 U.S. 315, 317-18 (1943). Under that doctrine, federal courts vested with jurisdiction may nonetheless “decline to rule on an essentially local issue arising out of a complicated state regulatory scheme.” Knudsen Corp. v. Nevada State Dairy Comm 'n, 676 F.2d 374, 376 (9th Cir. 1982) (citations omitted). Application of Burford generally requires:

first, that the state has chosen to concentrate suits challenging the actions of the agency involved in a particular court; second, that federal issues could not be separated easily from complex state law issues with respect to which state courts might have special competence; and third, that ...

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