United States District Court, E.D. California
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
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).
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.
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.
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.
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.
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.
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”).
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.
Procedural History in State Court
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.
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.
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
3, 2019, the United States filed a motion in state court to
stay its state case pending resolution of its federal
case. 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
Order of Analysis
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
Abstention Doctrine Analysis
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.
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.
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
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
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).
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.”
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
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.
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.
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
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).
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.
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 ...