San Luis Unit Food Producers, et al v. United States of America, et al, No. 1:2009cv01871 - Document 54 (E.D. Cal. 2011)

Court Description: MEMORANDUM DECISION Re Defendants' motion for judgment on the pleadings 24 , and Plaintiffs' motion for summary judgment and cross motion 17 , signed by Judge Oliver W. Wanger on 2/16/11. (Coffman, Lisa)

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San Luis Unit Food Producers, et al v. United States of America, et al Doc. 54 1 2 3 UNITED STATES DISTRI CT CO URT 4 FOR THE EASTERN DISTRICT OF C ALIFORNIA 5 6 SAN LUIS UNIT FOOD P RODUCERS, et al., 7 8 9 10 Plaintiff s, v. UNITED S TATES OF AME RCIA; DEPARTME NT OF THE IN TERIROR; BUREAU O F RECLAMATIO N, 11 14 15 16 17 MEMORANDUM DEC ISION RE DEFENDANTS’ MO TION F OR JUDGMENT ON TH E PLEADINGS (DOC . 24) AND PLAINTIFFS’ MO TION F OR SUMMARY JUDGME NT (DO C. 17) Defendant s. 12 13 1:09-cv-01871 OWW DL B I. INTRODUCTION This cas e concerns t he ongoing operation of the S an Luis Uni t (the “Unit ”) of the Central Valle y Project (“CVP”). Plaintiffs , San Luis Unit Food Producer s (“Food Producer s”), an unin corporated association whose members 18 include owners, oper ators, and managers of agricu ltural 19 land in the Unit and their allied customers and 20 supplier s, and vario us in divi duals and entities t hat own 21 land and /or farm in the Unit, claim that various 22 23 24 25 provisio ns of U.S. R eclamation law mandate that t he Unit be opera ted to: (a) “provide farmers with irrigat ion water se rvice” (Doc. 1, Compl. at ¶2); (2) “exerc ise the 26 water ri ghts o btained to divert, store, con vey, a nd 27 deliver the water ne cessary to irrigated project lands” 28 (id. at ¶3); and (3) “sell project water to irrigators 1 Dockets.Justia.com 1 ... in o rder to reco up the costs of construction and 2 operatio n and mainte nance of water supply works p rovid ing 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 irrigati on” (i d. at ¶4). Plaintiffs genera lly allege that the Department of the Interior and its Burea u of Reclamat ion (“Reclam ation” or “Bureau”) (collecti vely, “Federal Defendants” ) have managed the Unit in re cent years in violation o f these mandates: 10. In recen t years, how ever, pursuant to a highly c ontroversial new practice, defendants have unl awfully with held from Unit farmers the irrigati on water ser vice mandated by federal reclamat ion statutes . Defendants are not operatin g certain pumps, dams, canals, and other faciliti es they prev iously built to provide such service, and such fa cilities now sit effectively idle. De fendants do not now exercise the water rights t o bring abou t use of the water at the place an d for the pu rpose of the appr opriation. Defendan ts no longer sell project water to Unit irrigato rs, but allo w virtually all of the water to be us ed without c harge for other purposes and in other places. In the absence of defendants’ obedienc e to the abo ve statutory mandates, plaintif fs’ lands an d trees are being destroyed, and thei r farming op erations are suffering massive and possibly fatal losses. 11. The firs t sentence o f Section 1(a) of the 1960 Act authorizes construction and operation of the U nit as an in tegral part of the CVP for the “pri ncipal purpo se” of furnishing water for the irri gation of la nds in the Unit service area and, in addition, fo r several other specified purposes “as inciden ts thereto.” But, as a result o f defendants ’ recent statutory violatio ns, the prin cipal purpose of the Unit is being tr eated as if it were, at most, a mere incident al purpose, and a purpose designated as incident al is being treated as if it were the principa l purpose. T he defendants have unlawful ly turned th e Unit on its head. Id. at ¶ ¶ 10-1 1. Federal Defendants m ove for judgment on the plead ings 2 1 that: 2 (1) The United State s has not waived its 3 sovereig n immunity t o Plaintiffs’ claims; and 4 5 6 7 8 9 (2) The Court lacks subject matter jurisdiction. Doc. 25. Plaintiffs oppose. Defendants rep lied. Doc. 36. Federal Doc. 45. Plaintif fs’ cross-move fo r judgment on the pleadi ngs, arguing that: 10 (1) The Court has su bject matter jurisdiction; 11 (2) The APA provides an applicable waiver of 12 sovereig n immunity; 13 (3) Plai ntiffs have standing to sue; 14 (4) Plai ntiffs have exhausted any req uired 15 administ rative remed ies; 16 17 (5) The action is no t barred by the statute of 18 limitati ons; 19 (6) The action is no t barred by laches; 20 (7) Plai ntiffs are e ntitled to declaratory and 21 22 23 24 injuncti ve relief. Doc. 18 at 5-1 1. In addition, Plaint iffs move fo r summary judgment tha t Defendants are violating fi fteen 25 (15) Rec lamation sta tutes. 26 allege: Specifically, Plainti ffs 27 28 3 1 (1) Five provisions of reclamation law mandate 2 that Fed eral Defenda nts operate project 3 4 5 6 7 faciliti es to provid e irrigation water service, namely: (a) The seco nd sentence of Section 1(a) of the 1960 Act; 8 (b) 9 Reclamat ion Act; 10 (c) Section 6 of the 190 2 Act; 11 (d) The seco nd proviso o f Section 2 of the 12 13 14 15 16 17 A 1920 A mendment to the 1902 1937 Act ; (e) The four th proviso o f Section 2 of the 1937 Act ; (2) The following fo ur Reclamation statutes mandate that defenda nts exercise water rights: 18 (a) The 1920 amendme nt to the 1902 Act; 19 (b) The last sentenc e of Section 1(a) of the 20 21 22 23 24 1960 Act ; (c) The proviso of S ection 8 of the 1960 Act; (d) Section 8 of the 1902 Act ; and 25 (3) The following si x statutes mandate that 26 Defendan ts sell irri gation water to farmers to 27 recoup p roject costs : 28 4 1 (a) Sect ion 4 of the 1902 Act; 2 (b) A 19 14 amendment to the 1902 Act 3 (c) A 19 26 amendment to the 1902 Act 4 (d) A 1939 amendment to the 1 902 Act 5 (e) Sect ion 1(5) of the 1956 amendments to 6 the 1902 Act 7 8 (f) Anot her provisio n of the 1956 amendments 9 to the 1 902 Act. 10 Doc. 18. 11 judgment on the plea dings and the motion for summ ary 12 judgment . 13 Doc. 38. Plaintiffs replied. Doc. 43 . 1 Oral arg ument was he ard on August 3, 2010, at whi ch 14 15 Federal De fendants oppose both the moti on for time the parties wer e granted leave to submit 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Pl ai nt if fs r eq ue st j udi ci al n ot ic e of a n um be r of d oc um ent s, inc lu di ng n um er ou s re por ts a nd f ac t sh ee ts i ss ue d by t he Bu re au o f Rec la ma ti on a nd o th er fe de ra l ag en c ies ; fi nd in gs o f fa ct an d ot he r cou rt o rd er s an d ju dg men ts f il ed i n re la te d li ti ga ti on ; and dec la ra ti on s fi le d by a Bu re au o f R ecl am at io n em pl oy ee i n r el at ed lit ig at io n. Fe de ra l Rul e of E vi de n ce 20 1( b) p er mi ts j ud ici al n ot ic e of fa ct s “n ot s ub je ct to r ea so na bl e di sp ut e in t ha t it i s e it he r (1 ) gen er al ly k no wn w it hi n t he t er ri to r ial j ur is di ct io n of t he tr ia l cou rt o r (2 ) ca pa bl e of ac cu ra te a n d r ea dy d et er mi na ti on by r es or t to so ur ce s wh os e ac cu rac y ca nn ot r e aso na bl y be q ue st io ne d.” As t o tho se d oc um en ts t he c ont en ts o f wh i ch ar e di sp ut ed : [A] c ou rt c an o nl y ta ke ju di ci al n o tic e of t he e xi st en ce of tho se m at te rs o f pu bl ic re co rd ( th e ex is te nc e of a m ot io n o r of rep re se nt at io ns h av in g b ee n ma de t h ere in ) bu t no t of t he ver ac it y of t he a rg um ent s an d di sp u ted f ac ts c on ta in ed t her ei n. Sim il ar ly , a co ur t ma y t ak e ju di ci a l n ot ic e of t he e xi st enc e of cer ta in m at te rs o f pu bli c re co rd . A co ur t ma y no t ta ke j udi ci al not ic e of o ne p ar ty ’s op in io n of h o w a m at te r of p ub li c rec or d sho ul d be i nt er pr et ed . Uni te d St at es v . S. C al. E di so n Co . , 3 00 F . Su pp . 2d 9 64 , 9 74 ( E. D. Cal . 20 04 ) (c it at io ns om it te d) ( em p has is i n or ig in al ). 5 1 suppleme ntal briefs on a limited range of issues. 2 52 and 5 3. Docs. Those br iefs have also been considere d. 3 4 5 6 II. LEGAL & FACTUA L BACKGROUN D. A. History and Original Purposes of the CVP. The Recl amation Act of 1902 (“1902 Act”), Pub. L. 57- 7 161, 32 Stat. 388 (c odified as amended at 43 U.S. C. §§ 8 371-600e ), “se t in motion a massive program to provide 9 federal financing, construction, and operation of wate r 10 11 12 13 14 storage and distribu tion projects to reclaim arid lands in many Western Stat es.” Orf f v. United States, 545 U.S. 596, 598 (2005) (cit ing Calif ornia v. United States, 438 U.S. 645 , 650 (1978) ). In the 1902 Act, “Congress 15 committe d itself to the task of constructing and 16 operatin g dams, rese rvoirs and canals for the rec lamation 17 of the a rid lands in 17 western states.” 18 Dept. of the Interio r, 899 F.2d 799, 802 (9 th Cir. 199 0). 19 20 21 22 Peterso n v. Its goal s were “to p romote the growth of an agric ultural society in the West. ” Id. at 803. “The purpose of th e original 1902 Act wa s to encourage people to go W est, ... 23 to grow crops on mod est family farms in the count ry’s 24 drier re gions so tha t the nation’s agricultural b ounty 25 would in crease .” 26 Water Di strict, 899 F.2d 814, 815 (1990). 27 Barcell os and Wolfsen v. Westla nds The CVP, the largest reclamation project in the 28 6 1 nation, was created to “capture and store” waters of the 2 major Ce ntral Valley rivers and “pump” the waters “to the 3 4 5 6 7 cultivat ed lands.” Unite d States v. Gerlac h Live Stoc k Co., 339 U.S. 725, 728-29, 733 (1950). The CVP w as created to bring to the valley’s “parched acres a water supply s ufficiently permanent to transform them i nto 8 veritabl e gardens fo r the benefit of mankin d.” 9 Irrigati on District, 357 U.S. 175, 28 0 (195 8), rev’d o n 10 other gr ounds by Californ ia v. United State s, 438 U.S. 11 645. 12 13 14 15 16 Ivanho e Sn owmelts from the Sierra Nevada, if not controll ed, “waste t his phenomenal accumulation o f water so valua ble to the v alley’s rich alluvial soil. The object o f the plan i s to arrest this flow and reg ulate its seas onal and yea r-to- year variations...” Id. at 2 81. 17 “The abs ence of rain ” in the region served by the CVP, 18 “makes i rrigation es sential, particularly in the southern 19 region.” 20 21 22 23 24 25 26 27 Id. “The grand design of the Project was to conserve and put to maximum beneficial use the wa ters of the Cent ral Valley o f California...” Dugan v. Rank, 372 U.S. 609 , 612 (1963) ; see als o United States v. W estlands Water Di strict, 134 F. Supp. 2d 1111, 1116 (E.D. Cal. 2001) (c iting above cases). The 1937 Rivers and Harbors Act, Pub. L. 75-397, 50 Stat. 84 4, 850, auth orized a large scale diversio n of 28 7 1 surplus water from t he delta to the valley by mea ns of 2 the Jone s Pumping Pl ant and the Delta-Mendo ta Can al, b oth 3 4 5 6 7 of which had excess capacity. The Act of June 3, 1960, Pub. L. No 86- 488, 74 Stat. 156, described the pumping plant an d canal as i ntegral parts of the Unit; Se ction 4 thereof describes di version from the Delta via th e 8 pumping plant and the canal. 9 610 F.2d 581, 585-86, 602 -03, 604-05 (9th Cir. 1980). 10 11 B. Modern A dministratio n of Central Valley Project a nd Delivery of Water Un der Reclamation Law. 12 13 14 15 16 17 18 See Sie rra Club v. Andrus, Pursuant to Section 8 of the Reclamation Act of 1 902, Reclamat ion must obtain and maintain the water rights necessar y for its CV P operations in compliance wi th state law. 43 U.S.C. § 38 3. Permits and licenses issu ed by Californ ia’s State W ater Resources Control Board (“SWRCB” ), together with relevant SWRCB decisions and 19 orders, define the p arameters and con dition s under whi ch 20 Reclamat ion may dive rt and deliver project water, which 21 is then allocated to water districts in accordanc e with 22 23 24 25 26 the term s and condit ions of contracts for water s ervice with the se districts . Declaration of Ray S ahlberg, Do c. 40, (“Sa hlberg Decl. ”) ¶ 2; Declaration of Richar d Stevenso n, Doc. 41, (“Stevenson Decl.”) ¶ 3. Rec lamation 27 does not contract wi th individual irrigators or e nd-us ers 28 on munic ipal and ind ustrial water contracts. 8 Ste venson 1 2 3 4 5 6 7 Decl., D oc. 41, at ¶ 4. Reclamat ion’s divers ion and delivery of project w ater to the S an Luis Unit is governed by 13 separate p ermits, the auth orized purpo ses of which include irrigati on, domestic use, munici pal and industrial use, fish and wildlife enhancement, sal inity control, wat er qua lity 8 control, stock-watering, and recreation. 9 ¶ 3; Dec laration of Ron Milligan (“Milligan Decl. ”, Doc. 10 42, ¶ 2. 11 constrai ned by the n eed to comply with requiremen ts 12 13 14 15 16 17 Sahlberg Decl. Reclamatio n’s CVP operations are also establis hed by the U .S. Fish & Wildli fe Service and National Marine Fish eries Service to protect vari ous fish species under the En dangered Species Act (“ESA”), 16 U.S.C. § 1531, et seq. Milligan Decl ., Doc . 42, at ¶ 2. In Septe mber 1985, R eclamation requested SWRCB 18 approval of a petiti on to consolidate the places and 19 purposes of use of i ts various permits governing 20 21 22 23 24 appropri ations for t he CVP, to allow for better coordina ted manageme nt of CVP operations and to facilita te those ope rations necessary to comply w ith CVPIA ma ndates. Sah lberg Decl., Doc. 40, at ¶ 4. The 25 SWRCB ap proved that petition in Decision (Revised ) No. D- 26 1641 (“D -1641”), iss ued in March 2000. 27 Id. Each yea r Reclamatio n projects the amount of wate r 28 9 1 that wil l be availab le based upon reservoir storage, 2 precipit ation, runof f forecasts, and other indice s. 3 4 5 6 7 Stevenso n Decl., Doc . 41, at ¶ 5; Milligan Decl., Doc. 42, at ¶ ¶ 2, 3. Bas ed on that projection and aft er taking i nto account the amount of water required to satisfy statutory an d regulatory requiremen ts, 8 Reclamat ion determin es the amount of water that c an be 9 delivere d and alloca ted to its various contractor s, 10 includin g irrigation districts, municipal and ind ustrial 11 users, a nd wildlife refuges. 12 13 14 15 16 Stevenson Decl., Do c. 41, at ¶ 5; Milligan Dec l., Doc. 42, at ¶ 3. R eclama tion’ s water se rvice contra cts, including those in the S an Luis Unit, co ntain shorta ge provisions that specifical ly recite t hat Reclamat ion is not liable for shortag es 17 caused b y compliance with legal obligations. 18 Decl., D oc. 41 . at ¶ 5. 2 19 20 21 22 23 24 25 Ste venson In addit ion to other operational and regulatory requirem ents, certai n physical limitations constr ain Reclamat ion’s operat ion of the San Luis Unit. Decl., D oc. 42, at ¶ 4. Mi lligan For example, in water ye ar 2009, CVP pump ing operatio ns were impacted variously by dry weather hydrology, r equirements imposed by D-1641, ESA 26 2 27 28 A sh or ta ge p ro vi si on si mi la r to t h at in t he c ur re nt S an Lu is con tr ac ts w as c ha ll en ged i n th is C o urt b y We st la nd s Wa te r D is tr ic t and w as u ph el d by t he Ni nt h Ci rc ui t . Id . at ¶ 6 . S ee O ’Ne il l v. Uni te d St at es , 50 F .3 d 6 77 , 68 2– 86 (9t h Ci r. 1 99 5) . 10 1 mandates , physical l imitations of the facilities, or by a 2 combinat ion of sever al of these constraints. Id. at ¶ 4. 3 III. 4 5 6 STANDARD S OF D ECISION A. Motion f or Judgment on the Pleadings. Federal Rule of Civi l Procedure 12(c) states, 7 “[a]fter the pleadin gs are closed but within such time as 8 not to d elay the tri al, any party may move for ju dgment 9 on the p leadings.” 10 11 12 13 14 “[I]f a party raises an issue as to the cour t’s subject matter jurisdicti on on a motion fo r a judgment on the plea dings, the district judge wil l treat the moti on as if it had been brought under Rule 12(b)(1) .” Se e 5C Charles Alan Wright & Ar thur R . 15 Miller, Federal Prac tice and Procedure § 1367 (3d ed. 16 2004); R utenschroer v. St arr. Seigle Comm’n , Inc. , 484 F. 17 Supp. 2d 1144, 1147- 48 (D . Haw. 2006). 18 19 20 21 22 Federal Rule of Civi l Procedure 12(b)(1) provides for dismissa l of an acti on for “lack of jurisdiction over the subject matter.” Fa ced with a Rule 12(b)(1) moti on, a plaintif f bear s the burden of proving the existen ce of 23 subject matter juris diction. 24 F.3d 352 , 353 (9th C ir. 1996). 25 presumed to lack jur isdiction in a particular cas e unless 26 the cont rary affirma tively appears. 27 Thompso n v. McCombe , 99 A federal court i s Kokkonen v. Guardian Life Ins . Co of Am., 511 U.S. 375, 37 7 (199 4). 28 11 A 1 challeng e to subject matter jurisdiction may be f acial or 2 factual. 3 4 5 6 7 8 9 10 11 2000). Whit e v. L ee, 2 27 F .3d 1214, 1242 (9th Cir. As explained in Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1038 (9th Cir. 2004) In a fac ial attack, the challenger asserts that the alle gations cont ained in a complaint are insuffic ient on thei r face to invoke federal jurisdic tion. By con trast, in a factual attack, the chal lenger dispu tes the truth of the allegati ons that, by them selv es, would otherwise invoke f ederal juris diction. In resol ving a factu al attack on jurisdiction, th e district court may r eview evidence beyond the com plaint 12 without converting t he motion to dismiss into a m otion 13 for summ ary judgment . 14 School, 343 F.3d 103 6, 1039 n.2 (9th Cir. 2003; McCart hy 15 v. Unite d States, 850 F.2d 558, 560 (9th Ci r. 198 8). 16 17 18 19 20 Savage v. Glendale Union High “If the chal lenge to jur isdiction is a facial attack, i.e., the defe ndant conten ds that the allegations of jurisdic tion contain ed in the complaint are insuf ficient on their face to dem onstrate the existence of 21 jurisdic tion, the pl aintiff is entitled to safegu ards 22 similar to those app licable when a Rule 12(b) (6) motion 23 is made. ” 24 25 26 27 28 Cer vantez v. Sullivan, 719 F. Su pp. 899, 90 3 (E.D. Ca l. 1989), re v’d on other grou nds, 963 F.2d 229 (9th Cir . 1992). “T he factual allegations of the complain t are presum ed to be true, and the motion is granted only if the plaintiff fails to allege an element 12 1 2 3 4 5 6 7 necessar y for subjec t matter jurisdiction.” Id. When Rul e 12(c) is u sed to raise the defense of failure to state a c laim upon which relief can be granted, the standar d governing the Rule 12(c) mo tion for judgment on the plea dings is the same as that gov erning a Rule 12( b)(6) motion . See McGlinchy v. Shell Chemical 8 Co., 845 F.2d 802, 810 (9th Cir. 1988). 9 dismiss brought unde r Federal Rule of Civil Proce dure 10 12(b)(6) “tests the legal sufficiency of a claim. ” 11 Navarro v. Block, 250 F.3d 729, 732 (9th Ci r. 200 1). 12 13 14 15 16 A motion to In deciding whether to grant a m otion to dismiss, the cou rt “accept [s] all fact ual allegations of the compla int as true and draw[s] all reasonable inferences” in th e light most fav orable to th e nonmoving party. Two Rivers v. 17 Lewis, 1 74 F.3 d 987, 991 (9th Cir. 1999). 18 motion to dism iss, a complaint must “contain sufficient 19 factual matter, acce pted as true, to ‘state a cla im to 20 21 22 23 24 25 26 27 28 relief t hat is plaus ible on its face.’” To sur vive a Ashcroft v. Iqbal, 1 29 S. Ct. 1937, 1949 (May 18, 2009) (quot ing Bell Atl. Cor p v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial p lausibility when the plaintif f pleads fac tual content that allows the cour t to draw th e reasonable inference that the defendant i s liable for the miscondu ct alleged. The plausibility standard is not akin to a “probability requirem ent,” but it asks for more than a sheer po ssibility th at defendant has acted unlawful ly. Where a complaint pleads facts 13 1 that are “merely con sistent with” a defendan t’s liabilit y, it “stops short of the line between pos sibility and plausibi lity of ‘entitlement to relie f.’” 2 3 4 5 Id. (cit ing Tw ombly, 550 U.S. 556-57) . Dismissal also can be b ased on the lack of a cognizable legal th eory. 6 Balistre ri v. Pacifi ca Police Dep’t, 901 F.2d 696, 699 7 (9th Cir . 1990). 8 9 10 11 B. Motion f or Summary J udgment. Summary judgment is appro priate when “the p leadin gs, depositi ons, answers to interrogatories, and admi ssions 12 on file, together wi th affidavits, if any, show t hat 13 there is no genuine issue as to any material fact and 14 that the movant is e ntitled to judgment as a matt er of 15 law.” 16 17 18 19 20 (1986). C elotex Corp. v. Catrett, 477 U.S. 3 17, 32 2 A party mov ing for summary judgment “alw ays bears th e initial re sponsibility of informing the district court of th e basis for its motion, and identify ing those po rtions of the pleadings, depo sitions, 21 answers to interroga tories, and admissions on fil e, 22 together with the af fidavits, if any, which it be lieves 23 demonstr ate the abse nce of a genuine issue of mat erial 24 25 26 27 28 fact.” Id. at 323 (internal quotation marks omitted). Where th e movant has the burden of proof on an is sue at trial , it must “a ffirmatively demonstrate that no reasonab le trier of fact could find other than fo r the 14 1 moving p arty.” 2 F.3d 978 , 984 (9th C ir. 2007); see also S. Cal. G as Co . 3 4 5 6 7 Soremekun v. Thrifty Payles s, Inc ., 509 v. City of Santa Ana , 336 F.3d 885, 888 (9t h Cir. 2003 ) (noting that a party moving for summary judgment on claim on which it has the burden at trial “must establi sh beyond c ontroversy e very essential element” of th e claim) 8 (interna l quotation marks omitted). 9 issue as to which th e non-mov ing party has the burden of 10 proof, t he movant “c an prevail merely by pointing out 11 that the re is an abs ence of evidence to support t he 12 nonmovin g party’s ca se.” 13 16 Sor emekun, 509 F.3d at 984. When a m otion for su mmary judgment is properly ma de 14 15 With respect to an and supp orted, the n on-movant cannot defeat the m otion by resting upon the all egations or denials of its ow n 17 pleading , rather the “non-mov ing party must set forth, by 18 affidavi t or as othe rwise provided in Rule 56, sp ecific 19 facts sh owing that there is a genuine issue for trial.’” 20 21 22 23 24 25 Id. (quo ting A nderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). “ Conclusory, speculative testi mony in affidavi ts and movin g papers is insufficient to r aise genuine issues of fa ct and defeat summary judgment.” Id. 26 To defea t a motion f or summary judgment, the non- 27 moving p arty must sh ow there exists a genuine dis pute (or 28 15 1 issue) o f material f act. 2 “might a ffect the ou tcome of the suit under the g overning 3 4 5 6 7 law.” A fact is “material” if it A nderson, 477 U.S. at 248. “[S]ummary judgment will not lie if [a] dispute about a material fact is ‘genuine ,’ that is, if the evidence is such that a reasonab le jury coul d return a verdict for the no nmoving 8 party.” 9 judgment , the distri ct co urt does not make credibility 10 determin ations; rath er, the “evidence of the non- movant 11 is to be believed, a nd all justifiable inferences are to 12 Id. a t 248. In ruling on a motion for s ummary be drawn in his favo r.” Id. at 255. 13 IV. 14 15 ANALYSIS A. Standing . Plaintif fs’ motion f or judgment on the pleadings 16 17 seeks a determinatio n that Plaintiffs have standi ng to 18 sue. 19 20 21 22 Do c, 18 at 6-10. Defendants op pose P laintiffs’ motion b ut do not cr oss-move as to standing. Doc. 38 at 8-10 (op positi on); D oc. 25 (no mention of standin g in motion f or judgment on the pleadings) . Neverthel ess, a 23 court ha s a su a sponte du ty t o examine standing i n every 24 case. 25 868 (9th Cir. 2002). B ernhardt v. County of Los Angeles, 279 F.3d 86 2, 26 27 28 1. General Legal Standa rd Re Standing. Standing is a judici ally created doctrine that is an 16 1 essentia l part of th e case-or-controv ersy requirement of 2 Article III. 3 4 5 6 7 Pritikin v. Dept. of Energy, 254 F.3d 79 1, 796 (9th Cir. 2001) (citing Lujan v. Defenders of Wildlife , 504 U.S. 5 55, 560 (1992)). “To satisfy the Article III case or controversy requirement, a litigan t must hav e suffered s ome actual injury that can be 8 redresse d by a favor able judicial decision.” 9 Honor So c. v. Heckle r, 464 U.S. 67, 7 0 (198 4). 10 essence the question of standing is whether the l itigant 11 is entit led to have the court decide the merits o f the 12 13 14 15 16 17 18 19 20 21 22 23 dispute or of partic ular issues.” Iro n Arr ow “In Warth v. Seldin, 422 U.S. 490 , 498 (1975) . To have standing, a plaintiff must show three elements . First, t he plaintiff must have suffered an “injury in fact” -- an invasion of a legall y protecte d interest w hich is (a) concrete and particul arized and ( b) actual or imminent, not conjectu ral or hypot hetical. Second, there must be a cau sal connecti on between the injury and the cond uct complain ed of -- the inju ry has to be fairl y traceable to the challenged action of the defe ndant, and n ot the result of the independ ent action o f some third party not before t he court. Th ird, it must be likely, as opposed to merely sp eculative, that the injury will be redressed by a favorable decision. 24 Lujan, 5 04 U.S. at 5 60-61 (internal citations and 25 quotatio ns omitted). 26 27 In addit ion to the c onstitutional requirements of Article III, courts have developed a set of prude ntial 28 17 1 consider ations to li mit standing in federal court to 2 prevent a plaintiff “from adjudicating ‘abs tract 3 4 5 6 7 question s of wide pu blic significance’ which amou nt to ‘general ized grievan ces’ pervasively shared and m ost appropri ately addres sed in the representative bra nches.” Valley F orge Christi an College v. Americans Unite d for 8 Separati on of Church and State, Inc., 454 U.S. 464, 47 4– 9 75 (1982 ) (quoting Warth, 422 U.S. at 499–500). 10 end, “th e plaintiff’ s complaint must fall within ‘the 11 zone of interests to be protected or regulated by the 12 13 14 15 16 To th at statute or constitut ional guarantee in question.’ ” Valley F orge, 454 U.S. at 475 (quoting Ass’n of Data Processi ng Service O rgs. v. Camp, 397 U.S. 150, 153 (1970)). In cases a rising under the APA, this 17 requirem ent is parti cularly important given the 18 limitati ons of 5 U.S .C. § 702, which “grants stan ding to 19 a person ‘aggrieved by agency action within the meanin g 20 21 22 23 24 25 26 27 28 of a rel evant statut e.’” Ass ociation of Data Processi ng Serv. Or gs, 39 7 U.S. at 1 53–54 (citin g § 702). The Supr eme Court ha s described a plaintiff’s bur den of provi ng standing at various stages of a case as follows: Since [t he standing elements] are not mere pleading requirement s but rather an indispen sable part o f the plaintiff’s case, each element must be supp orted in the same way as any other ma tter on whic h the plaintiff bears the 18 1 2 3 4 5 6 7 8 9 burden o f proof, i.e., with the manner and degree o f evidence r equired at the successive stages o f the litiga tion. At the pleading stage, g eneral factu al allegations of injury resultin g from the d efendant’s conduct may suffice, for on a mo tion to dismiss we presume that gen eral allegations embrace those spec ific facts th at are neces sary to support the claim. In respo nse to a sum mary judgment motion, however, the plainti ff can no longer rest on such “me re allegatio ns,” but must “set forth” by affidavi t or other e vidence “specific facts,” Fed. Rul e Civ. Proc. 56(e), which for purposes of the s ummary judgm ent motion will be taken to be true. And at the final stage, those facts (if controve rted) must b e supported adequately by the evid ence adduced at trial. 10 Lujan, 5 04 U.S. at 561; see a lso Churchill County v. 11 Babbitt, 150 F.3d 10 72, 1077 (9th Cir. 1998). 12 13 14 15 16 A plaint iff is not r equired to prove that he woul d succeed on the merit s to summarily adjudicate his standing to sue. Farrakh an v. Gregoire, 590 F.3d 989, 1001 (9t h Cir. 2010) (gra nting summary judg ment and 17 noting t hat “[w]heth er Plaintiffs can succeed on their [] 18 claim is irrelevant to the question whether they are 19 entitled to bring th at claim in the first place.” ). 20 However, the underly ing claims are not wholly irr elevant: 21 22 23 24 25 26 27 28 Although standing in no way depends on the merits o f the plaint iff’s contention that particul ar conduct i s illegal, e.g., Flast v. Cohen, 3 92 U.S. 83, 99 (1968), it oft en turns on the natu re and sourc e of the claim asserted. The actual o r threatened injury r equired by Art . III may exis t solely by virtue of ‘statutes creating legal ri ghts, the in vasion of which creates standing ....’ See L inda R.S. v. Richard D. , supra, 4 10 U.S., at 617 n. 3; Sierra Club v . Morton, 405 U.S. 727 , 732 (1972). Mor eover, the source o f the plaint iff’s claim to relief 19 1 assumes critical imp ortance with respect to the prudenti al rules of standing that, apart from Art. III ’s minimum r equirements, serve to limit the role of the cour ts in resolving public disputes . Essentiall y, the standing questio n in such cas es is whethe r the constitutional or statutor y provision on which the claim rests properly can be unde rstood as granting persons in the p laintiff’s p osition a right to judicial relief.. .. 2 3 4 5 6 7 Warth, 4 22 U.S . at 500. 8 2. Actual I njury. 9 The firs t element of Article III standing is inju ry- 10 11 in-fact, which Lujan defi nes as “an invasio n of a lega lly 12 protecte d interest w hich is (a) concrete and 13 14 15 16 particul arized; and (b) actual or imminent, not ‘conject ural or hypo thetical.’” 504 U.S. at 560 (interna l cita tions omitted). Here, th e Complaint alleges that, in recent years , 17 18 Plaintif fs 3 and other Unit farmers hav e purchased from 19 the Bure au and appli ed to their lands substantial ly less 20 water fo r irrigating their crops than they histor ically 21 bought a nd use d and to wh ich they are alleg edly entitl ed. 22 23 24 25 26 27 28 3 Pl ai nt if fs i nc lu de n ume ro us i nd iv i dua ls a nd e nt it ie s, a s w el l as a n org an iz at io n, t he S an Lu is U ni t Fo o d P ro du ce rs ( “F oo d Pr odu ce rs ”) . An or ga ni za ti on o r as soc ia ti on h as sta nd in g to s ue o n be hal f of i ts mem be rs w he n (a ) it s mem be rs w ou ld hav e st an di ng , (b ) th e i nt er es ts it as se rt s ar e ge rm an e t o it s pu rp o se, a nd ( c) i ts c la im fo r re li ef doe s no t re qu ir e it s mem be rs ’ pa rt i cip at io n. Hu nt v . Wa shi ng to n Sta te A pp le A dv er ti si ng Co mm ’n , 43 2 U. S. 3 33 , 34 3 (1 97 7) . He re , it is un di sp ut ed t ha t, i f a ny o ne o f i ts me mb er s po ss es se s sta nd in g, Foo d Pr od uc er s, w hi ch wa s fo rm ed f o r t he p ur po se o f ta ki ng ac ti on t o “re st or e fu ll i rr ig at ion w at er s er v ice t o Un it l an ds a nd , t he re by , ren de r su ch l an ds p ro duc ti ve a ga in , ” D ec la ra ti on o f Br ad Gl ea so n, Doc . 20 , at ¶ 8 , me et s t he e le me nt s of H un t. 20 1 Doc. 1, Compl. at ¶¶ 25-26. 2 dispute that each pl aintiff is suffering concrete and 3 Federal Defendants do not particul arized injur y. 4 3. Causatio n. 5 6 The seco nd standing requirement, causation, requi res 7 that the injur y be “ fairl y traceable” to th e challenge d 8 action o f the defend ant, and not be “the result o f the 9 10 11 12 13 independ ent action o f some third party not before the court.” 2000). Tyler v. Cu omo, 236 F. 3d 1124, 1132 (9t h Cir. The causatio n element is lacking where an “injury caused b y a third pa rty is too tenuously connecte d to the 14 acts of the defendan t.” 15 U.S. Dep t. of Agric., 341 F.3d 961, 975 (9t h Cir. 2003 ). 16 For the purposes of determining standing, while t he 17 causal c onnection cannot “be too speculativ e, or rely on 18 19 20 21 Citizens for Better Fore stry v. conjectu re about the behavior of other parties, [ it] need not be s o airtight . .. as to demonstrate that the plaintif fs would suc ceed on the merits.’” Ocean 22 Advocate s v. U .S. Ar my Co rps. Of Eng’rs, 40 2 F.3d 846, 23 860 (9th Cir. 2005). 24 Here, Pl aintiffs’ ma intain that various provision s of 25 Reclamat ion law requ ire the Bureau to sell and de liver to 26 27 them a “ normal” supp ly of irrigation water and th at their “current inability t o purchase and apply to their lands 28 21 1 each yea r a no rmal supply of irrigation water is direc tly 2 caused b y the Bureau ’s failure and refusal to sel l and 3 4 5 6 7 deliver it.” Doc. 1 8 at 8. It is un disputed tha t the Bureau’s delivery of wa ter to Unit farmers has been reduced in recent years. See Milligan Decl., Doc. 42, at ¶ 4 (admitting that 8 hydrolog ic condition s, Delta pumping constraints, and 9 operatio nal requirem ents needed to meet D-1641 ha ve 10 caused d elivery curt ailments in recent years). 11 Plaintif fs’ injury i s fairly traceable to the Bur eau’s 12 13 14 15 16 failure to deliver water. Whether and to what extent the cited st atutes actua lly require the Bureau to del iver particul ar volumes o f water is disputed. Federal Defendants a rgue that Plaintiffs cannot 17 possibly establish c ausation because they have no rights 18 to Proje ct wat er, wh ich a re held by Reclama tion. 19 at 9. 20 21 22 23 24 Doc. 38 I t is undispu ted that Plaintiffs are not i n contract ual privity with Reclamation, but Plainti ffs do not alle ge breach of contract. See K lamath Water User s Protecti ve Ass’n v. Patterson, 204 F.3d 120 6, 1210–1212 (9th Cir . 1999) (irr igators had no standing to br ing 25 breach o f contract c laim against Reclamation beca use not 26 indended third-party beneficiaries of contract). 27 Defendan ts do not ex plain why the absence of cont ractual 28 22 Federal 1 privity bars Plaintiffs’ claims under the A PA bas ed on 2 the Bure au’s non-complian ce with Reclamatio n law. 3 4 5 6 7 In NRDC v. Patterson, 791 F. Supp. 1425, 1429-32 (E.D. Ca l. 1992), e nvironmental plaintiffs with recreational interest s on the San Joaquin River below Friant D am had standing to su e the Bureau for allegedly violating 8 Section 8 of the 190 2 Reclamation Act, which Plai ntiffs 9 claimed imposed the requirements of a state fish 10 protecti on statute o n Friant Dam operations. 11 was not an issue, bu t Pat ters on confirms th at an APA 12 13 14 15 claim do es not requi re that Plaintiffs be in priv ity with the Bure au, if they otherwise satisfy the standin g requirem ents. 16 17 18 19 20 21 Cau sation 4. Redressi bility. Standing also requir es that the injury likely can be redresse d by a favor able court decision. at 561. Lujan, 504 U.S. Plaintiffs seek declaratory relief that defendan ts have 15 m andatory duties under reclama tion 22 statutes and that th ey are violating each of them . 23 18 at 9. 24 declarat ion will ind uce defendants to once again honor 25 those du ties and, th ereby, operate project facili ties, 26 27 Doc. Plaintiffs assert that obtaining such a exercise water right s, and sell irrigation water in a manner t hat increase s water deliveries to Plainti ffs. 28 23 1 See id. 2 the plai ntiff’s cont ention that particular conduc t is 3 4 5 6 7 8 9 10 11 12 13 “[S]tanding in no way depend s on the merits of illegal. ” See Warth, 422 U.S. at 500. If Plaint iffs’ obtain a ruling decl aring that the Bureau’s reduc ed deliveri es to member s of the Unit violate the var ious statute they invoke, there is a substantial likel ihood that the ir inj ury will be redressed, at least in part. 5. Zone of Interest. Finally, Plaintiffs APA “complaint must fall with in ‘the zon e of interes ts to be protected or regulat ed by the stat ute or const itutional guarantee in questi on.’” 14 Valley F orge, 454 U.S. at 475 (quotin g Ass’n of Data 15 Processi ng Service O rgs., 397 U.S. at 153). 16 asserted by the plai ntiff must bear a plausible 17 relation ship to the policy underlying the statute . 18 19 20 21 22 23 24 25 26 27 The inter est NR DC v. Patte rson, 791 F. Supp. at 1429-30. [T]he so urce of the plaintiff’s claim to relief assumes critical imp ortance with respect to the prudenti al rules of standing that, apart from Art. III ’s minimum r equirements, serve to limit the role of the cour ts in resolving public disputes . Essentiall y, the standing question in such cas es is whether the constitutional or statutor y provision on which the claim rests properly can be unde rstood as granting persons in the p laintiff’s p osition a right to judicial relief.. .. Warth, 4 22 U.S . at 500 Federal Defendants a rgue that Plaintiffs ca nnot 28 24 1 satisfy the zone of interest requirement for any of their 2 claims b ecause “none of the statutory provisions upon 3 4 5 6 7 which Pl aintiffs rel y provides any guarantee of w ater deliveri es, ... [and ] [t]hose matters that are in fact addresse d by those s tatutory provisions, such as the manner i n which Recl amation may set water contrac t rates, 8 e.g., 43 U.S.C. § 48 5h(e), or provide funding for the 9 operatio n and mainte nance of Reclamation faciliti es, 10 e.g., 43 U.S.C. §§ 3 91, 491, have nothing to do w ith 11 Plaintif fs’ cl aimed injur ies.” 12 13 14 15 16 Doc. 38 at 9. Plaintif fs assert th at Defendants are violating f ive statutes that requir e the Bureau to operate the U nit to deliver and sell Pla intiffs increased volumes of water. See Doc. 18 at 8-9. If t he interest assert ed by 17 Plaintif fs in increa sed water deliveries bears a 18 plausibl e relationsh ip to the policy underlying t he cited 19 statutor y provisions , Plaintiffs, as users of tha t water, 20 21 arguably fall within the zone of interests protec ted by the stat utes. 22 23 24 25 26 27 B. Sovereig n Immunity/A PA. Federal Defendants a ssert the defense of sovereig n immunity . The Unite d States, as a sovereign, is immune from sui t unless it has waived its immunity. Dep t. of the Army v. Blue Fox , Inc., 5 25 U.S. 255, 260 (1999). 28 25 A 1 court la cks subject matter jurisdiction over a claim 2 against the United S tates if it has not consented to be 3 4 5 6 7 sued on that claim. Consejo de Desar rollo Economico d e Mexicali , A.C. v. Un ited States, 482 F.3d 1 157, 1 173 ( 9th Cir. 200 7). “When t he United States consents to be sued, the term s of i ts wai ver o f sovereign immuni ty define t he 8 extent o f the court’ s jurisdiction.” 9 Mottaz, 476 U.S. 834 , 841 (1986). 10 immunity by the Unit ed States must be expressed 11 unequivo cally. 12 13 14 15 Unite d States v. A waiver of sovereign United States v. Nordic Vil lage, Inc., 503 U.S. 30, 33 (199 2). As a general matter, pur ported statutor y waivers of sovereign immunity are not t o be liberall y construed. Id. at 34. The Admi nistrative P rocedure Act (“APA”) waives 16 17 sovereig n immunity a nd prescribes standards for j udicial 18 review o f certain ag ency actions. 19 (grantin g standing t o plaintiffs “suffering legal wrong 20 21 22 23 See 5 U. S.C. § 702 because of agency ac tion, or adversely affected o r aggrieve d by agency action within the meaning of a relevant statute”). 4 24 25 26 27 28 4 Fe de ra l De fe nd an ts a rgu e th at t he Cou rt l ac ks s ub je ct m att er jur is di ct io n ov er t he cl ai ms i n th i s c as e. Th e AP A do es no t cr ea te sub je ct m at te r ju ri sd ict io n. Ca li f ano v . Sa nd er s, 4 30 U .S. 9 9, 1 05 – 107 ( 19 77 ); s ee a ls o Gal lo C at tl e C o. v. U .S . De p’ t of A gri c. , 15 9 F.3 d 11 94 , 11 98 ( 9t h Cir . 19 98 ). R ath er , “j ur is di ct io n mus t co me fro m a so ur ce o th er t han t he A PA .” Co nf ed er at ed T ri be s of th e Uma ti ll a In di an R es er vat io n v. B on n evi ll e Po we r Ad mi n. , 342 F .3 d 924 , 92 9 (9 th C ir . 20 03) . S im il ar l y, wh il e 28 U .S .C . § 133 1 26 1 2 3 The APA’ s waiver of sovereign immunity contains several limitations. See Gal lo Cattle Co. v. Uni ted States D ep’t of Agri culture, 159 F.3d 1194, 1198 (9th 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pro vi de s a ge ne ra l gr ant o f su bj ec t ma tt er j ur is di ct io n ove r cl ai ms “ar is in g un de r th e Co nst it ut io n, l a ws, o r tr ea ti es o f th e U ni te d Sta te s, ” th is g en er al gr an t of j ur i sdi ct io n do es n ot b y its el f cre at e a fe de ra l qu es tio n. “A c la i m a ri se s un de r fe de ra l l aw w it hi n § 1 33 1 if i t is a pp ar ent f ro m th e f ace o f th e co mp la in t ... th at ... a f ed er al l aw c re ate s th e pl ai n tif f’ s ca us e of a ct io n.” Vi rg in v. Co un ty o f Sa n Lu is Ob is po , 20 1 F .3d 1 14 1, 1 14 2– 43 ( 9t h C ir . 200 0) . P la in ti ff s’ c lai m mu st t he r efo re b e gr ou nd ed i n som e sub st an ti ve p ro vi si on of f ed er al l a w b es id es § 1 33 1. Fed er al D ef en da nt s ar gue t ha t th is Cou rt l ac ks s ub je ct m att er jur is di ct io n un de r § 133 1 be ca us e t he st at ut es i nv ok ed b y P la in ti ff , alt ho ug h ad mi tt ed ly f ede ra l la w, d o n’t c on ta in t he m an da tes Pla in ti ff s al le ge . T his i s a ch al l eng e to t he m er it s of Pl ai nt if fs ’ cla im s, n ot t o th e ex ist en ce o f su b jec t ma tt er j ur is di ct ion . T he fac e of t he C om pl ai nt cl ea rl y ra is e s f ed er al q ue st io ns . Wh et he r Pla in ti ff s sa ti sf y th e p ru de nt ia l/ z one o f in te re st s ta nd ing req ui re me nt a nd /o r th eir c om pl ai nt fai ls t o st at e an y cl aim s up on whi ch r el ie f ma y be g ran te d is a s e par at e qu es ti on . The c as es c it ed b y Fe der al D ef en da n ts do n ot s ta nd f or t he pro po si ti on t ha t su bj ect m at te r ju r isd ic ti on t ur ns o n wh eth er a pla in ti ff ’s i nt er pr et ati on o f th e f ede ra l st at ut e th ey i nvo ke i s cor re ct . F or e xa mp le , t he p la in ti f fs in V ir gi n, 2 01 F .3 d a t 11 42 , cla im ed t o ho ld a f ed era l la nd p at e nt to 1 ,2 40 a cr es i n San L ui s Obi sp o Co un ty . T he p lai nt if fs a pp l ied t o th e Co un ty f or a lo t li ne adj us tm en t on t he ir l and s, b ut t he req ue st w as d en ie d. Id. Pla in ti ff s th en a tt em pte d to s ue t h e C ou nt y in f ed er al c our t, see ki ng d ec la ra to ry a nd in ju nc ti ve rel ie f. Th e Ni nt h Ci rcu it aff ir me d pr ev io us r ul ing s ho ld in g t hat f ed er al l an d pa te nts d o no t con fe r fe de ra l qu es ti on ju ri sd ic ti o n, re ly in g on S hu lt hi s v . McD ou ga l, 2 25 U .S . 56 1, 56 9- 70 ( 19 1 2), w hi ch h el d: A s ui t to e nf or ce a r igh t wh ic h ta k es it s or ig in i n th e law s of the U ni te d St at es i s not n ec es sa ri l y, or f or t ha t re as on al on e, one a ri si ng u nd er t ho se la ws , fo r a su it d oe s no t so a ri se unl es s it r ea ll y an d sub st an ti al ly inv ol ve s a di sp ut e or con tr ov er sy r es pe ct in g t he v al id it y , c on st ru ct io n or e ff ect o f suc h a la w, u po n th e det er mi na ti on of wh ic h th e re su lt d epe nd s. Thi s is e sp ec ia ll y so of a s ui t in v olv in g ri gh ts t o la nd acq ui re d un de r a la w of th e Un it ed Sta te s. I f it w er e no t, eve ry s ui t to e st ab li sh ti tl e to l a nd in t he c en tr al a nd wes te rn s ta te s wo ul d so ar is e, a s a ll ti tl es i n th os e st ate s are t ra ce ab le b ac k to th os e la ws . Id. a t 11 43 . H er e, i n c on tr as t to Vir gi n, P la in ti ff s al leg e th at a fed er al a ge nc y is v io lat in g a fe de r al la w. Th is i nv ol ve s t he “co ns tr uc ti on o r ef fe ct” o f a fe de r al la w “u po n th e de te rmi na ti on o f whi ch t he r es ul t de pe nds .” Th is C o urt d oe s no t la ck s ub jec t ma tt er jur is di ct io n si mp ly b eca us e De fe nd a nts d is ag re e wi th P la int if fs ’ rea di ng o f th e la w. 27 1 Cir. 199 8). 2 that the challenged decision be a “final agency a ction 3 4 One of those limitations is the requ irement for whic h ther e is no other adequate remedy in a court... .” 5 U.S.C. § 704. 5 6 7 8 9 10 11 12 13 1. Agency A ction. The APA defines “age ncy action” to “includ[e] the whole or a part of a n agency rule, order, license , sanction , relief, or the equivalent or denial the reof, or failure to act.” 5 U.S.C. § 551(13). Here , Plai ntiff s allege t hat defendan ts are failing to act as requ ired by 15 congr essional com mands. However, “the only a gency 14 action t hat can be c ompelled under the APA is act ion 15 legally required,” Norton v. S. Utah Wilder ness Alliance, 16 542 U.S. 55, 63, 65 (2004) (“SUWA”). 17 18 19 20 21 Plaintif fs’ claims w ill only satisfy the APA’s ag ency action r equirement i f they allege a failure to pe rform a mandator y, nondiscre tionary act. SUW A, 542 U.S. at 61 – 64; Alva rado v . Table Mt. Rancheria, 509 F.3d 1008, 10 19– 22 20 (9th Cir. 2007). As with the prudential stan ding 23 requirem ent, the res olution of the agency action inquiry 24 turns on whether any of the cited provisions cont ain a 25 legal ma ndate to del iver any specific volume of w ater. 26 27 28 2. Final Ag ency Action. The part ies engage i n extended argument over whet her 28 1 Plaintif fs’ claims s atisfy the “final agency acti on” 2 requirem ent. 3 4 5 6 7 By its terms, the APA permits revie w only of “agen cy action ma de reviewable by statute and final agency a ction for wh ich there is no o ther adequate remedy in a cou rt....” 5 U .S.C. § 704. Where, as here, no specific statutory j udicial review provision exis ts, the 8 APA only applies to “final agency action.” 9 Nat’l Wi ldlife Fed’n, 497 U.S. 871, 882 (19 90) (“ Lujan v. 10 NWF”). 11 of APA w hen it meets the following two criteria: 12 13 14 15 16 Id.; Lujan v. An agency ac tion is deemed “f inal” for purposes First, t he action mu st mark the “consummation” of the a gency’s deci sionmaking process - it must not be o f a merely t entative or interlocutory nature; and And seco nd, the acti on must be one by which “rights or obligatio ns have been determined,” or from whi ch “legal co nsequences will flow.” 17 Bennett v. Spear, 520 U.S. 154, 177-78 (199 7)(int ernal 18 citation s omitted). 19 20 21 22 23 24 Federal Defendants a rgue that Plaintiffs only challeng e the day-do-day administrati on or operation o f the Unit , citing Lujan v. NWF, 497 U.S. at 890-94, for the prop osition that the day-to-day o perati on of a project or program i s not “final agency action” 25 reviewab le under the APA. Lujan v. NWF concerned various 26 activiti es undertake n by the Bureau of Land Manag ement to 27 comply w ith the Fede ral Land Policy and Managemen t Act 28 29 1 (“FLPMA” ), which, am ong other things: 2 repealed many of the miscellaneous laws governin g disposal o f public land, 43 U.S.C. § 1701 et seq. []and established a policy in favor of retai ning public lands for multiple use manageme nt. It direc ted the Secretary to “prepare and maintai n on a continuing basis an inventor y of all pub lic lands and their resource and othe r values,” § 1711(a), require d land use planning for public lands, and established criteria to be used for that purpose, § 1712. It provided that existi ng classifications of public lands we re subject t o review in the land use planning process, an d that the Secretary could “modify or terminate any such classification consiste nt with such land use plans.” § 1712(d). It also authorized t he Secretary to “make, modify, extend or re voke” withdrawals. § 1714(a). Finally it directed the Secretary, within 1 5 years, to review withdrawals in existenc e in 1976 in 11 Western States, § 1714(l)( 1), and to “ determine whether, and for how long , the contin uation of the existing withdraw al of the la nds would be, in his judgment , consistent with the statutory objectiv es of the pr ograms for which the lands were ded icated and o f the other relevant programs ,” § 1714(l )(2). 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Id. at 8 77. T he Lujan v. NWF plaintiffs de scribe d “[t ]he activiti es undertake n by the BLM to comply with t hese various provisions” as the BLM’s “land withdrawal review program. ” Id. Plaintiffs complained “the reclassi fication of some withdrawn lands and the return 22 of other s to the pub lic domain would open the lan ds up to 23 mining a ctivities, t hereby destroying their natur al 24 beauty.” 25 26 27 28 Id. at 879. The Supr eme Court he ld that the so-called “ land withdraw al review pr ogram” was “not an ‘agency ac tion’ within t he meaning o f § 702, much less a ‘final a gency 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 action’ within the m eaning of § 704.” Id. at 890. The term “land withd rawal review program” (which as far a s we know is not derived from any authorit ative text) does not refer to a single BLM orde r or regulat ion, or even to a completed universe of particul ar BLM orders and regulati ons. It is s imply the name by which petition ers have occ asionally referred to the continui ng (and thus constant ly changing) operatio ns of the BL M in reviewing withdrawal revocati on applicati ons and the classifications of publi c lands and developing land use plans as required by the FLPM A. It is no more an identifi able “agency action”-much less a “final agency a ction”-than a “we apon s procurement program” of the Depa rtment of Defense or a “drug interdic tion program ” of the Drug Enforcement Administ ration. As t he District Court explained, the “lan d withdrawal review program” extends to, currentl y at least, “1250 or so individual classifi cation termi nations and withdrawal revocati ons.” 699 F. Supp., at 332. Responde nt alleges t hat violation of the law is rampant within this program-failure t o revise land use plans in pr oper fashion, failure to submit c ertain recom menda tion s to Congress, failure to consider multiple use, inordinate focus up on mineral e xploitation, failure to provide required pub lic notice, failure to provide adequate env ironmental impact statemen ts. Perhaps so. But respondent cannot seek who lesale improvemen t of this program by court de cree, rather than in the offices of the Departme nt or the ha lls of Congress, where programm atic improve ments are normally made. Under th e terms of t he APA, respondent must direct i ts attack ag ainst some particular “agency action” that causes it harm. Some statutes permit broa d regulations to serve as the “age ncy action,” and thus to be the object of judic ial review d irectly, even before the concrete effects nor mally required for APA review a re felt. Abs ent such a provision, however, a regulatio n is not ordinarily consider ed the type of agency action “ripe” for judicial review unde r the APA until the scope of the cont roversy has been reduced to more manageab le proportio ns, and its factual componen ts fleshed o ut, by some concrete ac tion applying the regulat ion to the claimant’s situatio n in a fashi on that harms or threatens to harm him. (The ma jor exception, of course, is 31 1 a substa ntive rule w hich as a practical matter requires the plainti ff to adjust his conduct immediat ely. Such ag ency acti on is “ripe” f or review a t once, whet her or not explicit statutor y review apa rt from the APA is provided. See Abbo tt Laborator ies v. Gardner, 3 87 U.S. 136, 152 -154 (1967); Gardner v. Toile t Good s Assn., I nc., 387 U.S . 167, 171-173 (1967). Cf. Toilet G oods Assn., Inc. v. Gardner, 387 U. S. 158, 164 -166 (1967). 2 3 4 5 6 7 8 Id. However, eight years after and in reliance on Lujan, 9 the Nint h Circuit in ONRC Action v. B ureau of Land 10 Manageme nt, 15 0 F.3d 1132, 1137 (9th Cir. 1 998) 11 reaffirm ed that “a c ourt’s review of an agency’s failure 12 to act h as been refe rred to as an exception to th e final 13 14 15 16 17 18 19 20 21 22 23 agency a ction requir ement.” This exception opera tes when the agen cy has a “cl ear duty to act” under the in voked statutor y provision. Id. at 1137-38. Again, the resoluti on of this i ssue turns on an examination of the statutor y claims. 3. Equitabl e Relief. The part ies engage i n extensive argument regardin g Plaintif fs’ entitlem ent to declaratory and/or inj unctive relief u nder the sev eral statutes cited in the Co mplaint. 24 These ar gument s are subject to sovereign immunity and 25 subject matter juris diction determinations. 26 appear t o agree that if sovereign immunity has be en 27 All parties waived a nd federal q uestion jurisdiction exists, the APA 28 32 1 permits declaratory and injunctive relief. 2 703 (jud icial review under the APA includes the r emedies 3 4 5 U.S.C. § of “decl arator y judgments or writs of prohibitory or mandator y injunction ”). 5 6 7 8 9 10 11 12 13 14 4. Failure to Exhaust A dministrative Remedies. Federal Defendants c ontend that “[o]ne or all of Plaintif fs’ cl aims a re ba rred by Plaintiffs ’ failure t o exhaust administrati ve remedies.” Doc. 13 at 20. Plaintif fs move for judgment on the pleadings tha t their claims a re not barre d by an exhaustion defense. Doc. 18 at 10. In an AP A case, exha ustion “is a prerequisite to 15 judicial review only when expressly required by s tatute 16 or when an agency ru le requires appeal before rev iew and 17 the admi nistrative a ction is made inoperative pen ding 18 19 20 21 that rev iew.” Darby v. Cisneros, 509 U.S. 137, 154 (1993); see, e.g., Cedars-Sin ai Medical Ctr. v Nat’l League o f Postmaster s of U.S., 497 F.3d 972 , 980- 81 (9th 22 Cir. 200 7) (because agency regulations only manda te 23 exhausti on of disput es between insurance carriers and 24 “covered persons,” a third party is with no role in this 25 administ rative proce ss need not exhau st). 26 27 Federal Defendants h ave not identified any applic able statutor y exhaustion requirement, nor have they 28 33 1 2 3 identifi ed any excep tion to the Darby rule. Plaintif fs’ motion f or judgment on the pleadings as to exhau stion of administ rative remedies is GRANT ED. 4 5. Statute of Limitatio ns. 5 6 Defendan ts’ fourth d efense is that some or all of 7 plaintif fs’ claims a re barred by the statute of 8 limitati ons. 9 10 11 12 limitati ons applicab le to civil actions commenced against the Unit ed States: Except a s provided b y [the Contract Disputes Act of 1978, ] every civi l action commenced against the Unit ed States sh all be barred unless the complain t is filed w ithin six years after the right of action firs t accrues. The action of any person u nder legal d isability or beyond the seas at the t ime the clai m accrues may be commenced within t hree years a fter the disability ceases. 14 15 16 18 19 20 21 22 Title 28, United St ates Code, se ction 2401(a ) provides a six year statute of 13 17 Doc. 1 3 at 19. This lim itations per iod applies to cases brought under the APA. Hell s Cany on Pr es. Council v. Uni ted States Forest S erv., 593 F.3d 923, 930 (9th Cir. 2010) (gener al six-year statu te applies to APA claims). Therefore, unless e xcused, any claim arising earlier than Oc tober 23 23, 2003 (six years prior to the filing of the Co mplai nt) 24 is time- barred. 25 26 27 Here, Pl aintiffs sug gest that the § 2401(a) six-year limitati ons period s hould not bar their claims be cause either ( a) the viola tions alleged are continuing or (b) 28 34 1 the stat ute of limit ations does not apply to clai ms ba sed 2 on an ag ency’s actio ns in excess of statutory aut hority. 3 4 5 6 7 Doc. 18 at 10. As a general rule in the Ninth Ci rcuit, § 2401(a )’s limitati ons period is not jurisdictio nal and is subje ct to tradit ional exceptions, such as equ itable tolling, waive r, and estoppel. Cedar s-Sinai Med. Ctr. v. 8 Shalala, 125 F.3d 76 5, 770 (9th Cir. 1997). 9 continui ng violation doctrine has been extended t he § 10 2401(a) statute of l imitations in federal employm ent and 11 civil-ri ghts litigat ion. 12 13 14 15 16 The See , e.g., Douglas v. Cal. Dep’t of Youth Auth., 271 F.3d 812 (9 th Cir . 2001); Gutkowsk y v. County of Placer, 108 F.3d 256 (9th Cir. 2007). However, the Ninth Circuit recently refus ed to extend t he continuin g violation doctrine to APA c laims. 17 See Hall v. Regional Transp. Com’n of S. Nev., 362 Fed. 18 Appx. 69 4, *2 (9th C ir. 2010) (unpublished) (citi ng with 19 approval Gros Ventre Tribe v. United States, 344 F. Su pp. 20 21 22 23 24 2d 1221, 1229 (D. Mo nt. 2004)). Plaintif fs’ alternat ive argument that the statute of limitati ons does not apply because the agen cy’s action s are ultr a vire s is likewise unpersuasive. This a rgume nt 25 is based on Wi nd River Mining Corp. v. United States, 946 26 F.2d 710 , 714- 15 (9th Cir. 1991), which created an 27 exceptio n to the app lication of the statute of 28 35 1 limitati ons for claims in which a plaintiff asser ts an 2 agency a cted in exce ss of its statutory authority . 3 4 5 6 7 However, “a substant ive challenge to an agency de cision alleging lack of age ncy authority may be brought within six year s of the age ncy’s application of that dec ision to the spec ific challen ger.” Id. at 716; see also NRDC v . 8 Evans, 2 32 F. Supp. 2d 1003, 1024 (N.D. Cal . 2002 ) 9 (challen ge to regula tion as ultra vir es must be brough t 10 within s ix years of application of that regulatio n to 11 challeng er). 12 13 14 15 16 17 18 In thi s case, Plaintiffs alle ge that Reclamat ion’s “shift in policy” began as early as 1987, Doc. 18 at 3, and sh ould have been evident by the mid1990s, C ompl. at ¶ 4 9. Under Wind Ri ver, P lainti ffs w ere required to bring su it long before October 2009. Plaintif fs’ motion f or judgment on the pleadings as to the s tatute of li mitations defense is DENIED. 19 6. Laches. 20 21 Federal Defendants’ fifth defense is that some or all 22 claims a re barred by the equitable doctrine of la ches, 23 i.e. del ay with prej udice. 24 move for judgm ent on the pleadings as to th is aff irmat ive 25 defense. 26 27 Doc. 13 at 19. Plain tiffs Federal De fendants do not oppose, as th ey claim no preju dice caused by allegedly inequitable dela y. Plaintif fs’ motion f or judgment on the pleadings as to 28 36 1 the defe nse of lache s is GRANTED. 2 3 C. Analysis of Statutor y Claims. 1. Threshol d Issue: Arg uments Raised by Defendan ts that Plai ntiffs Maintain Were Not Pled in the Answer. 4 5 6 Plaintif fs complain that Federal Defendants have raised 7 certain “defenses” i n their briefing that were no t pled 8 in the a nswer. 9 places t hat Plaintif fs own contracts, D-164 1, the ESA, 10 and the CVPIA bar th e relief Plaintiffs seek. 11 12 13 14 15 Specifically, Defendants argue in various Pleading rules requi re an answer to state in shor t and plai n terms the “defenses” to each claim asse rted. Fed. R. Civ. P ro. 8( b)(1)(A). Any “denial” must fairly respond to the subst ance of the allegations. Rul e 16 8(b)(2). 17 “affirma tively state any avoidance or affirmative 18 defense. ” 19 raising any avoidanc e or affirmative defense by f ailing 20 21 22 23 In respond ing to a complaint, an answer must Rule 8(c) (1). to plead it in the a nswer. A defendant is barred f rom Prieto v. Paul Revere Life Insuranc e Co., 354 F. 3d 1005, 1012-13 (9th Cir. 2004) . Defenses that are wa ived if not pled include: (1) conduct 24 in compl iance with g overnmental regulations, or ( 2) a 25 statutor y bar to rec overy. 26 and Pro. Civ. (3d ed .) § 1271 n. 54, 59 (citing 27 authorit ies). Wright & Miller, 5 Fe d. Prac. 28 37 1 2 3 4 5 6 7 The comp laint allege s that Defendants are violati ng 15 provi sions of fed eral Reclamation law. The an swer asserts that the all egations of duty under the 15 reclamat ion statutes are “legal conclusions” and denies the char ges of viola tion thereof. Plaintiffs mai ntain that Def endants’ arg uments based on the contract, D-16 41, 8 the ESA, and the CVP IA should not be considered becaus e 9 they wer e not mentio ned in the answer. 10 contenti on is withou t merit. 11 existenc e of subject matter jurisdiction, Doc. 13 at 19 12 13 14 15 16 Plaintiff s’ The Answer denies t he (First D efense), and asserts that some or all of Plaintif fs’ claims f ail to st ate a claim upon which relief m ay be grante d, id. at 19 (Third Defense). Federal Defendants a re free to cite the CVPIA, th e ESA, 17 and Sect ion 8 of the 1902 Act, and any other rele vant 18 legal au thority that supports these defenses. 19 20 21 22 23 24 25 26 27 2. Statutor y Provisions That All egedly Require Operatio n of Irrigat ion Facilities. a. Section 1(a) of the 1960 Act. The seco nd sentence of Section 1(a) of the 1960 A ct reads, i n pertinent part: The prin cipal engine ering features of said unit shall be a dam and r eservoir at or near the San Luis sit e, a forebay and afterbay, the San Luis Canal, t he Pleasant Valley Canal, and necessary pumping plants, dist ribution systems, drains, channels , levees, fl ood works, and related faciliti es...” 28 38 1 Pub. Law . 86-4 88, § 1(a) (June 30, 1960). 2 maintain that Defend ants have a mandatory duty un der this 3 4 5 6 7 provisio n to provide irrigation service. 30, 76. Plaint iffs Compl. at ¶¶ 2, Plaintiffs also allege, and Defendants d o not dispute, that defend ants historically operated Sa n Luis Unit fac ilities to p rovide a full wat er sup ply under 8 water se rvice contra cts. 9 ¶¶ 9, 46 . 10 are fail ing to opera te the specified facilities f or 11 irrigati on service a nd, accordingly, are violatin g the 12 13 14 15 16 mandate. Compl. at ¶¶ 9, 46; Ans wer at The compl aint further alleges that Def endants Comp l. at ¶¶ 9, 46. More spe cifically, P laintiffs argue that this Cou rt’s decision in Fi rebaugh Canal and the Ninth C ircuit ’s affirmin g opinion es tablish, as a matter of law, that 17 defendan ts are legal ly bound under this sentence to 18 provide irrigation service. 19 Canal, p lainti ffs, including Unit farmers a nd the ir 20 21 22 23 24 Doc. 18 at 16. In Fireba ugh District , alleged th at the government was violati ng the sentence by not cons tructing the “necessary...dra ins” referred to therein and was not providing drainag e service to the farml ands. The Court grante d plaintiff s’ 25 motion f or partial s ummary judgment, holding that the 26 sentence unambiguous ly mandates construction of t he 27 specifie d facilities and that such mandate gives rise to 28 39 1 the obli gation to pr ovide drainage service to the Unit . 2 Memorand um Opinion a nd Order Re: Plaintiff’s Moti ons for 3 4 5 6 7 Partial Summary Judg ment, Fir ebaugh Canal Co. v. Unite d States, 1:88-c v-00634, at 6-17 (attac hed to Plain tiff’s Request for Judicial Notice (“PRJN”) as Exhibit 6 ). These ho ldings were confirmed, after trial on the 8 governme nt’s alleged defenses, in conclusions of law and 9 a partia l judgment. 10 Fact and Conclusions of Law & Partial Judgment), PRJN 11 Exs. 7 & 8. 12 13 14 15 16 17 18 19 20 21 22 23 24 Id. at Docs. 426 & 442 (Find ings of The Nin th Circuit affirmed in releva nt pa rt, holding that the sec ond sentence of Section 1(a) of the 1960 Act unambiguous ly mandates provision of drai nage service, but that In terior retained discretion “a s to how it satis fies the dra inage requirement.” Firebaugh Can al, 203 F.3d at 573-74, 577-78. Plaintif fs argue tha t the Ninth Circuit “repeated ly referred to the gove rnment’s consequent ‘duty’ to provide service from the fac ilities at issue.” Doc. 18 a t 16 (citing 203 F.3d at 570, 575, 576, 577, 578). Fr om this, Plaintif fs maintain, Firebaugh Canal “compe ls the conclusi on that the second sentence of Section 1( a) of 25 the 1960 Act unambig uously mandates that the gove rnment 26 has a du ty to provid e irrigation service from the 27 specifie d facilities including the San Luis dam a nd 28 40 1 reservoi r, the forebay an d afterbay, the Sa n Luis Cana l, 2 and nece ssary pumpin g plants and distribution sys tems.” 3 Doc. 18 at 16. 4 5 6 7 Plaintif fs read far too much into the district co urt and Nint h Circuit de cisions in Firebaugh Ca nal. Irrigati on service w as not there directly at issue. At 8 its core , Fire baugh Canal held that the second se ntence 9 of Secti on 1(a) crea ted a mandatory duty to const ruct all 10 of the p hysical “pri ncipal engineering features” of the 11 Unit, in cluding drai nage facilities called for by the 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 act. The stat ute di rects that the “principal engineer ing features of said unit shall be [a dam, res ervoir, etc. ] and necessary ... drains.” Id. (emp hasis added) . The term “shall” is usually regarded as making a provision mandator y, and the r ules of statutory construc tion presume that the term is used in its ordi nary sense u nless there is clear evidence to the cont rary. Ben nett v. Spear, 520 U.S. 154 (1997). Her e, there is no evidence that Congress misused the term “shall” or intended that the word is pre catory, as asserted by the Governme nt. Thus, al though the Department of the Interior was only au thorized (and not required) to const ruct the uni t, once it decided to construc t the unit, it was required to construct “necessa ry ... drain s” as part of the unit. In other wo rds, the Department’s discretion was limited to the decis ion whether to build the unit, no t to pick an d choose which “principal engineer ing features ” to include in the unitCongress made that d ecision. 203 F.3d at 573-74. The dist rict court d id conclude that “[t]he langu age 41 1 that ‘ne cessary drai ns’ be provided gives rise to the 2 obligati on to provid e drainage.” 3 4 5 6 7 PRJN, Ex. 6 at 13. But, thi s referred t o Interior’s statutory obliga tion to construc t facilities once Interior exercised its statutor y authority to construct the Unit. The N inth Circuit held drainag e must be provided, but the m eans is 8 left to the Agency. 9 are cons tructed purs uant to section 1(a), neither the 10 district court nor t he Ninth Circuit decisions in 11 Firebaug h Canal say anything about how the Unit should be 12 13 14 15 16 Assuming the necessary facil ities operated or water se rvice provided. For the same reason, Plaintiffs’ suggestion that the governme nt is bound to provide irrigation service by virtue o f the doctri ne of issue preclusion is wit hout 17 merit. 18 relitiga ting an issu e decided in a previous actio n if 19 four req uirements ar e met: 20 21 22 23 24 25 26 27 28 Issue preclu sion prevents a p arty from (1) ther e was a full and fair opportunity to litigate the issue i n the previous action; (2) the issu e was actual ly litigated in that action; (3) the issue was lo st as a result of a final judgment in that act ion; and (4) the person against whom collate ral estoppel is asserted in the pres ent action w as a party or in privity with a p arty in the previous action. Kendall v Visa U.S.A ., Inc., 518 F.3d 1042, 1050 (9th Cir. 200 8). “The bu rden is on the party seeking to rely upon iss ue preclusio n to prove each of the elemen ts have 42 1 been met .” 2 possibly demonstrate that the second requirement is met, 3 4 5 6 7 Id . at 1051. Here, Plaintiffs cannot as the s tatuto ry iss ue pr esently before the Court, dut y to provi de irrigatio n, was not “actually litigate d” in Firebaug h Canal or any other case. Plaintif fs’ further suggestion that “defendants a re 8 violatin g the [] dut y to provide irrigation servi ce,” 9 because they h ave reduced deliveries to comply wi th other 10 statutor y obligation s relating to the operation o f the 11 CVP fail s for two re asons. 12 13 14 15 16 First, Plaintiffs hav e not pointed to any langu age establishing a “duty to p rovide irrigati on service.” Second, even if the second sente nce of Secti on 1(a) coul d be read to establish some d uty to provide irrigation s ervice, it is undisputed that 17 Defendan ts do provide irrigation service to the water 18 district s in the Uni t, who then, in turn, provide 19 irrigati on water to Plaintiffs pursuant to water servi ce 20 21 22 23 24 contract s formed and executed by Interior in disc harging its stat utory, non-mandatory authorit y to d o so. Plaintif fs’ real com plaint is with the volume of irrigati on water pro vided. They have pointed to 25 absolute ly no langua ge in Reclamation law that re quires 26 Federal Defendants t o provide any particular volu me of 27 irrigati on water, or that they operate the Unit t o “full 28 43 1 capacity .” 2 3406(a) of the CVPIA , CVP operations include acti ons 3 4 5 6 7 Under § 2 of the 1937 Act, as amended by § necessar y to b enefit fish and wildlife habi tat (a statutor y mandate th at Plaintiffs ignore througho ut their briefs). Plaintiffs ’ suggestion that Reclamation is violatin g the law by operating the CVP and the Un it to 8 benefit fish and wil dlife is contradicted by the express 9 promises of the CVPI A. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintif fs do not fa ll within the zone of interes t of this sta tutory provi sion and have not failed arti culated a “clear duty to act ” for purposes of the final a gency action r equirement. b. 43 U.S.C . § 521. A 1920 a mendment to the 1902 Act, codified at Tit le 43 Unite d States Cod e, section 521, provides: The Secr etary of the Interior in connection with the oper ations under the reclamation law is authoriz ed to enter into contract to supply water fr om any proje ct irrigation system fo r other pu rposes than irrigation, upon such conditio ns of delive ry, use, and payment as he may deem proper: Pro vided, That the approval of such con tract by the water-users’ association or associat ions shall h ave first been obtained: Provided , That no su ch co ntra ct shall be en tered into exc ept upon a s howing that there is no other pr acticable so urce of water supply for the purpose: Provided fu rther, That no water shall be furni shed for the uses aforesaid if the delivery of such wat er shall be detrimental to the wate r service fo r such irrigation project, nor to t he rights of any prior appropriator: Provided further, T hat the moneys derived from 44 1 such con tracts shall be covered into the reclamat ion fund and be placed to the credit of the proj ect from which such water is suppli ed. 2 3 4 5 6 7 (emphasi s added). “ Detriment,” within the meanin g of this sec tion, occurs where the challenged use les sens water de liveries to irrigated lands or perceptibl y injures or damages a gricultural landowners. El Paso 8 County W ater Improvement District v. El Paso, 133 F. 9 Supp. 89 4, 920 (W.D. Tex. 1955), aff’d as modifie d, 243 10 F. 2d 92 7 (5th Cir. 1957). 11 12 13 14 15 16 Plaintif fs argue tha t this language “creates a mandator y statutory duty to refrain from furnishi ng water for non- irrigation u ses if doing so s hall be detr imental to the p roject’s irr igation water service.” 19. Doc. 18 at Pla intiffs alle ge that defendants historical ly 17 operated the irrigat ion facilities without detrim ent to 18 irrigati on service, Compl. at ¶¶ 9, 46, but that in 19 recent y ears, Defendants have been violating this mandate 20 21 22 23 24 25 because they are ope rating the CVP and the Unit t o furnish substantiall y all of the water for uses o ther than irr igation, eve n though doing so is detrimen tal to water se rvice, id. at ¶ 5 1. Title 43 , United States Code section 521 mu st be read 26 as a who le. It auth orizes the Secretary of Inter ior to 27 enter in to contracts for the sale of water from 28 45 1 irrigati on projects for non-irrigatio n purposes i f he or 2 she deem s it necessa ry, provided there is no othe r 3 4 5 6 7 “practic able” source of water for those non-irrig ation purposes , and provid ed that the non-irrigat ion us e wil l not be “ detrimental to the water service of such irrigati on project, nor to the rights of any prio r 8 appropri ator.” 9 has ente red into contract s wi th other parties for non- 10 irrigati on purposes, let alone that any such cont racts 11 have cau sed them det riment. 12 13 14 15 16 17 18 19 20 21 22 23 24 Plai ntiffs do not allege that Rec lamation See Doc. 1. T o the exten t that wat er deliverie s have been curtailed to prov ide nonirrigati on benefits, those curtailmen ts have occurred in response to st atutory, not contractua l, req uirements. See O’Ne ill, 5 0 F.3d 677. Section 521 does not a pply to the comp lained-about conduct. Plaintif fs maintain that the third proviso “does not refer to contracts.” context. Doc. 43 at 3. This i gnores The entire provision grants Reclamation permissi on to enter into contracts for non-irrigation purposes , provided c ertain conditions are met. T he third proviso is such a co ndition and applies only to 25 Reclamat ion’s capaci ty as a contracto r for non-irrigation 26 purposes . 27 Alternat ively, Plain tiffs maintain that Reclamati on 28 46 1 “has ent ered into an d is performing numerous cont racts 2 with oth er federal, state, and local agencies for non- 3 4 5 6 7 irrigati on uses.” D oc. 43 at 4. Specifically, Plaintif fs ass ert that the Coordinated Operating Agreemen t (“COA”), t he Bay-Delta Accord, CA LFED collabor ative agreem ents, the implementation memo randum 8 of under standing, th e San Joaquin River Agreement , and 9 the Cali fornia Bay-Delta Memorandum o f Unde rstanding 10 constitu te “contract s” for the purposes of § 521. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 These ar e not contra cts for purposes of the Reclamat ion Act beca use, for all post-1926 projects, the United S tates is per mitted to enter into “contrac ts” for reclamat ion water on ly with irrigation districts. Klamath Irrigation D istrict v. United States prov ides the definiti on of Reclam ation Act contracts: The Recl amation Act of 1902, ch. 1093, 32 Stat. 388 (cod ified, as am ended, at 43 U.S.C. §§ 371 et seq.) (the Reclam ation Act), directed the Secretar y of the Int erior (the Secretary) to reclaim arid lands i n certain states through irrigati on projects and then open those lands to entry by homesteader s. As recently recounted by the Supr eme Court, t his enactment “set in motion a massiv e program to provide federal financing, construc tion, and op eration of water storage and distribu tion project s to reclaim arid lands in many Wes tern States. ” Orf f v. United States, 545 U.S. 596 , [598] (200 5); see a lso Nevada v. United S tates, 463 U .S. 1 10, 115(1983); Californ ia v. United States, 438 U.S. 645, 650 (1978). Congress ori ginally envisioned that the United S tates would “withdraw from public entry arid lan ds in specif ied western States, reclaim 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the land s through ir rigation projects,” and then “restore the lands t o entry pursuant to the homestea d laws and c ertain conditions imposed by the Act itself.” Nev ada, 463 U.S. at 115. Nonethel ess, Congres s specifically directed, in section 8 of the Rec lamation Act, that the United S tates would act in accordance with state law to a cquire title to the water use d. 32 Stat. 390 (cod ified, in pa rt, at 43 U.S.C. § 383); see Californ ia, 438 U.S. at 650-51. It ga ve the Departme nt of the In terior responsibility for construc ting reclama tion projects and for administ ering the di stribution of wat er to agricult ural users i n a project service area. See Reclamation Act, §§ 2-10, 32 Stat. 388-90. In 1911, Congress en acted the Warren Act, ch. 141, 36 Stat. 925 (c odified at 43 U.S.C. §§ 52325), sec tion 2 of wh ich authorized the Secretary “to coop erate with i rrigation distric ts, water users’ a ssociations, corporations, entrymen or water us ers ... for impounding, delivering, and carrying water for i rrigation purposes.” 43 U.S.C. § 524. Under a 1912 amendment of the Reclamat ion Act, ind ividual water use rs served by a rec lamation pro ject could acquire a “waterright ce rtificate” b y proving that they had cultivat ed and recla imed the land to which the certific ate applied. Act of Aug. 9, 1912, ch. 278, § 1 , 37 Stat. 2 65 (codified, as amended, at 43 U.S.C . § 541). Co ngress required that the individu al’s land pa tent and water right certific ate would “e xpressly reserve to the United S tates a prio r lien” for the payment of sums due to the Unit ed States in connection with the recl amation proj ect. § 2, 37 Stat. 266 (codifie d at 43 U.S. C. § 542). In 1922, Congress en acted legislation expanding the Unit ed States’ o ptions to allow it to contract not only wi th individual water users, but also with “any l egally organized irrigation district .” Act of Ma y 15, 1922, ch. 190, § 1, 42 Stat. 54 1 (codified at 43 U.S.C. § 511). In the event of such a dist rict contract, the United States w as authorize d to release liens against individu al landowner s, provided that the landowne rs agreed to be subject to “assessment 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and levy for the col lecti on o f all moneys d ue and to b ecome due to the United States by irrigati on districts formed pursuant to State law and with which t he United States shall have entered into contrac t therefor.” § 2, 42 Stat. 542 (cod ified at 43 U.S.C. § 512).[FN3] The Fact-Fin ders Act of 1924, 43 Stat. 702 (cod ified at 43 U. S.C. §§ 500- 01), required that onc e two-thir ds of a division of a reclamation project was covered by individual water-rights contract s, that divi sion was required to organize itself into an irrigation di strict or similar entity in or der to qualify for certain financia l incentives . The newly-forme d dist rict would, t hereafter, a ssume the “care, operation, and main tenance” of the project, and the United States w ould deal di rectly with the district instead of the indiv idual water users . Id. FN3. The legislative history of the 1922 act reflects that Congre ss viewed these changes as signi ficant. See H.R. Rep. No. 662, at 2 (1922) ( “the Federal Government is dealing with the irrigation district instead of the individu al owner or water users’ associat ion”); 62 Co ng. Rec. 3573 (1922) (stateme nt of Rep. K inkaid) (“This language authoriz es the takin g of the district collecti vely, taking the lands of the district collectivel y, for the payment of the cost of the cons truct ion of the irrigati on works, in lieu of holding each farm uni t singly for its proportionate share of the c ost of the c onstruction.”); id. at 3575 (st atement of R ep. Mondell) (“The Reclamat ion Service has for years encouraged the orga nization of irrigation distri cts .. . whereby the water us ers as a body, as a whole, b ecome respon sible for all of the charges. ”); id. at 5859 (statement of Sen. McNary) (“the Govern ment is dealing with organize d irrigation districts rather than the vari ous individu al en trym en who take water in the project s”). In 1926, Congress en acted additional measures providin g that, then ceforth, the United States could en ter into con tracts for reclamation water 49 1 only wit h “an irriga tion district or irrigation district s organized under State law.” Act o f May 25, 1926 , ch. 383, § 46, 44 Stat. 649 (codified as amend ed at 43 U.S .C. § 423e). Thereafter, the United S tates contra cted exclusively with irrigati on districts . The exclusivity of these arrangem ents was ree mphasized in the Reclamation Act of 1 939, ch. 418 , 53 Stat. 1187, section 9(d) of which provid ed that “[n]o water may be delivere d for irriga tion of lands ... until an organiza tion, satisf actory in form and powers to the Secr etary, has e ntered into a repayment contract with the Un ited States.” 53 Stat. at 1195 (co dified at 43 U.S.C. § 485h(d)). 2 3 4 5 6 7 8 9 10 67 Fed. Cl. 504, 507-08 (2005). Even if the COA, Bay-Delta Accord, CA LFED 11 12 collabor ative agreem ents, implementation memorand um of 13 understa nding, San J oaquin River Agreement, and 14 Californ ia Bay-Delta Memorandum of Understanding are 15 contract s for some p urposes, they are not contrac ts for 16 17 18 19 20 the deli very of recl amation water or could not po ssibly cause de triment to P laintiffs. The COA, judicial notice of which has been ta ken in related cases, see 1:09-cv00407, C onsolidated Delta Smelt Cases, Doc. 696 E x. 1, is 21 an agree ment between federal and state agencies, not 22 includin g any irriga tion districts. 23 the Bay- Delta Accord 5 and Bay-Delta Memorand um of 24 Understa nding 6 . The same app lies to None of these could possibly trigger 4 3 25 26 5 27 28 Av ai la bl e at : ht tp :/ /ww w. ca lw at er . ca. go v/ co nt en t/ Doc um en ts /l ib ra ry /S FB ayD el ta Ag re em e nt. pd f (l as t vi si te d Feb . 16 , 201 1) . 6 Th e Av ai la bl e at : ht tp: // ca lw at er . ca. go v/ co nt en t/ Do cu me nts / 50 1 U.S.C. § 521 because they are not Reclamation Law 2 “contrac ts.” 3 4 5 6 7 The San Joaquin Rive r Agreement (“SJRA”) 7 was executed in 1999 and 2000 by several federal and state agencies and a numbe r of California irrigation di stricts that mak e up the “Sa n Joaquin River G roup” 8 (“SJRG ”). 8 Pursuant to the SJRA , the SJRG agreed to provide water 9 needed f or a pulse f low in the San Joaquin River 10 describe d in the SJR A, in exchange for payment by the 11 Bureau o f Reclamatio n out of the CVPIA Restoratio n Fun d. 12 13 14 15 16 17 18 19 20 This vol untary purch ase of water could not cause the kind of “detr iment” to ir rigators prohibited by § 521. Finally, Plaintiffs have not provided any copies of or citat ions to the “CALFED collaborative agreeme nts” they ref erence. Plaintif fs’ cl aims do not fall within the z one of interest s protected by § 521. Plaintiffs have fa iled to articula te a “clear duty to act” for purposes of the 21 22 23 24 25 26 27 28 Ame nd ed _a nd _R es ta te d_ MOU _9 -0 3. pd f ( las t vi si te d Fe b. 1 6, 20 11 ). 7 Av ai la bl e at a t ht tp :// ww w. sj rg .o r g/a gr ee me nt .h tm ( la st vi si te d Feb . 16 , 20 11 ). 8 Th e Sa n Jo aq ui n Ri ve r G ro up c on si s ts of t he S an J oa qu in Ri ve r Gr ou p Aut ho ri ty ( “S JR GA ”) , and i ts m em be r ag en ci es M od es to I rr iga ti on Dis tr ic t, T ur lo ck I rr iga ti on D is tr i ct, M er ce d Ir ri ga ti on Di st ri ct , Sou th S an J oa qu in I rr iga ti on D is tr i ct, a nd O ak da le I rr ig ati on Dis tr ic t; t he S an J oa qui n Ri ve r Ex c han ge C on tr ac to rs W at er Au th or it y and i ts m em be r ag en ci es Ce nt ra l Ca l ifo rn ia Ir ri ga ti on D ist ri ct , Sa n Lui s Ca na l Co mp an y, F ire ba ug h Ca na l Wa te r Di st ri ct a nd C olu mb ia Can al C om pa ny ; th e Fr ian t Wa te r Us e rs Au th or it y on b eh al f o f it s mem be r ag en ci es ; an d the C it y an d C oun ty o f Sa n Fr an ci sc o ( “C CS F” ). See S JR A at 1 .3 . 51 1 final ag ency action requirement. 2 c. Section 6 of the 190 2 Act. 3 4 Section 1 of the 190 2 Act provides that cer tain 5 moneys s hall be appr opriated as the Reclamation F und to 6 be used in the const ruction and maintenance of ir rigation 7 works fo r the storag e, diversion, and development of 8 waters f or the recla mation of arid and semiarid l ands in 9 10 11 12 13 the West . Reclamat ion Fund for the operation and maintenanc e of project facilities: Interior is authoriz ed and directed to use the reclamat ion fund for the operation and maintena nce of all r eservoirs and irr igation works co nstructed un der the provisions of this Act. 15 16 18 Section 6 of the 1902 Act specific ally authori zes Reclamation to use the 14 17 43 U.S.C. § 391. § 491. Plaintif fs allege th at Defendants are violating t his 19 provisio n by not ope rating the Unit at or near it s full 20 capacity . 21 22 23 24 See Doc. 18 at 20. In support of this argument , Plaintiffs cite the diction ary definition of the term “operation” as “a doing or performing of a practica l work...as part of a series of actions.” 25 Webster’ s Third New International Dictionary 26 (Springf ield: G&C Me rriam, 1976), p. 1581. 27 contend that “ [f]unds are not used for operation of 28 52 Plain tiffs 1 irrigati on works if the works are built but not u sed to 2 perform the work for which they were designed.” 3 4 5 6 7 8 at 20. Doc. 18 This definit ion and the related argument, standing alone, go n owhere, because it is undisputed that the Unit is being us ed to perform the type of wor k for which it was designe d -- deli vering water to irrigator s and othe r users with in the Unit. Plaintif fs cite two cases to “illustrate the 9 10 principl e that recla mation project works are inte nded by 11 Congress to be opera ted at or near their full cap acity.” 12 13 14 15 16 Id. Pla intiff s firs t cite Friends of the E arth v . Armstron g, 485 F.2d 1 (10th Cir. 1974), which add ressed Reclamat ion’s operat ion of reclamation facilities on the Colorado River, incl uding Glen Canyon Dam and Lak e 17 Powell, as authorize d under the Colorado River St orage 18 Project Act of 1956, 43 U.S.C. § 620. 19 containe d two provis ions relating to national mon uments: 20 21 22 23 24 This Act a lso (1) the Bureau was t o take adequate protective me asures to precl ude im pairment of a specified national monumen t located near the Lak e Powell; and (2) no dam or r eservoir construc ted under th e act was to be within any na tional 25 monument . Between 1 962 and 1968, appropriation a cts were 26 passed u nder which G len Canyon was complete d. 27 provided that no fun ds were available for constru ction of 28 53 Ea ch 1 faciliti es to preven t waters of Lake Powell from entering 2 any nati onal monumen t. 3 4 5 6 7 In 1968 Congress passed a nother act, two sections of which were premised on full operatio n of Lake Po well. Environm ental plaint iffs sued to keep water impou nded in Lake Powell from backing up into Rainbow Bridg e 8 National Monument. 9 specific appropriati ons legislation enacted subse quent to 10 the Stor age Project Act intended that Lake Powell was to 11 be maint ained at cap acity to make its related pro ject 12 13 14 15 16 The Ninth Circuit found that the componen ts work (inc luding those in the Lower Bas in) and that the design feat ures of Glen Canyon Dam made it clear that ope rating at th e level the plaintiffs desire d was not feas ible. See 485 F. 2d at 10–12. There is no 17 specific legislation requiring operation of the C VP or 18 San Luis Unit at or near capacity, nor do Plainti ffs 19 point to any design features that suggest operati on at or 20 21 22 23 24 near ful l capacity i s necessary. Plaintif fs nex t cite United States v. Calif ornia, 694 F.2d 117 1 (9th Cir. 1982), which addressed SWRCB- imposed conditio ns limiting Reclamation’s appropriation o f water 25 for irri gation from New Melones Dam. 26 that cas e argued tha t the specific conditions imposed 27 were inc onsistent wi th congressional directives a s to New 28 54 The plainti ffs in 1 2 3 4 Melones. The Ninth Circuit rejected this argumen t: Californ ia, in Decis ion 1422, provided that no appropri ation of wat er to the New Melones project for “consump tive uses” (largely, irrigati on) would be allowed immediat ely. Conditio n 1 states i n part: 5 Until fu rther notice of the State Water Resource s Control Bo ard, the water shall be used onl y for preser vation and enhancement of fish and wildlife , recreation and water quality control purp oses. 6 7 8 9 Conditio n 2 includes this statement of when water wi ll be approp riated for irrigation: Further order of the Board shall be preceded by a sho wing that th e benefits that will accrue f rom a specif ic proposed use will outweigh any damage that would result to fish, wi ldlife and r ecreation in the watershe d above New Melones Dam and that the permitte e has firm c ommitments to deliver water fo r such other purposes. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 This lan guage is cap able of broad construction, so that California m ight never allow the fu ll use of t he dam contemplated by Congress. Such a reading would raise serious questions of inconsis tency with t he federal statute, and the conflict might be of constitutional dimension. This is not our case , however, for California has inte rpreted the clause na rrowly. Califo rnia concedes in this lit igation that the California Water Bo ard cannot “ permanently prevent full impoundm ent of water in the New Melones Project, since th is result wo uld be directly inconsistent with the congression al mandate that the project shall ev entually ach ieve full storage capacity.” Cal. Ope ning Brief a t 19 n.8. Congress has already weighed the benefits and costs; all that is neede d is for the United States to “develop a plan for consumptive uses.” Id. at 6. The district court held that “in the cons umptiv e use segment of the decis ion, the Board, in effect, said to the Bureau, ‘Show us your contracts and your abi lity to deli ver the water and it may be availabl e to you.’” 509 F. Supp. at 886; see also id. at 884. Cal ifornia has not disputed this int erpretation on appeal. Id. at 1 177. 28 55 1 Plaintif fs focus exc lusively on the emphasized te xt, 2 suggesti ng that the inclusion of this language in United 3 4 5 6 7 States v . California esta blishes the propos ition that whenever Reclamation is instructed to operate a facili ty, it must do so “at or near full capacity.” v. Calif ornia says no such thing. United Stat es The reasoning quote d 8 above es tablishes on ly that in that l itigation Ca lifor nia 9 conceded that Congre ss mandated that New Melones “shall 10 eventual ly achieve f ull storage capac ity,” and th at an y 11 conditio ns imposed b y the SWRCB must be interpret ed to be 12 13 14 15 16 consiste nt with that mandate. In fact, the Ninth Circuit held in United State s v. California that California’s restrict ions on oper ation of New Melones di d not conflict with con gressional p olicy to operate the reservoi r at 17 full cap acity becaus e the conditions merely defer red full 18 operatio n. 19 statute included lan guage that arguably expresses 20 21 22 23 24 25 26 27 Id . at 1178-70. The New Melones authorizi ng Congress ional intent to o perate the project at or above a specific capacity: Provided further, Th at the Stanislaus River Channel, from Goodwi n Dam to the San Joaquin River, s hall be main tained by the Secretary of the Army to a capaci ty of at least eight thousand cubic feet per second subject to t he conditio n that respo nsible local interests agree to maint ain private levees and to prevent encroach ment on the existing channel and floodway between the levees: 28 56 1 Section 203[2] of th e Flood Control Act of 1962, Pub.L. 2 87-874, 76 Stat. 117 3. 3 4 5 6 7 Plaintiffs point to no su ch specific operating m andate applicable to the San Luis Unit. Friends of the Earth and United States v. Califor nia concerne d specific s tatutory provisions that are 8 inapplic able here. 9 U.S.C. § 491 or any subsequent act of Congress re levant 10 to the U nit dictates the San Luis Unit shall oper ate at 11 maximum capacity. 12 13 14 15 16 Plaintiffs do not explain how 43 Plaintif fs suggest t hat Section 6 of the 1902 act , 43 U.S.C. § 391, “direc ts operation of all works ‘constru cted,’” and prohi bits “Interior to allow works construc ted to sit i dle.” Doc. 43 at 4-5. More 17 specific ally, Plaint iffs contend that Section 6 d oes “not 18 contempl ate operatio n of any works constructed at 10% 19 capacity . 20 21 22 23 24 Nor does it allow all but one of the d elta pumps to be to tally shut down....” Id. at 5. theory f inds no supp ort in the statutory text. This S ection 6 simply “ authoriz[es] and direct[s]” Interior “to use the reclamat ion fund for the operation and maintenanc e of all 25 reservoi rs and irrig ation works constructed under the 26 provisio ns of this A ct.” 27 Interior ’s use of th e Reclamation Fund; it does n ot This constrains and con trols 28 57 1 mandate that any par ticular “works constructed” b e 2 operated to full or at any specific capacity. 3 4 5 6 7 Plaintif fs do not fa ll within the zon e of interest of this sta tutory provi sion and have failed to artic ulate a “clear d uty to act” for purposes of the final age ncy action r equirement. 8 d. Second P roviso of Se ction 2 of the 1937 Act, As Amended. 9 10 11 Plaintif fs next invo ke the second proviso of Section 2 of the 1937 Act, w hich provided, before amendme nt: 12 Provided further, Th at the entire Central Valley project, California, heretofore authorized and establis hed under th e provisions of the Emergenc y Relief App ropriation Act of 1935 (49 Stat. 11 5) and the F irst Defi ciency Appropri ation Act, f iscal year 1936 (49 Stat. 1622), i s hereby rea uthorized and declared to be for the purposes of improving navigation, regulati ng the flow of the San Joaquin River and the Sacr amento River , controlling floods, providing for storage and for the delivery of stored w aters thereo f, for the reclamation of arid and semiarid la nds and lands of Indian reservat ions, and ot her beneficial uses, and for the gene ration and s ale of electric energy as a means of financially aiding a nd assisting s uch undertak ings and in order to permit the ful l utilizat ion of the w orks constructed to accompli sh the afore said purposes.... 13 14 15 16 17 18 19 20 21 22 50 Stat. 844, 850 (A ug. 26, 1937). 23 the emph asized text, insisting that this creates a 24 25 26 27 28 Plaintiffs fo cus on directiv e and duty to operate the Unit to “full utilizat ion,” Doc. 1 8 at 22, rather than a legisl ative goal. P laintiffs ma intain that the facilities we re “fully u tilized” to provide irrigation water serv ice to 58 1 Unit lan ds for decad es and that the Unit is curre ntly 2 “not bei ng fully uti lized, but [has been] left 3 substant ially unused .” 4 5 6 7 Id. To suppo rt this theo ry, Plaintiffs rely on Friends of the Eart h, asserting that, there, the Tenth Circu it “interpr eted the col liding statutory requirements so that 8 those co ntempl ating full utilization of Lake Powe ll 9 overrode those conte mplating half utilization of the 10 reservoi r and non-use of the spillways.” 11 also cit e Unit ed Sta tes v . California, which, as 12 13 14 15 16 Id. Pl ainti ffs explaine d above, con strued the New Melones legisl ation to require “full use” a nd “full storage capacity” of the dam. 69 4 F.2d. at 1 177. These cases do not cont rol the interpre tation of th e unique statutory provision here in 17 dispute. 18 Unit mus t be found i n the provisions Plaintiffs cite. 19 20 21 22 23 24 25 26 27 28 Any statut ory mandate to “fully utilize ” the The seco nd proviso o f Section 2 of the 1937 Act w as specific ally amended in 1992 by § 3406(a)(1) of t he CVPIA to permi t the use of project water for the “mitig ation, protecti on, and rest oration of fish and wildlife. ” This amendmen t specifies: In the s econd provis o of subsection (a), by insertin g “and mitig ation, protection, and restorat ion of fish and wildlife” after “Indian reservat ions,” The amen ded proviso now reads: 59 1 Provided further, Th at the entire Central Valley project, California, heretofore authorized and establis hed under th e provisions of the Emergenc y Relief App ropriation Act of 1935 (49 Stat. 11 5) and the F irst Deficiency Appropri ation Act, f iscal year 1936 (49 Stat. 1622), i s hereby rea uthorized and declared to be for the purposes of improving navigat ion, regulati ng the flow of the San Joaquin River and the Sacr amento River , controlling floods, providin g for storag e and for the delivery of stored w aters thereo f, for the reclamation of arid and semiarid la nds and lands of Indian reservat ions, and mitigation, protection, and restorat ion of fish and wildlife and other benefici al uses, and for the generation and sale of elect ric energy a s a means of financially aiding a nd assisting such undertakings and in order to permit the full util ization of the works co nstructed to accomplish the aforesaid purposes .... 2 3 4 5 6 7 8 9 10 11 12 13 14 (emphasi s on amendme nt). Plaintif fs acknowled ge this language as amended, 15 16 which de scribes a co-equal statutory purpos e of the CV P, 17 but insi st that “wha t is called for therein is the ‘fu ll 18 utilizat ion of the w orks constructed’ to accompli sh both 19 irrigati on and fish and wildlife purposes.” 20 21 22 23 24 5. Doc. 43 at Plai ntiffs clari fy that they do not claim Def endants are viol ating this s tatute “by using CVP faciliti es for other th an irrigatio n purposes.” Doc . 43 at 6. Plaintif fs argue “[t ]he statute requires use of t he 25 faciliti es for fish and wildlife, but it also req uires 26 their us e for irriga tion. 27 being pe rformed; the latter requirement is being The former requirement is 28 60 1 violated .” 2 undisput ed that Defe ndants do provide irrig ation servi ce 3 4 5 6 7 8 Id . But, as discussed above, it is to the w ater distric ts in the Unit, who then, in turn, provide irrigation w ater to Plaintiffs; albeit on a reduced level. Plai ntiffs’ real complaint is with the volume o f irrigation water provided. Plaintif fs further a rgue: “Defendants are serving 9 fish and wildlife no t just by using CVP facilitie s, as 10 required , but by fai ling to use them. 11 substant ially idle s o that water may flow to the Pacific. 12 13 14 15 16 Works sit This is inconsistent with the irrigation prong of the proviso, and the fis h and wildlife prong.” Id. Howev er, in adopt ing the CVPI A, Congress was aware that op eration of the f ederal and s tate pumping facilities in th e Delta, 17 upon whi ch any “full utilization” of the San Luis unit 18 depends, might pose inherent dangers to fish and 19 wildlife . 20 21 22 23 24 25 26 27 28 For examp le, the Senate Report accompa nying the pass age of the C VPIA stated: The draf ting of proj ect water across the Delta by the S tate and Fed eral pumps is so strong that waterflo w actually r everses, resulting in the intrusio n of salt wa ter into critical habitat areas, s uch as Suisu n Marsh and the Delta. In avera ge water yea rs, 8 million Sacramento River sa lmon are div erted into the central and south de lta area and more than half of thes e die as a dir ect result. By one estimate 60-80 percent of all Sacra mento River juvenile salmon never ma ke it past t he Delta. Up to 95 percent 61 1 2 3 of the e ntire San Jo aquin River basin salmon producti on is lost t o the pumps. S.R. Rep . No. 102-267 at 180 (1992). Senat or Bra dley’ s 4 attached statement w as even more specific. 5 the U.S. Fish and Wi ldlife Service provided the C ommittee 6 on Energ y and Natura l Resources with a list of fi shery 7 mitigati on needs, in cluding: 8 9 10 11 He no ted that Improvem ents of Delt a facilities (scr eens) and operatio ns, includin g perhaps pumping curtailm ents at crit ical periods. Id. at 2 04. S enator Bradley also quoted the Cali fornia 12 Departme nt of Fish a nd Game’s “Central Valley Sal mon and 13 Steelhea d Restoratio n and Enhancement Plan” which stated: 14 Successf ul downstrea m migration of salmonid smolts i s critical f or the restoration of stocks of salmo n and steelh ead. The flows must be sufficie nt to carry the fish past all major diversio ns.... Ultim ately both State and Federal projects should be m odified to utilize a common intake o r intakes wi th fish screens and sufficie nt bypass fl ows. The current trapping and truc king practic e at the Delta pumps, as at some oth er diversion s, should only be considered a stopga p or supplemental measure.... Increased flows, p umping curta ilment, adequate screens, and appr opriate oper ating criteria are the solution s.... 15 16 17 18 19 20 21 22 23 24 Id. at 2 04-205 (emphasis added). Plaintif fs’ reading of the statute would preclude 25 curtailm ent of pumpi ng to protect fish and wildlife 26 because doing so wou ld not “full[ly] utilize[e] t he works 27 construc ted to accom plish the purposes” set forth in the 28 62 1 CVPIA. 2 problems for fish an d wildlife and that pumping 3 4 5 6 7 Because Cong ress knew that pumping was ca using curtailm ents might b e necessary to remedy those p roblems, Plaintif fs interpret ation cannot be adopted. Tra ditional canons o f statutory construction require avoidanc e of literal interpretati on of a statute that leads to an 8 absurd r esult that i s inconsistent with Congressi onal 9 purpose. 10 (1940) ( “A literal r eading of [statutes] which wo uld lead 11 to absur d results is to be avoided when they can be given 12 13 14 15 16 See Haggar Co. v. Helvering, 308 U.S. 389, 3 94 a reason able applica tion consistent with their wo rds and with the legislative purpose.”). A c ourt should adher e to “the elementary c anon of construction that a s tatute should b e interprete d so as not to render one par t 17 inoperat ive.” 18 v. Puebl o of Santa A na, 4 72 U .S. 237, 249 (1985) 19 (interna l quotation marks omitted). 20 21 22 23 24 25 26 27 28 Mountain States Telephone & Telegraph Co. Congress in the CVPI A redefined CVP purposes: ... to b e for the pu rposes of improving navigati on, regulati ng the flow of the San Joaquin River and th e Sacramento River, controll ing floods, providing for storage and for the delivery of stored waters the reof, for the recl amation of a rid and semiarid lands and lands of Indian rese rvations, and mit igatio n, protecti on, and rest oration of fish and wildlife and othe r beneficial uses, and for the generati on and sale of electric energy as a means of financially aiding and assisting s uch undertak ings and in order to permit the full 63 1 utilizat ion of the w orks constructed to accompli sh the afore said purposes.... 2 3 The “ful l utilizatio n of the works” language, whi ch is 4 not sepa rately defin ed, is contained within the same 5 clause a s the genera tion and sale of electric ene rgy 6 purpose. 7 the acco mplishment o f all the stated (“aforesaid” ) 8 9 10 11 The entire paragraph does not quantify or limit purposes : (1) improv ing navigation; (2) regulatin g San Joaquin and Sacramen to River flows; ( 3) flo od control; (4) prov iding storag e; (5) delivery of stored wat er; (6) 12 reclamat ion of arid and semiarid lands; (7) fish and 13 wildlife protection, mitigation, and restoration; (8) 14 other be neficial use s; and (9) generation and sal e of 15 electric energ y. 16 17 18 19 20 A partia l or even no n-uti liza tion of the works, w here the work s are being utilized in the overall to ac complish all such purposes, i s enabled by the permissive t erm “permit, ” which does not “require” full utilizati on at 21 all time s. 22 limits n or does it s pecify what quantity or durat ion of 23 utilizat ion of “the works” must be devoted annual ly to 24 CVP oper ations to ac hieve the legislative goals “ to 25 26 27 28 The stat ute does not prescribe operat ing accompli sh the afore said purposes.” The language is enabling , not limiti ng. The inte rest asserte d by Plaintiffs in increased 64 1 water de liveries doe s not bear a plausible relati onship 2 to the p olicies unde rlying the second proviso of Section 3 4 5 6 7 2 of the 1937 Act, a s amended. Plaintiffs do not satisfy the zone of interest test and therefo re do not have standing to bring th is claim. Even if Plaintiffs fall within o ne of the zo ne of interest of this statut ory 8 provisio n, there is no “clear duty to act” for pu rposes 9 of the f inal agency action requirement. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 e. Fourth P roviso of Se ction 2 of the 1937 Act. The four th proviso o f Section 2 of the 1937 Act, as original ly promulgat ed, provides that the CVP dam s and reservoi rs “shall be used, first, for river regul ation, improvem ent of navig ation, and flood control; sec ond, for irrigati on and domes tic u ses; and, third fo r power.” 5 0 Stat. 84 4, 850 (Aug. 26, 1937). This provision w as amended by CVPIA § 3 406(a)(2), to state: that the CVP dams an d reservoirs “shall be used, first, f or river reg ulation, improvement of navigati on, and floo d control ; second, for irrigati on and domes tic uses and fish and wildlife mitigation, protection and restoration purposes ; and, third for power.” Plaintif fs argue tha t Defendants are violating a “mandate ” in this pr oviso by not providing full 26 irrigati on service to Unit Lands. Their argument has 27 several premises: 28 uncontro versial prop osition that Reclamation must use its 65 F irst, Plaintiffs advance the 1 faciliti es for the p urposes set forth in law. 2 example, Section 6 o f the Boulder Canyon Project Act 3 Fo r provides that the dam and reservoir shall b e used : 4 First, f or river reg ulation, improvement of navigati on, and floo d control; second, for irrigati on and domes tic uses and satisfaction of present perfected ri ghts in pursuance of Article VIII of said Colorad o River compact; and third, for powe r. 5 6 7 8 43 U.S.C . § 617e. 9 566, 584 (1963), hel d that Interior “must” use th e dam 10 and rese rvoir for th e stated purposes. 11 12 13 14 15 Arizona v. Califor nia, 3 73 U.S . 546 , Id. at 58 4. Plaintif fs are corre ct that Arizona v . California stands for the proposition that § 617e imposed an “oblig ation” to satis fy the “pres ent perfected rights” referen ced therein. Doc. 18 at 23. The relevance of that h olding 16 to the p resent matte r is limited. 17 Section 2 of the 193 7 Act contains no absolute 18 requirem ent that cer tain prior rights be satisfie d. 19 Rather, it places ir rigation, domestic, and fish and 20 21 22 23 The fourth pro viso of wildlife mitigation on an equal level of priority . Congress was aware o f the possibility that use of the San Luis Uni t might have to be curtailed at cer tain t imes of 24 the year to serve fi sh and wildlife purposes. 25 proviso nowhere impo ses any absolute obligation o f full 26 utilizat ion for irri gation. 27 Th is Plaintif fs then make the unsupported assertion th at 28 66 1 Defendan ts are viola ting the fourth proviso of Se ction 2 2 of the 1 937 Act by d elivering only a fraction of the 3 4 5 6 7 8 Unit’s c ustomary sup ply. Doc. 18 at 23. Plaint iffs acknowle dge “both ir rigation uses and non-irrigat ion purposes are listed in the proviso,” but neverthe less insist “ a violation is still occurrin g here .” Id. Their argument continues: Congress mandated th at “the said dam and reservoi rs shall be used” for such uses and such purposes . The “said ” facilities include the earlier referenced C VP “works” constructed, includin g the “canals” an d “pumping plants. ” Here, th e Bureau is not using such facilities, includin g the Jones Pumping Plaint and the Delta Mendota Canal, to an y substantial extent for irrigati on uses, as directed by Congress. Even if non-i rrigation pu rposes were now equal i n priority to irrigati on uses, equality is not reflecte d in a 10% a llocation for the Unit, an integral part of the CVP. 9 10 11 12 13 14 15 16 Id. 17 Bureau t o use such f acilities to a more than “equ al” 18 extent f or irrigatio n uses, subject to prio rity f lood 19 20 21 22 23 24 25 26 27 Thi s inte rpreta tion of the proviso requires the control use. Plaint iffs’ position is not support ed by the stat utory text, which “permits” Interior to accompli sh all the p urposes, which may include th at the pumps ar e not fully utilized for irrigation to me et ESA requirem ents. Plaintif fs further a rgue that, assuming arg uendo Section 2 does not p rioritize irrigation over fis h and wildlife restoration , the fourth proviso should b e read 28 67 1 in light of the “mor e specific first sentence of Section 2 1(a) of the 1960 Act .” 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Doc. 18 at 24. As a general rule, a specific sta tute controls a conflicting g eneral statute. Corl ey v. U.S., 129 S. Ct. 1558, 1568 (2009) . Section 1(a) of the 1960 San Luis Act provides: for the principal pu rpose of furnishing water for the irrigation o f approximately f ive hu ndred thousand acres of la nd in Merced, Fresno, and Kings Co unties, Cali fornia, hereinafter referred to as th e Federal Sa n Luis unit service area, and as i ncidents the reto of furnishing water for municipa l and domest ic use and providing recreati on and fish and wildlife bene fits, the Secretar y of the Int erior ... is authorized to construc t, operate, and maintain the San Luis unit as an integral part of the Central Valley Project. 74 Stat. 156, Pub. L aw 86-488 . Plaintif fs assert th at this establishes tha t, contrary to the gene ral language in the CVPIA put ting fish and wildlife pu rposes on equal footing with irrigati on, Congress expressly indicated that the San Luis uni t should be operated with its principal p urpose being fu rnishing wat er for irrigation . 22 But, the 1992 CVPIA, at section 3406(a)(2), is 23 specific ally worded to reprioritize the purposes of al l 24 CVP faci lities: 25 26 27 28 ....CVP dams and res ervoirs “shall be used, first, f or river reg ulation, improvement of navigati on, and floo d control; second, for irrigati on and domes tic uses and fish and wildlife mitigation, protection and restoration 68 1 2 3 4 5 6 7 purposes ; and, third for power.” CVPIA § 3406(b) requ ires “[t]he Secretary, immedi ately upon the enactment [ of the CVPIA], shall operate the Central Valley Project to meet all obligati ons under state an d federal la w, including, but not limited to the federal Endangered S pecies Act ... and all decisi ons of 8 the Cali fornia State Water Resources Control Boar d.” 9 9 The lang uage of § 34 06(b) is unequivocal. 10 the enti re CVP , incl uding the San Luis Unit , subjectin g 11 all oper ations of th e Unit to curtailments requir ed to 12 13 14 15 16 It app lies to meet sta te and feder al fish and wildlife protecti on law, includin g the ESA. Plaintiffs’ position that the San Luis Act identifies the San Luis Unit as th e only Unit in the CVP for which ir rigation is still the primary purpose 17 (subject to navigati on and flood control), preven ting 18 curtailm ent of irrig ation uses to comply with 19 20 21 22 23 24 25 26 27 28 9 To t he e xt en t Pl ai nt iff s si mp ly a r gue t ha t § 1( a) o f th e S an L ui s Act d ir ec ts R ec la ma ti on to p ro vi de wat er t o pa rt ic ul ar u ser s in par ti cu la r am ou nt s, t his a rg um en t h as pr ev io us ly b ee n re jec te d: Rea d as a w ho le , se ct ion 1 (a ) do es not a ss ig n ex cl us iv e wat er rig ht s to a ny p ar ty . ... Ra th er , i t i s a re af fi rm at io n of Con gr es s’ s co ns is te nt tr ea tm en t of the C VP a s an e xp an di ng, coo rd in at ed w at er d el ive ry s ys te m. Th e Sa n Lu is A ct , al ong wit h ot he r re cl am at io n a ct s, e xp li c itl y gi ve s th e Bu re au th e aut ho ri ty t o ma na ge t he CV P. Se ct i on 1( a) e xp la in s ho w the S an Lui s Un it f it s in to t hat s ys te m. T he se ct io n im po se s no li mi t on th e Bu re au ’s d is cr eti on t o ma ke wat er m an ag em en t de ci sio ns in th e in te re st s of a n i nt eg ra te d w ate r pr oj ec t. Wes tl an ds W at er D is tr ict v . Un it ed Sta te s, 8 05 F . Su pp . 150 3, 1 50 8 (E. D. C al . 19 92 ), a ff ’d su b no m. W e stl an ds W at er D is t. v . F ir eb au gh Can al C o. , 10 F .3 d 66 7 ( 9t h Ci r. 1 9 93) . 69 1 statutor ily-ma ndated fish and wildlife protection 2 obligate d under the later -ena cted CVPIA is without 3 4 5 6 7 8 support. Plaintif fs do not fa ll within the zone of interes t of this sta tutory provi sion and have failed to artic ulate a “clear d uty to act” for purposes of the final age ncy action r equirement. 9 10 11 12 13 3. Alleged Failure to E xercise Water Rights. Plaintif fs next poin t to four statutory provision s they mai ntain mandat e that Defendants “exercise t he water rights n ecessary to operate the CVP and the Unit by 14 divertin g, storing, conveying, and delivering wat er to 15 Unit far mers who hol d equitab le interests in the right s 16 that are both appurt enant to the lands irrigated and 17 transfer rable.” 18 19 20 21 Doc . 18 at 24. Plaintif fs cite a se ries of cases in an attempt t o establis h that farme rs within the Unit hold some form of enforcea ble “right” to water from the CVP a s a ma tter of 22 water la w. 23 82 (1937 ), which fou nd that the United States was not an 24 indispen sable party to a lawsuit concerning reduc tions in 25 deliveri es of water to plaintiffs’ land. 26 27 Plaintif fs first cite Ick es v. Fox, 3 00 U. S. Plainti ffs, landowne rs in the Yakima Valley, entered into a contract with the United Stat es in 1906 which provided tha t, among 28 70 1 other th ings, the Un ited States would construct w orks to 2 divert t he waters of the Yakima river and its tri butaries 3 4 5 6 7 for the irrigation o f plaintiffs land s, provided that the landowne rs initiate rights to the use of water fr om the proposed irrigation works “as soon as may be.” 89. Id. at In determining whether United States should be 8 deemed i ndispensible , the Supreme Court examined whether 9 the Unit ed States he ld title to the w ater rights. 10 Court co ncluded that the “the government did not become 11 the owne r of the wat er-rights,” because (1) “thos e rights 12 13 14 15 16 The by act o f Congress w ere made ‘appurtenant to the land irrigate d,’” 10 and “by the contract wit h the government, it was t he land owne rs who were ‘to initiate righ ts to the use of water.” Id. at 93 -94. Ac cordingly, the 17 farmers had acquired “a vested right to the perpe tual use 18 of the w aters as app urtenant to their lands.” 19 Interior ’s contention tha t ownership was ve sted in the 20 21 22 23 24 Id. at 94. United S tates was “n ot well founded,” as “[a]ppro priation was made not for the use of the government, but, under the Recl amation Act, for the use of the land owne rs.” Id. at 9 5. Th e Cour t concluded that the right to the use 25 26 27 28 10 Th e re fe re nc ed A ct o f C on gr es s wa s co di fi ed a s 43 U .S .C . § 3 72 , whi ch p ro vi de s: “ Th e rig ht t o th e u se of w at er a cq ui re d und er t he pro vi si on s of t hi s Ac t s ha ll b e ap p urt en an t to t he l an d irr ig at ed , and b en ef ic ia l us e sh all b e th e ba s is, t he m ea su re , an d the l im it o f the r ig ht .” Se e Ic ke s, 30 0 U. S. a t 94 n .2 . 71 1 of water , when acqui red for irrigation, becomes, by 2 express provision of the 1902 Act, “part and parc el of 3 4 5 6 7 the land upon which it is applied.” Id. at 95-96. Plaintif fs next cite Nebraska v. Wyom ing, 3 25 U.S. 589 (194 5), which in volved the use of water of the North Platte R iver by farm ers in two federal reclamatio n 8 projects (the North Platte Project and the Kendri ck 9 Project) and various private projects. 10 recogniz ed appropria tive rights in the owners of the 11 lands to be irrigate d. 12 13 14 15 16 Three sta tes had In di sposing of a claim by the governme nt against t hose states, the Supreme Cour t addresse d the appurt enancy and beneficial use requirem ents of the Section 8 proviso. Id. at 61 1-16. After qu oting the st atute and language in Ickes, the 17 court de fined the water right, as fol lows: “The water 18 right is appurtenant to the land, the owner of wh ich is 19 the appr opriator. 20 21 22 23 24 T he water right is acquired by perfecti ng an approp riation, i.e., by an actual d iversion followed by an appli cation ... of the water to a benefici al use.” Id. at 614. But, the Cou rt specific ally noted t hat the water rights became t he 25 property of the land owners by both “the terms of the law 26 and of t he contract[ s].” 27 Id. Finally, Plaintiffs cite Nevada v. United States, 463 28 72 1 U.S. 110 (1983), whi ch involved the Truckee River and the 2 Newlands Reclamation Project. 3 4 5 6 7 In 1944, water rig hts were adjudica ted, includi ng those of project irrigator s and an Indian t ribe. In 19 73 the government brought sui t on behalf o f the tribe seeking additional water righ ts. The Supreme Court reject ed the request, reasoning tha t the 8 governme nt’s positio n, if accepted, would “do awa y with 9 half a c entury of de cided case law.” 10 of the 1 902 Act 11 , Ickes an d Nebraska, id. at 122-2 5, the 11 Court co ncluded the government was “completely mi staken” 12 13 14 15 16 Reviewing S ection 8 if it be lieved that the water rights “were likely so many bushels of wheat, to be bartered, sold, or shifte d about as the G overnment mi ght see fit.” Id. at 126. The co urt held: “O nce these la nds were acquired by settlers in the 17 Project, the Governm ent’s ‘ownership’ of the wate r rights 18 was at m ost nominal; the beneficial interest in t he 19 rights c onfirmed to the Government resided in the owners 20 21 22 23 24 25 26 27 28 11 Se ct io n 8 of t he 1 90 2 A ct p ro vi de s : Tha t no th in g in t hi s Act s ha ll b e c ons tr ue d as a ff ec ti ng or int en de d to a ff ec t or to i n an y wa y in te rf er e wi th t he l aws o f any S ta te o r Te rr it or y r el at in g to the c on tr ol , ap pr op ri ati on , use , or d is tr ib ut io n of wa te r us ed in ir ri ga ti on , or a ny ve st ed rig ht a cq ui re d th er eu nde r, a nd t he Sec re ta ry o f th e In te rio r, in ca rr yi ng o ut t he p rov is io ns o f t his A ct , sh al l pr oc ee d i n con fo rm it y wi th s uc h law s, a nd n ot h ing h er ei n sh al l in a ny wa y aff ec t an y ri gh t of a ny St at e or o f th e Fe de ra l Go ve rn me nt or of an y la nd ow ne r, a pp rop ri at or , or use r of w at er i n, t o, or fro m an y in te rs ta te s tre am o r th e w ate rs t he re of : Pr ov id ed, Tha t th e ri gh t to t he us e of w at er acq ui re d un de r th e pro vi si on s of t hi s Ac t s ha ll b e ap p urt en an t to t he l an d irr ig at ed , an d be ne fi cia l us e sh al l be t he b as is , th e me asu re , and t he l im it o f th e rig ht .” 73 1 of the l and within t he Project to which these wat er 2 rights b ecame appurt enant upon application of Pro ject 3 4 5 6 7 water to the land.” Id. Congress, in its wisdom , “require d the Secret ary of the Interior to assume substant ial obligati ons” with respect to reclamat ion of arid lan ds. I d. at 128. The Bureau ignored “the 8 obligati ons that nec essarily devolve upon it from havi ng 9 mere tit le to water rights for the Newlands Proje ct, 10 where th e beneficial ownership of these water rig hts 11 resides elsewhere.” 12 13 14 15 16 Id. at 127. Plaintif fs appear to cite these cases to establis h that the y have acqui red some form of water “right” tha t transcen ds their con tracts. In all three cases r elied upon by Plaintiffs, the contracts between the Uni ted 17 States a nd the lando wners directly provided that the 18 landowne rs either wo uld take ownership of the wat er right 19 itself, or at the very least would possess a contractu al 20 21 22 23 24 right to a fixed vol ume of water. contract s are presen t. Here, no such Landowners to not directl y contract for water s ervice with the government, o nly water di stricts may so contract, Klamath Ir rigation 25 District , 67 Fed. Cl . at 507-08; see also Klamath Wate r 26 Users, 2 04 F.3 d 1206 (irrigators had no sta nding to br ing 27 breach o f contract c laim against Reclamation beca use not 28 74 1 indended third-party beneficiaries of contract). 2 Likewise , where not inconsistent with congressional 3 4 5 6 7 objectiv es, conditio ns required by state law may be imposed on the opera tion of reclamation projects, includin g conditions designed to enhance fish and wildlife habitat. United States v. C alifor nia, 6 94 F. 2d 8 at 1177– 78; se e also O’Neill, 50 F.3d at 68 2–86 (contract 9 allowed for delivery curtailments required by sta tute). 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 What the modern case s, e.g., Klamath Water Users and O’Neill, establish i s that contracts for federal water service from Irrigat ion Districts do not create continui ng “water ri ghts” tha t are enforceable, except in strict c ompliance wi th identified contracts. a. 1920 Ame ndment to th e 1902 Act. The 1920 amendment t o the 1902 Act provides: The Secr etary of the Interior in connection with the oper ations under the reclamation law is authorized to enter into contract to supply water fr om any proje ct irrigation system for other pu rposes than irrigation, upon such conditio ns of delive ry, use, and payment as he may deem proper: Pro vided, That the approval of such con tract by the water-users’ associati on or associat ions shall h ave first been obtained: Provided , That no s uch contract shall be entered into except upon a showing that there is no other practicable source of water supply for the purp ose: Provide d fur ther , That no wat er shall be furnished f or the uses aforesaid i f the delivery of such wat er shall be detrimental to the wate r service fo r such irrigation project, nor to t he rights of any prior appropriator: Provided further, T hat the moneys derived from such con tracts shall be covered into the reclamat ion fund and be placed to the credit of 75 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the proj ect from whi ch such water is supplied. 43 U.S.C . § 521 (emp hasis added). Plaintif fs argue the y are “prior appropriators” a s that ter m is used in the statute: The word “rights,” a s used in the 1920 statute, also app ears four ti mes in Section 8 and its proviso. 43 U.S.C. § § 372, 383, 485h-4. A right is a rig ht to the us e of water, including any such rig ht of the go vernment, the project operator , or any lan downer, appropriator, or user of water, the p roject beneficiar ies. The term “ri ghts” is equ ally broad in the 1920 amendmen t to the 190 2 Act. It certainly includes the right t o use water held by any Unit grower. The word “appropriat or,” especially as modified by the w ord “any,” i s a broad term that embraces landowne rs and water users in a reclamation project. This is sh own by other provisions of federal reclamation law and Supreme Court usage of the t erm “appropr iator.” Section 8 of the 190 2 Act provides, in relevant part, th at “nothing herei n shall in any way affect a ny right of. ..the Federal Government or of any l andowner, ap propriator, or user of water... ” 43 U.S.C. §383 (emphasis added). By using th e term “any. ..appropriator” along with the term s “landowner ” and “user of water,” Congress intended th at any such person, includin g an “approp riator,” could have an interest in a water right. Here, each plaintiff is a “us er of water” or a “landowner” or both, and also an “appropr iator.” In Nebraska, t he Sup reme Cour t used the ter m “appropr iator” or “appropriators” dozens of times. 325 U.S. at 596, 600, 601, 602, 609, 613, 614 , 615, 619, 620, 623, 624, 626, 627, 629, 635 , 639, 640, 643, 645, 654. As to the federal projects, th e issue before the court involved allocation of water rights among “appropr iators.” Id. at 615. The “appropr iators” were the individual landowners. Id. at 6 13, 615. Th e water right was appurten ant to the l and, the owner of which was the “app ropriator.” Id. at 614. More generall y, the court used multiple adjectives in the opin ion to modif y the terms “appropriator” 76 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 or “appr opriators,” whether project irrigators or non-p roject irrig ators, such as “individual” appropri ators, “priv ate” appropriators, “downstr eam” appropr iators, “upper” and “lower” appropri ators, “seni or” and “junior” appropri ators, and “ Colorado,” “Wyoming,” and “Nebrask a” appropria tors. Id. at 601, 609, 619, 624, 626 , 629, 639, 640, 645, 654. The use of the adjec tive “prior” to modify “appropr iator” could not have been intended by Congress to render t he no un “ appropriator” meaningl ess. Non-irrigat ion uses of water by the Bure au would be unlikely to be detrimental to any a ppropriator with rights senior to the project rights. Tho se at significant risk from non-irri gation uses of project water includ e project irrigators, whether they own the water rights o utright or o nly the equitable or benefici al interest therein. Instead, the use of the w ord “prior” must have been intended to mean any holder of a n interest in the right to use the water under the doctrine of prior appropri ation. Thus, pr oject irriga tors are protected by this clause. As users of the water, they are prior appropri ators and th ey possess rights as such. Defendan ts are bound not to furnish project water fo r non- irrigation uses if doing so s hall be detri mental to th ose rights. Doc. 18 at 29- 30. Statutes are to be c onstrued in a manner that giv es effect t o all of the ir terms. Bennett v. S pear, 520 U.S. 154, 173 (1997) (“it is our duty to give effect, if possible , to every c lause and word of a statute”) (interna l quotations and citations omitted). The refore, a court must assume that when Congress used the t erm 25 “prior,” it meant pr ior. Under California law, 26 applicab le through § 8 of the Reclamation Act, th e term 27 “prior a ppropriator” has a specific meaning . 28 77 See , e.g ., 1 Wackerma n Dairy, Inc . v. Wilson, 7 F.3d 891 , 896 n.11 2 (9th Cir . 1993) (“Un der California law a prior 3 4 5 6 7 appropri ator is enti tled to all the water he need s, up to the amou nt that he h as taken in the past, before a subseque nt app ropriator may take any.”) (in ternal quotatio n and citati on omitted). The term, as de fined by 8 Californ ia law, is s imply inapplicable to Plainti ffs’ 9 claims, as they are not (and could not be) claimi ng 10 rights o btained thro ugh the prior appropriation doctrine. 11 See Del Puerto Water Dist. v. United States Burea u of 12 13 14 15 16 Reclamat ion, 2 71 F. Supp. 2d 1224, 1244–47 (E.D. Cal. 2003) (r ejecting cla im of allegedly senior “water contract delivery pr iority” and specifically find ing no merit to plaintiffs’ claim to hold an y appropriative 17 water ri ght based on prior use, despite having pu t 18 federal CVP contract water to use for over fifty years). 19 20 21 22 23 24 Even if “prior” were construed to mean “any,” so that § 521 is read to pro tect the rights of any approp riator, Plaintif fs hav e not demonstrated that they are “appropr iators” at a ll. It is Reclamation that i s the appropri ator of wate rs for CVP purposes; Plaintif fs are 25 customer s of water d istricts that, in turn, have solely 26 contract ual rights t o federal water the District obtains 27 from Rec lamation. U nder California law, even tho ugh 28 78 1 Reclamat ion itself d oes not apply project water t o lands, 2 it remai ns the holde r of the relevant water right s. 3 4 5 6 7 [T]he fa ct the Burea u does not consume water is not syno nymous with having no substantial interest in the wate r. The Bureau has appropri ative water rights in the Central Valley Project. The Bureau owns the CVP facilities, has oper ational cont rol and responsibilities relating to flood co ntrol, water supply, power generati on, and fish and wildlife mitigation. 8 SWRCB D- 1641. 9 water me rely because they use project water. 10 was thor oughly revie wed and decided in the Del Puerto 11 Water Di strict case and need not be further discussed. 12 13 14 15 16 Plain tiffs are not “ap propriators” of Thi s law Finally, 43 U.S.C. § 521 applies only to contracts the Bure au may enter into to provide water for no nirrigati on purposes. Plaintiffs do not here alle ge that their ir rigation ser vice has been diminished as a result 17 of any s uch contract . 18 rights, except as de fined and limited by their in dividual 19 water se rvice contra cts with Irrigation Districts . 20 21 22 23 24 Plaintif fs do not fa ll within the zone of interes t of this sta tutory provi sion and have failed to artic ulate a “clear d uty to act” for purposes of the fin al age ncy action r equirement. 25 b. Last sen tence of Sec tion 1(a) of the 1960 Act. 26 27 28 They do not hold independe nt water The last sentence of Section 1(a) of the 1960 Act provides : 79 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Construc tion of the San Luis unit shall not be commence d until the Secretary has (1) secured, or has s atisfactory assur ance of his abilit y to secure, all rights t o the use of water which are necessar y to carry o ut the purposes of the unit and the terms and co nditions of this Act.... 74 Stat. 156, Pub. L . 86- 488. Plaintif fs argue tha t Defendants’ “recent failure to exercise the water r ights threatens their securit y.” Doc. 18 at 31. Thei r argument is as follows: The verb to “secure” means “to relieve from exposure from danger ” or “to put beyond hazard of losin g or of not receiving.” Webster’s New Internat ional Dictio nary, p. 2053. ....Inte rior’s Solic itor has opined that the Bureau h as a duty, n ot only to obtain the necessar y water righ ts in the first instance, but also to “preserv e, maintain, [and] protect” them ove r time. 97 Interior Dec., Dec. 21, 1989 WL 50691 3 (D.O.I) at 7, 8. When Con gress direct ed the Bureau, in the last sentence of Section 1(a) of the 1960 Act, not to construc t the Unit u ntil it had “secured” all water ri ghts necessa ry to carry out the Unit’s purposes , it require d that the Bureau, not only obtain t he rights in itially, but also put them beyond r isk of loss by continuing to exercise them the reafter. Th e “purposes” of the Unit, to which th e last sente nce refers, as discussed above, a re spelled o ut in the first sentence of Section 1(a) of the 1960 Act. The “principal purpose” (among seve ral others as “incidents” thereto) is furnishi ng water for irrigation of Unit lan ds. The need to secure p roject water rights in the long-ter m, as well as the short-term, is obvious, for water r ights may revert to the status o f unappropri ated water to the extent of any non- use for five years. Cal. Wat er Code § 1241; co mpare Barnes v. Hussa, 136 Cal. App. 4th 1358, 13 71-72 (2006) (fin ding no forfeiture ) with Nor th Kern Water Storage District v. K ern Delta Wa ter District, 147 Cal. App. 4th 555 , 560, 566 n.5, 577 n. 10, 583, 584 (2007) (finding partial forfeiture). 80 1 To perfe ct the water rights for the Unit in the first in stance, it w as necessary for the Bureau to diver t, convey, a nd deliver the water supply and also for the far mers to apply the water to their la nds. To be “secured,” the water rights had to b e exercised over time, and the required governme nt-gro wer co opera tion did continue for decades. But in rec ent years, the Bureau has stopped diverting, c onvey ing, and deliverin g most of the water fo r the farmers to use in irrigati ng crops on Unit lands. The rights necessar y to carry o ut the purposes of the Unit, includin g its princi pal purpose of irrigation, have bee n rendered i nsecure. Thus, defendants are fail ing to perfo rm their statutory duty under th e last sente nce of Section 1(a) of the 1960 Act to secure a ll rights to the use of water ne cessary to c arry out the Unit’s purposes . 2 3 4 5 6 7 8 9 10 11 12 13 14 Id. at 3 1-32. Plaintif fs’ argument is without merit. The primary purpose of the CVP i s navigation and flood contro l. 15 Californ ia Water Cod e § 1241 provides that water rights 16 may be f orfeited if not put to use for an authori zed 17 purpose. 18 19 20 21 22 23 24 25 26 27 28 [w]hen t he person en titled to the use of water fails to use benefic ially all or any part of the water cl aimed by him , for which a right of use has vest ed, for the purpose for which it was appropri ated or adju dicated, for a period of five yea rs, such unu sed water may revert to the public a nd shall, if reverted, be regarded as unapprop riated publi c water. Such re-version shall oc cur upon a f inding by the board followin g notice to the permittee and a public hearing if requested by the permittee. However, redirecting CVP water from irrigation to fish and wild life purpose s (the act of which Pla intiffs complain ) poses no t hreat of reversion. The CVPI A authoriz es the Burea u to beneficially use water f or fish 81 1 and wild life purpose s. 2 petition for a chang e in purposes of use to bette r 3 4 5 6 7 In approving Reclamation’ s accommod ate the need to meet environmental objectives, the SWRC B in D-1641 expressly endorsed the use of project water fo r such purpo ses, against a challenge by W estlands Water Di strict, from whom the Plaintiffs obtain t heir 8 irrigati on water del ivered from the Unit. 9 CVP wate r rights per mits issued by th e SWRCB now 10 expressl y authorize use of CVP water for the stat utory 11 co-equal purpo ses of irrigation and environmental 12 13 14 15 16 The Bu reau’s protecti on. Plaintif fs respond w ith the novel contention that the amendmen ts contained in the CVPIA “compel use of faciliti es, not wate r... [and] do not impliedly a mend the 17 last sen tence of Sec tion 1(a) of the 1960 Act.” 18 at 9. 19 changes to only “fac ilities” not “water” is total ly 20 21 22 23 24 25 26 27 28 Doc. 43 F irst, Plaint iffs’ attempt to confine the CVPIA’s unsuppor ted by the s tatutory text. CVPIA § 3406 (a)(2 ) amended the second p roviso of subsection (a) of S ection 2 of the r eclamation A ct of 1937, 50 Stat. 844, 850 , to provide: That the entire Cent ral Valley project, Californ ia, heretofo re authorized and establis hed under th e provisi ons of the Emergenc y Relief App ropriation Act of 1935 (49 Stat. 11 5) and the F irst Deficiency Appropri ation Act, f iscal year 1936 (49 Stat. 1622), i s hereby rea uthorized and declared to be 82 1 2 3 4 5 6 7 8 9 10 for the purposes of improving navigation, regulati ng the flow of th e Sa n Joaquin River and the Sacr amento River , controlling floods, providin g for storag e and for the delivery of stored w aters thereo f, for the reclamation of arid and semiarid la nds and lands of Indian reservat ions, and mitigation, protection, and restorat ion of fish and wildlife, and other benefici al uses, and for the generation and sale of elect ric energy a s a means of financially aiding a nd assisting such undertakings and in order to permit the full utilization of the works co nstructed to accomplish the aforesa id purposes .... (emphasi s on amendme nt). This statute makes no distinct ion between facilities and water; rather it 11 declares (and redefi nes) the purposes of the CVP. 12 Plaintif fs’ claim ba sed on the last sentence of S ection 13 1(a) of the 1960 Act is w itho ut merit. 14 15 16 17 18 19 20 21 22 23 24 25 Plaintif fs do not fa ll within the zone of interes t of this sta tutory provi sion and have failed to artic ulate a “clear d uty to act” for purposes of the final age ncy action r equirement. c. Proviso of Section 8 of the 1902 Act. The prov iso of Section 8 of the 1902 Act, as reenacte d in 1956, p rovides, in part, as follows: “The right to the use of water acquired under the prov isions of this Act shall be appurtenant to the land irri gated.” 43 U.S.C . §§ 372, 48 5h-4. Plaintiffs maintain th at 26 defendan ts are curre ntly violating the Section 8 proviso 27 by “fail ing to exerc ise and, therefore, protect a nd 28 83 1 maintain the rights that are appurtenant to the l ands of 2 Unit far mers.” 3 5 6 7 8 9 The appu rtenancy pri nciple is also crucial to the inte rests of the government. By delivering the proj ect water to project beneficiaries for applicat ion to agric ultural crops, it secures its prev iously obtai ned water rights against possible reversion, and insures that farmers will pro duce food, f eed, and fiber for the nation. 10 11 12 13 By faili ng to delive r most of the project water to Unit farmers, the defendants are violating the comm and of the S ection 8 proviso. The water is not b eing benefic ially used on the lands to which th e water righ ts are appurtenant. Su ch rights a nd lands are being placed in jeopardy by such non -use. Again , the Bureau’s recent public document s take no ac count of this obligation. 14 15 16 17 19 20 21 22 This argument con tinues: ...[T]he Supreme Cou rt has repeatedly emphasized the sali ence of the appurtenancy mandate. This provisio n is a found ation of government duties and farm er rights. Ickes , 300 U.S. at 93, 94, 95-96; N ebraska, 325 U.S. at 614; Nev ada, 463 U.S. at 126. The pr oviso of Section 8 also mandates that benefi cial use shall be the basis, measure, and limit o f the right. 43 U.S.C. §§ 372, 485 h-4. Thus, the right to the use of water sh all be appur tenant to the land on which the wate r is benefic ially used. 4 18 Doc. 18 at 33. Id. Federal Defendants c orrectly point out that the i ssue is not r eally whethe r use is “appurtenant” or not: it is whether non-ir rigation use is a valid purpose for proj ect 23 water an d, if so, wh ether that use can be maintai ned even 24 if it me ans curtailm ents of water contracted for by local 25 water di stricts. 26 above. 27 Th is has been extensively analy zed Such a lternative uses, chosen by Congress as equal CV P uses to ac hieve defined purposes, are p lainly 28 84 1 valid. 2 regardin g liability under the proviso of Section 8 of the 3 4 5 6 7 8 1902 Act have alread y been considered and rejecte d. Plaintif fs do not fa ll within the zone of interes t of this sta tutory provi sion and have failed to artic ulate a “clear d uty to act” for purposes of the final age ncy action r equirement. 9 d. Allegati on that Defe ndants are Violating Section 8 of the 190 2 Act by Changing the Purpose and Place of Use of the Water Right to the Injury of the Legal Users of the Wate r. 10 11 12 13 14 15 All other as pects of Plaintiffs’ argument s Section 8 of the 190 2, as reenacted in 1956, dire cts, among ot her things, that: “Interior, in carrying out the provisio ns of this A ct shall proceed in con formit y wit h 16 the laws of any stat e relating to the control, 17 appropri ation, use, or distribution of water used in 18 irrigati on, or any v ested right acquired thereund er.” 19 U.S.C. § § 383, 485h- 4. 20 21 22 23 43 C alifornia statutes gover n changes of place or purpose of use of a wat er rig ht. Cal. Wat er Code § 17 00, et se q. In p articular, one statute mandates tha t “the change will not operat e to the 24 injury o f any legal user of the water involved.” Id. at 25 § 1702. 26 these re quirements b y using most water for other purposes 27 and at o ther places to the injury of legal users of the Plaintiffs allege that Defendants are vi olating 28 85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 water. Doc. 18 at 3 3. Their argument continues: Througho ut the histo ry of federal-sta te relation s in the rec lamation of arid lands in the West runs “the c onsis tent thread of purposef ul and conti nued deference to state water la w by Congres s.” California, 438 U.S. at 653. Se ction 8 refl ects this “cooperative federali sm.” Id. at 650. It mandates that state la w shall cont rol both “appropriation” and “distrib ution” of wa ter, unless Congress has enacted inconsistent directives. Id. at 665-69. Citing t his statute and case, the Bureau wrote in 2008: “Reclamatio n must operate the CVP in a manner t hat does not impair senior or prior rights.” RJN ¶ 9. But the scope of Sectio n 8 and the state law in corporated therein, includin g Section 17 02, is broader than that. The term “legal user ,” as used in Section 1702, has a “p lain meaning ,” and it is “broad.” It refers t o the person who is “ultimately responsi ble for putt ing the water to its benefici al use.” Su ch persons are “an integral part” of the right t o divert water from its source; without bene ficial use of the water, there is “no right t o take the water.” State Water Re sources Cont rol Board Cases, 136 Cal. App. 4th 674, 800-04 (200 6). Here, Un it farmers u se the water for irrigation of their lands and, thereby, perfect the water rights i nitially and protect and preserve them over tim e. Thus, ea ch farmer is a legal user of the wate r involved. The term “injury,” a s used in Section 1702, means an injury to “ rights.” State W ater Resource s Control Bo ard Cases, 136 Cal. App. 4th at 738- 40, 803. Unit lan downers and water users, including the plaintif fs, possess such rights. As discussed above, t hey hold the equitable or beneficia l interest in the proj ect water rights. Such rights a re part and parcel of their lands. And their in terests in t he rights are transferable at law. These right s have clearly been injured by the c hanges in pu rpose and place of use of the proj ect water im posed by defendants in recent y ears. SSUF ¶ 1. Defendan ts are in vi olation of Section 1702 and, 86 1 thus, Se ction 8 of t he 1902 Act. They are using most of the project water for uses other than irrigati on and in pl aces other than the Uni t. SSUF ¶¶ 7, 8. Thes e changes unlawfully cause injury t o the legal users of the water. 2 3 4 5 6 7 8 9 10 Doc. 18 at 34. This ig nores that t he Bureau has applied for and been gra nted a permi t to change the place and pur poses of use with respect to CVP water in compliance with Californ ia Water Cod e § 1702, as confirmed in D-1641, upheld b y the Califo rnia Court of Appeals in State Water 11 Resource s Control Bo ard Cases, 136 Cal. App . 4th 674, 12 804-06 ( 2006). 13 14 15 16 17 18 19 This is the applicable state law. Plaintif fs argue tha t D-1641 is not dispositive for two reas ons. First, Plaintiffs point out that th ey were not part ies to the s tate administrative proceedin gs that resulted in D- 1641. In addition, Plaintiffs argue tha t “[t]he S WRCB did not rule on the questions whethe r any Unit far mer wa s a ‘legal user’ of the water or wh ether he 20 or she s uffered ‘inj ury’ as a result of the chang e. 21 1641 doe s not specif ically discuss the Unit nor d oes it 22 quantify the CVP pur poses and places of use.” 23 24 25 26 27 28 D- Do c. 43 at 10-11. Plainti ffs’ asserti on amount s to a new challenge to the perm it issued by SWRCB in connection with D-1641. The SWRC B has primar y jurisdiction over questions pertaini ng to the la wfulness of its permits under state 87 1 law. 2 Control Board “is vested with all of the powers, duties, 3 4 5 6 7 Se e Cal. Water Code § 179 (State Water Reso urces purposes , responsibi lities, and jurisdiction” of laws “under w hich permits or licenses to appropriate w ater are issued, denied, or r evoked”). Federal courts lac k jurisdic tion to deci de questions pertaining to state 8 water pe rmits. 9 Dist., 1 65 F. Supp. 806, 857 (S.D. Cal. 1958)(cited with 10 approval in We stlands Water Dist. v Patterson, 900 F. 11 Supp. 13 04, 1317 (E. D. Cal. 1995), rev’d on other grounds 12 13 14 15 16 United States v. Fallbrook Pub. U til. 100 F.3d 94 (rejecti ng state law challenge to the reasonab leness of ce rtain CVP contractors’ use of water for, amo ng other thi ngs, failure to exhaust appro priate state ad ministrative remedies)). 12 Plaintiffs do n ot 17 assert t hey have sub mitted their challenge to the SWRCB. 18 Plaintif fs do not fa ll wi thin the zone of i nterest of 19 this sta tutory provi sion and have failed to artic ulate a 20 21 “clear d uty to act” for purposes of the final age ncy action r equirement. 22 23 24 25 26 27 28 12 Th e ad op ti on p ro ce ed ing s fo r D- 16 4 1 w er e Pu bl ic ly N ot ic ed. Se e SWR CB D -1 64 1 at 3 ( de scr ib in g na tu r e a nd t im in g of p ub li c n ot ic es ). San L ui s an d De lt a Me ndo ta W at er A u tho ri ty , th e Ca li fo rn ia Pu bl ic Wat er A ge nc y re pr es en tin g Pl ai nt if f s i n co nt ra ct in g wi th th e Bu re au of Re cl am at io n, p ar ti cip at ed i n th e he ar in gs l ea di ng u p to th e iss ua nc e of D -1 64 1. See h tt p: // ww w .wa te rb oa rd s. ca .g ov /w ate rr ig ht s/ wat er _i ss ue s/ pr og ra ms /ba y_ de lt a/ de c isi on _1 64 1/ par ty p2 .s ht ml ( la st v isi te d Fe br ua r y 1 6, 2 01 1) . 88 1 2 3 4 4. Statutes Pertaining to the Sale of Irrigation Water to Farmers to Recoup Project Costs. Plaintif fs point to a number of provisions of Reclamat ion law that they maintain “mandate that the 5 Bureau s ell water to irrigators to recoup project costs.” 6 Doc. 18 at 35. 7 Reclamat ion projects are to be recouped thr ough the sa le 8 of proje ct water. 9 10 11 12 13 Fund s expended to construct and o perate Peterson v. U.S De pt. of the Interi or, 899 F.2d 799, 804 (9 th Cir. 1990). Plaintiffs ar gue, generall y that “[i]n recent years, however, defen dants have ref used to sell millions of acre feet of wat er to Unit far mers a nd, as a co nsequence, failed to take int o 14 the fede ral treasury roughly a billion dollars. 15 past fou r years alon e, the government has forgone nearly 16 $600 mil lion of reve nues in operating the Unit.” 17 Plaintif fs do not al lege that Reclamation is not charg ing 18 19 20 21 In the Id. Unit use rs rates tha t impose charges to repay construc tion costs a nd to defray operation and maintena nce expenses . Plaintiffs’ complaint is t hat 22 water de liveries hav e been curtailed, and that th ese 23 curtailm ents violate the statutes described below by 24 causing the collecti on of less water revenue. 25 Defendan ts maintain that this does not violate an y of the 26 statutor y provisions invoked by Plaintiffs. 27 28 89 Fe deral 1 a. Allegati on that Defe ndants are Violating Section 4 of the 190 2 Act by Failing to Sell Water and Collect Construction Charges. 2 3 Section 4 of the 190 2 Act reads, in relevant part : 4 The cons truction cha rges which shall be made per acre ... upon lands in private ownership which may be i rrigated by the waters of any irrigation project shall be det ermin ed w ith a view of returnin g to the rec lamation fund the estimated cost of construction of the project, and shall be appor tioned equit ably. 5 6 7 8 9 10 11 12 13 14 43 U.S.C . § 461. violatin g Section 4 of the 1902 Act by failing to sell irrigati on water to Unit lands.” follows: This sta tute is a di rective by the Congress to the defe ndants. Cal ifornia, 438 U.S. at 678 n.31; Ba rcellos and Wolfsen v. Westla nds Water District, 899 F. 2d at 815, 817; U.S. v. Westland s Water Dist rict, 134 F. Supp. 2d a t 1118. 16 17 18 By refus ing to sell most of the project water to Unit far mers, the Bu reau is failing to return to the fede ral treasury the costs of construction of the C VP and Unit facilities. The docume nts recently published b y the Bureau setting out its current facility ope ration and water use plan take no account of t his cost recoupment and revenue raising mand ate. 19 20 21 22 23 25 Doc. 18 at 35. Plaintif fs’ legal ba sis for this allegation is as 15 24 Pl aintiffs allege Defendants “a re Id. It is un disputed tha t Federal Defendants do deliv er 26 some wat er to Plaint iffs each year an d have charged 27 Westland s and Plaint iffs have paid for that water in 28 90 1 accordan ce with the revenue-recoupmen t mandate. 2 in 43 U. S.C. § 461 i nstructs Interior to recoup c osts in 3 4 5 6 7 Nothing any part icular urgen cy time sequence or amount per ann um, let alon e the maximu m possible speed. Rather, th e language used sugges ts Interior retains discretio n in the manner b y which cost s are recouped. For example, 8 Interior must set ch arges “with a vie w of r eturning to 9 the recl amation fund the estimated cost of constr uctio n 10 of the p roject....” (emphasis added) 11 contenti on that Inte rior is violating this cost r ecovery 12 13 14 15 16 Plaintiffs’ provisio n because it is not allocating to Plainti ffs (and therefor e recovering charges from) their full con tract amounts is without a ny basis in the statutory lan guage. Plaintif fs do not fa ll within the zone of interes t of 17 this sta tutory provi sion and have failed to artic ulate a 18 “clear d uty to act” for purposes of the final age ncy 19 action r equirement. 20 21 22 23 24 25 26 27 28 b. Allegati on that Defe ndants are Violating a 1914 Ame ndment to th e 1902 Act by Failing to Colle ct Per-Acre- Foot Operation and Maintena nce Charges. A 1914 a mendment to the 1902 Act requires: In addit ion to the c onstruction charge, every ... land owner under or upon a reclamation project shall also p ay, whenever water service is avail able for the irrigation of his land, an operatio n and mainte nance charge based upon the total co st of operat ion and maintenance of the project, or each sep arate unit thereof, and such charge s hall be made for each acre-foot of water 91 1 delivere d... 2 43 U.S.C . § 492. 3 violatin g this statu tory command by refusing to s ell 4 5 6 7 8 Pl aintiffs argue that “Defendan ts are millions of acre-feet of water to Unit irri gators and, thereby, failing to collect a billion dollars or so fo r the fede ral treasury .” Doc. 18 at 36. In suppor t of this arg ument, Plain tiffs cite only Peterso n, 899 F. 2 d 9 at 804, which held t hat the plaintiffs in that ca se did 10 not have a vested pe rpetual right to pay the orig inal 11 amount p er acre char ged for water service, and we re not 12 entitled to enforce the original prior and lower contract 13 14 15 16 17 rates in light of th e mandates of the Reclamation Reform Act. Pl aintiffs mai ntain that Congress did not “authori ze deliverie s equal to 10% of the deliver y capabili ty of the wo rks constructed and the right s 18 acquired .” 19 nothing in this stat utory language that requires any 20 particul ar volume of water be delivered. 21 22 23 24 25 This arg ument is facially invalid. T here is Plainti ffs do not fall within the zone of interest of this statutory provisio n and have f ailed to articulate a “clear duty to act” for purposes of the final agency action requ irement. // 26 // 27 // 28 92 1 3 c. Allegati on that Defe ndants are Violating a 1926 Ame ndment to th e 1902 Act by Failing to Colle ct Payments from Irrigators to Recoup t he Cost of C onstructing, Operatin g, and Maint aining the Project. 4 A 1926 a mendment to the 1902 Act requires Interio r to 2 5 6 7 8 9 10 enter in to contracts with Irrigation Districts, w hich provide for “payment ... of the cost of construct ing, operatin g, and maint aining of the wor ks.” 423e. 43 U.S.C. § A lthough Plai ntiffs do not mention it, thi s provisio n also requi res Interior to ensure the co st of 11 construc tion is “rep aid within such terms of year s as the 12 Secretar y may find t o be necessary, in any event not more 13 than for ty years.... ” 14 “defenda nts are now violating this mandate by ref using to 15 16 17 18 Id. Plaintiffs again argu e sell mos t of the pro ject water and, thereby, coll ect payments to recoup p roject costs.” Doc. 18 at 36 -37 (citing Compl. at ¶¶ 10, 49, 61, 134). Congress explicitly directed Interior to administ er 19 20 the 1926 amendments to the 1902 Act, including th e above 21 statute, for the pur pose of rehabilitating reclam ation 22 projects and insurin g their future success by pla cing 23 24 them on a sound oper ating and financial bas is. § 423f. 13 4 3 U.S .C. Plain tiffs argue : 25 26 13 27 28 Se ct io n 42 3f p ro vi de s: “ Th e pu rp o se of s ec ti on s 42 3 to 42 3g a nd 610 o f th is t it le i s the r eh ab il it a tio n of t he s ev er al r ecl am at io n pro je ct s an d th e in su rin g of t he ir fut ur e su cc es s by p la cin g th em upo n a so un d op er at iv e a nd b us in es s ba si s, a nd t he S ec re tar y of t he 93 1 2 3 4 5 6 7 8 9 10 11 12 13 Selling a mere 10% o f the saleable water cannot possibly square with [these statutory requirem ents]. Woul d any taxpayer conclude that defendan ts are opera ting the project on a sound financia l basis? Th e government’s new practice, under wh ich millions of acre feet of saleable irrigati on water are being directed to the Pacific, dwarfs othe r notorious instances of federal income forgo ne. Doc. 43 at 12. Plaintif fs are corre ct that these amendments prov ide that a p ortion of ca pital costs and operating and maintena nce costs wo uld be charged to water users . Peterson , 899 F.2d a t 804. However, nothing in these provisio ns requires Reclamation to deliver any pa rticular volume o f water to P laintiffs. Even if the 40-year 14 repaymen t period des cribed in § 423e imposed upon the 15 Bureau a n obligation to recoup costs faster than is 16 occurrin g because of delivery restrictions, Plain tiffs 17 would no t have stand ing to challenge Interior’s f ailure 18 19 20 21 22 to do so . Although Plaintiffs are arguably harme d by the delivery restriction s, the cause of those restric tions is not fair ly traceable to § 423e. To the extent th at Plaintif fs assert ha rm as a result of the lost re venues 23 to the t reasury, any such harm is no different th an harm 24 done to an ord inary taxpayer, who does not have standing 25 to bring such a chal lenge. 26 See Flast v. Cohen, 3 92 U. S. 83, 88 ( 1968); see also Bowker v. Morton, 541 F.2d 134 7, 27 28 Int er io r is d ir ec te d to ad mi ni st er sai d se ct io ns t o th os e e nd s. ” 94 1 1349 n.2 (9th Cir. 1 976)(users of federal project water 2 likely w ould not hav e standing to challenge failure to 3 4 5 6 7 8 apply fe deral reclam ation law to state project ir rigators on the g round that s uch failure results in an “en ormous illegal subsidy” to state irrigators; federal use rs not harmed b y this illeg al benefit in any way that distingu ishes them from a n ordinary taxpaye r). 9 d. Argument that Defend ants are Violating a 1939 Ame ndment to th e 1902 Act by Failing to Requi re Payment f rom Irrigators in Order to Recover Cos ts. 10 11 12 13 14 A 1939 a mendment to the 1902 Act provides, in relevant part: [T]o cov er that part of the cost of t he construc tion of work s connected with water supply a nd allocated to irrigation, Interior shall fu rnish water for irrigation purposes at such rat es... as wil l produce revenues at least sufficie nt to cover an appropriate share of the annual o peration and maintenance cost and an appropri ate share of such fixed charges..., due consider ation being given to that part of the cost of construction of works connected with water su pply and all ocated to irrigation; and shall re quire paymen t of said rates e ach year in advance of delivery of water for said year. 15 16 17 18 19 20 21 22 43 U.S.C . § 485h(e). This is another statutory a mendment 23 on the r oad to Congr ess’ efforts to increase cost 24 recovery after decad es of litigation with Westlan ds’ 25 members. 26 violatin g this statu tory mandate by failing to se ll water 27 Plaintiffs allege Defendants “are curre ntly to irrig ators and, t hereby, recover project costs .” 28 95 Doc. 1 2 3 4 5 6 7 8 9 10 11 18 at 37 . Plaintiff s’ argument states, in its en tirety: Under th is amendment , the sale of project water to irrig ators must c over an appropria te share of the oper ation and ma intenance costs and construc tion costs. Ivanhoe, 357 U.S . at 278 n.3, 286 . The statu te is intended to allow the governme nt “to cover the costs associated with furnishi ng water for irrigation purpo ses.” Flint v. U.S., 906 F . 2d 471, 475 (9th Cir. 1990). Defendan ts are viola ting this 1939 statute by refusing to sell to Unit farmers their historic al water sup ply. As a result, project costs ar e not being recovered by defendants, as mandated by Congress. Defendants’ recent public document s make no me ntion of this duty. Id. at 3 7-38. Plain tiffs essentially argue that Congr ess 12 mandated that Reclam ation sell CVP water to the e xtent of 13 full con tract alloca tions in order to “produce re venues.” 14 This rea ding o f the law disregards numerous other 15 provisio ns permittin g uses of water for purposes other 16 17 18 19 20 than irr igation and for excusing delivery obligat ions for “any oth er cause.” As with § 423e, the harm of w hich Plaintif fs complaint , reduced water deliveries, is not fairly t raceable to the operation of § 485(h), an d 21 Plaintif fs point to no other harm that distinguis hes them 22 from an ordinary tax payer, depriving them of stan ding. 23 25 e. Allegati on Defendant s are Violating a Provisio n of the 195 6 Amendments to the 1902 Act by Refusing to Sell Irrigation Water an d, Thereby, Recoup Project Costs. 26 One prov ision of the 1956 amendments to the 1902 Act 27 provides that, in ad ministering the above 1939 am endment 24 28 96 1 thereto, Interior sh all “provide for payment of r ates.... 2 in advan ce of delivery of water...” 3 4 5 6 7 8 1(5). 43 U.S .C. § 485h- P laintiffs al lege that defendants are fail ing to sell wat er, collect charges, and recoup costs in violatio n of this st atutory language. (citing Compl. at ¶¶ 10, 49, 63, 144). Doc. 18 at 38 Plaintiff s supporti ng argument states, in its entirety: This 195 6 amendment to the 1902 Act sets forth certain mandates tha t Interior must follow in administ ering the ab ove section of the 1939 amendmen ts to the 19 02 Act. Ivanhoe, 357 U.S. at 286-8 7, 297-99; NRDC v . Houston, 1 46 F. 3d at 1123, 11 26. 9 10 11 12 Interior is not prov iding for payment of water rates, a s it is dive rting water for nonirrigati on uses outs ide of the Unit without receivin g payment th erefor. Thus, project costs are not being recove red, as mandated by thi s 1956 ame ndment. Doc uments recently published by the gove rnment descr ibing project operations and water us es ignore th is mandate. 13 14 15 16 17 Id. 18 pages fr om Iva nhoe simply quote statutory l anguag e 19 pertaini ng to repayment. 20 21 22 23 24 Pla intiff s’ cit ations are inapposite. The c ited Hou ston, 146 F.3d 1118, 1123 , 1126, co ncerned long-term service con tracts applicable to the Fria nt Division of the CVP and nowhere sugges ts that the stat utory repaym ent provisions provide any gu arantee of water deliveries. As with the previous argume nts, 25 Plaintif fs do not ha ve standing under this provis ion 26 based on a theory th at they have been injured by reduced 27 deliveri es. 28 97 1 f. Plaintif fs’ Theory T hat Defendants Are Violatin g Another Pr ovision of the 1956 Amendmen ts to the 19 02 Act by Refusing to Sell Wat er and Recou p Costs. 2 3 4 5 Finally, Plaintiffs cite another provision of the 1956 ame ndment that directs, in administering the 1939 6 amendmen t, Interior shall “include a reasonable 7 construc tion compone nt in the rates” set. 8 485h-1(6 ). 9 violatin g the statut e by refusing to sell irrigat ion 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 43 U.S .C. § Pl aintiffs ar gue that Defendant s “are now water, c ollect water charges, and recoup construc tion costs.” Doc. 18 at 28 (citing Complaint at ¶¶ 10 , 49, 64, 149) . Their arg ument continues: [T]he st atute requir es that Interior set wa ter rates un der which co nstruction costs will be repaid t o the federa l treasury. This requi res that pro ject water m ust be sold to irrigators rather t han given aw ay for non-irrigation u ses, which re coups no con struction costs. Defendan ts are viola ting this statuto ry duty to sell the project wat er and, thereby, recover the costs in curred by th e government to create and administ er the proje ct. They are, instead, refusing to sell mos t of the project water to Unit irr igators, as commanded by Cong ress, and allowing the water t o be used without any charge for non- irrigation p urposes and at pl aces outside the Unit ser vice area. Recently publishe d Bureau doc uments describe its plan for operatin g project fa cilities and delivering project water; these documents are utterly silent a bout this co mmand of Congress. Defendan ts’ recent r efusals to sell project water ar e massive in scope. Millions of acrefeet of project wate r have been given away for free, ra ther than so ld, and the consequent shortfal ls in federal revenues total about a billion dollars. De fendants’ refusals to sell water to Unit grower s and, thereby, recoup federal costs contra dicts the expressed will of 98 1 2 3 4 5 6 7 8 Congress . Doc. 18 at 39. This arg ument fails for numerous reasons. First, it complete ly ignores t he CVPIA, which explicitly di rects Interior to operate the CVP in accordance with st ate and federal fish and wil dlife restoration mandates. It also disregar ds the force majeure provision of Westlan ds’ CVP 9 water se rvice contra ct with t he Bureau, described in 10 O’Neill, which permi ts Interior to reduce water 11 deliveri es for “any other cause” and in times of water 12 shortage . 13 14 15 16 17 In additi on, the same standing bar dis cussed above pr ecludes Plai ntiffs from pursuing a claim based upon thi s statutory provision. If Plaintiffs are relying on reduc ed deliverie s as their injury, that injur y is not fairly t raceable to the identified statutory prov ision; 18 if Plain tiffs assert a “lost revenue” injury, the re is no 19 basis up on which a c ourt could distinguish such an inj ury 20 from tha t of an ordi nary taxpayer, who would not have 21 22 23 24 25 standing . It is an omalous that , after more than forty years of arguing that water u sers should not pay increased “full cost” fo r water serv ice and O&M charges, Plaintif fs now 26 invoke t he failed op portunity to pay more for suc h 27 charges as the basis for these claims of injury. 28 99 1 2 3 4 5 6 7 8 V. CONCLUSION This cas e arises in material part as a result of a politica l battle ove r the CVPIA, which changes th e allocati on of federa l CVP water, fought and decided in Congress almost twen ty (20) years ago. been dam aging for wa ter users. The resul ts have Efforts to achiev e legislat ive relief f rom the adverse effects of 9 environm ental and sp ecies protection and restorat ion 10 mandated by the CVPI A have been largely uns uccess ful. 11 The solu tions to the se serious issues lie in the 12 legislat ure, not the courts, which lack authority to 13 14 15 16 17 rewrite the law. For the reasons set forth above, Plaintiffs’ clai ms all fail as a matter of law: (1) The clai ms based upo n the first eleven stat utory 18 provisio ns fail for two independent reasons. 19 because the interest asserted by Plaintiffs in in creased 20 water de liveries doe s not bear a plausible relati onship 21 22 23 24 25 Fir st, to the p olicies unde rlying all these statutory provisio ns, Plaintif fs do not satisfy the z one of interest test and th erefore do not have standing. Alternat ively becaus e Plaintiffs have failed to 26 articula te a “clear duty to act” (mandatory duty) for 27 purposes of the fina l agency action requirement a s to 28 100 1 these el even statuto ry provis ions, Plaintiffs’ cannot 2 invoke t he APA to av oid the bar of sovereign immu nity. 3 4 5 6 7 (2) As t o the remain ing four claims under a 1926 Amendmen t to the 190 2 Act, a 1939 Amendment to th e 1902 Act, and two provisi ons of the 1956 Amendments to the 1902 Act , Plaintiffs lack standing to sue. If Plainti ffs 8 are rely ing on reduc ed deliveries as their injury , that 9 injury i s not fairly traceable to the above statu tory 10 provisio n; if Plaint iffs assert a “lost revenue” injury, 11 there is no basis up on which a court could distinguish 12 13 14 15 16 such an injury from that of an ordinary taxpayer, who would no t have stand ing. Accordin gly, althoug h Plaintiffs’ motion for judg ment on the p leadings is GRANTED as to the exhaustion of 17 administ rative remed ies and laches defenses, thei r motion 18 for judg ment o n the pleadings is DENIED in all ot her 19 respects , as is thei r motion for summary judgment that 20 21 22 23 24 Defendan ts are viola ting the fifteen reclamation statutes discusse d above. Federal Defendants’ cross motion for judgment on the pleading s is GRANTED in part. Plaint iffs l ack standin g 25 to sue a nd cannot sa tisfy the APA’s final agency action 26 requirem ent. 27 judgment as a matter of law as to all claims in t he Federa l Defendants are entitled to summary 28 101 1 2 3 4 Complain t. Federal Defendants s hall submit a proposed form of order co nsistent wit h this memorandum decision wi thin 10 days of electronic s ervice. 5 6 7 8 9 10 SO ORDER ED Dated: February 16, 2011 /s/ O liver W. Wanger Oliver W. Wang er United States Distri ct Ju dge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 102

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