-DLB Firebaugh Canal Co, et al v. USA, et al, No. 1:1988cv00634 - Document 916 (E.D. Cal. 2011)

Court Description: MEMORANDUM DECISION RE Cross Motions for Summary Judgment 817 826 831 , signed by Senior Judge Oliver W. Wanger on 09/30/11.

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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 9 1:88-cv-0634-OWW FIREBAUGH CANAL WATER DISTRICT, et al., Plaintiffs, 10 11 12 13 v. UNITED STATES OF AMERICA, et al., Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 MEMORANDUM DECISION RE: CROSSMOTIONS FOR SUMMARY JUDGMENT (DOCS. 819, 837, 892) I. INTRODUCTION. On October 22, 2010, Firebaugh Canal Water District and Central California Irrigation District ( Plaintiffs ) filed a motion for summary judgment against the United States seeking judgment (1) that the United States has unlawfully withheld drainage service for the San Luis Unit, and that the United State s duty to provide drainage includes a duty to drain water and contaminants entering Plaintiffs service areas; (2) that the United States failure to install and operate drainage facilities is agency action unlawfully withheld in violation of Section 1(a)(2) and Section 5 of the San Luis Act; (3) that the United States has acted arbitrarily, capriciously, and not in accordance with law in refusing to install, maintain, and operate federal 28 1 1 drainage features in the area known as the Northerly Area and in 2 the Northerly portion of Westlands Water District; (4) that a trial 3 shall be held to determine the quantities of drainage waters and 4 contaminants originating from irrigation within the San Luis Unit 5 that 6 injunction requiring the United States to provide for interception, 7 collection, and disposal of such waters and contaminants; and (5) 8 that the court should schedule an order to show cause hearing. 9 (Doc. 819 at 60-61). 10 have entered Plaintiffs service areas, and enter an On December 10, 2010, the United States Bureau of Reclamation 11 ( Reclamation ), 12 ( Department ), Gail Norton, and the United States of America 13 (collectively 14 summary judgment against Plaintiffs seeking judgment that Federal 15 Defendants have no duty to provide drainage service to land outside 16 the San Luis Unit, that the United States is complying with its 17 duties under the San Luis Act, and that the current drainage plan 18 in place is not arbitrary and capricious. 19 Water 20 District ( District Defendants ) filed a cross-motion for summary 21 judgment against Plaintiffs on December 10, 2010 seeking judgment 22 on Plaintiffs section 706(1) claim on the basis that there is no 23 duty 24 Plaintiffs lands. 25 opposition to Federal Defendants motion for summary judgment on 26 January 10, 2011. (Doc. 848). 27 opposition to Plaintiffs motion for summary judgment on December 28 10, 2010. Federal District, under United the States Defendants ) Panoche San Department Luis Water Act filed District, to (Doc. 832). provide of a the cross-motion (Doc. 827). and Interior Westlands Panoche drainage for Drainage service to District Defendants also filed Environmental Interveners filed (Doc. 842). 2 1 Plaintiffs replied to the cross-motions for summary judgment 2 on January 10, 2011. (Doc. 849). Federal Defendants filed a reply 3 in support of its motion for summary judgment on February 9, 2011. 4 (Doc. 856). District Defendants filed a reply on February 9, 2011. 5 (Doc. 857). II. FACTUAL BACKGROUND. 6 7 In Firebaugh Canal Co. v. United States, 203 F.3d 568 (9th 8 Cir. 2000), the Ninth Circuit affirmed in part and reversed in part 9 the court s entry of partial judgment on March 12, 1995, which 10 required Federal Defendants to fulfill their mandatory drainage 11 duties under the San Luis Act by pursuing a discharge permit with 12 the State of California. The Ninth Circuit held that drainage must 13 be provided but that the court s partial judgment improperly 14 precluded 15 authorized to pursue under the San Luis Act and remanded this 16 action for further proceedings. other drainage solutions Federal Defendants are 17 On December 18, 2000 the partial judgment was amended to 18 comply with the holding in Firebaugh. The amended partial judgment 19 provides in pertinent part: 20 21 22 23 24 25 26 27 28 FURTHER ORDERED that the Secretary of the Interior, the United States Department of the Interior, the United States Bureau of Reclamation, and each of them, and their officials, and employees, shall, without delay, provide drainage to the San Luis Unit pursuant to the statutory duty imposed by section 1(a) of the San Luis Act. The Secretary of the Interior, the United States Department of the Interior, the United States Bureau of Reclamation, and each of them, shall no later than January 29, 2001, submit to this court a detailed plan describing the action or actions, whether short term or long term, they will take to promptly provide drainage to the San Luis Unit, which plan shall contain a schedule of dates by which the action or actions described in the plan will be accomplished. Nothing contained herein is intended to divest the Secretary of the Interior, the United States Department of the Interior, or the United States Bureau 3 1 of Reclamation of any discretion they have to select means other than an interceptor drain to provide drainage to the San Luis Unit. Nor is anything contained herein intended to excuse the Secretary of the Interior, the United States Department of the Interior or the United States Bureau of Reclamation from complying with any applicable law. 2 3 4 5 (Doc. 654). 6 On April 18, 2001, Federal Defendants submitted a Plan of 7 Action to initiate immediately a detailed review of all reasonable 8 alternatives for providing drainage service to lands within the San 9 Luis Unit and a schedule for completion to the court. (Sumner Peck 10 Ranch, Inc. et al., v. Department of Interior, et al., 1:91-cv11 00048-OWW-DLB, Doc. 483).1 The Plan of Action called for a San 12 Luis Drainage Feature Reevaluation ( SLDFR ) to analyze feasible 13 alternative means of providing drainage service to the San Luis 14 Unit. The Plan of Action also detailed short-term strategies, 15 including continuation of the Grassland Bypass Project, a drainage 16 program developed in 1995 based on an agreement between the United 17 States and the San Luis & Delta-Mendota Water Authority. 18 The first phase of the SLDFR resulted in preparation of a 19 report entitled Preliminary Alternatives Report, San Luis Drainage 20 Re-evaluation published in ( PAR ).2 December 2001 service methods The PAR 21 discussed twelve drainage for treatment, 22 concentration, disposal, and beneficial use of drain water and 23 salts. The PAR posited three broad conceptional categories of 24 25 1 26 27 This case is a consolidation of multiple actions. Several of the operative documents in this case are found on the separate docket for the case Sumner Peck Ranch, Inc. et al., v. Department of Interior, et al., 1:91-cv-00048-OWW-DLB. 2 28 Facts concerning Federal Defendants course of conduct are derived from the administrative record (AR). 4 1 Preliminary Alternatives comprised of various combinations of the 2 drainage service methods: (1)In-Valley Alternatives; (2) Out-of- 3 Valley Alternatives; and (3) Beneficial Use Alternatives. 4 The PAR s in-Valley Alternatives provide for use of 5 evaporation ponds and ultimate salt disposal in landfills and deep 6 valley wells. 7 two disposal sites: the Pacific Ocean and the San Joaquin Delta. 8 Delta disposal generally entails selenium treatment of irrigation 9 water before ultimate disposal in the Delta. Out-of-Valley Alternatives provide for drainage to Beneficial Use 10 Alternatives posit use of reverse osmosis technology to produce 11 clean water byproduct from drainage, followed by beneficial use of 12 the clean water and/or salts produced by the process. 13 The second phase of the SLDFR was preparation of the Plan 14 Formulation Report, 15 published in December 2002. 16 Alternative, as the proposed action based on cost, implementation 17 time, and environmental information available. 18 Alternative 19 drainwater reuse facilities, selenium treatment, reverse osmosis 20 treatment for the Northerly Area, and evaporation ponds for salt 21 disposal. includes San a Luis Drainage Feature Re-evaluation, The PFR established the In-Valley drainwater collection The In-Valley system, regional 22 In March 2003, a combination of local water districts and 23 contractors submitted the Westside Regional Drainage Plan ( WRDP ) 24 to Reclamation. The WRDP proposed expansion of the Grassland 25 Bypass Project. The WRDP contemplated that each district would 26 implement drainage control efforts appropriate for their respective 27 needs, and that implementation of the districts efforts would be 28 coordinated with input from Reclamation into one comprehensive 5 1 program. The WRDP identified key management practices as land 2 retirement, groundwater management, source control, regional reuse 3 projects, drain water treatment, and salt disposal. 4 incorporated the WRDP into the SLDFR, effected changes to the 5 environmental impact statement for the SLDFR, and prepared a 6 revised Plan of Action to submit to the court. Reclamation 7 On February 5, 2004, Federal Defendants lodged an Amended 8 Plan of Action for Drainage to the San Luis Unit Central Valley 9 Project ( Amended Plan ) with the court that incorporated input 10 from the WRDP. 11 was 12 alternatives for providing drainage to the San Luis Unit. The 13 Amended Plan proposed an amended schedule which provided that a 14 Final Environmental Impact Statement and Record of Decision would 15 be completed by July 2006. 16 Federal Defendants would continue to support implementation of 17 short-term 18 drainage benefits in the short term. 19 being The Amended Plan stated that the scope of the SLDFR expanded measures to by include land retirement among the The Amended Plan also indicated that the WRDP proven or likely to provide Reclamation published an Addendum to the PFR ( PFR Addendum ) 20 in 21 alternatives identified in the initial PFR. 22 revised the number of lands needing drainage, as well as estimates 23 of drainage quality and quantity. 24 retirement 25 identified in the PFR. 26 July 2004 that scenarios incorporated for each the WRDP and refined the The PFR Addendum The PFR Addendum included land of the In-Valley Alternatives Reclamation published a draft environmental impact statement 27 on the SLDFR in May 2005. A final environmental impact statement 28 for the SLDFR was published in May 2006 ( EIS ). 6 The EIS defined 1 the drainage study areas as the lands lying within the authorized 2 service area of the San Luis Unit and Central Valley Project. 3 drainage study area also included the Grassland Drainage Area, 4 which 5 Plaintiffs lands. encompasses lands outside the San Luis The Unit including 6 The EIS included a National Economic Development ( NED ) 7 analysis of various land retirement scenarios proposed in the PFR 8 and PFR Addendum. 9 the change in net value of the Nation s output of goods and that The objective of NED analysis is to determine 10 services would result from implementing each project 11 alternative. 12 Area Land Retirement Alternative as the preferred NED Plan. 13 November 27, 2006, Reclamation recommended a Secretarial Exception 14 to select an In-Valley Alternative other than the NED Plan, citing 15 impacts to irrigated agriculture and the regional economy. 16 Secretarial Exception was approved on December 18, 2006, and 17 Reclamation was authorized to select an In-Valley Alternative in a 18 Record of Decision. The EIS identified the In-Valley/Drainage-Impaired On The 19 Reclamation approved a Record of Decision selecting the In- 20 Valley/Water Needs Land Retirement Alternative in March 2007 ( 2007 21 ROD ). The 2007 ROD defines drainage service as managing the 22 regional 23 drainage-impacted lands and/or reducing contributions of water to 24 the shallow groundwater table through land retirement. 25 2007, Federal Defendants have submitted periodic status reports to 26 the court outlining their efforts to comply with the drainage duty 27 imposed by the San Luis Act. 28 reports have described various studies, discussions, and requests shallow groundwater from the root zone of Since Primarily, Federal Defendants status 7 1 for congressional action effected in connection with the Federal 2 Defendants endeavor to provide drainage to the San Luis Unit. 3 Reclamation completed the SLDFR Feasibility Study in March 4 2008. The 2008 Feasibility Study estimated the total cost of 5 construction 6 Alternative to be 2.69 billion dollars. 7 the 2008 Feasability Report to Congress on July 8, 2008. of the In-Valley/Water Needs Land Retirement Reclamation transmitted 8 On November 18, 2009, Federal Defendants submitted a Control 9 Schedule ( Control Schedule ) describing the actions Reclamation 10 intended to take to comply with the 2007 ROD. 11 Control Schedule with the parties at a scheduling conference, the 12 court issued an order which provides: 13 14 15 16 17 18 After discussing the Federal Defendants, through the Bureau of Reclamation, shall perform their undertakings to the Court, as presented in Part I of the Parties Supplemental Status Report (Doc. 752) including the Control Schedule attached thereto, as the Bureau of Reclamation has proposed to perform them. Nothing in this Order precludes the Federal Defendants from discussing with other Parties alternative means or locations of providing drainage service within the San Luis Unit. Any modifications based on such discussions shall be separately identified in the status reports filed with this Court 19 (Doc. 758, Scheduling Order ). 20 Federal Defendants submitted their most recent status report 21 on April 1, 2011. (Doc. 864). The April 2011 Status Report 22 identifies the following actions currently underway in connection 23 with provision of drainage to the San Luis Unit: 24 25 1) Reclamation has continued to carry out the activities specified in the Control Schedule, in the manner and on the schedule set forth in the Control Schedule. 26 27 28 2) Reclamation has requested appropriations in the amount of $14,250,000 to continue implementation of actions identified in the Control Schedule for the 2012 fiscal year; 8 1 3) Reclamation continues to undertake actions provided in the ROD in accordance with the schedule of activities and budget described in the Control Schedule. Most of these actions are prerequisites to the construction of a demonstration treatment plant, to be located in the Panoche Drainage District, which will collect data needed for the final design of the reverse osmosis and selenium bio-treatment components of drainage service to be constructed in the San Luis Unit. 2 3 4 5 6 4) Beginning in December 2009, Reclamation initiated the process for securing a repayment contract with Westlands for the recovery of costs of construction of drainage facilities in Westlands. 7 8 9 5) Reclamation continues to support, through grants, cooperative agreements, and other means, drainage projects requested by districts in the San Luis Unit. 10 11 6) Reclamation and the San Luis & Delta-Mendota Water Authority, on behalf of the Grassland Basin Drainers, continue to implement the December 2009 Agreement For Continued Use of the San Luis Drain ( Third Use Agreement ) that will allow the Grassland Bypass Project to continue through December 2019. 12 13 14 15 (Doc. 864). 16 The court heard the parties cross-motions for summary judgment 17 on May 20, 2011. During the May 2011 summary judgment hearing, 18 counsel the 19 contemplating potential modifications to the Control Schedule. The 20 court indicated that the appropriate procedural mechanism would be 21 a motion requesting modification of the Scheduling Order and 22 Control Schedule in order to afford all parties an opportunity to 23 be heard on the matter. 24 modify the scheduling order on June 15, 2011. 25 parties have been heard on the matter. 26 motion issues concurrently with this memorandum decision. 27 /// 28 /// advised court that Federal Defendants were District Defendants filed a motion to 9 (Doc. 876). The An order granting the IV. DISCUSSION. 1 2 A. Standing 3 To invoke the jurisdiction of the federal courts, a plaintiff 4 must demonstrate standing under Article III of the United States 5 Constitution. E.g., L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 6 644, 655 (9th Cir. 2011) (citing Lujan v. Defenders of Wildlife, 7 504 8 irreducible constitutional minimum of standing are: (1) 9 plaintiff must have suffered an "injury in fact;" (2) U.S. a 555, causal 560 (1992)). the there must 12 challenged action of the defendant; and (3) it must be "likely," 13 as the 14 "redressed by a favorable decision. 15 (citations omitted). A party's standing to seek judicial review of 16 administrative action is typically "self-evident" when the party is 17 the object of the administrative action. 18 F.3d at 655 (citing Fund for Animals, Inc. v. Norton, 322 F.3d 728, 19 733-34 (D.C. Cir. 2003)). Standing is substantially more difficult 20 to establish where the challenged agency action neither requires 21 nor forbids any action on the part of the complaining party. 22 (citing Summers v. Earth Island Inst., 555 U.S. 488, ___, 129 S.Ct. 23 1142, 1149 (2009)). 24 District Defendants contend that and the complained of, i.e., the injury has to be "fairly traceable to the "speculative," injury of 11 merely the requirements be to between three 10 opposed connection The the injury conduct will be E.g., Lujan, 504 U.S. at 560 that L.A. Haven Hospice, 638 Plaintiffs have Id. not 25 demonstrated Article III standing, and that trial is necessary to 26 determine standing because District Defendants dispute Plaintiffs 27 theory of harm. 28 burden of going forward at the summary judgment stage. The Supreme District Defendants misapprehend Plaintiffs 10 1 Court has described a plaintiff s burden of proving standing at 2 various stages of a case as follows: 3 4 5 6 7 8 9 10 11 12 Since [the standing elements] are not mere pleading requirements but rather an indispensable part of the plaintiff s case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. At the pleading stage, general factual allegations of injury resulting from the defendant s conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim. In response to a summary judgment motion, however, the plaintiff can no longer rest on such mere allegations, but must set forth by affidavit or other evidence specific facts, Fed. Rule Civ. Proc. 56(e), which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be supported adequately by the evidence adduced at trial. 13 Lujan, 504 U.S. at 561; see also Churchill County v. Babbitt, 150 14 F.3d 1072, 1077 (9th Cir. 1998). 15 Plaintiffs have submitted sufficient evidence of specific 16 facts which, taken as true, establish actual harm resulting from 17 Federal Defendants failure to provide required drainage service to 18 the San Luis Unit. (Doc. 820, Plaintiffs SUMF Nos. 4 and 5). 19 Although both District Defendants and Federal Defendants purport to 20 dispute Plaintiffs evidence, (Docs. 829 and 835), the arguments 21 advanced in the parties respective responses to Plaintiffs 22 statement of undisputed material facts do not defeat Plaintiffs 23 evidence under the burden applicable at the summary judgment stage. 24 See Lujan, 504 U.S. at 561. Plaintiffs have set forth evidence of 25 specific facts, which, taken as true, is sufficient to support 26 Plaintiffs standing at this stage in the proceedings. Although 27 factual disputes may exist concerning the extent to which drainage 28 11 1 waters from the San Luis Unit impact Plaintiff s land, such factual 2 disputes do not deprive Plaintiffs of Article III standing at the 3 summary 4 regarding the nature, scope, and performance of Federal Defendants 5 drainage duty under the San Luis Act and whether the legally 6 required drainage duty is being implemented. judgment stage. There is a justiciable controversy 7 Plaintiffs contend that the court's prior analysis regarding 8 standing supports their substantive claim that the San Luis Act 9 imposes a mandatory duty to drain Plaintiffs' lands; this argument 10 is premised on a fundamental misunderstanding of the court's prior 11 orders 12 Memorandum Opinion and Order re: Motions to Dismiss the Fifth 13 Amended Complaint found that Plaintiffs have standing because the 14 interest they assert bears a plausible relationship to the 15 policies underlying [the San Luis Act]. (Sumner Peck Ranch, Inc. 16 et al., v. Department of Interior, et al., 1:91-cv-00048-OWW-DLB, 17 November 19, 2004 Memorandum Opinion and Order, Doc. 948 at 33) 18 (citing, Clarke, 479 U.S. at 395)). 19 found: 20 21 22 23 24 25 26 27 28 and the law of standing. The court s November The 2004 Memorandum Decision Plaintiffs seek to protect an interest in having a drainage solution implemented in a timely fashion so that their lands will no longer be harmed by the down-gradient flow of contaminated groundwater. In crafting § 1(a)(2) of the Act, Congress did at least contemplate that irrigation within the San Luis Unit might cause drainage problems to lands outside the Unit. It also appears that Congress thought of the drainage as an integrated system that would benefit others beyond the San Luis Unit, and Congress relied upon the pressure those outside interests would put on the State of California to assume the burden of constructing the drain. Recognizing that the zone of interest test is not meant to be especially demanding... and there need be no indication of congressional purpose to benefit the would-be plaintiff, Plaintiffs APA claim (that the Federal Defendants have unreasonably delayed or unlawfully withheld agency action) does fall within the 12 2004 1 zone of interest of the San Luis Act. standing to bring their APA claim. Plaintiffs have 2 Sumner Peck Ranch, Inc. et al., v. Department of Interior, et al., 3 1:91-cv-00048-OWW-DLB, November 19, 2004 Memorandum Opinion and 4 Order, Doc. 948 at 40-41. 5 Contrary to Plaintiffs' contention, the fact that Plaintiffs 6 have a right to seek relief under the zone of interest test does 7 not suggest a right to seek or entitlement to any particular form 8 of relief. That Plaintiffs have zone of interest standing only 9 means that if Federal Defendants' drainage acts or omissions are 10 harming Plaintiffs, prevailing in this action is likely to redress 11 Plaintiffs' injury. This does not establish that all of 12 Plaintiffs' injuries can be redressed by a favorable ruling in this 13 case. 14 B. Chevron Deference 15 Plaintiffs claims require review of Federal Defendants 16 construction of the San Luis Act. Federal Defendants interpret the 17 San Luis Act as not requiring Federal Defendants to provide 18 drainage service to non-San Luis Unit lands, or to collect, 19 intercept, dispose of and control drainwater, after that 20 drainwater has allegedly flowed downslope into Plaintiffs service 21 areas. (See Doc. 827 at 14, Federal Defendants MSJ). 22 When a court reviews an agency's construction of the statute 23 which it administers, it is confronted with two questions. 24 Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 842 (1984). 25 First, the court must determine whether Congress has directly 26 spoken to the precise question at issue; if so, the court must give 27 effect to the unambiguously expressed intent of Congress. 28 13 Id. If 1 the statute is silent or ambiguous with respect to the specific 2 issue, the court proceeds to a second inquiry: whether the agency's 3 interpretation is based on a permissible construction of the 4 statute. Id. at 843. 5 1. Step One: Statutory Language 6 Step one of the Chevron analysis requires the court to 7 evaluate the language of the San Luis Act using "traditional tools 8 of statutory construction." 9 United States EPA, 632 F.3d 584, 596 (9th Cir. 2011). In 10 determining the 11 question at issue, a reviewing court should not confine itself to 12 examining a particular statutory provision in isolation. 13 e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 14 (2000). 15 provision directly addresses the issue of whether the San Luis Act 16 imposes a mandatory duty to provide drainage service to areas 17 outside the San Luis Unit in order to remediate damage caused by 18 operation of the Unit. whether E.g., Ass'n of Irritated Residents v. Congress has specifically addressed See, Neither section 1(a)(2) of the San Luis Act nor any other 19 Plaintiffs contend that a 1956 Department of the Interior 20 report entitled San Luis Unit, Central Valley Project ( 1956 21 Feasibility Report ), which is incorporated by reference in the San 22 Luis Act, establishes an express directive to provide drainage to 23 areas outside the geographic boundaries of the Unit. 24 Plaintiffs MSJ at 11-12). 25 provision of drainage service designed to meet the drainage 26 requirements...as 27 Report]. 28 plain meaning of the word generally belies the notion that the generally (Doc. 817, However, the San Luis Act mandates outlined in the [1956 Feasibility 86 P.L. 488; 74 Stat. 156 (1960) (emphasis added). 14 The 1 1956 Feasibility Report s various recommendations are tantamount to 2 express directives. The word generally means in a general sense 3 or manner; in general terms; without reference to individuals or 4 particulars. Opposed to specially or particularly. Oxford English 5 Dictionary, 6 September 26, 2011) (emphasis added); accord Marriam-Webster s 7 Dictionary, 8 September 26, 2011)( a : in disregard of specific instances and 9 with regard to an overall picture <generally speaking> b : as a 10 Second Edition, Eleventh http://www.oed.com, Edition, http://m-w.com, (last (last visited accessed rule : usually ). 11 The San Luis Act s general reference to the 1956 Feasibility 12 Report is insufficient to transform everything discussed in the 13 Report into an express congressional directive for purposes of the 14 Chevron analysis. As the Ninth Circuit noted, Congress has granted 15 Federal Defendants broad discretion to meet is drainage obligations 16 under the San Luis Act. 17 that Congressional action subsquent to enactment of San Luis Act 18 has 19 Interior). 20 abrogated the duty to provide the interceptor drain contemplated in 21 the 1956 Feasibility Report, the 1956 Feasibility Report cannot be 22 invoked to establish express directives for Chevron purposes under 23 the current embodiment of the San Luis Act. 24 proceeds to step two. conferred See Firebaugh, 203 F.3d at 578 (noting substantial discretion on the Department of As the Court of Appeal found that congressional action The Chevron analysis 25 2. Step Two: Federal Defendants Construction 26 The San Luis Act is comprised of the 1960 Act and the 27 subsequent appropriations riders amending the Act. 28 point for determining whether Federal Defendants construction of 15 The starting 1 the current embodiment of the San Luis Act is permissible is 2 interpretation of the original Act passed in 1960. See Los Angeles 3 v. Adams, 556 F.2d 40, 50 (D.C. Cir. 1977) ( When Congress modifies 4 a statute by an appropriations measure...the agency administering 5 the statute is required to effectuate the original statutory scheme 6 as much as possible ); see also Firebaugh, 203 F.3d at 577 (citing 7 Adams, 556 F.2d at 50 for the proposition that originally imposed 8 drainage duty under San Luis Act remains, subject to modifications 9 effected by appropriations riders). a. Duty Under the 1960 Enactment 10 11 Congress provided express drainage directives when it passed 12 the San Luis Act in 1960. 13 Section(1)(a)(2) of the San Luis Act expresses a clear indication 14 that either the State of California or the Department of the 15 Interior shall provide a drainage plan prior to construction of the 16 San Luis Unit. 17 in part: 18 19 20 21 22 23 24 Id. See Firebaugh, 203 F.3d at 574. Section (1)(a) of the San Luis Act provides Construction of the San Luis unit shall not be commenced until the Secretary has...received satisfactory assurance from the State of California that it will make provision for a master drainage outlet and disposal channel for the San Joqauine Valley, as generally outlined in the California water plan, Bulletin Numbered 3, of the California Department of Water Resources, which will adequately serve, by connection therewith, the drainage system for the San Luis unit or has made provision for constructing the San Luis interceptor drain to the delta designed to meet the drainage requirements of the San Luis unit as generally outlined in the report of the Department of the Interior, entitled "San Luis Unit, Central Valley Project," dated December 17, 1956. 25 26 86 P.L. 488; 74 Stat. 156 (1960) (emphasis added). 27 eliminated one of the two drainage options contemplated in the 28 section 1(a)(2) when it notified the Secretary that it would not 16 California 1 provide a master drain for the San Joaquin Valley. 2 when the Secretary decided to proceed with construction of the San 3 Luis Unit, it assumed a mandatory duty to provide the interceptor 4 drain. 5 Federal Defendants original duty to provide the interceptor drain 6 under section 1(a)(2) is critical to determining the scope of 7 Federal Defendants 8 action replaced the duty to provide the interceptor drain with a 9 duty to provide comparable drainage through alternative means. See 10 Accordingly, Firebaugh, 203 F.3d at 574. Ascertaining the nature of current duty, as subsequent Congressional id. 11 The plain language of the section 1(a)(2) does not suggest a 12 duty to provide drainage service to areas outside the San Luis Unit 13 via the interceptor drain. 14 to make "provision for constructing the San Luis interceptor drain 15 to the delta designed to meet the drainage requirements of the San 16 Luis unit." 17 phrase "to meet the drainage requirements of the San Luis unit" 18 specifically 19 contemplated by Congress. 20 that is needed or wanted; a thing that is compulsory; a necessary 21 condition." 22 http://www.oed.com, 23 Marriam-Webster's Dictionary, Eleventh Edition, http://m-w.com, 24 (last accessed September 26, 2011)(defining "requirement" as "a. 25 something wanted or needed; necessity; b. something essential to 26 the existence or occurrence of something else: condition"). 27 Affording the word "requirements" its ordinary and plain meaning, 28 the phrase "drainage requirements of the San Luis Unit" means Section 1(a)(2) required the Secretary 86 P.L. 488; 74 Stat. 156 (emphasis added). describes Oxford the purpose of the interceptor The drain The word "requirement" means "a thing English Dictionary, (last visited 17 September Second 26, Edition, 2011); accord 1 drainage needs of the San Luis Unit; it does not mention, much less 2 require, 3 drainage to other areas or remediating harm caused by operation of 4 the Unit. that the interceptor drain be capable of providing 5 Plaintiffs argue that the clause drainage requirements of the 6 San Luis unit in section 1(a)(2) is qualified by the phrase as 7 generally outlined in the report of the Department of the Interior, 8 entitled San Luis Unit, Central Valley Project, dated December 9 17, 1956. 86 P.L. 488; 74 Stat. 156. Plaintiffs contend that 10 the 1956 Feasibility Report contemplated provision of drainage 11 outside the unit. 12 13 14 15 16 17 Plaintiffs argue: (a) Collection is required to prevent . . . a general drainage problem along the lower, or eastern, edge of the service area and perhaps in a few isolated spots elsewhere. ... Project Feasibility Report, AR Doc. #815 at Bates 38800 (p. 22 of report). (b) Rising water levels must be controlled by drains to avoid serious drainage problems along the lower edge of the service area. Collection and interception are required to protect the areas not just within the San Luis Unit but along the lower edge of the service area. Project Feasibility Report, at AR 815:38819 18 19 20 21 22 23 24 25 26 27 28 (c) Drainage will lower the water table which otherwise ultimately might stand in the root zone or on the surface near the lower end of the service area.. Project Feasibility Report, at AR 815:38821 (p. 39 of report). (d) Drainage . . . will remove water of poorer quality and thus maintain an overall acceptable quality of groundwater and soils. Project Feasibility Report, at AR 815:38846 (p. 60 of report). Uncontroverted Fact No. 9 (Report sections quoted in subparagraphs 2, 4 and 5). (e) Soils of the area which will be served by the San Luis Unit contain salts which will be dissolved and carried by the percolating water into the soils in the lower parts of the service area. The construction of a drainage system will lower the groundwater table and prevent the concentration of salts . . . it will be necessary to provide facilities for disposing of these waters. Project Feasibility Report, at AR 815:38846 (p. 60 of report). 18 1 2 (Doc. 819, Plaintiffs MSJ at 11-12). The language from the 1956 Feasibility Report relied on by 3 Plaintiffs does not support their position. 4 Feasibility Report clearly discusses the drainage needs entailed by 5 the San Luis Unit by reference to the federal service area s 6 geographical boundaries; i.e., the lower, or eastern edge of the 7 service 8 Feasibility Report s discussion of the water table which otherwise 9 ultimately might stand in the root zone must be understood in the 10 context of the primary purpose of the San Luis Act: irrigation of 11 the federal service area. (Id.). 12 Report expressly references soils of the [federal service area]. 13 (Id.). 14 interceptor drain was intended to serve areas other than the 15 federal service area. 16 have provided incidental or secondary benefits to areas other than 17 the federal service area does not mean that the purpose of the 18 interceptor drain was to provide drainage to areas other than the 19 federal service area. 20 incorporated into the San Luis Act generally and thus cannot be 21 read to impose mandatory duties to perform each of the discrete 22 tasks discussed in the Report. 23 implement the drainage contemplated by the 1956 Feasibility Report 24 was modified by congressional action subsequent to the passage of 25 the San Luis Act. Firebaugh, 203 F.3d at 577. area. (Id., emphasis added). First, the 1956 Second, the 1956 Third, the 1956 Feasibility The 1956 Feasibility Report does not suggest that the The fact that the interceptor drain could Further, the 1956 Feasibility Report is Moreover, the duty to generally 26 The duty imposed by section 1(a)(2) must be construed in the 27 context of its placement in the overall statutory scheme set forth 28 in the San Luis Act. See, e.g., Brown & Williamson, 529 U.S. at 133 19 1 (discussing need to evaluate statutory provisions in view of the 2 statute as a whole and in light of statute s core objectives ); 3 see also Ass'n of Irritated Residents, 632 F.3d at 596 (same, 4 citing Brown & Williamson, 632 U.S. at 596)). 5 section 1(a) and section 5 of the San Luis Act support the 6 conclusion that section 1(a)(2) did not require the interceptor 7 drain to be capable of providing drainage to areas outside the San 8 Luis Unit. 9 10 11 12 13 The balance of Section 1(a) of the San Luis Act describes the principal engineering features of the San Luis Unit as a dam and reservoir at or near the San Luis site, a forebay and afterbay, the San Luis Canal, the Pleasant Valley Canal, and necessary pumping plants, distribution systems, drains, channels, levees, flood works, and related facilities. 14 86 P.L. 488; 74 Stat. 156. Congress intended for certain of the 15 San Luis Unit s principal engineering features to be for joint use 16 with the State of California. 86 P.L. 488; 74 Stat. 156. Section 17 1(a) authorized, but did not require, the Secretary to construct 18 joint-use facilities to the capacities necessary to serve both the 19 Federal San Luis unit service area and the State s service area. 20 Id. Critically, Congress did not designate the San Luis Unit s 21 necessary drains as joint-use facilities. See id. 22 Section 1(a) limits joint-use facilities to the dam and 23 reservoir at or near the San Luis site, forebay and afterbay, 24 pumping plants, and the San Luis Canal. Id. The fact that 25 Congress did not designate the necessary drains required by 26 section 1(a) as joint-use facilities reveals that Congress did not 27 intend to require the necessary drains discussed in section 1(a) 28 20 1 to provide drainage service to areas outside the San Luis Unit. 2 Section 1(a) did not require joint-use facilities to be constructed 3 with capacities necessary to serve areas other than the federal 4 service area. 5 section 1(a) s necessary drains, which were not designated as 6 joint-use facilities, to be designed to do more than provide 7 drainage for the federal service area. A fortiori, Congress did not intend to require 8 Section 1(a) also demonstrates that when Congress contemplates 9 creating infrastructure designed to serve areas outside the San 10 Luis Unit, it knows how to say and do so. It would be anomalous to 11 interpret the phrase drainage requirements of the San Luis Unit 12 in section 1(a)(2) as having a broader scope and meaning than the 13 necessary drains required by section 1(a), particularly in light 14 of the Ninth Circuit s holding that the term necessary...drains 15 in section 1(a) encompasses the interceptor drain. 16 F.3d at 574. 17 and coherent regulatory scheme," and "fit, if possible, all parts 18 into an harmonious whole." 19 133. Firebaugh, 203 A court must interpret a statute "as a symmetrical E.g., Brown & Williamson, 529 U.S. at 20 Section 5 of the San Luis Act reenforces the conclusion that 21 the original drainage duty imposed by section 1(a)(2) was limited 22 to the federal service area. 23 contemplates that operation of the San Luis Unit could increase 24 drainage requirements in the general area surrounding the Unit 25 notwithstanding provision for the interceptor drain. 26 provides, in pertinent part: 27 28 Section 5 of the San Luis Act Section 5 In constructing, operating, and maintaining a drainage system for the San Luis unit, the Secretary is ... authorized to enter into agreements and participate in 21 1 3 construction and operation of drainage facilities designed to serve the general area of which the lands to be served by the San Luis unit are a part, to the extent the works authorized in section 1 of this Act contribute to drainage requirements of said area. 4 86 P.L. 488; 74 Stat. 156. In contrast to the duty under section 5 1(a)(2) to provide an interceptor drain designed to meet the 6 drainage requirements of the San Luis Unit, section 5 discusses 7 drainage designed to serve the general area of which the lands to 8 be served by the San Luis unit are a part. 9 Section 5 reveals that Congress did not intend for the interceptor 10 drain to serve the general area surrounding the San Luis Unit. 11 See, e.g., KP Permanent Make-Up, Inc. v. Lasting Impression I, 12 Inc., 543 U.S. 111, 118 (2004) (applying presumption that if 13 Congress includes particular language in one section of a statute 14 but omits it in another, Congress acted intentionally in that 15 exclusion ). 16 establishes that Congress clearly drew a distinction between a 17 drainage system designed to meet the requirements of the San Luis 18 Unit (originally, the interceptor drain) and a drainage system 19 designed 20 general area caused by operation of the San Luis Unit. 21 permissive language of section 5 defeats the interpretation that 22 the San Luis Act, as enacted in 1960, imposed a mandatory duty to 23 provide drainage to areas outside the San Luis Unit or to remediate 24 adverse effects outside the Unit s boundaries caused by operation 25 of the Unit.3 2 to Id. (emphasis added). Juxtaposition of section 1(a)(2) with section 5 alleviate increased drainage requirements of the The 26 3 27 28 It is clear that at the time section 1(a)(2) was passed in 1960, Congress did not contemplate operation of the Unit for decades without provision of the interceptor drain. To the Contrary, Congress commanded that if the interceptor drain was not provided, the Unit could not be constructed. 22 b. 1 Duty After Amendment of the San Luis Act 2 After construction of the San Luis Unit commenced, Congress 3 abrogated its specific command to provide the interceptor drain 4 through a series of enactments that authorized the Secretary to 5 pursue other, non interceptor drain, solutions to the drainage 6 duty created by the San Luis Act. 7 1965, Congress began including language in the Department of the 8 Interior s annual appropriations acts that prohibited the Secretary 9 from completing the interceptor drain until formulation of a plan 10 with the State of California to minimize the detrimental effect of 11 the San Luis Drainage waters. 12 105-62, § 510(a), 111 Stat. 1320, 1340 (1997)).4 13 1970s, Congress began appropriating funds to enable the Bureau of 14 Reclamation to examine alternate drainage solutions in cooperation 15 with the State, local water districts, and other entities. 16 577 (citing "Reclamation Wastewater and Groundwater Study and 17 Facilities Act of 1992", Pub. L. No. 102-575, §§ 1601-1617, 106 18 Stat. 4600, 4663 (1992) (enacting 43 U.S.C. §§ 390h to 390h-15 19 (West Supp. 1997); "Central Valley Project Improvement Act", id. at 20 §§ 21 "supplement[ed] the drainage solutions available to the Department 22 of the Interior," supplanting the San Luis Act s original specific 23 command to provide the interceptor drain with a new and different 3401-3411, 106 Stat. Firebaugh, 203 F.3d at 578. In Id. at 574-75 (quoting Pub. L. No. 4600, 4706)). In the late Congress s Id. at actions 24 25 26 27 28 4 None of the funds appropriated or otherwise made available by this Act may be used to determine the final point of discharge for the interceptor drain for the San Luis Unit until development by the Secretary of the Interior and the State of California of a plan, which shall conform with the water quality standards of the State of California as approved by the Administrator of the Environmental Protection Agency, to minimize any detrimental effect of the San Luis drainage waters. Pub. L. No. 105-62, § 510(a), 111 Stat. 1320, 1340 (1997). 23 1 command directing the Secretary to exercise discretion to creat[e] 2 and implement[] 3 Firebaugh, 203 F.3d at 577. 4 Congress s a drainage amendments solution to the for San the Luis San Luis Unit. Act granted the 5 Secretary "broad discretion" to craft a drainage solution to meet 6 its duty to provide drainage under the San Luis Act. 7 Secretary s 8 Congressional intent underlying the original command to provide the 9 interceptor drain to furnish a drainage solution designed to meet discretion is constrained, See id. however, by The the 10 the requirements of the San Luis Unit. 5 11 F.2d at 50 ( When Congress modifies a statute by an appropriations 12 measure...the agency administering the statute is required to 13 effectuate the original statutory scheme as much as possible ); see 14 also Firebaugh, 203 F.3d at 577 (citing Adams, 556 F.2d at 50 for 15 the proposition that originally imposed drainage duty under San 16 Luis 17 appropriations 18 constrained by Congress s clear and manifest intention that the 19 Secretary develop a plan that addresses the environmental problems 20 posed by the discharge of agricultural effluent. 21 F.3d at 575. Act remained, subject riders). The to See, e.g., Adams, 556 modifications Secretary s effected discretion is by further Firebaugh, 203 22 Despite the limits on the Secretary s discretion that can be 23 gleaned from language of the appropriations riders, it cannot be 24 said that the San Luis Act as amended by the appropriations riders 25 clearly requires provision of drainage service to areas outside the 26 27 28 5 Drainage requirements of the San Luis Unit is not a static concept. The amount of drainage required is necessarily linked to the amount of irrigation provided to the San Luis Unit. 24 1 San Luis Unit or remediation of damage caused by the Unit s 2 operation for over four decades without necessary drainage. 3 c. Permissibility of the Secretary s Interpretation 4 An agency's interpretation of a statute is permissible unless 5 it is "arbitrary, 6 statute." E.g., Satterfield v. Simon & Schuster, Inc., 569 F.3d 7 946, (9th 8 Defendants interpretation of the San Luis Act is permissible, as 9 it is based on analysis of the statute s plain language and the 10 purpose of the statutory scheme the San Luis Act embodies. Federal 11 Defendants acknowledge that the San Luis Act imposes a mandatory 12 duty to provide necessary drainage to the San Luis Unit, and their 13 interpretation of the contours and limits of this duty is based on 14 permissible statutory construction. 954 capricious, Cir. 2009) or manifestly (citing contrary Chevron). Here, to the Federal 15 Federal Defendants have interpreted the San Luis Act as 16 imposing no mandatory duty to provide drainage service outside the 17 Unit or to remediate damage caused by past operations of the Unit; 18 this 19 deference under Chevron. 20 complying with the duty they have permissibly construed presents a 21 separate question. 22 C. Review Under the Administrative Procedures Act interpretation is reasonable, lawful, and entitled to Whether Federal Defendants are currently 23 The Administrative Procedures Act ( APA ) authorizes suit by 24 "[a] person suffering legal wrong because of agency action, or 25 adversely affected or aggrieved by agency action within the meaning 26 of a relevant statute." 27 of the APA, a court is authorized to 28 (1) compel agency 5 U.S.C. § 702. action 25 Pursuant to section 706 unlawfully withheld or 1 2 3 4 5 6 7 8 9 unreasonably delayed; and (2) hold unlawful and set aside agency action, findings, and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . ." Id. § 706. (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (D) without observance of procedure required by law; (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title [5 USCS §§ 556 and 557] or otherwise reviewed on the record of an agency hearing provided by statute; or (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. 10 5 U.S.C. § 706. 11 1. 706(2) Claim 12 The parties dispute whether a claim under section 706(2) 13 survived the pleading phase of this action. A November 19, 2004, 14 Memorandum Decision held that the [Fifth Amended Complaint] 15 clearly puts the Federal Defendants on notice that Plaintiffs are 16 invoking 706(1), the only plausible basis for their claim. Sumner 17 Peck Ranch, Inc. et al., v. Department of Interior, et al., 1:9118 cv-00048-OWW-DLB, Doc. 948. As noted in the 2004 Memorandum 19 Decision, the Fifth Amended Complaint does not provide fair notice 20 of any claim under section 706(2). Although the Fifth Amended 21 Complaint alleges that Federal Defendants actions are arbitrary, 22 capricious, and contrary to law, the gravamen of the APA claim 23 advanced in the Fifth Amended Complaint is that Federal Defendants 24 are unlawfully withholding discrete agency action required by law; 25 this type of claim invokes section 706(1), not 706(2). See Ass'n 26 of Civilian Technicians, Inc. v. United States, 601 F. Supp. 2d 27 146, 166 (D. D.C. 2009) ( While section 706(1) of the APA permits 28 26 1 a court to compel agency action unlawfully withheld, section 706(2) 2 by contrast authorizes a reviewing court to "hold unlawful and set 3 aside agency action, findings, and conclusions found to be . . . 4 arbitrary, capricious, an abuse of discretion, or otherwise not in 5 accordance with law. ); compare Hells Canyon Preservation Counsel 6 v. United States Forest Service, 593 F.3d 923, 933 (9th Cir. 2010) 7 (noting that claim seeking to compel Forest Service to re-define 8 boundary description was better phrased as a section 706(2) claim 9 than a 706(1) claim, as Forest Service had already acted to define 10 boundary) with Firebaugh, 203 F.3d at 577 (holding that Plaintiffs 11 claim that Federal Defendants were failing to provide drainage 12 required by San Luis Act was redressable under section 706(1) as 13 action unreasonably delayed ). 14 Even if the Fifth Amended Complaint is sufficient to state a 15 section 706(2) claim, since 2004, the parties have proceeded to 16 litigate this action under the assumption that only a section 17 706(1) claim remains at issue in this case. 18 September 2010, a Memorandum Decision Re: Plaintiffs Motion to 19 Supplement the Administrative Record held: 20 21 22 23 24 As recently as The sole remaining claim against Federal Defendants in this case concerns the Bureau of Reclamation s ( Reclamation or the Bureau ) alleged failure to provide drainage service to the San Luis Unit pursuant to Section 1(a) of the San Luis Act. See 1:91-cv-0048 OWW DLB, Nov. 19, 2004 Mem. Dec. ( 11/19/04 Decision ) at 25, 28-29, 36, 42. This claim arises under Section 706(1) of the Administrative Procedure Act ( APA ), 5 USC § 706(1), which permits a reviewing court to compel agency action unlawfully withheld or unreasonably delayed. 25 (Doc. 806 at 2). The 2010 Memorandum Decision also recognized 26 that it is undisputed that only an APA Section 706(1) claim 27 remains in this case. (Id. at 6). 28 27 Plaintiffs did not express an 1 objection to this finding. Plaintiffs belated attempt to reinvent 2 a section 706(2) claim is foreclosed. 3 Assuming arguendo that Plaintiffs had a viable claim under 4 section 706(2), Defendants are entitled to summary judgment on the 5 claim Plaintiffs have articulated. Plaintiffs motion for summary 6 judgment 7 contention that "Federal Defendants refusal to accept that the duty 8 included in section 1(a)(2) of the San Luis Act includes the duty 9 to intercept, collect, dispose of, and control San Luis Drainage 10 waters once those waters escape the Unit...may be set aside as 11 arbitrary and capricious under Section 706(2)(a)." 12 Plaintiff s MSJ at 41). 13 clarifies that any 706(2) claim is based on their (Doc. 819, Plaintiffs argue that any interpretation of the San Luis Act, or implementation of a drainage system that does not provide for the United State's responsibility for each of the elements of collection, inteception, disposal, and control of downslope migration of water and the effects of pressure transmitted downslope due to a lack of drainage of the San Luis Unit lands, for the past 40 years while irrigation of the San Luis Unit lands with CVP water occurred, and subsequent harm to the surrounding environment, must be set aside as arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law. 14 15 16 17 18 19 20 (Doc. 819, Plaintiffs' MSJ at 43). Plaintiffs challenge as to 21 Federal Defendants statutory construction of the San Luis Act has 22 been decided against Plaintiffs. 23 remedial duty to Plaintiffs exists under the San Luis Act. No mandatory drainage or other 24 Plaintiffs attempt to establish a claim under section 706(2) 25 based on Federal Defendants interpretation of the San Luis Act 26 fails, as the Secretary s interpretation is permissible for all the 27 reasons stated above. 28 /// 28 1 2. Section 706(1) Claim 2 The APA provides relief for a failure to act in section 3 706(1). E.g., Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 4 62 (2004) ( SUWA ). 5 under the APA is action legally required. 6 claim under § 706(1) can succeed only where a plaintiff asserts 7 that an agency failed to take a discrete agency action that it is 8 legally required to take. Id. A failure to act Id. at 64. a. Scope of Plaintiffs Remaining section 706(1) Claim 9 10 The only agency action that can be compelled Pursuant to the November 19, 2004 Memorandum Decision Re: 11 Motion 12 Memorandum Decision Re: Expansion of the Administrative Record, 13 Plaintiffs may not challenge the form and substance of the drainage 14 solution Federal Defendants have adopted: 15 to Dismiss the Fifth Amended Complaint and the Plaintiffs 706(1) claim regarding the drainage obligation was distinguished from SUWA because: 16 17 18 19 20 21 Here, Congress has given a statutory command to provide a drainage solution for the San Luis Unit. The Ninth Circuit has determined there has been a failure by the Federal Defendants to provide such a solution. Plaintiffs do not challenge the form of the drainage solution, a challenge that might be precluded under SUWA, but rather that Federal Defendants have failed to provide any drainage solution. Plaintiffs § 706 unreasonable delay claim is not barred by the final agency action doctrine. 22 23 24 25 26 Id. at 28-29.2 Plaintiffs did not seek reconsideration of this ruling. To the extent Plaintiffs offer these [] documents to prove that the drainage solution the Bureau plans to implement will not prevent impaired groundwater from migrating under their downslope lands, their challenge is to the form of the drainage solution, a use expressly disclaimed by the 11/19/04 Decision. 27 28 (Doc. 806 at 8-9). 29 2010 1 Much of the injunctive relief sought in the Fifth Amended 2 complaint is foreclosed by the limits imposed under section 706(1) 3 and the Supreme Court s holding in SUWA. 4 Fifth Amended Complaint seeks imposition of an order requiring: 5 542 U.S. at 62. The that Federal Defendants manage and/or require the management of the San Luis Unit as follows: a) by determining and measuring the amounts of water moving into the downslope areas; b) by immediately implementing plans to stop migration of groundwater...from the San Luis Unit...across the Firebaugh boundary. Such plans include, but are not limited to (1) regional and field level management practices (2) installation of perimeter drains to intercept the drainage flow; (3) installation of shallow wells... (4) redistrubution of available drainage loading capacities... (5) compensation for costs of [Plaintiffs] to handle drainage... (c) by...providing for [] measures and payments 6 7 8 9 10 11 12 13 14 15 Sumner Peck Ranch, Inc. et al., v. Department of Interior, et al., 16 1:91-cv-00048-OWW-DLB, Doc. 930. 17 the Secretary to provide drainage service at no cost to the 18 general area of the lands to be served by the San Luis Act. 19 (Id.). Plaintiffs also seek to require 20 A court is not authorized under section 706(1) to micro-manage 21 Federal Defendants performance of their duties under the San Luis 22 Act under section 706(1). 23 ordering Federal Defendants to perform a discrete duty required by 24 law. 25 Secretary to provide drainage required by the San Luis Act, but may 26 not prescribe how. 27 is mandatory as to the drainage objective to be achieved, but 28 leaves to the Secretary substantial discretion in deciding how to Rather, the court s power is limited to E.g., SUWA, 542 U.S. at 62. The court may order the Firebaugh, 203 F.3d at 578. 30 The San Luis Act 1 achieve it. Id. 2 The one viable claim for injunctive relief requested in the 3 Fifth Amended Complaint is Plaintiffs request for general relief 4 requiring the Secretary to comply with its drainage duties under 5 the San Luis Act. 6 Dismiss the 7 request general relief, i.e., a drainage solution and relief from 8 delay. [The Fifth Amended Complaint s ] many prayers for specific 9 relief....cannot stand under...the APA. Fifth As the 2004 Memorandum Decision Re: Motion to Amended Complaint recognized, [Plaintiffs] Sumner Peck Ranch, Inc. 10 et al., v. Department of Interior, et al., 1:91-cv-00048-OWW-DLB, 11 Doc. 948. 12 their claim for general injunctive relief turns on whether Federal 13 Defendants are currently performing their duty to provide drainage 14 under the Act. Whether Plaintiffs are entitled to summary judgment on b. Plaintiffs Unreasonable Delay Claim 15 16 Plaintiffs seeks summary judgment that Federal Defendants are 17 unreasonably delaying drainage service in violation of section 18 706(1). 19 subject to contempt proceedings for failing to comply with the 20 court s modified judgment requiring provision of drainage service 21 to the Unite. 22 the 2007 ROD, the Control Schedule, and the court s orders to the 23 extent of their authority and appropriations. 24 The Plaintiffs also contend that Federal Defendants are last Federal Defendants contend they are complying with status report filed by Federal Defendants was 25 submitted on April 1, 2011. The report details various measures 26 undertaken and performed by the Federal Defendants to provide 27 drainage to the San Luis Unit. 28 Report provides that Federal Defendants are complying with the Inter alia, the April 2011 Status 31 1 Control Schedule for the 2007 ROD submitted to the court in 2009, 2 including taking the requisite steps necessary to construct a 3 demonstration treatment plant located in the Panoche Drainage 4 District to collect data needed for the final design of the reverse 5 osmosis and selenium bio-treatment components of the drainage 6 service to be constructed in the San Luis Unit. 7 Federal Defendants in have the also amount of requested $14,250,000 Congressional 8 appropriations to continue 9 implementation of actions identified in the Control Schedule for th 10 2012 fiscal year; continued the process for securing a repayment 11 contract with Westlands for the recovery of costs of construction 12 of drainage facilities in Westlands; continued to support, through 13 grants, cooperative agreements, and other means, drainage projects 14 requested by districts in the San Luis Unit; and continued to 15 implement the December 2009 Agreement For Continued Use of the San 16 Luis Drain that will allow the Grassland Bypass Project to continue 17 through December 2019. 18 The broad discretion Federal Defendants have been granted to 19 [create] and [implement] a drainage solution for the San Luis 20 Unit, Firebaugh, 21 solutions Federal Defendants are undeniably pursuing at this time, 22 do not at present amount to unreasonably delaying discrete action 23 required 24 Unreasonable delay is a relative concept. 25 Ninth Circuit recognized that Congress imbued Federal Defendants 26 with 27 necessary implication of this holding is that Federal Defendants 28 are to be given sufficient time to exercise reasonable discretion by broad law 203 F.3d at within authority to the 577, and meaning create 32 a the of various section drainage 706(1). In Firebaugh, the drainage solution; the 1 to create a viable drainage solution. 2 ROD in 2007, its Feasibility Report in 2008, and its Control 3 Schedule for implementing the drainage solutions identified in 4 2009; that a drainage system was not yet in place at the time 5 Plaintiffs filed their motion for summary judgment in October 2010 6 does 7 unreasonable delay in the context of this case. 8 that the Department is complying with the Control Schedule, more 9 than ten years after final judgment was entered in the Court of 10 Appeal and fourteen years after final judgment in the trial court. 11 Over a decade has passed since the Ninth Circuit s decision in 12 Firebaugh. In 2011, Federal Defendants continue to move at a 13 snail s 14 necessary drainage to the San Luis Unit can be questioned, but 15 Federal 16 unreasonable delay as a matter of law. 17 frustratingly slow, but general deficiencies in compliance, unlike 18 the failure to issue a ruling . . . lack the specificity requisite 19 for 20 legitimately frustrated, as is the court, with Federal Defendants 21 slow 22 statutory responsibility to provide drainage. Nevertheless, an ROD 23 has been completed and Federal Defendants are complying with the 24 Control Schedule. not, under pace. the The Defendants agency action." progress in totality extent conduct SUWA, of of implementing circumstances, their does 542 The Department issued its not U.S. at measures It is undisputed commitment at constitute present to provide constitute Federal Defendants are 66. to Plaintiffs comply with are their 25 Plaintiffs are not entitled to summary judgment on their 26 section 706(1) claim, as Federal Defendants are acting to provide 27 the drainage solutions identified in the ROD. 28 argument is clearly foreclosed because the court s December 23, 33 Plaintiffs contempt 1 2009 order directs 2 undertakings to the Court, as presented in Part I of the Parties 3 Supplemental 4 Schedule, 5 complying with the Control Schedule. Status and it Federal Report is Defendants (Doc. undisputed 752) that to perform including Federal the their Control Defendants are 6 Plaintiffs are not entitled to a trial to determine the 7 quantities of drainage waters and contaminants originating from 8 irrigation within the San Luis Unit that have entered Plaintiffs 9 service areas, because Federal Defendants have no mandatory duty 10 to remediate any such drainage water or contaminants under the San 11 Luis Act. 12 one that is remediable under the APA. 13 remediation statute. Plaintiffs remedy lies with the legislature. The situation Plaintiffs face is regrettable, but not The San Luis Act is not a 14 b. District Defendants Opposition 15 District Defendants oppose Federal Defendants cross-motion for 16 17 18 19 20 21 22 23 24 25 26 27 28 summary judgment on the following basis: The Federal Defendants have cross-moved in part seeking summary judgment that the United States has not acted arbitrarily and capriciously, and has acted in accordance with the law, in providing for the installation, operation and maintenance of drainage service facilities in the San Luis Unit of the Central Valley Project, including the Northerly Area and the northern sub-area of Westlands Water District, as set forth in the 2007 San Luis Drainage Feature Reevaluation Record of Decision [ 2007 ROD ], the 2009 Record of Decision approving a new Use Agreement for the San Luis Drain and extension for the Grasslands Bypass Project, and in Assistance Agreements with the Panoche Drainage District. (Federal Defendants Notice of Cross-Motion and Cross-Motion for Summary Judgment, Doc. 826, at 3:3-10.) The District Defendants oppose this portion of the Federal Defendants cross-motion for summary judgment because it is beyond the scope of the issues framed by the Firebaugh Plaintiffs operative complaint, and because the arguments in support appear to be directed towards the Plaintiffs premature request for a hearing on an order to show cause. This summary judgment stage is limited to the legal question of whether the Federal Defendants 34 1 2 duty to construct a drainage system extends to the Plaintiffs lands, and should not address whether the Federal Defendants are complying with the Court s 2000 Drainage Order. 3 4 (District Def s Opp., Doc. 848 at 2). 5 that the issues entailed by the parties cross-motions are frozen in 6 time, specifically, in the year 2004: 7 8 9 10 District Defendants contend The Plaintiffs Fifth Amended Complaint was filed June 1, 2004. Thus, the issue framed by the operative pleadings is whether, as of June 1, 2004, the Federal Defendants have fulfilled their drainage obligation to the lands within the San Luis Unit, and to surrounding lands if the Court finds that the drainage obligation extends beyond the lands within the San Luis Unit. 11 (Id. at 2). District Defendants argument is erroneous, as 12 Plaintiffs only cognizable claim is that Federal Defendants are 13 currently withholding discrete action lawfully required by the San 14 Luis Act; this claim necessarily puts at issue whether Federal 15 Defendants are currently complying with their duties under the San 16 Luis Act. 17 c. Federal Defendants Motion 18 Federal Defendants move for an order granting them summary 19 judgment on Plaintiffs APA claims. (Doc. 826, Federal Defendants 20 MSJ at 2). Federal Defendants cross-motion is GRANTED as to 21 Plaintiffs 706(2) claim. Summary judgment is GRANTED on Federal Defendant s regarding 22 cross-motion the section 706(1) claim, 23 without prejudice to a renewed claim based on future circumstances. 24 d. District Defendants Motion 25 District Defendants cross-motion is GRANTED as to Plaintiffs 26 706(2) claim. Summary judgment is GRANTED on Federal Defendant s 27 cross-motion regarding the section 706(1) claim, without prejudice 28 35 1 to a renewed claim based on future circumstances. CONCLUSION 2 3 Federal and District Defendants motions for summary judgment 4 on Plaintiffs claim under section 706(2) are GRANTED. Plaintiffs 5 motion for summary judgment on their section 706(1) claim is DENIED 6 without prejudice; Federal and District Defendants cross-motions 7 are GRANTED without prejudice to a renewed claim based on future 8 circumstances. 9 precedent for the proposition that a duty to provide drainage 10 sufficient to protect Plaintiffs lands exists under the San Luis 11 Act. 12 IT IS SO ORDERED. 13 Dated: hkh80h This September 30, 2011 memorandum decision shall not /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 36 serve as

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