Natural Resources Defense Council et al v. Norton et al, No. 1:2005cv01207 - Document 811 (E.D. Cal. 2009)
Court Description: ORDER denying without prejudice 770 Motion for Reconsideration and ordering motion off March 2, 2009 calendar, signed by Judge Oliver W. Wanger on 2/12/09.
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Natural Resources Defense Council et al v. Norton et al Doc. 811 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 NATURAL RESOURCES DEFENSE COUNCIL, 10 11 12 15 16 17 ORDER RE PLAINTIFFS’ MOTION FOR CERTIFICATION OF INTERLOCUTORY APPEAL OR, IN THE ALTERNATIVE, FOR RECONSIDERATION OF THE NOVEMBER 19, 2008 MEMORANDUM DECISION RE CROSS MOTIONS FOR SUMMARY JUDGMENT RE CVP CONTRACT RESCISSION (DOC. 770). Plaintiffs, v. DIRK KEMPTHORNE, et al., 13 14 1:05-CV-01207 OWW GSA Defendants, and SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, et al., Defendant-Intervenors. 18 19 Plaintiffs have filed a motion for certification for 20 interlocutory appeal or, in the alternative, for reconsideration 21 of the November 19, 2008 Memorandum Decision Re: Cross-Motions 22 for Summary Judgment Re CVP Contract Rescission (“Contract 23 Decision”). 24 on March 2, 2009. 25 light of the Contract Decision and subsequent orders. 26 reasons set forth below, Plaintiffs’ motion is premature. 27 motion is ordered off calendar and may be renewed after 28 proceedings related to the still-pending motion for summary Doc. 770. This motion is currently set for hearing The district court has reviewed this motion in For the The 1 Dockets.Justia.com 1 judgment are completed. 2 On July 16, 2008, Plaintiffs filed a motion for summary 3 judgment on their claim that the Bureau of Reclamation (“Bureau” 4 or “Reclamation”) violated and is violating section 7(a)(2) of 5 the Endangered Species Act (“ESA”), 16 U.S.C. § 1536(a)(2), by 6 executing and implementing the 28 Sacramento River Settlement 7 Renewal Contracts (“SRS Contracts” or “Settlement Contracts”), on 8 the grounds that the Bureau did not adequately consult with the 9 United States Fish and Wildlife Service (“FWS”) concerning the 10 SRS Contracts and did not otherwise satisfy its affirmative duty 11 to ensure that the contracts’ execution and implementation will 12 not likely jeopardize the continued existence of the threatened 13 delta smelt or adversely modify its critical habitat. 14 Plaintiffs also raised similar challenges to the Bureau’s 15 execution and implementation of contracts between the Bureau and 16 thirteen Delta Mendota Canal Unit (“DMCU”) contractors. 17 Doc. 680. Id. The Contract Decision denied Plaintiffs’ motion as to the 18 DMCU Contracts on the ground that Plaintiffs lack standing due to 19 the DMCU Contracts’ shortage provisions. 20 761, at 39-40. 21 court ruled in Plaintiffs’ favor on a number of threshold/ 22 jurisdictional issues, holding that: (1) Plaintiffs have standing 23 to pursue their claims against the Bureau; and (2) implementation 24 of the SRS Contracts constituted final agency action within the 25 scope of the Administrative Procedure Act (“APA”), 5 U.S.C. § 26 704. 27 threshold issue did not bar Plaintiffs’ claims, federal 28 defendants’ ESA § 7 consultation was unlawful and the Bureau did Contract Decision, Doc. With respect to the SRS Contracts, however, the The district court also found that, assuming a third 2 1 not otherwise satisfy its section 7(a)(2) obligations. 2 91. 3 Id. at A final ruling on the third threshold issue, whether and to 4 what extent Plaintiffs’ claims under ESA section 7(a)(2) are 5 barred by the recent Supreme Court decision in National 6 Association of Home Builders v. Defenders of Wildlife, 127 S. Ct. 7 2518, 2526 (2006), was withheld pending a complete analysis. 8 Home Builders stands for the proposition that ESA section 7(a)(2) 9 only applies to actions over which a federal agency exercises 10 discretion. 11 lacks discretion to operate the CVP in any manner that would 12 interfere with their senior water rights, which, according to the 13 SRS Contractors “emanate not from their contracts with [the 14 Bureau], but from their own water rights, which are senior to 15 Reclamation’s.” 16 concur with this assertion, at least in part, having argued: 17 is not the settlement contracts that constrain Reclamation’s CVP 18 operations, but the senior water rights claimed by the settlement 19 contractors.” 20 Id. The SRS Contractors maintain that the Bureau Doc. 707 at 14. Federal Defendants appear to “It Doc. 742 at 4. The inchoate Decision found that “the SRS Contracts were 21 formed only after negotiation reflecting compromise over terms 22 [such as] quantity of water to be delivered and timing of 23 deliveries, over which the Bureau exercised some degree of 24 discretion.” 25 reviewed other authorities, some of which supported the SRS 26 Contractors’ view that the Bureau exercises no discretion over at 27 least some portion of the water delivered under their contracts. 28 Id. at 57-68. Contract Decision at 69. 3 The Decision also 1 2 3 4 5 6 7 8 9 10 11 12 Plaintiffs assert in their motion for certification for interlocutory appeal that: [T]his Court has already made all necessary determinations to warrant summary judgment on [the] ESA § 7(a)(2) claim against the [SRS Contracts], by concluding that: (1) Plaintiffs have standing to challenge these contracts’ execution and implementation, which constitute final agency actions; (2) [the Bureau] has discretion -- which it has exercised here -- to modify, among other terms, the base and project supply quantity terms in the settlement renewal contracts and to implement these contracts in a manner consistent with Federal and state environmental laws; and (3) [the Bureau] has not complied with ESA § 7(a)(2)’s procedural and substantive mandates applicable to contract renewal and implementation. Doc. 770-2 at 3. Plaintiffs oversimplify the Contract Decision and the 13 complexity of applying Home Builders to the intricate contractual 14 relationship between the Bureau and the SRS Contracts, a 15 relationship which is defined by a complex mosaic of federal and 16 state statutory commands. 17 resolving these issues: 18 19 20 21 22 23 24 25 26 27 28 The Decision is in the process of This scenario does not allow for the straightforward application of Home Builders’ relatively bright-line rule. Here, in contrast to Home Builders, there are no enumerated statutory criteria (either federal or state) guiding the Bureau’s negotiation and execution of the Settlement Contracts. On the one hand, the Bureau is legally bound to comply with non- conflicting state law, see CVPIA § 3406(b), including SWRCB Decision 990, which directed the United States to reach a settlement agreement with the Sacramento River water users and precludes the Bureau from operating the projects in the absence of mutually agreed-upon Settlement Contracts. On the other hand, the Bureau negotiated settlements that contain[] shortage provisions which compromise the SRS Contractors’ claimed senior rights. If the SRS Contractors held adjudicated senior rights to divert water in a finite quantity from the Sacramento River, and the SRS Contracts simply embodied the Bureau’s obligations to ensure that its operation of the CVP did not impede the SRS Contractors’ 4 1 2 3 4 specifically quantified senior rights, the Bureau would lack discretion under Home Builders and any section 7(a)(2) challenge to the SRS Contracts would be barred. However, the SRS Contracts were formed only after negotiation reflecting compromise over terms as to quantity of water to be delivered and timing of deliveries, over which the Bureau exercised some degree of discretion. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 It would be arbitrary and capricious for the court to ignore the existence of the SRS Contractors’ substantial senior rights, which have been recognized and are real under federal and state law, although not definitely quantified. These senior rights are beyond the reach of the ESA. If the Base Supply is used as a proxy for the senior rights, it is an imperfect one, because: (a) the Base Supply is defined by the contracts themselves and was the product of negotiation; and (b) the Shasta Critical Year shortage provision affords the Bureau discretion over a quarter of the Base Supply under certain circumstances. To resolve the applicability of Home Builders to the Settlement Contracts and to narrow the issues in this case, it is necessary for the Federal Defendants and/or the Settlement Contractors to present evidence on the nature and extent of their claimed senior water rights. If, arguendo, this evidence establishes that the Settlement Contractors hold senior rights to a certain volume of water, it is appropriate to determine as a matter of law that the Bureau lacks any discretion under Home Builders over that volume of SRS Contract water. Contract Decision at 68-71. The SRS Contractors have been laboring under the assumption 20 that they will be given an opportunity to present evidence 21 relevant to the extent of the United States’ discretion over the 22 renewal of the settlement contracts. 23 of Proceedings held on Dec. 3, 2008, at 28. 24 court has an opportunity to fully complete the Home Builders 25 analysis, based in part on facts which will be presented in the 26 ongoing proceedings, there is nothing for Plaintiffs to appeal. 27 No final order has yet been entered on the summary judgment 28 motion regarding the SRS Contracts. 5 See Reporter’s Transcript Until the district 1 Plaintiffs are free to contribute their legal views and 2 analysis in opposition to the SRS Contractors’ evidence before 3 the Home Builder’s analysis is completed. 4 correct in their contention that Home Builders does not exempt 5 the Bureau’s compliance with the ESA because the agency exercised 6 discretion to negotiate supply and quantity terms in the 7 settlement renewal contracts must be fully heard and decided. 8 9 Whether Plaintiffs are Hearing Plaintiffs’ premature motion on March 2, 2009 will substantially interfere with the ongoing summary judgment 10 proceedings and will impede the decision-making process now in 11 progress. 12 interlocutory appeal or in the alternative for reconsideration of 13 the November 19, 2008 memorandum decision is DENIED WITHOUT 14 PREJUDICE. 15 evidence as opposition to the SRS Contractors’ evidence and 16 argument. 17 motion is entered, Plaintiffs’ motion is premature. Accordingly, Plaintiffs’ motion for certification for Plaintiffs may offer their legal arguments and any Until a final decision on the pending summary judgment 18 19 SO ORDERED 20 DATED: February 12, 2009 21 22 23 /s/ Oliver W. Wanger Oliver W. Wanger United States District Judge 24 25 26 27 28 6
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