Firebaugh Canal Water Dist. v. United States

• Decision Date: 05 April 2013
• Docket Number: No. 11–17715.,11–17715.
• Citation: 712 F.3d 1296
• Parties: FIREBAUGH CANAL WATER DISTRICT; Central California Irrigation District, Plaintiffs–Appellants, v. UNITED STATES of America; Department of Interior; Bureau of Reclamation; Kenneth Lee Salazar; Westlands Water District; Panoche Water District; Broadview Water District; San Luis Water District, Defendants–Appellees, Natural Resources Defense Council; The Bay Institute; Contra Costa County; Contra Costa Water Agency, Intervenor–Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

712 F.3d 1296

FIREBAUGH CANAL WATER DISTRICT; Central California Irrigation District, Plaintiffs–Appellants,

v.UNITED STATES of America; Department of Interior; Bureau of Reclamation; Kenneth Lee Salazar; Westlands Water District; Panoche Water District; Broadview Water District; San Luis Water District, Defendants–Appellees, Natural Resources Defense Council; The Bay Institute; Contra Costa County; Contra Costa Water Agency, Intervenor–Defendants–Appellees.

No. 11–17715.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 5, 2012.

Filed April 5, 2013.

Paul R. Minasian, Minasian, Meith, Soares, Sexton & Cooper, LLP, Oroville, CA, for Plaintiffs–Appellants.

Brian C. Toth, United States Department of Justice, Environmental & Natural Resources Division, Washington, D.C.; Daniel J. O'Hanlon and Eric N. Robinson, Kronick, Moskovtiz, Tiedemann & Girard, Sacramento, CA, for Defendants–Appellees.

Hamilton Candee, Altshuler Berzon LLP, San Francisco, CA; Katherine Poole, Natural Resources Defense Council, San Francisco, CA; Laurens H. Silver, California Environmental Law Project, Mill Valley, CA, for Intervenor–Defendants–Appellees.

Appeal from the United States District Court for the Eastern District of California, Oliver W. Wanger, Senior District Judge, Presiding. D.C. Nos. 1:88–cv–00634–LJO–DLB, 1:92–cv–05554–OWW, 1:91–cv–00048–LJO–DLB.

Before: STEPHEN S. TROTT and JOHNNIE B. RAWLINSON, Circuit Judges, and FREDERIC BLOCK, District Judge.^*

OPINION

BLOCK, District Judge:

The Central Valley Project (“CVP”) is a massive undertaking to transfer water from the northern part of California's Central Valley to the relatively arid southern part of the valley. The project is managed by the United States Department of the Interior (“Interior”).

Interior's management of the CVP has been the subject of much litigation. Here, we address the claim of the Firebaugh Canal Water District and the Central California Irrigation District (collectively, “Firebaugh”) that a lack of adequate drainage in part of the CVP causes poor quality water to flow into its service area.

Firebaugh argues that Interior should be ordered to provide the necessary drainage or, alternatively, to pay money damages. For the reasons set forth below, we hold that Interior's broad discretion in matters of drainage precludes both claims.

I

A. The San Luis Act

In 1960, Congress passed the San Luis Act, Pub.L. No. 86–488, 74 Stat. 156 (1960). The Act sought to “furnish[ ] water for the irrigation of approximately five hundred thousand acres of land in Merced, Fresno, and Kings Counties, California,” by authorizing Interior to construct and maintain the San Luis Unit (“the Unit”). Id. § 1(a). The Unit was to include a dam and reservoir, along with “necessary pumping plants, distribution systems, drains, channels, levees, flood works, and related facilities.” Id.

Aware that increased irrigation would increase drainage requirements, Congress conditioned construction of the Unit on “satisfactory assurance from the State of California that it will make provision for a master drainage outlet and disposal channel for the San Joaquin Valley.” Id. Alternatively, the Unit could be constructed once Interior had “made provision for constructing the San Luis interceptor drain to the [Contra Costa] delta designed to meet the drainage requirements of the San Luis unit.” Id. In addition, section 5 of the Act authorized Interior to “enter into agreements and participate in 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.”

When California declined to provide a master drainage outlet, Interior then informed Congress that it would build the drain. Construction began thereafter and the Unit started making water deliveries in 1967.

Since 1965, Congress has prohibited Interior from using any of its annual appropriation to establish the terminus of the interceptor drain pending the creation of environmental standards agreed upon by both the state and federal governments. No such standards have been established, and the prohibition has been reenacted nearly every year.

Though prohibited from fixing the drain's endpoint, Interior completed construction on the middle portion of the drain in 1975. It also created the Kesterson Reservoir as an interim measure to receive the drain's output.

In 1983, studies at Kesterson revealed elevated levels of selenium in the drainage water. In 1986, Interior closed the reservoir and plugged the drains leading to it. It continued, however, to provide irrigation water to lands within the Unit.

B. Initial District Court Proceedings

The closing of the Kesterson Reservoir precipitated lawsuits by those adversely affected by the lack of drainage. In Firebaugh Canal Water District v. United States, No. 88–CV–634 (E.D.Cal.), Firebaugh alleged that Interior was statutorily obligated to drain lands irrigated by the Unit. Westlands Water District, the Unit's largest water district, along with several individual landowners within the Unit, made a similar allegation in Sumner Peck Ranch v. Bureau of Reclamation, No. 91–CV–48 (E.D.Cal.).

The district court partially consolidated the two actions to address the common allegation. On plaintiffs' motion for partial summary judgment, the district court held that section 1(a) of the San Luis Act required Interior to drain lands within the Unit. It then rejected Interior's argument that Congress's ban on fixing the drain's endpoint and other changed circumstances had implicitly repealed or excused the obligation. Based on those rulings, the district court entered a partial judgment requiring Interior to “take such reasonable and necessary actions to promptly prepare, file and pursue an application for a discharge permit” for completion of the interceptor drain. Interior appealed.

C. Firebaugh I

In Firebaugh Canal Co. v. United States, 203 F.3d 568 (9th Cir.2000) ( “Firebaugh I ”), we upheld the district court's ruling that “the San Luis Act mandated the Secretary to provide the interceptor drain.” Id. at 574. We further held that “subsequent Congressional action has not eliminated the Department's duty to provide drainage, but that it has given the Department the authority to pursue alternative options other than the interceptor drain to satisfy its duty under the San Luis Act.” Id. at 577. Accordingly, we reversed the portion of the judgment requiring Interior to seek a permit for the interceptor drain, and remanded for further proceedings. See id. at 578.

D. Interior's Actions After Firebaugh I

On remand, the district court modified its judgment to require Interior to “without delay, provide drainage to the San Luis Unit pursuant to the statutory duty imposed by section 1(a) of the San Luis Act.” Consistent with our holding that Interior retained broad discretion to choose a drainage solution, the district court's only specific directive was that Interior submit “a detailed plan describing the action or actions, whether short term or long term, [it] 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.”

Interior submitted an action plan on April 18, 2001. The plan identified ten “milestones” and proposed dates for their completion, which dates have been amended several times.

Pursuant to the action plan, Interior conducted an extensive re-evaluation of the Unit's drainage situation, including public comment and examination of environmental impact issues. A report completed in December 2002 estimated that 379,000 acres would require drainage by 2050; that total included 24,000 located outside the Unit, in Firebaugh's service area.

In March 2007, Interior issued a record of decision announcing that it had selected an “in-valley” drainage alternative. Through that alternative, Interior undertook to (1) reduce the amount of drainwater through treatment and reuse, and (2) dispose of the remaining wastewater in evaporation ponds and, later, landfills. The alternative also called for retirement of some lands from irrigated farming, a measure proposed by local water districts.

Interior estimated that its “in-valley” alternative would eventually cost $2.69 billion. It is, however, constrained by existing legislation to spend no more than $429 million on construction costs. In addition, Interior determined that the water districts that would benefit from the drainage plan lacked the current ability to pay the difference, as required by current reclamation law. Therefore, Interior submitted a feasibility study to Congress that outlined changes in legislation that would be required to fully implement the plan. Congress has taken no action to increase the cap on construction costs, or to defer or excuse the Unit's water districts' obligation to repay them.

Notwithstanding the lack of congressional action, Interior undertook drainage projects that fell within its existing construction cap. In 2009, it submitted to the district court a control schedule setting forth its proposals for such actions through 2019. The district court adopted the control schedule, and Interior submitted periodic status reports addressing its compliance with the schedule.

As of the end of fiscal year 2011, Interior had secured $7 million in appropriations for control schedule projects, and had spent $5.5 million of those appropriations on pre-construction activities for a demonstration treatment plant in one of the Unit's water districts, as well as a self-sufficient drainage system for a portion of another district. It also requested more than $14 million for fiscal year 2012.

E. Subsequent District Court Proceedings

Interior settled with the in-Unit landowners in 2002, leaving Firebaugh as the...