Wild Fish Conservancy v. Jewell

• Decision Date: 11 September 2013
• Docket Number: No. 10–35303.,10–35303.
• Citation: 730 F.3d 791
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: and Harriet S. Bullitt, Plaintiffs–Appellants, v. Sally JEWELL , in her official capacity as Secretary of the United States Department of the Interior; U.S. Department of the Interior; Sam D. Hamilton, in his official capacity as Director of the United States Fish and Wildlife Service; U.S. Fish & Wildlife Service; Dave Irving, in his official capacity as Leavenworth National Fish Hatchery Complex Manager; Michael L. Connor, in his official capacity as the Commissioner of the Bureau of Reclamation; United States Bureau of Reclamation, Defendants–Appellees.

730 F.3d 791

WILD FISH CONSERVANCY and Harriet S. Bullitt, Plaintiffs–Appellants,

v.Sally JEWELL ^*, in her official capacity as Secretary of the United States Department of the Interior; U.S. Department of the Interior; Sam D. Hamilton, in his official capacity as Director of the United States Fish and Wildlife Service; U.S. Fish & Wildlife Service; Dave Irving, in his official capacity as Leavenworth National Fish Hatchery Complex Manager; Michael L. Connor, in his official capacity as the Commissioner of the Bureau of Reclamation; United States Bureau of Reclamation, Defendants–Appellees.

No. 10–35303.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted May 7, 2013.

Filed Sept. 11, 2013.

Brian A. Knutsen (argued) and Richard A. Smith, Smith & Lowney, PLLC, Seattle, WA, for Plaintiffs–Appellants.

Charles R. Shockey, David C. Shilton, and Robert P. Stockman (argued), United States Department of Justice, Washington, D.C., Defendants–Appellees.

Appeal from the United States District Court for the Eastern District of Washington, Lonny R. Suko, District Judge, Presiding. D.C. No. 2:09–cv–00206–LRS.

Before: SIDNEY R. THOMAS and JACQUELINE H. NGUYEN, Circuit Judges, and RAYMOND J. DEARIE, Senior District Judge.^**

OPINION

THOMAS, Circuit Judge:

The historian Donald Worster described the Columbia River as the river that died and was reborn as money.¹ The Columbia River Basin was once home to one of the world's largest salmon runs, but over the course of the twentieth century the mainstem Columbia and its tributaries were radically re-engineered to become the most hydroelectrically developed river system in the world, incorporating more than one hundred and fifty dams. Nw. Res. Info. Ctr., Inc. v. Nw. Power Planning Council, 35 F.3d 1371, 1375 (9th Cir.1994). In combination with deforestation, over-fishing, irrigated agriculture, grazing, mining, and urbanization, the hydropower system reduced native salmon and steelhead populations from levels of mythic abundance to the brink of extinction. Id. at 1375–76.

This appeal concerns the control of water necessary to sustain native fish populations in Icicle Creek, a tributary of the Wenatchee River, which is itself a tributary of the Columbia. The Wild Fish Conservancy and Harriet S. Bullitt (collectively, “the Conservancy”) allege that the United States is improperly diverting water from Icicle Creek to the Leavenworth National Fish Hatchery (the “Hatchery”) and otherwise violating Washington state law. We conclude that the Conservancy lacks prudential standing to bring its claim that the Hatchery operation violates the Washington water code, and that we lack jurisdiction to consider the Conservancy's other claims because they either do not challenge final agency action or rest on provisions of Washington law that are not incorporated into federal reclamation law. Therefore, on de novo review,² we dismiss this action.³

I

Congress authorized construction of the Hatchery to mitigate the adverse impact of the Grand Coulee Dam on native fish in the Columbia River Basin. The Conservancy claims that the Hatchery is subject to section 8 of the Reclamation Act of 1902 (“section 8”), which requires that federal reclamation projects operate in compliance with state water law. 43 U.S.C. § 383. According to the Conservancy, the United States Secretary of the Interior and subordinate officials responsible for operating the Hatchery (collectively, the “Federal Defendants”) violate section 8 by diverting water from Icicle Creek without a permit required by the Washington water code, Wash. Rev.Code § 90.03.250, and by failingto provide adequate fish ladders as required by Washington's fishway law, Wash. Rev.Code § 77.57.030.

When the Hatchery was completed in 1941, fish were initially reared in a one-mile segment of Icicle Creek—referred to by the parties as the “Historic Channel”—equipped with dams and weirs to create holding ponds. A four-thousand foot canal—the “Hatchery Canal”—was constructed adjacent to the Historic Channel. The Hatchery Canal splits off from the Historic Channel at “structure 2”—a dam with radial gates that control the amount of water flowing downstream through the Hatchery. The Canal runs roughly parallel to the Historic Channel for about one mile and then rejoins the Historic Channel immediately downstream of “structure 5.” When the gates at structure 2 are open, most of Icicle Creek's flow travels down the Historic Channel. When the gates are closed, most of the creek's flow travels down the Hatchery Canal. Thus, closing the gates at structure 2 significantly, and sometimes entirely, dewaters the one-mile segment of the Historic Channel between structures 2 and 5. When this occurs, fish cannot swim up the Historic Channel to spawning grounds above the Hatchery. Though fish-rearing operations at the Hatchery were moved to off-channel holding ponds in 1979, Hatchery officials continue to close the gates at structure 2 at various times during the year. The following illustration helps explain the operation:

IMAGE

With this context in mind, we turn to the Conservancy's claims.

II

A

The Conservancy's first claim alleges that the Federal Defendants violate section 8 of the Reclamation Act, 43 U.S.C. § 383, by diverting water from Icicle Creek at structure 2 without a state permit. Washington law prohibits diversions without a permit from the Washington Department of Ecology (“Department of Ecology”). Wash. Rev.Code § 90.03.250.⁴ The Conservancy argues that this state law provision applies to the Hatchery by virtue of section 8 of the Reclamation Act, which provides that nothing in that Act

shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof.

43 U.S.C. § 383. Section 8 requires the federal government to follow state law when acquiring water rights for federal reclamation projects and distributing project water, unless the relevant state law conflicts with an express congressional enactment. California v. United States, 438 U.S. 645, 650, 674–75, 98 S.Ct. 2985, 57 L.Ed.2d 1018 (1978). Thus, state law restrictions on the acquisition and use of water for federal reclamation projects “are incorporated into the Reclamation Act so long as they are consistent with other federal law.” San Luis Unit Food Producers v. United States, 709 F.3d 798, 806 (9th Cir.2013).

At the outset, the parties dispute whether the Reclamation Act applies to the Hatchery and whether the Washington water code's permit requirement is a state law “relating to the control, appropriation, use, or distribution of water used in irrigation” such that it is incorporated into section 8. Additionally, the parties disagree as to whether directing water from Icicle Creek into the Hatchery Canal, which rejoins the Historic Channel after less than a mile, constitutes a “diversion” as a matter of state law. We need not decide these questions because the Conservancy lacks prudential standing.

B

Because the Reclamation Act does not create a private right of action, the Conservancy brought suit under the Administrative Procedure Act (“APA”), which provides a cause of action for persons “adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702. This provision requires that, in addition to demonstrating constitutional standing, a plaintiff “must assert an interest ‘arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.’ ” Nev. Land Action Ass'n v. U.S. Forest Serv., 8 F.3d 713, 716 (9th Cir.1993) (quoting Ass'n of Data Processing Serv. Org., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970)). The purpose of this prudential standing requirement is “ ‘to exclude those plaintiffs whose suits are more likely to frustrate rather than to further statutory objectives.’ ” Id. (quoting Clarke v. Sec. Indus. Ass'n, 479 U.S. 388, 397 n. 12, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987)). The test “ ‘is not meant to be especially demanding.’ ” Match–E–Be–Nash–She–Wish Band of Pottawatomi Indians v. Patchak, ––– U.S. ––––, 132 S.Ct. 2199, 2210, 183 L.Ed.2d 211 (2012) (quoting Clarke, 479 U.S. at 399, 107 S.Ct. 750). “[T]he benefit of any doubt goes to the plaintiff.” Ibid. Still, the “zone of interests” standard forecloses suit “when a plaintiff's ‘interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.’ ” Id. (quoting Clarke, 479 U.S. at 399, 107 S.Ct. 750).

The focal point of the prudential standing inquiry is “the statute whose violation is the gravamen of the complaint.” Air Courier Conference of Am. v. Am. Postal Workers Union, AFL–CIO, 498 U.S. 517, 529, 111 S.Ct. 913, 112 L.Ed.2d 1125 (1991) (internal quotation marks and citation omitted). Here, the relevant statutory provision is section 8 of the Reclamation Act. 43 U.S.C. § 383.⁵

In California v. United States, the Supreme Court explained that section 8 advances the Reclamation Act's goal of “cooperative federalism” and maintains the longstanding tradition of federal deference to state water law. 438 U.S. at 650, 653, 98 S.Ct. 2985. By requiring federal reclamation projects to comply with state water law, Congress aimed to avoid “the legal confusion that would arise if federal water law and state water law reigned side by side in the same locality.” Id. at 668–69, 98 S.Ct. 2985. Co...