767 F.2d 531 (9th Cir. 1985), 84-1758, South Delta Water Agency v. United States, Dept. of Interior, Bureau of Reclamation

Docket Nº:84-1758.
Citation:767 F.2d 531
Party Name:SOUTH DELTA WATER AGENCY, Alexander Hildebrand, Barbara Hildebrand, Lafayette Ranch, Plaintiffs-Appellees, v. UNITED STATES of America, DEPARTMENT OF INTERIOR, BUREAU OF RECLAMATION, James G. Watt, et al., Defendants-Appellants, and State of California, Department of Water Resources, and David N. Kennedy, Defendants-Appellees.
Case Date:July 26, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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767 F.2d 531 (9th Cir. 1985)

SOUTH DELTA WATER AGENCY, Alexander Hildebrand, Barbara

Hildebrand, Lafayette Ranch, Plaintiffs-Appellees,



RECLAMATION, James G. Watt, et al., Defendants-Appellants,


State of California, Department of Water Resources, and

David N. Kennedy, Defendants-Appellees.

No. 84-1758.

United States Court of Appeals, Ninth Circuit

July 26, 1985

Argued and Submitted Jan. 18, 1985.

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[Copyrighted Material Omitted]

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David Whitridge, John A. Wilson, Wilson & Hoslett, Stockton, Cal., for plaintiffs-appellees.

Mary E. Hackenbracht, Deputy Atty. Gen., San Francisco, Cal., for defendants-appellees.

Robert L. Klarquist, Dept. of Justice, Washington, D.C., for defendants-appellants.

Appeal From United States District Court For the Eastern District of California.

Before DUNIWAY and PREGERSON, Circuit Judges, and KELLEHER, [*] District Judge.

PREGERSON, Circuit Judge:

Federal defendants brought this interlocutory appeal from the district court's denial of their motion to dismiss plaintiffs' suit for declaratory and injunctive relief. For the reasons stated below, we affirm the district court's denial of the defendants' motion to dismiss.


This appeal involves the federal defendants' operation of the Central Valley Project (CVP), the nation's largest water reclamation project. 1

The California legislature originally conceived of the CVP "to conserve and put to maximum beneficial use the waters of the Central Valley of California." Dugan v. Rank, 372 U.S. 609, 612, 83 S.Ct. 999, 1002, 10 L.Ed.2d 15 (1963) (citing the Feasibility Report of Secretary of the Interior Ickes to President Franklin D. Roosevelt, dated November 26, 1935, reprinted in 90 F.Supp. 823-827). Unable to finance the project

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alone, California requested that the United States join in the enterprise. President Franklin D. Roosevelt authorized the CVP under the provisions of the Emergency Relief Appropriation Act of 1935, ch. 48, Sec. 4, 49 Stat. 115, and Congress re-authorized the CVP pursuant to the Rivers and Harbors Act of August 26, 1937, ch. 832, 50 Stat. 844, 850.

California has two mountain ranges running two-thirds the length of the state. The Sierra Nevada Range on the east and the Coastal Range on the west converge at Mount Shasta in the north and at the Tehachapi Mountains in the south. The two ranges form the Central Valley Basin. The Sacramento Valley, containing the Sacramento River, lies in the northern portion of the Central Valley, and the San Joaquin Valley, containing the San Joaquin River, lies in the southern portion. The Sacramento River has a surplus of water because of heavier rainfall in the northern region, but its valley has little tillable soil. The San Joaquin River, in contrast, does not supply sufficient water for the extensive amount of tillable soil in its valley. The CVP transports some of the Sacramento River's surplus water to the San Joaquin Valley and permits the waters of the San Joaquin River to be diverted for irrigation and other purposes to new areas where water is scarce. See Dugan v. Rank, 372 U.S. at 612, 83 S.Ct. at 1002.

The essential components of the CVP have been operational since 1953 and certain of its facilities were in partial operation several years before. Facilities located in the northern portion of the Central Valley store waters of the Sacramento, Trinity, and American Rivers. These waters are transported south down the Sacramento River to the Sacramento-San Joaquin Delta, an area east of San Francisco Bay. The waters are then pumped from the Delta into the Delta Mendota Canal for southerly transportation to the San Joaquin River.

Friant Dam, a CVP component located North of Fresno, impounds water from the San Joaquin River and stores it in Millerton Lake. The Madera and Friant-Kern canals then divert the water to the Southern Central Valley for irrigation use and other public purposes. 2

The South Delta Water Agency, a municipal corporation representing the interests of water rights holders in the Southern Sacramento-San Joaquin Delta, along with two private delta water users who own land within the Southern Delta, sued the state and federal governments, requesting declaratory and injunctive relief. The plaintiffs (hereinafter referred to as South Delta) alleged that the federal and state defendants 3 were operating their respective water facilities in a manner that violated South Delta's water rights under federal and state law. 4

The federal defendants moved to dismiss on the grounds that (1) the United States had not waived its sovereign immunity, and (2) the district court lacked jurisdiction. 5 The district court denied this motion on October 21, 1983.

The district court ruled that Congress had waived sovereign immunity in the Administrative Procedure Act (APA), 5 U.S.C.

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Secs. 701-706 (1982), which provides for judicial review of agency action where there is law limiting agency discretion. The court found that federal and state law limited agency discretion, thereby activating the APA's waiver of sovereign immunity. The court also held that it had subject matter jurisdiction under 28 U.S.C. Sec. 1331 (1982), rejecting the federal defendants' arguments that the Tucker Act, 28 U.S.C. Sec. 1346 (1982), and the McCarran Amendment, 43 U.S.C. Sec. 666 (1982), operate to preclude jurisdiction under section 1331.

On January 3, 1984, the district court certified its order for interlocutory appeal under 28 U.S.C. Sec. 1292(b) (1982). 6 And, on March 20, 1984, we granted the federal defendants' petition for permission to appeal.

For the reasons stated herein, we affirm the district court's rulings that the federal government waived its sovereign immunity under the APA and that the district court had subject matter jurisdiction under 28 U.S.C. Sec. 1331 (1982).


Because the issues involved in this appeal relate to jurisdiction, we review them de novo. Carpenters Southern California Administrative Corp. v. Majestic Housing, 743 F.2d 1341, 1343 (9th Cir.1984).


As amended in 1976, the Administrative Procedure Act provides a broad waiver of sovereign immunity so long as certain conditions are met. See 5 U.S.C. Secs. 701-706 (1982). Two of those conditions, at issue in this case, are (1) that the agency action not be committed to agency discretion by law, id. Sec. 701(a)(2), and (2) that there is no other statute that grants consent to suit, but expressly or impliedly forbids the relief sought. Id. Sec. 702.

The district court lacks jurisdiction in a suit against the federal government unless Congress has consented to be sued, United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). But Congress's waiver of sovereign immunity does not by itself confer jurisdiction. In Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 984, 51 L.Ed.2d 192 (1977), the Supreme Court held that the APA does not confer jurisdiction on federal courts to review agency action. At the same time, however, the Court held that 28 U.S.C. Sec. 1331 does confer such jurisdiction, "subject only to preclusion-of-review statutes created or retained by Congress...." Id. at 105, 97 S.Ct. at 984.

This limitation on jurisdiction under section 1331--i.e., that no other statute addressing the cause of action precludes judicial review--is essentially the same as the limitation contained in section 702 of the APA. The federal defendants in the instant case argue that the Tucker Act and the McCarran Amendment are statutes that grant consent to suit but preclude the relief plaintiffs request. These statutes can be analyzed either in terms of whether they preclude waiver of sovereign immunity under the APA or whether they preclude jurisdiction under section 1331. Because the district court chose to discuss these statutes in terms of their effect on its

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jurisdiction under section 1331, we likewise will do so. 7

I. Sovereign Immunity

The United States is immune from suit except in instances where it consents to being sued. Bank of Hemet v. United States, 643 F.2d 661, 664 (9th Cir.1981). Federal agencies and instrumentalities, as well as federal employees acting in their official capacities within their authority, are similarly immune from suit. Merced Production Credit Association v. Sparkman (In re Sparkman), 703 F.2d 1097, 1101 (9th Cir.1983) (citing Federal Housing Administration v. Burr, 309 U.S. 242, 244, 60 S.Ct. 488, 490, 84 L.Ed. 724 (1940)) (federal agencies and instrumentalities); Aminoil U.S.A., Inc. v. California State Water Resources Control Board, 674 F.2d 1227, 1233 (9th Cir.1982) (federal employees).

As the district court properly ruled, however, the 1976 amendment to section 702 of the APA 8 waived sovereign immunity in the instant case. Section 702 of the APA provides in relevant part:

An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party.

5 U.S.C. Sec. 702 (1982) (emphasis added). Thus, section 702 of the APA, as amended in 1976, considerably narrows the sovereign immunity limitation on the broad rule of judicial reviewability of agency action. Marshall v. Kleppe, 637 F.2d 1217, 1221 (9th Cir.1980) (citing City of Santa Clara v. Andrus, 572 F.2d 660, 666 (9th Cir.), cert. denied, 439 U.S. 859, 99 S.Ct...

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