850 F.Supp. 1388 (E.D.Cal. 1994), CV-F-93-5327, Westlands Water Dist. v. United States Dept. of Interior, Bureau of Reclamation

Docket Nº:CV-F-93-5327 OWW SSH.
Citation:850 F.Supp. 1388
Party Name:WESTLANDS WATER DISTRICT, San Benito Water District, San Luis Water District, and Panoche Water District, Plaintiffs, v. UNITED STATES of America, DEPARTMENT OF the INTERIOR, BUREAU OF RECLAMATION; United States of America, Dept. of Commerce, National Marine Fisheries Service; Roland H. Brown, Secretary of Commerce; Bruce Babbitt, Secretary of the
Case Date:March 03, 1994
Court:United States District Courts, 9th Circuit, Eastern District of California
 
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850 F.Supp. 1388 (E.D.Cal. 1994)

WESTLANDS WATER DISTRICT, San Benito Water District, San Luis Water District, and Panoche Water District, Plaintiffs,

v.

UNITED STATES of America, DEPARTMENT OF the INTERIOR, BUREAU OF RECLAMATION; United States of America, Dept. of Commerce, National Marine Fisheries Service; Roland H. Brown, Secretary of Commerce; Bruce Babbitt, Secretary of the Interior, Defendants.

No. CV-F-93-5327 OWW SSH.

United States District Court, E.D. California, Fresno Division.

March 3, 1994

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Thomas W. Birmingham, Sacramento, CA, Jess P. Telles, Dos Palos, CA, Gary Sawyers, Bolen, Fransen & Boostrom, Fresno, CA, Virginia S. Albrecht, Daniel O'Hanlon, Beveridge and Diamond, San Francisco, CA, Daniel M. Dooley, Kenneth A. Kuney, Dooley & Herr, Visalia, CA, Richard M. Archbold, Jeanne M. Zolezzi, Neumiller & Beardslee, Stockton, CA, William Smiland, Theodore A. Chester, Jr., Christopher G. Foster, Donnelly Clark Chase & Smiland, Los Angeles, CA, Clifford W. Schulz, Kronick Moskovitz Tiedemann Girard, Sacramento, CA, Gregory K. Wilkinson, Dennis M. Cota, Janice L. Weis, Best Best & Krieger, Riverside, CA, Denslow B. Green, Green Green & Rigby, Madera, CA, Diane Rathman, Jess P. Telles, Jr., Linneman Burgess Telles Vanatta & Vierra, Dos Palos, CA, Michael V. Sexton, Minasian, Minasian, Minasian, Spruance, Baber, Meith & Soares, Oroville, CA, Ernest Conant, Scott Kuney, Young Woodridge, Paulden Self & Farr, Bakersfield, CA, for plaintiffs.

John L. Marshall, U.S. Dept. of Justice, Environment & Natural Resources Division, Washington, DC, Laurens H. Silver, Michael R. Sherwood, Sierra Club Legal Defense Fund, San Francisco, CA, Lori Potter, Sierra Club Legal Defense Fund, Denver, CO, Hamilton Candee, Natural Resources Defense Counsel, Brian E. Gray, San Francisco, CA, Mollie Beattie, Director, Dept. of Interior, Fish and Wildlife Service, Washington, DC, Maria A. Iizuka, U.S. Dept. of Justice, Land & Natural Resources Div., Sacramento, CA, John Clark, Philip F. Atkins-Pattenson, Michael R. Schwarz, Pettit and Martin, San Francisco, CA, John Krautkraemer, Environmental Defense Fund, Oakland, CA, Janet Reno, U.S. Atty. Gen., Washington, DC, for defendants.

MEMORANDUM OPINION AND ORDER RE: DEFENDANTS AND DEFENDANTS-IN-INTERVENTION MOTIONS TO DISMISS

WANGER, District Judge.

I. INTRODUCTION

This case is before the court on motions of the Defendants, U.S.A., Department of the Interior, Bureau of Reclamation, U.S. Department of Commerce, National Marine Fisheries Service, Roland H. Brown, Secretary of Commerce, and Bruce Babbitt, Secretary of the Interior ("Federal Defendants") and Defendants-in-Intervention, the National Resources Defense Council, United Anglers of California, Save San Francisco Bay Association, California Waterfowl Association, Sierra Club, Bay Institute of San Francisco, Environmental Defense Fund, California Striped Bass Association, Trout Unlimited of California, Sacramento River Council, California Sportfishing Protection Alliance, and Pacific Coast Federation of Fisherman's Association, who represent environmental interests (the "Environmental Intervenors"), to dismiss the complaints of plaintiffs Westlands Water District, San Benito Water District, San Luis Water District and Panoche Water District (collectively "Westlands"); and Plaintiffs-in-Intervention Kern County Water Agency; the Friant Users Water Users Authority; 1 The San Joaquin River Exchange Contractors; the Area I parties; 2 the Stockton East Water District, the Central San Joaquin Water Conservation District, the County of San Joaquin, the City of Stockton, and the California Water Service Company.

II. BACKGROUND

Westlands Claims

Westlands complains that the 50% allotment by the U.S. Department of the Interior's Bureau of Reclamation ("Bureau") to them in 1993 resulted from major changes in the Bureau's operation of the Federal Central Valley Project ("CVP") due to three events:

1. Enactment of the CVPIA, public law, 102-575, 106 stat. 4600;

2. Issuance of the Biological Opinion for the operation of the CVP and California State Water Project for the winter-run Chinook Salmon by the National Marine Fisheries Service ("NMFS"); and

3. Listing of the Delta smelt as a threatened species pursuant to section 4 of the Endangered Species Act ("ESA"), 16 U.S.C. § 1533.

Five claims are stated in the Westlands complaint:

1. The first alleges the Bureau's implementation of the CVPIA and ESA impairs Westlands' vested rights under respective water contracts, in violation of the Fifth Amendment due process clause.

2. The second alleges the Bureau violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4332, et seq., by failing to conduct an environmental review before changing operational standards and criteria to implement the CVPIA or to find

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no jeopardy in the ESA consultation for the Delta smelt;

3. The third alleges the Winter Run Biological Opinion (BO) issued by NMFS fails to conform to section 7 of the ESA and regulations thereunder and is arbitrary, capricious and an abuse of discretion in violation of the Administrative Procedure Act (APA);

4. The fourth alleges the NMFS and the Bureau violated NEPA by failing to conduct an environmental review before issuance of the winter-run BO and before implementing the "reasonable and prudent alternative" prescribed; and

5. The fifth alleges the Bureau's operation of the CVP for fishery and environmental purposes constitutes a reallocation of water in deprivation of Westlands' vested rights entitling Westlands to just compensation under the Fifth Amendment.

Each District alleges it has a water service contract with the United States to receive a specified quantity of water from the San Luis Unit of the CVP. Complaint ¶ 13, 18, 20 and 22. Each contract contains a clause prohibiting disturbance of the rights to the beneficial use of water thereunder so long as the Districts meet their obligations under each contract, and a provision that if Congress amends the Federal Reclamation Law, "the United States agrees, at the option of the District," to negotiate amendment of the contract consistent with the Amendment of Reclamation Law. Complaint ¶ 13. The contracts of San Luis and Panoche Districts also provide the: "United States agrees that it will not voluntarily and knowingly ... do anything which would limit its ability to deliver water that is available to it from the Sacramento-San Joaquin Delta to the contractor and others presently entitled thereto." Complaint pp 20, 22. Each District claims to have fulfilled all its obligations under the contracts. Complaint pp 16, 19, 21 and 23.

In February, 1989, NMFS listed the winter-run Chinook salmon as a threatened species under section 4 of the ESA. (Complaint ¶ 25.) On February 26, 1991, NMFS requested the Bureau formally consult under ESA section 7 to determine whether the Bureau's operation of the CVP jeopardized the continued existence of the winter-run Chinook salmon. (Complaint ¶ 26.) Following consultation, on February 12, 1993, NMFS issued the BO, which concluded the proposed long-term operation of the CVP would likely jeopardize the continued existence of the winter-run Chinook salmon. (Complaint ¶ 30.) The BO identified a "reasonable and prudent alternative," to avoid jeopardy to the species. (Complaint ¶ 30.) In preparing the BO, NMFS did not consider economic or environmental impacts. (Complaint ¶ 31.)

The CVPIA was enacted October 30, 1992. (Complaint ¶ 27.) The CVP's purpose and obligations are thereby modified to, among other things, require dedication annually of 800,000.00 acre feet of CVP water for fish, wildlife and habitat restoration purposes; to release not less than 340,000 acre feet per year to the Trinity River for fishery restoration, propagation and maintenance; to provide for water supplies of suitable quality to maintain and improve wetland habitat; to assess and collect annual restoration payments from the Districts, as beneficiaries of the CVP. (Complaint ¶ 28.)

The United States Fish and Wildlife Service ("Service") on March 5, 1993, listed the Delta smelt as a threatened species under ESA section 4. On April 1, 1993, the Bureau requested the service formally consult under ESA section 7 on how CVP 1993 Operations Criteria and Plan ("OC") affected the Delta smelt. (Complaint ¶ 38.) The Bureau then modified its Central Valley OC to allow the service to make a finding of no jeopardy in its Delta smelt opinion. (Complaint ¶ 38, 39, 54.) No environmental review was conducted for such modification. (Complaint ¶ 55.)

On May 26, 1993, the Service issued the "Formal Consultation on CVP Operations Criteria and Plan for 1993: Effects on Delta Smelt" (Delta Smelt BO) which concluded the 1993 plan was not likely to jeopardize the continued existence of the Delta smelt. (Complaint ¶ 40.) 3

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During 1993, the Bureau issued three declarations of available CVP water supplies, finally allocating to agricultural contractors south of the Sacramento-San Joaquin Rivers Delta ("Delta"), including Districts, a 50% water supply allotment. (Complaint ¶ 32, 33, 34.) The Declaration was contingent upon the Bureau's ability to convey water under requirements of the ESA. Although the 50% allotment was not later reduced because 1993 was not a critical dry year, Westlands was notified it should anticipate future water reductions unrelated to climatic conditions. (Complaint ¶ 35.)

During 1993, sufficient water supplies...

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