Audubon of Kansas, Inc. v. United States Department of Interior, Case No. 2:21-cv-02025-HLT-JPO

CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
Writing for the CourtHOLLY L. TEETER, UNITED STATES DISTRICT JUDGE
Citation568 F.Supp.3d 1167
Parties AUDUBON OF KANSAS, INC., Plaintiff, v. UNITED STATES DEPARTMENT OF INTERIOR, et al., Defendants.
Docket NumberCase No. 2:21-cv-02025-HLT-JPO
Decision Date20 October 2021

568 F.Supp.3d 1167

AUDUBON OF KANSAS, INC., Plaintiff,
v.
UNITED STATES DEPARTMENT OF INTERIOR, et al., Defendants.

Case No. 2:21-cv-02025-HLT-JPO

United States District Court, D. Kansas.

Signed October 20, 2021


568 F.Supp.3d 1170

Burke W. Griggs, Washburn University School of Law, Topeka, KS, Dylan Patrick Wheeler, Randall K. Rathbun, Depew Gillen Rathbun & McInteer, LC, Wichita, KS, Jeffrey R. King, Sage Law, LLP, Overland Park, KS, Richard H. Seaton, Sr., Seaton Law Offices, LLP, Manhattan, KS, for Plaintiff.

Bridget McNeil, DOJ-Enrd, Denver, CO, David Negri, DOJ-Enrd, Washington, DC, for United States Department of Interior,

568 F.Supp.3d 1171

United States Fish and Wildlife Service.

Derek S. Casey, Kacey Scott Mayes, Tyler E. Heffron, Triplett Woolf Garretson, LLC, Wichita, KS, Kenneth B. Titus, Stephanie Kramer, Kelly Ann Navinsky-Wenzl, Kansas Department of Agriculture, Manhattan, KS, for Kansas Department of Agriculture, Kansas Department of Agriculture, Division of Water Resources.

MEMORANDUM AND ORDER

HOLLY L. TEETER, UNITED STATES DISTRICT JUDGE

This is a water-rights action by Plaintiff Audubon of Kansas, Inc. against various state and federal authorities. Audubon challenges federal agency action and inaction that it contends fail to protect water rights that supply a wildlife refuge in Kansas. Defendants all move to dismiss. Docs. 25 and 27. For the reasons stated below, the Court grants both motions to dismiss. Specifically, State Defendants are entitled to Eleventh Amendment immunity on all claims asserted against them. Federal Defendants are likewise entitled to sovereign immunity on grounds that Audubon has not established any "final agency action" that permits them to sue under the APA. Accordingly, the Court concludes that all claims in this case should be dismissed.

I. BACKGROUND1

A. Relevant Parties and Entities

The Quivira National Wildlife Refuge ("Refuge") is an important wetland that provides sanctuary to a wide variety of waterfowl and other wetland species. It was established in 1955 and encompasses 22,135 acres dedicated to conservation and protection of numerous species. Approximately 7,000 of the Refuge's acres are groundwater-dependent wetland ecosystems. The Refuge attracts hundreds of thousands of water birds annually, including threatened and endangered species, and is a primary pathway for many species of migrating birds due to its central location in Stafford, Reno, and Rice Counties in Kansas. The Refuge has a unique combination of rare inland salt marsh and sand prairies and is one of only 30 "Wetlands of International Importance."

The U.S. Fish and Wildlife Service ("Service") obtained water rights for the Refuge with a priority date of 1957 ("Refuge Water Right"). Aurelia Skipwith is the Director of the Service, which is an agency of the Department of the Interior. David Bernhardt is the Secretary of the Department of the Interior. Skipwith, as Director of the Service, and Bernhardt, as Secretary of the Department of the Interior, are collectively referred to as "Federal Defendants."

Michael Beam is the Secretary of the Kansas Department of Agriculture, which is a state agency that oversees the Kansas Division of Water Resources ("KDA-DWR"). Earl Lewis is the Chief Engineer of KDA-DWR. Beam, as Secretary of the Kansas Department of Agriculture, and Lewis, as Chief Engineer of KDA-DWR, are collectively referred to as "State Defendants."2

Audubon is a nonprofit organization with approximately 5,000 members. Its purpose is to promote the enjoyment, understanding, protection, and restoration of ecosystems

568 F.Supp.3d 1172

with a focus on birds, other wildlife, and their habitats. Audubon engages in conservation work and advocacy. Audubon also provides education to its members and the public about the Refuge, and its members live near or regularly visit the Refuge and use or enjoy it for bird watching and other recreational, aesthetic, scientific, educational, or spiritual purposes. Audubon contends that State and Federal Defendants' failure to acquire, protect, and maintain an adequate water supply for the Refuge adversely affects its members' activities at the Refuge.

Although not named as a party, Big Bend Groundwater Management District No. 5 ("District") has intervened to file a brief in support of the motions to dismiss filed by State and Federal Defendants. The District is the "local governmental entity authorized by the KDA-DWR and the Kansas legislature to manage the water rights within the District's boundaries." Doc. 12 at 11. The Court granted the District leave to intervene as a defendant. See Doc. 19.3

B. Impairment Investigation

Relevant to the Refuge Water Right is Rattlesnake Creek, which is dependent on groundwater supplies. Flows in Rattlesnake Creek have been diminished since about 1980 compared to historic conditions. This is at least partially attributable to the effects of junior, upstream, and up-gradient groundwater pumping. The Service originally filed for the right to divert 22,200 acre-feet of water. But KDA-DWR certified a permit for the Refuge for only 14,632 acre-feet. Even still, the Refuge has been prevented from exercising the Refuge Water Right in full because of junior water rights involving Rattlesnake Creek's basin.

In 2013, the Service filed a request with the KDA-DWR for an impairment investigation of the Refuge Water Right under K.S.A. § 82a-706b and K.A.R. § 5-4-1. Barfield, the previous Chief Engineer of KDA-DWR, issued the Impairment Report in 2016. The Impairment Report found the Refuge Water Right was impaired and that "junior groundwater pumping within the Basin is and has been significantly reducing water availability at the Refuge in the order of 30,000-60,000 acre-feet per year over the recent record (1995-2007)." Junior groundwater pumping had been impairing the Refuge Water Right for over three decades, and it would take years to restore streamflow at the Refuge.

KDA-DWR informed the Service that it would not take any action to correct the impairment of the Refuge Water Right without a written request under K.A.R. § 5-4-1. In late 2016, the then-secretary of KDA stated that KDA-DWR would not administer any junior water rights in the Rattlesnake Creek basin in 2017.

C. Requests to Secure Water Rights

In 2017, the Service filed a request to protect the Refuge Water Right from impairment and injury due to the junior groundwater pumping identified in the Impairment Report. The Service filed another request in 2018. KDA-DWR didn't take any action in 2017 or 2018 despite a drought declaration being issued in the county where most of the Refuge is located and instead deferred to the District to recommend how to regulate the junior water rights. From 2017 through 2019, KDA-DWR and the District met several times, but the District did not propose any plan that was acceptable to KDA-DWR. The Chief Engineer of KDA-DWR at the time indicated that KDA-DWR didn't expect an adequate plan from the District until 2020

568 F.Supp.3d 1173

or later, and that KDA-DWR would be satisfied with a plan that merely reduced the rate of groundwater depletion, as opposed to restoring historic conditions of the Refuge. Even after complaints from Audubon, KDA-DWR put the responsibility of rectifying the impairment on the District.

The Service subsequently filed another request to secure the Refuge Water Right "from injury due to junior groundwater wells" for 2019. But KDA-DWR still failed to administer the junior groundwater rights that were impairing the Refuge Water Right. KDA-DWR also rejected proposals from the District in 2019.

But by late summer 2019, KDA-DWR had prepared a plan for administering the junior groundwater rights for the Refuge for 2020 through 2022. Just before public meetings regarding this plan, members of Kansas's Congressional delegation met with KDA Secretary Beam. The members of the Congressional delegation expressed a desire that the junior groundwater rights not be administered. In October 2019, Senator Jerry Moran and Service Director Skipwith announced a compromise. The Service indicated it would withdraw its request to secure the Refuge Water Right while the District and KDA-DWR worked together to find a solution to the Refuge's water-shortage by 2020. The Service subsequently withdrew its pending request to secure the Refuge Water Right. The Service also informed KDA-DWR that it would not make a request to secure the Refuge Water Right for 2020 and would instead "work to find local, voluntary, collaborative and non-regulatory solutions, including augmentation, to address the water needs of the community and the wildlife purposes of the refuge before determining if more formal measures are necessary to ensure the refuge's water rights are secured." KDA-DWR then withdrew its plan for administering the junior groundwater rights for the Refuge.

D. 2020 Memorandum of Agreement

Between mid-2019 and mid-2020, the Service, KDA-DWR, and the District engaged in...

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