Churchill County v. Norton, PLAINTIFFS-APPELLANTS

• Decision Date: 19 December 2001
• Docket Number: PLAINTIFFS-APPELLANTS,DEFENDANT-INTERVENOR,DEFENDANTS-APPELLEES,TRUCKEE-CARSON,No. 00-15967,00-15967
• Citation: 276 F.3d 1060
• Parties: (9th Cir. 2001) CHURCHILL COUNTY; CITY OF FALLON,, v. GALE A. NORTON, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE INTERIOR; <A HREF="#fr1-*" name="fn1-*">* WILLIAM BETTENBERG, IN HIS OFFICIAL CAPACITY AS ASSISTANT DIRECTOR, OFFICE OF POLICY ANALYSIS, DEPARTMENT OF THE INTERIOR; JEFFREY ZIPPIN, IN HIS OFFICIAL CAPACITY AS TEAM LEADERCOORDINATION OFFICE, DEPARTMENT OF THE INTERIOR; RONALD ANGLIN, IN HIS OFFICIAL CAPACITY AS REFUGE MANAGER, STILLWATER NATIONAL WILDLIFE REFUGE, DEPARTMENT OF THE INTERIOR; MARVIN PLENERT, IN HIS OFFICIAL CAPACITY AS REGIONAL DIRECTOR OF THE U.S. FISH AND WILDLIFE SERVICE; JOHN DOEBEL, IN HIS OFFICIAL CAPACITY AS ASSISTANT REGIONAL DIRECTOR OF THE U.S. FISH AND WILDLIFE SERVICE; AND ANN BALL, IN HER OFFICIAL CAPACITY AS PROJECT MANAGER OF BUREAU OF RECLAMATION LAHONTAN BASIN PROJECT OFFICE, AND SIERRA PACIFIC POWER COMPANY,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1060

276 F.3d 1060 (9th Cir. 2001)

CHURCHILL COUNTY; CITY OF FALLON, PLAINTIFFS-APPELLANTS, v. GALE A. NORTON, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE INTERIOR;^* WILLIAM BETTENBERG, IN HIS OFFICIAL CAPACITY AS ASSISTANT DIRECTOR, OFFICE OF POLICY ANALYSIS, DEPARTMENT OF THE INTERIOR; JEFFREY ZIPPIN, IN HIS OFFICIAL CAPACITY AS TEAM LEADER TRUCKEE-CARSON COORDINATION OFFICE, DEPARTMENT OF THE INTERIOR; RONALD ANGLIN, IN HIS OFFICIAL CAPACITY AS REFUGE MANAGER, STILLWATER NATIONAL WILDLIFE REFUGE, DEPARTMENT OF THE INTERIOR; MARVIN PLENERT, IN HIS OFFICIAL CAPACITY AS REGIONAL DIRECTOR OF THE U.S. FISH AND WILDLIFE SERVICE; JOHN DOEBEL, IN HIS OFFICIAL CAPACITY AS ASSISTANT REGIONAL DIRECTOR OF THE U.S. FISH AND WILDLIFE SERVICE; AND ANN BALL, IN HER OFFICIAL CAPACITY AS PROJECT MANAGER OF BUREAU OF RECLAMATION LAHONTAN BASIN PROJECT OFFICE, DEFENDANTS-APPELLEES. AND SIERRA PACIFIC POWER COMPANY, DEFENDANT-INTERVENOR.

No. 00-15967

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted January 11, 2001

Filed December 19, 2001

NOTE: AMENDED PER ORDER OF MARCH 11, 2002

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Counsel Antonio Rossmann (argued), Roger B. Moore, Law Offices of Antonio Rossmann, San Francisco, California; Michael F. Mackedon, Steven D. King, City of Fallon, Nevada; Richard G. Campbell, Ryan Campbell, Reno, Nevada, for the plaintiffs-appellants.

Kathryn E. Kovacs (argued), Lois J. Schiffer, Sean H. Donahue, Fred R. Disheroon, Stephen M. McFarlane, Appellate Section, Environment & Natural Resources Division, U.S. Department of Justice, Washington, D.C., for the defendants-appellees.

Appeal from the United States District Court for the District of Nevada Edward C. Reed, District Judge, Presiding, D.C. Nos. CV-95-N-00724 ECR/RAM (Base File), CV-96-N-00146 DWH, CV-96 N-00754 ECR/RAM (Consolidated Cases)

Before: Joseph T. Sneed, Susan P. Graber, and Richard A. Paez, Circuit Judges.

Opinion by Judge Paez; Concurring Opinion by Judge Sneed

PEAZ, Circuit Judge:

For more than a century, myriad interests, from individuals to power companies to Indian tribes, from federal to state to local governments, have disputed the rights to water from the Truckee and Carson Rivers.¹ Through its enactment of Public Law 101-618, 104 Stat. 3289 (1990), Congress addressed years of legal challenges regarding the over-committed water resources of this region. This action involves Title II of Public Law 101-618 -the Truckee-Carson Pyramid Lake Water Rights Settlement Act ("Settlement Act"). ² Title II includes a variety of provisions intended to settle disputes over the rights to water from the Truckee and Carson Rivers and to address the environmental effects of overuse. Many of these provisions direct actions involving water allocation and usage in the region.

Section 206(a) of the Settlement Act requires the Secretary of the Interior to acquire sufficient water and water rights from willing sellers to sustain approximately 25,000 acres (on a long-term average) of primary wetland habitat located in the Lahontan Valley of west-central Nevada. The Fish and Wildlife Service ("FWS" or "Service") prepared an Environmental Impact Statement ("EIS") in connection with the implementation of Section 206(a). The Service evaluated five alternative strategies for acquiring water rights and related interests, including a "no action alternative," and selected Alternative 5. Alternative 5 provides for purchases from willing sellers of up to 55,000 acre-feet of water rights in the Carson Division, supplementing water and water rights already acquired under an earlier acquisition effort or to be acquired from other sources, such as the Carson River above the Lahontan Reservoir. In September 1996, the Service published the Final Environmental Impact Statement, Water Rights Acquisition for Lahontan Valley Wetlands, Churchill County, Nevada ("WEIS").

Plaintiffs, Churchill County and the City of Fallon, filed separate actions and one joint action asserting claims for violation of the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§§§ 4321-4370f. Plaintiffs contend that (1) the Service violated NEPA by approving land and water rights purchases pursuant to Section 206 of the Settlement Act without first preparing a programmatic EIS analyzing the cumulative and synergistic impacts of the Act's interrelated provisions; and (2) the WEIS, prepared in connection with Section 206, failed to comply with NEPA because Defendants did not adequately assess the cumulative impacts of actions other than wetlands acquisitions, failed to study impacts to groundwater, and failed to define and study a reasonable range of alternatives.

Early in the litigation, the district court granted Defendants' motion for summary judgment on the ground that Plaintiffs lacked standing. We reversed, holding that the County and the City had established standing. Churchill County v. Babbitt, 150 F.3d 1072, 1078 (9th Cir.), amended by 158 F.3d 491 (9th Cir. 1998).

On March 31, 2000, the district court granted Defendants' motion for summary judgment on the programmatic EIS claims, concluding that Sections 205, 206, 207, 209, and 210(b)(16) are not "connected actions" or"related actions" that have cumulative or synergistic impacts. As a result, these other projects and directives did not need to be addressed in a single comprehensive EIS. The court also granted Defendants' cross-motion and denied Plaintiffs' cross-motion on the adequacy of the WEIS, concluding that it satisfied NEPA's procedural requirements by analyzing the potential adverse environmental impacts of implementing Section 206(a) and considering a wide range of reasonable, feasible alternatives.

Plaintiffs timely appealed. We have jurisdiction under 28 U.S.C. §§ 1291, and we affirm.

I. RELEVANT FACTUAL BACKGROUND

Water has always been scarce in Nevada. Indeed,"Nevada has, on the average, less precipitation than any other State in the Union." Nevada v. United States, 463 U.S. 110, 114 (1983). "Ninety percent of the annual precipitation is lost to evaporation and transpiration, compounding the problems of a naturally short growing season." A. Dan Tarlock, The Creation of New Risk Sharing Water Entitlement Regimes: The Case of the Truckee-Carson Settlement, 25 Ecology L. Q. 674, 677 (1999).

The Carson and Truckee Rivers provide western Nevada with its water supply. The Carson River "rises on the eastern slope of the High Sierra in Alpine County, California, and flows north and northeast over a course of about 170 miles, finally disappearing into Carson sink." Nevada, 463 U.S. at 115. The Truckee River "rises in the High Sierra in Placer County, California, flows into and out of Lake Tahoe, and thence down the eastern slope of the Sierra Nevada mountains. It flows through Reno, Nevada, and after a course of some 120 miles debouches into Pyramid Lake, which has no outlet." Id. at 114; see also S. Rep. No. 101-555, at 8 (1990).

"It has been said that Pyramid Lake is `widely considered the most beautiful desert lake in North America[and that its] fishery [has] brought it worldwide fame.' " Nevada, 463 U.S. at 114 (citation omitted). The lake and surrounding areas have been the ancestral home of the Pyramid Lake Paiute Tribe for centuries. Two fish species -the cui-ui (a type of sucker fish found only in Pyramid Lake) and the Lahontan cutthroat trout -are of great economic, cultural, and spiritual value to the Tribe. E. Leif Reid, Note, Ripples From the Truckee: The Case for Congressional Apportionment of Disputed Interstate Water Rights, 14 Stan. Envtl. L.J. 145, 149 (Jan. 1995); S. Rep. No. 101-555, at 11. Today, the cui-ui is a federally listed endangered species, and the Lahontan cutthroat trout is listed as threatened.

"[I]n 1859 the Department of the Interior set aside nearly half a million acres in what is now western Nevada as a reservation for the area's Paiute Indians. In 1874 President Ulysses S. Grant by executive order confirmed the withdrawal as the Pyramid Lake Indian Reservation. The Reservation includes Pyramid Lake, the land surrounding it, the lower reaches of the Truckee River, and the bottom land alongside the lower Truckee." Nevada, 463 U.S. at 115.

The City of Fallon is located southeast of the Pyramid Lake Indian Reservation and has a population of 8,300. It is the county seat of Churchill County, whose population is 25,000. Agricultural production has long been an important part of the County's economic base, due in large part to the Newlands Reclamation Project, one of the earliest projects the Bureau of Reclamation built after passage of the Reclamation Act of 1902, Pub. L. No. 57-161, 32 Stat. 388 (1902). S. Rep. No. 101-555, at 10. The Reclamation Act "directed the Secretary of the Interior to withdraw from public entry arid lands in specified western States, reclaim the lands through irrigation projects, and then to restore the lands to entry pursuant to the homestead laws and certain conditions imposed by the Act itself." Nevada, 463 U.S. at 115. The Secretary withdrew from the public domain approximately 200,000 acres in western Nevada, which ultimately became the Newlands Reclamation Project. "The Project was designed to irrigate a substantial area in the vicinity of Fallon, Nevada, with waters from both the Truckee and the Carson Rivers." Id. To divert the water from the Truckee River, the government constructed the Derby Diversion Dam on the lower Truckee and the Truckee Canal. This flow was augmented by water from the Carson River. Thus, both the Truckee and Carson rivers contributed to the Newlands Reclamation Project.

When Captain John C. Fremont recorded his impressions back in 1844,³ Pyramid Lake was about 50 miles long and 12 miles wide. The lake evaporates approximately four feet -roughly 440,000 acre-feet -per year. The Newlands Project has exacerbated the negative effects of evaporation. Betwee...