Consejo De Desarrollo Economico De Mexica. v. U.S., No. 2:05-CV-0870-PMP (LRL)

Decision Date03 July 2006
Docket NumberNo. 2:05-CV-0870-PMP (LRL)
Citation438 F.Supp.2d 1207
PartiesCONSEJO DE DESARROLLO ECONOMICO DE MEXICALL, AC; Citizens United for Resources and the Environment; and Desert Citizens Against Pollution, Plaintiffs, v. UNITED STATES of America; Gale Norton, Secretary of the Department of the Interior; and John W. Keys III, Commissioner of the Bureau of Reclamation, Defendants. City of Calexico, Plaintiff-Intervenor, Imperial Irrigation District; San Diego County Water Authority; Central Arizona Water Conservation District; State of Nevada; Southern Nevada Water Authority; and Colorado River Commission of Nevada, Defendant-Intervenors.
CourtU.S. Court of Appeals — Third Circuit

Robert Gaylord Smith, Las Vegas, NV, William J. Snape, III, Law Office of William J. Snape, III, Washington, DC, Jay F. Stein, Stein & Brockmann, PA, Santa Fe, NM, Gideon Kracov, Law Office of Gideon Kracov, for Plaintiffs.

James P. Lough, Jennifer M. Lyon, Steven E. Boehmer, McDougal Love Eckis, et al, El Cajon, CA, for Plaintiff-Intervenor.

Sheri M. Schwartz, Lewis Brisbois Bisgaard & Smith, LLP, Las Vegas, NV.

David J. Depippo, John J. Rhodes, III, Karma B. Brown, Kathy Robb, Virginia S. Albrecht, Hunton & Williams, Washington, DC, Douglas K. Miller, Central Arizona Water Conservation District, Phoenix, AZ, Kevin R. Stolworthy, Jones Vargas, James H. Davenport, Jennifer T. Crandell, Office of the Attorney General, Las Vegas, NV, Mark J. Hattam, Allen Matkins Leck Gamble Mallory & Natsis LLP, San Diego, CA, William H. Swan, Horton, Knox, Carter & Foote, El Centro, CA, for Defendant-Intervenors.

Blaine T. Welsh, U.S. Attorney's Office, Las Vegas, NV, Kelly A. Johnson, U.S. DOJ, S. Jay Govindan, Robert L. Gulley, U.S. DOJ—Environment & Natural Resources Division, Washington, DC, Stephen M. MacFarlane, U.S. Department of Justice, Sacramento, CA, Michael A Gheleta, U.S. DOJ, Denver, CO, for Defendants.


PRO, Chief Judge.

A long history precedes this action commenced July 19, 2005, by Plaintiffs' Complaint for Injunctive and Declaratory Relief challenging the final authorization of the All-American Canal Lining Project (AACLP).

The Mexicali Aquifer underlies both the Imperial Valley in California and the Mexicali Valley in Mexico. Prior to 1901, waters from the Colorado and Alamo rivers recharged the Mexicali aquifer. In 1901, the Alamo Canal was constructed through the channelization of the Alamo River and because it was unlined, the river continued to recharge the aquifer. In 1928, Congress authorized the Bureau of Reclamation to build a canal wholly within the United States.

The All-American Canal, which was completed in 1942, is located in California's Imperial Valley and provides a route through which Colorado River water is delivered to the Imperial Valley and Mexico. The All-American Canal is unlined and provides as much as eleven to twelve percent of the recharge water to the Mexicali Aquifer, which underlies both the Imperial Valley in California and the Mexicali Valley in Mexico.

In 1944, the United States and Mexico entered into a water treaty that allocated the waters of the Colorado River between the two countries. See Treaty between the United States of America & Mex. Respecting Utilization of Waters of the Col. & Tijuana Rivers & of the Rio Grande ["1944 Water Treaty"], 59 Stat. 1219, T.S. No. 994, Section III, Art. 10 (Nov. 8, 1945). The 1944 Water Treaty committed to the International Boundary and Water Commission ("IBWC") the power to resolve disputes arising under the Treaty. Id., Arts. 2, 24(d). It also requires the United States to deliver 1.5 million acre-feet of Colorado River water to Mexico. Id., Art. 10.

In 1988, Congress passed the San Luis Rey Indian Water Rights Settlement Act which authorized the Secretary of the Interior "to construct a new lined canal or to line the previously unlined portions of the All American Canal . . . or construct seepage recovery facilities ...." Pub.L. No. 100-675, 102 Stat. 4000, § 203. Congress authorized the action because "significant quantities of water currently delivered into the All-American Canal and its Coachella Branch are lost by seepage from the canals and that such losses could be reduced or eliminated by lining these canals." Id. § 201. After conducting environmental studies considering the impacts the All-American Canal lining project and other alternatives, including a no-action alternative, the Bureau of Reclamation ("Reclamation") issued its Final Environmental Impact Statement ("FE IS") which was noticed in the Federal Register in March 1994. 59 Fed.Reg. 18,573 (Apr. 19, 1994). Reclamation approved the Record of Decision ("ROD") authorizing the All-American Canal lining project on, July 29, 1994. (AR 1.) Subsequent to the issuance of the ROD, Reclamation and the United States section of the IBWC have engaged in diplomatic interchange with Mexico and the Mexican section of the IBWC. (Mem. in Supp. of United States' Mot. to Dismiss Counts 1-4 and 7-8 [Doc. # 36], Exs. 6-10; AR 7586.)

At the time of the 1994 FEIS, California was using over five million acre feet of Colorado River Water per year, well over its normal year apportionment of 4.4 million acre feet of water per year. (AR 7595.) In 2002 to 2003, the Federal Defendants and California water agencies "began an intensive effort to assist California in reducing its historical overuse of Colorado River Water." (Id.) On October 10, 2003, the Federal Defendants and other parties entered into an Allocation Agreement Among the United States of America, the Metropolitan Water District of Southern California, Coachella Valley Water District, Imperial Irrigation District, San Diego County Water Authority, the La Jolla, Pala, Pauma, Rincon & San Pasqual Bands of. Mission Indians, the San Luis Rey River Indian Authority, the City of Escondido & Vista Irrigation District ("Allocation Agreement"). (Imperial Irrigation Dist.'s Request for Judicial Notice & Lodgment of Exs. in Supp. of its Mot. to Intervene & Mot. to Dismiss ["IID Exs."] [Doc. # 45], Ex. 8.) The Allocation Agreement "pertains to the allocation of water conserved by the planned lining of the All—American Canal, which carries water from the Colorado River to [Imperial Irrigation District's ("HD")] service area." (Decl. of Mark Hattman [Doc. # 199-3], Ex. 1 at 15-16.) The Allocation Agreement "provide[s] for the allocation of an amount of Colorado River water equal to the amount conserved from the Title II works . . . ."1 (IID Exs., Ex. 8 at 315.)

Under the Allocation Agreement, the Secretary of Reclamation ("the Secretary") must determine when the lining of the All— American Canal is complete and determine the amount of water available for allocation as a result of the All—American Canal lining project:

The Secretary will determine the completion of the lining of each canal reach .... The Secretary will determine the amount of Colorado River water available for allocation as a result of lining each canal reach ... The Secretary will send a notice of reach completion for each canal reach to the Parties as each such reach is completed and ... include in the notice the Secretary's determination as to the amount of water available for allocation as a result of lining that reach.

(IID Exs., Ex. 8 at 328.) The Secretary also must "deliver Colorado River water available for allocation as a result of the Projects each Calendar Year for the benefit of the San Luis Rey Settlement Parties ...." (Id., Ex. 8 at 331.) The Allocation Agreement also provides:

If for any reason work on the All—American Canal Lining Project is terminated prior to lining the All—American Canal or construction of a new concrete-lined canal ... the Secretary, after consultation with the Parties, shall deem the Project to be complete and will determine the amount of Colorado River water available for allocation from that Project.

(Id., Ex. 8 at 328.)

Additionally, the Allocation Agreement contains a clause limiting the manner and venue in which parties can present disputes with the United States pursuant to the Allocation Agreement:

Disputes under this Allocation Agreement involving the United States shall be presented first to the Regional Director of the Lower Colorado Region of the Bureau of Reclamation.... The decision of the Regional Director shall be subject to appeal to the Commissioner .... The decision of the Commissioner shall be subject to appeal to the Secretary.... The decision of the Secretary may then be appealed to the federal courts to the extent permitted by and in accordance with federal law.

(Id., Ex. 8 at 367.) On November 13, 2003, IID filed an amended complaint in California state court to validate the Allocation Agreement pursuant to California law and 43 U.S.C. § 390uu. The validation proceedings in California state court are ongoing but currently stayed pending resolution of certain motions on appeal. (Decl. of Mark Hattman, Ex. 8.)

On September 9, 2004, Reclamation requested Fish and Wildlife Services ("FWS") to confirm as a biological opinion a conference opinion that FWS issued on February 8, 1996 regarding the effects of the All-American lining project on the Peirson's milk-vetch.2 (AR 7648.) FWS confirmed the conference opinion as a biological opinion on January 10, 2006 because no significant information or changes existed that would alter FWS's prior opinion. (Id.) On November 18, 2005, Reclamation issued a Biological Analysis for the All-American Canal Lining Project, Potential Species Impact in the Republic of Mexico, which FWS reviewed and concluded Reclamation was not required to consult with FWS regarding transboundary effects. (AR 7654, 7697.) On January 12, 2006, Reclamation issued a...

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