Firebaugh Canal v. USA, s. 95-15300
| Decision Date | 04 February 2000 |
| Docket Number | Nos. 95-15300,95-16641,s. 95-15300 |
| Citation | 203 F.3d 568 |
| Parties | (9th Cir. 2000) FIREBAUGH CANAL CO.; CENTRAL CALIFORNIA IRRIGATION DISTRICT; SUMNER PECK RANCH INC., Plaintiffs-Appellees, v. UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF THE INTERIOR; BUREAU OF RECLAMATION, Defendants-Appellants. FIREBAUGH CANAL CO.; CENTRAL CALIFORNIA IRRIGATION DISTRICT; SUMNER PECK RANCH INC., Plaintiffs-Appellees, v. UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF THE INTERIOR; BUREAU OF RECLAMATION, Defendants, and OPINION COUNTY OF CONTRA COSTA; CONTRA COSTA WATER DISTRICT; CONTRA COSTA COUNTY WATER AGENCY; NATURAL RESOURCES DEFENSE COUNCIL; THE BAY INSTITUTE, Defendants-IntervenorsAppellants |
| Court | U.S. Court of Appeals — Ninth Circuit |
COUNSEL: Jeffrey C. Dobbins, United States Department of Justice, Washington, D.C., for the defendants-appellants.
William M. Smiland, Smiland & Khachigian, Los Angeles, California, for the plaintiffs-appellees.
Laurens H. Silver, California Environmental Law Project, Mill Valley, California, for the defendants-intervenorsappellants.
Thomas W. Birmingham, Kornick, Moskovitz, Tiedemann & Girard, Sacramento, California, for the defendant-intervenorappellee.
Appeals from the United States District Court for the Eastern District of California; Oliver W. Wanger, District Judge, Presiding. D.C. No. CV-88-00634-OWW
Before: Procter Hug, Jr., Chief Judge, Betty B. Fletcher and Stephen S. Trott, Circuit Judges.
The United States Government appeals a judgment entered against the Department of Interior and the Bureau of Reclamation that requires the Department to "take such reasonable and necessary actions to promptly prepare, file and pursue an application for a discharge permit" with the California Water Resources Control Board, pursuant to the Government's duty to provide drainage under the San Luis Act. This court has jurisdiction over final judgments entered by the district court pursuant to 28 U.S.C. S 1291. We agree with the district court that the Government's duty to provide drainage service under the San Luis Act has not been excused by subsequent Congressional action, and that the Government has failed to provide the required drainage service for many years. However, the remedial order entered by the district court limits the Government's discretion to satisfy its drainage duty in alternate ways without construction of the interceptor drain. Consequently, we affirm in part, reverse in part, and remand to the district court for further proceedings.
The Central Valley Project is the nation's largest federal reclamation project. The project's dams and water conveyance facilities span the length of California's Central Valley, from Shasta Dam, in the north, to the Friant-Kern Canal, in the south. On June 3, 1960, Congress authorized the construction of the San Luis Unit "as an integral part of the Central Valley project," with the principal purpose of furnishing water for irrigation of land in Merced, Fresno and Kings Counties, California. See Pub. L. No. 86-488, 74 Stat. 156 (1960) (the "San Luis Act").
Irrigation and drainage are inherently linked. Any water project that brings fresh water to an agricultural area must take the salty water remaining after the crops have been irrigated away from the service area. For this reason, the San Luis Act expressly conditioned the construction of the San Luis Unit on the provision for drainage facilities, which could be provided either by the State of California or the Department of the Interior. The Feasibility Report for this project, prepared by the Secretary of the Interior in 1956, contemplated a system of tile drains that would empty into an interceptor drain that would convey the water 197 miles to the Contra Costa Delta for disposal. The Feasibility Report is expressly referenced in section1(a)(2) of the San Luis Act.
On June 21, 1961, the State of California notified the Secretary of the Interior that California would not provide a master drain. In response, on January 9, 1962, the Secretary of the Interior informed Congress that the Secretary would make provision for constructing the San Luis interceptor drain to the Contra Costa Delta. Thereafter, construction of the San Luis Unit began, and in 1967, the Project started water deliveries to Westlands Water District ("Westlands"). In March, 1968, construction of the interceptor drain was initiated, and by 1975, the middle 40% of the drain (about 82 miles) was built. The Secretary of the Interior also built Kesterson Regulating Reservoir (the "Reservoir") located at the north end of the middle portion of the drain, which was designed as a regulating reservoir for the drain en route to its planned terminus at the Contra Costa Delta.
The 1965 Public Works Appropriation Act, Pub. L. No. 88511, 78 Stat. 778, 782 (1964), contained a provision prohibiting selection of a final point of discharge for the drain until certain conditions were met. An appropriations rider with similar, but not identical language, has been included in nearly every annual appropriations act since 1965. 1 These appropriation riders prohibited the Secretary of the Interior from establishing the terminus of the drain until environmental concerns regarding the effect of the agricultural effluent on the San Francisco Bay could be addressed jointly by the Bureau of Reclamation and the State of California. No environmental standard has been established in the past thirty-four years since the first appropriation rider. The drain was built with funds from lump-sum congressional appropriations for reclamation projects, notwithstanding the existence of the above appropriation riders.
In 1975, the Secretary suspended construction of the interceptor drain, citing "questions" and "concerns" raised in the public arena. Nonetheless, a subsurface drainage collector system was constructed for Westlands Water District and drainage service began in 1978. The subsurface collector drainage system discharged approximately 7,300 acre-feet annually of collected subsurface agricultural drainage into the portion of the drain constructed prior to 1975. The drain carried the drainage water to Kesterson Reservoir, which had become the temporary terminus of the drain.
In mid-1983, waterfowl nesting studies at Kesterson Reservoir revealed instances of embryo deformity and mortality. It was suspected that selenium in some of the soils in Westlands was being carried with drainage water into Kesterson Reservoir and was concentrating in biota. Like other metals, selenium can impair the growth of crops and is hazardous to human and animal life when present in high concentrations. On March 15, 1985, the Secretary of the Interior announced that it would close the Reservoir. Pursuant to that end, the drains at Westlands were plugged and the middle portion of the interceptor drain was closed as of June 1986. However, the United States continued to deliver water, without drainage service, to Westlands.
Affected landowners, both inside and outside the San Luis Unit service area, sued the Department of the Interior, seeking completion of the master drain to the Contra Costa Delta. See Sumner Peck Ranch, Inc. v. Bureau of Reclamation, No. CVF -91-048; Firebaugh Canal Co. v. USA, No. CV-F-88-634. The plaintiffs include the largest contractor for water from the San Luis Unit, Westlands Water District, some of the individual water users within Westlands, specifically Sumner Peck Ranch, Inc., et al. ("Sumner Peck Plaintiffs"), and two water districts downslope of the San Luis Unit (the "Firebaugh Canal Plaintiffs"). In May of 1992, these lawsuits were partially consolidated to resolve the plaintiffs' mutual allegation that the Secretary of Interior is required by law to construct facilities to drain agricultural drainage water from certain lands in Westlands Water District. The plaintiffs filed a motion for partial summary judgment, which was granted by the district court. The district court's unpublished opinion held that the San Luis Act required the Government to provide drainage service to lands receiving water through the San Luis Unit.
Following the partial summary judgment, the Government argued that subsequent changes in the law and environmental knowledge made compliance with the San Luis Act impossible, and thereby excused the United States from performing that duty. A three week bench trial was held to assess this claim -- to determine whether the Secretary's drainage obligation "had been excused by factual or legal impossibility," and if not, "the extent of the court's authority to order compliance with that obligation," as well as "what non-monetary relief, if any, should be ordered." Sumner Peck Ranch, Inc. v. Bureau of Reclamation, No. CV-F-91-048; Firebaugh Canal Co. v. USA, No. CV-F-88-634 (E.D.C.A. Dec. 2, 1994). The Government presented substantial expert testimony that argued that the Government's duty to build the interceptor drain had been excused by reason of impossibility, supervening illegality, or implicit repeal. Both oral and documentary evidence was introduced on the effect of California water quality laws, the Endangered Species Act, the Migratory Bird Treaty Act, the Clean Water Act, the Central Valley Project Improvement Act, and past appropriation riders. In addition, the district court viewed affected lands within the San Luis Unit service area.
The district court concluded that the Secretary's responsibility to construct a drain had not been excused. In most instances, the district court found, concerns about the concentration of pollutants in the drainage water could be resolved in proceedings for a discharge permit that would have to occur before the California Water Resources Control Board. The district court also rejected the Government's contentions that...
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Case summaries.
...landowners, filed suits alleging the same claims. The district court consolidated the actions. (303) Firebaugh Canal Co. v. United States, 203 F.3d 568, 577 (9th Cir. 2000Firebaugh J) ("[W]e hold that the subsequent Congressional action has not eliminated the Department's duty to provide dr......
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