Hoopa Valley Tribe v. United States Bureau of Reclamation

• Decision Date: 07 February 2023
• Docket Number: 1:20-cv-01814-JLT-EPG
• Parties: HOOPA VALLEY TRIBE, Plaintiff, v. UNITED STATES BUREAU OF RELCAMATION, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

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HOOPA VALLEY TRIBE, Plaintiff,
v.
UNITED STATES BUREAU OF RELCAMATION, et al., Defendants.

No. 1:20-cv-01814-JLT-EPG

United States District Court, E.D. California

February 7, 2023

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION (DOC. 108)

I. INTRODUCTION

This lawsuit concerns management of the Trinity River Division (“TRD”) of the federal Central Valley Project (“CVP”). In the operative second amended complaint (“SAC”), the Hoopa Valley Tribe (“Plaintiff' or “Hoopa”) advances several categories of claims. (See Doc. [142].) At the core of this lawsuit are allegations that the United States Bureau of Reclamation (“Reclamation”) and related federal entities and officials (collectively, “Federal Defendants”) violated various provisions of federal law by entering into certain contracts with water users for delivery of water from the CVP. (SAC, ¶¶ 126-78.) In addition, Hoopa alleges that Reclamation has violated “delegated sovereignty” set forth in Section 3406(b)(23) of the of the Central Valley Project Improvement Act (“CVPIA”), Public Law 102-575 (1992), by taking steps to modify the daily flow regime set forth in the 2000 Record of Decision on Trinity River Mainstem Fishery

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Restoration (“TRROD”) without Hoopa's concurrence. (See, e.g., SAC, ¶¶193-203.)

On December 16, 2022, Hoopa filed a motion for preliminary injunction (“PI Motion”) to block Reclamation from implementing the challenged changes to the TRROD daily flow regime. (Doc. 108.) Plaintiff bases its request for injunctive relief on its ninth claim for relief, entitled “Violation of Hoopa's Delegated Sovereignty in CVPIA; Violation of [Administrative Procedure Act (APA)],” which alleges, among other things that “on January 30, 2023, Reclamation took final agency action to approve the Trinity River [Winter Flow Variability (“WFV”)] Project in the absence of seeking or obtaining Hoopa concurrence as required by CVPIA § 3406(b)(23).” (SAC, ¶ 200.)

On December 7, 2022, the Trinity Management Council (“TMC”), an advisory body set up by the TRROD, voted 7-1 in favor of recommending implementation WFV Project. (See SAC, ¶ 112; see also Docs. 118-2 at 10 (12/7/22 TMC minutes), 118-1 (TMC Bylaws).) Hoopa was the sole “no” vote. (SAC, ¶ 112.) The TMC then then forwarded its recommendation to Reclamation. (SAC, ¶¶ 109, 112.) On January 30, 2023, Federal Defendants adopted the TMC's recommendation, over Hoopa's objections. (Id., ¶¶ 114-16.) Implementation is planned to begin sometime after February 13, 2023. (Doc. 132; see also Doc. 127 at 2 n.1.)^[1]

Federal Defendants oppose injunctive relief. Though there is no dispute that CVPIA § 3406(b)(23) gave Hoopa concurrence rights in connection with the adoption of the TRROD, (see Doc. 118 at 14-15), Federal Defendants insist that by giving its concurrence to the TRROD in 2000, Hoopa likewise consented to the adaptive management protocols established in the TRROD, including the creation of the TMC to act as an advisory board with the power to recommend certain types of flow changes. (See generally Doc. 118.) Therefore, Federal Defendants argue, the WFV Project can be implemented without further “concurrence” from Plaintiff. (Doc. 118 at 1-2.)

Plaintiff deems Federal Defendants' arguments “wholly meritless” and maintains that pursuant to CVPA § 3406(b)(23) the Secretary cannot approve a recommendation to modify the

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TRROD without Hoopa's concurrence. (Doc. 120 at 4.) Hoopa argues that “nothing in the TMC bylaws, the implementation plan, or any other related document negates or takes away Hoopa concurrence rights provided in the statute.” (Id.)

The Court finds the matter suitable for decision on the papers pursuant to Local Rule 230(g).^[2] For the reasons set forth below, the motion for preliminary injunction is DENIED.

II. LEGAL STANDARD

“The proper legal standard for preliminary injunctive relief requires a party to demonstrate ‘that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.'” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)); see also Ctr. for Food Safety v. Vilsack, 636 F.3d 1166, 1172 (9th Cir. 2011) (“After Winter, ‘plaintiffs must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.'”); Am. Trucking Ass'n, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). The Ninth Circuit has also held that an “injunction is appropriate when a plaintiff demonstrates . . . that serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff's favor.” Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011) (quoting Lands Council v. McNair, 537 F.3d 981, 97 (9th Cir. 2008) (en banc)).^[3] The party seeking the injunction bears the burden of proving these elements. Klein v. City of San Clemente, 584 F.3d 1196, 1201 (9th Cir. 2009); see also Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (citation omitted) (“A plaintiff must do more than merely allege imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate threatened

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injury as a prerequisite to preliminary injunctive relief.”). Finally, an injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22.

III. DISCUSSION

A. Jurisdictional Issues

1. Ripeness

At the time Federal Defendants filed their opposition to the PI Motion, Reclamation had yet to adopt the TMC's recommendation, so Federal Defendants argued therein that the claim upon which this motion is premised was not at that time ripe for decision. (See Doc. 118 at 5 n.1.) The Court shared this concern and ordered supplemental briefing on the issue of ripeness. (Doc. 124.) The parties filed responsive briefs on January 25, 2022. (Docs. 128, 129.) The subsequent adoption of the TMC's recommendation and amendment of the complaint^[4] alters that factual backdrop. The Court can no longer contemplate any reason why the case is not now ripe for review.

2. Final Agency Action

Federal Defendants nonetheless argue that the case is unfit for adjudication because there has been no “final agency action” as contemplated by the APA. As mentioned in the Court's request for supplemental briefing (Doc. 124 at 3-4), the Court's jurisdiction to adjudicate the claim upon which the pending motion is based-the ninth cause of action-derives from the APA. Though that claim also relies upon CVPIA § 3406(b)(23), the CVPIA does not itself create a private right of action, so the APA governs judicial review of any claim alleging that the CVPIA was violated. San Luis & Delta-Mendota Water Auth. v. U.S. Dep't of Interior, 624 F.Supp.2d 1197, 1212 (E.D. Cal. 2009), aff'd sub nom. San Luis & Delta-Mendota Water Auth. v. United States, 672 F.3d 676 (9th Cir. 2012). Under section 702 of the APA, “[a] person suffering wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of the relevant statute, is entitled to judicial review.” 5 U.S.C. § 702. “When, as here,

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review is sought not pursuant to specific authorization in the substantive statute . . . the ‘agency action' in question must be ‘final agency action.'” Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 882 (1990) (citing 5 U.S.C. § 704)); Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 61-62, (2004) (“To maintain a cause of action under the APA, a plaintiff must challenge ‘agency action' that is ‘final.'”). In the Ninth Circuit, the final agency action requirement “has been treated as jurisdictional.” San Francisco Herring Ass'n v. Dep't of the Interior, 946 F.3d 564, 571 (9th Cir. 2019).

“Agency action” is defined in the APA, 5 U.S.C. § 551(13), to include “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” An “agency action” falls under one of “five categories of decisions made or outcomes implemented by an agency-‘agency rule, order, license, sanction [or] relief.' ” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 62 (2004) (quoting 5 U.S.C. § 551(13)). As the Supreme Court explained in Norton:

All of those categories involve circumscribed, discrete agency actions, as their definitions make clear

1. “[a rule is] an agency statement of . . . future effect designed to implement, interpret, or prescribe law or

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