Laub v. U.S. Dept. of the Interior
Decision Date | 08 September 2003 |
Docket Number | No. 02-15104.,02-15104. |
Citation | 342 F.3d 1080 |
Parties | Don Laub; Debbie Jacobsen; Ted Sheely; California Farm Bureau Federation, Plaintiffs-Appellants, v. UNITED STATES Department of the Interior; Gale A. Norton, Secretary, Department of the Interior; UNITED STATES Environmental Protection Agency; Marianne Horinko, in her official capacity as Acting Administrator of the U.S. Epa; Department of the Army, (Civil Works); Joseph W. Westphal, Dr., in his official capacity as Assistant Secretary of the Army (Civil Works); Donald Evans, in his official capacity as Secretary, U.S. Department of Commerce; UNITED STATES Department of Commerce; U.S. Department of Agriculture; Ann M. Veneman, In her official capacity as Secretary, U.S. Department of Agriculture; U.S. Army Corps of Engineers; Peter T. Madsen, Brigadier General, in his official capacity as Commander, South Pacific Division, U.S. Army Corps of Engineers; Natural Resources Conservation Service; Charles Bell, in his capacity as California State Conservationist, U.S. Department of Agriculture, Natural Resources Conservation Service; National Marine Fisheries Service; Rebecca Lent, Dr., Regional Administrator, National Marine Fisheries Service; U.S. Fish & Wildlife Service; Stephen Thompson, in his official capacity as Manager of California-Nevada Operations of the U.S. Fish & Wildlife Service; UNITED STATES Bureau of Reclamation; Kirk C. Rodgers, in his official capacity as Director, Mid-Pacific Region of the U.S. Bureau of Reclamation; Gray Davis, Governor of the State of California; California Resources Agency; Mary D. Nichols, in her official capacity as Secretary of the California Resources Agency; California Environmental Protection Agency; Winston Hickox, in his official capacity as Secretary of the California Environmental Protection Agency, Defendants-Appellees. |
Court | U.S. Court of Appeals — Ninth Circuit |
Nancy N. McDonald, Brenda Jahns Southwick, Rebecca Dell Sheehan, Sacramento, California, for appellants Laub, Jacobsen, Sheely and the California Farm Bureau Federation.
Christopher H. Buckley, Jr., Rachel A. Clark, Gibson, Dunn & Crutcher LLP, Washington, D.C., for appellant California Farm Bureau Federation.
Thomas L. Sansonetti, Maria Iizuka, David C. Shilton, Silva Quast, United States Department of Justice, Washington, D.C., for the Federal appellees.
Bill Lockyear, Richard M. Frank, Matthew Rodriquez, Gordon Burns, Office of the Attorney General of California, Sacramento, California, for the State appellees.
Appeal from the United States District Court for the Eastern District of California; Oliver W. Wanger, District Judge, Presiding. D.C. No. CV-00-06601-OWW(SMS).
Before: John T. Noonan, Sidney R. Thomas and Richard R. Clifton, Circuit Judges.
This appeal presents the question of whether an action under the National Environmental Protection Act (NEPA), 42 U.S.C. § 4321 et seq., against various federal and state government defendants1 challenging a proposed plan for managing the California Bay-Delta water resources is ripe for judicial review before site-specific action is taken. We hold that it is and reverse the district court. Because the record is not sufficient to ascertain whether the State Defendants' participation in the water management program is sufficiently independent of federal control to escape the requirements of NEPA, we reverse the district court's determination that certain land and water acquisitions undertaken pursuant to the program did not constitute a federal action, and remand with instructions to permit discovery on this question.
At issue in this case is the CALFED Bay-Delta program (CALFED program), a cooperative interagency effort of eighteen State and Federal agencies with management or regulatory responsibilities for California's San Francisco Bay/ Sacramento-San Joaquin Delta (Bay-Delta). The Bay-Delta estuary is the largest estuary on the West Coast, including over 738,000 acres in five counties and supplying drinking water for two-thirds of Californians and irrigation water for over seven million acres of highly productive agricultural land. The CALFED program describes itself as "the largest, most complex water management program in the world," engaged in "the most complex and extensive ecosystem restoration project ever proposed."
CALFED was formed in summer 1994 when the federal and state governments executed a "Framework Agreement" to establish "a comprehensive program for coordination and communication" in order to advance environmental protection and water supply dependability in the Bay-Delta estuary. In late 1995 and early 1996, the governmental entities executed a "Memorandum of Understanding For Preparation of Environmental Impact Statement/Report" (MOU), in order to "coordinate preparation of a single environmental document that satisfies both NEPA and CEQA."2 The parties agreed that "the CALFED Bay-Delta Program interagency team will be responsible for preparation of the EIS/EIR under CALFED's general direction."
Pursuant to this agreement, in July 2000, CALFED issued a programmatic environmental impact statement/ environmental impact report (EIS/EIR). The EIS/EIR identified a Preferred Program Alternative which, among other actions, would "convert agricultural lands to other uses, including habitat, levee improvements, and water storage." In August 2000, CALFED certified the EIS/EIR in a Record of Decision (ROD). The ROD stated that it "represents the culmination of the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA) processes," and "reflects a final selection of a long-term plan (Preferred Program Alternative) which includes specific actions, to fix the Bay-Delta, describes a strategy for implementing the plan, and identifies complementary actions the CALFED agencies will also pursue." Attached to the ROD were two agreements entered into by the state and federal governments: the "Implementation Memorandum of Understanding" (IMEU) and the "Environmental Water Account Operating Principles Agreement" (EWA). The EWA is described as "a cooperative management program whose purpose is to provide protection to the fish of the Bay-Delta estuary through environmentally beneficial changes in the operations of the State Water Project (SWP) and federal Central Valley Project (CVP)." The program's approach to fish protection "requires the acquisition of alternative sources of project water supply."
Plaintiffs are individual farmers Don Laub, Debbie Jacobsen, and Ted Sheely, and the California Farm Bureau Federation. In response to the issuance of the CALFED EIS/EIR and ROD, Plaintiffs filed suit in federal district court for the Eastern District of California, alleging that the Defendants failed to follow procedures mandated by NEPA and CEQA when promulgating the CALFED EIS/EIR and ROD. Specifically, Plaintiffs' theory is that Defendants failed to consider any reasonable alternatives to the proposed conversion of agricultural resources to environmental uses, that they failed to consider the direct, indirect and cumulative impacts of projects that will cause significant effects on agricultural resources, and that their analysis of mitigation options is inadequate.
On August 27, 2001, the district court dismissed the CEQA claims against the State Defendants with prejudice based on application of the Eleventh Amendment, a decision that Plaintiffs have not appealed. However, the district court retained jurisdiction over the NEPA claims against the Federal Defendants and invoked the Ex Parte Young doctrine to retain jurisdiction over the individual State Defendants.
On August 29, 2001, the district court granted the Federal Defendants Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction without prejudice, holding that the issuance of EIS/EIR was not a final agency action ripe for review. The court further determined that challenged state site-specific acquisitions of land and water were not federalized under NEPA; thus, the court had no jurisdiction over the State Defendants. The court also denied Plaintiffs' request for discovery and briefing on the question of the federal government's level of involvement in the state land and water acquisitions. However, the district court dismissed Plaintiffs' complaint with leave to amend.
Plaintiffs then moved for reconsideration of the dismissal. In the alternative, Plaintiffs requested that the district court dismiss the entire action without prejudice in order to permit appeal because WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136-37 (9th Cir.1997) (en banc) holds that dismissal of a complaint with leave to amend was not an appealable final judgment. On December 11, 2001, the district court denied Plaintiffs' motion for reconsideration and granted their request to dismiss the entire action without prejudice and without leave to amend. This timely appeal followed.
Ripeness is a question of law we review de novo. Daniel v. County of Santa Barbara, 288 F.3d 375, 380(9th Cir. 2002). We review dismissal for lack of subject matter jurisdiction de novo. McGraw v. United States, 281 F.3d 997, 1001 (9th Cir.2002), amended by 298 F.3d 754 (9th Cir.2002). We review a district court's rulings concerning discovery for an abuse of discretion. Panatronic USA v. AT&T Corp., 287 F.3d 840, 846 (9th Cir. 2002).
The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1361.3 The district court dismissed Plaintiffs' action without prejudice. A dismissal of an action without prejudice is a final appealable order. De Tie v. Orange County, 152 F.3d 1109, 1111 (9th Cir.1998); Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984).4 Thus, we have jurisdiction pursuant to 28 U.S.C. § 1291.
The Federal Defendants have raised Plaintiffs' alleged lack of...
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Case summaries.
...F.3d 789 (9th Cir. 2003), clarified by 366 F.3d 731 (9th Cir. 2004), infra Part II.E. Laub v. United States Department of the Interior, 342 F.3d 1080 (9th Cir. Laub, two other farmers, United States, and the California Farm Bureau Federation (collectively Plaintiffs) sued the Department of ......
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2003 ninth circuit environmental review.
...329 F.3d 1089 (9th Cir. 2003). Kasza v. Whitman, 325 F.3d 1178 (9th Cir. 2003). Laub v. United States Department of the Interior, 342 F.3d 1080 (9th Cir. Reno-Sparks Indian Colony v. United States Environmental Protection Agency, 336 F.3d 899 (9th Cir. 2003). Selkirk Conservation Alliance v......