Pac. Coast Fed'n of Fishermen's Associations v. U.S. Dep't of the Interior & U.S. Bureau of Reclamation

• Citation: 996 F.Supp.2d 887
• Decision Date: 06 February 2014
• Docket Number: Case No. 1:12–CV–01303–LJO–MJS.
• Parties: PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS and San Francisco Crab Boat Owners Association, Inc., Plaintiffs, v. UNITED STATES DEPARTMENT OF the INTERIOR and United States Bureau of Reclamation, Defendants, and Westlands Water District, San Luis Water District, and Panoche Water District, Intervenor–Defendants.
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California

996 F.Supp.2d 887

PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS and San Francisco Crab Boat Owners Association, Inc., Plaintiffs,

v.UNITED STATES DEPARTMENT OF the INTERIOR and United States Bureau of Reclamation, Defendants,andWestlands Water District, San Luis Water District, and Panoche Water District, Intervenor–Defendants.

Case No. 1:12–CV–01303–LJO–MJS.

United States District Court,

E.D. California.

Feb. 6, 2014.

Daniel Garrett—Steinman, Joshua A.H. Harris, Marcus Benjamin Eichenberg, Stephan Coles Volker, Law Offices of Stephan C. Volker, Oakland, CA, for Plaintiffs.

Joseph H. Kim, U.S. Department of Justice, Washington, DC, for Defendants.

Cynthia J. Larsen, Martin Ruano, Norman C. Hile, Orrick Herrington and Sutcliffe LLP, Sacramento, CA, for Intervenor–Defendants.

MEMORANDUM DECISION AND ORDER RE CROSS MOTIONS FOR SUMMARY JUDGMENT (DOCS. 68, 75, 78)

LAWRENCE J. O'NEILL, District Judge.

I. INTRODUCTION

This case concerns approval by the United States Department of the Interior and its member agency the United States Bureau of Reclamation (collectively, “Federal Defendants,” “Reclamation,” or the “Bureau”) of eight (8) interim renewal contracts (“Interim Contracts”) which authorize delivery of water from federal reclamation facilities to certain water districts served by the federal Central Valley Project (“CVP”) and provide for repayment of capital construction costs, as well as operational and maintenance expenses associated with CVP facilities. First Amended Complaint (“FAC”), Doc. 47 at ¶ 2. Plaintiffs' remaining claim alleges that Federal Defendants' issued a deficient Environmental Assessment (“EA”) and associated Finding of No Significant Impact (“FONSI”) prior to approval of the Interim Contracts, in violation of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq.

Before the Court for decision are cross motions for summary judgment filed by all parties. Plaintiffs filed their motion for summary judgment on September 6, 2013. Doc. 68. On October 2, 2013, pursuant to a request from Federal Defendants, this case was stayed in light of the federal government shutdown, and the briefing schedule was suspended. Doc. 71. The stay expired on October 21, 2013, when appropriations were restored. Doc. 72. Federal Defendants' subsequent, unopposed motion for a ten-day extension of time was granted. Doc. 75. Federal Defendants filed an opposition to Plaintiffs' motion as well as a separate cross motion on November 7, 2013, although the two memoranda are identical. Docs. 75–77. Also on November 7, Defendant Intervenors, Westlands Water District, San Luis Water District, and Panoche Water District, also filed an opposition, as well as a distinct cross motion. Doc. 78–80. After receiving a 22–day extension of time, Doc. 82, Plaintiffs filed a reply to their own motion for summary judgment on December26, 2013, as well as an opposition to Federal Defendants' cross-motion, and a separate opposition to Defendant Intervenors' cross-motion. Docs. 83–84. Federal Defendants and Defendant Intervenors also filed replies. Docs. 86–86.¹

Having thoroughly reviewed the papers and those portions of the extensive Administrative Record (“AR”) cited by the parties, the Court believes that the issues are sufficiently developed so as to obviate the need for oral argument. The Court therefore issues the following decision based upon the papers without a hearing pursuant to Local Rule 230(g).

II. BACKGROUND

The CVP is “a system of dams, reservoirs, levees, canals, pumping stations, hydropower plants, and other infrastructure that distributes water throughout California's vast Central Valley.” San Luis Unit Food Producers v. United States, 709 F.3d 798, 801 (9th Cir.2013) (internal citation and quotation omitted). Although the CVP was originally planned by the State of California as a state project, the Federal government took over construction when California was unable to finance the project on its own. See Ivanhoe Irrig'n Dist. v. McCracken, 357 U.S. 275, 280, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958); S. Delta Water Agency v. United States, 767 F.2d 531, 534 (9th Cir.1985). “The essential components of the CVP have been operational since 1953 and certain of its facilities were in partial operation several years before.” S. Delta Water Agency, 767 F.2d at 534.

Facilities located in the northern portion of the Central Valley store waters of the Sacramento, Trinity, and American Rivers. These waters are transported south down the Sacramento River to the Sacramento–San Joaquin Delta, an area east of San Francisco Bay. The waters are then pumped from the Delta into the Delta Mendota Canal for southerly transportation to the San Joaquin River.

Id.

“The Bureau is the agency within the Department of the Interior charged with administering the CVP.” San Luis Unit Food Producers, 709 F.3d at 801.

Congress initially prioritized the purposes of the CVP as follows: “[T]he said dam and reservoirs shall be used, first, for river regulation, improvement of navigation, and flood control; second, for irrigation and domestic uses; and, third, for power.” CVP Act § 2 (1937) (emphasis added). However, Congress amended the CVP Act in 1992 with the Central Valley Project Improvement Act, Pub. L. No. 102–575, 106 Stat. 4600 (“CVPIA”), which re-prioritized the purposes of the CVP. O'Neill v. United States, 50 F.3d 677, 686 (9th Cir.1995). The hierarchy of purposes now reads, “[T]he said dam and reservoirs shall be used, first, for river regulation, improvement of navigation, and flood control; second, for irrigation and domestic uses and fish and wildlife mitigation, protection and restoration purposes; and, third, for power and fish and wildlife enhancement.” CVPIA § 3406(a)(2) (emphasis added); CVP Act § 2. The CVPIA also requires that the Bureau operate the CVP to “meet all obligations under State and Federal law, including but not limited to the Federal Endangered Species Act, 16 U.S.C. 1531 et seq.” CVPIA § 3406(b).

Id. at 801–02.

Under Federal Reclamation law, the Bureau delivers waters from CVP facilities to users pursuant to contracts, which provide for the repayment of a share of the CVP's capital construction costs, along with a share of operational and maintenance costs. See43 U.S.C. § 485h(e); see also Grant County Black Sands Irrig'n Dist. v. U.S. Bureau of Reclamation, 579 F.3d 1345, 1351–52 (Fed.Cir.2009). These contracts, frequently called “water service contracts” or “repayment contracts,” are the means by which some recovery of federal taxpayer investment in the CVP is legally tied to the delivery of water. See id.²

The CVPIA also provides for renewal of pre-existing long-term water service contracts for successive periods of up to 25 years. CVPIA § 3404(c)(1), Pub. L. No. 102–575, 106 Stat. 4600 (1992). The CVPIA specifically called for completion of a programmatic Environmental Impact Statement “EIS” pursuant to NEPA that would analyze

the direct and indirect impacts and benefits of implementing this title, including all fish, wildlife, and habitat restoration actions and the potential renewal of all existing Central Valley Project water contracts. Such statement shall consider impacts and benefits within the Sacramento, San Joaquin, and Trinity River basins, and the San Francisco Bay/Sacramento–San Joaquin River Delta Estuary.

CVPIA § 3409 (emphasis added). Renewal of any long-term (i.e., 25–year) contract may not be authorized by Reclamation “until appropriate environmental review, including the preparation of the [PEIS] required in section 3409 ... has been completed.” CVPIA § 3404(c)(1). This requirement culminated in adoption of the Central Valley Project Improvement Act Final Programmatic Environmental Impact Statement (“CVPIA PEIS”), which was completed in 1999. FAC at p. 12. In January 2001, the Reclamation formally adopted the “Preferred Alternative” from the CVPIA PEIS in a Record of Decision (“CVPIA PEIS ROD”). AR 2418–2458. In addition, Reclamation began the process of preparing project-level EISs for long-term contract renewals for the West San Joaquin Division and San Luis Contractors. See FAC at 12. In September 2005, Reclamation prepared and released a draft EIS for these long-term contract renewals, but no final EIS has yet been adopted. See id.

The CVPIA provides for the eventuality that long-term contracts might expire prior to completion of appropriate environmental review:

Contracts which expire prior to the completion of the environmental impact statement required by section 3409 may be renewed for an interim period not to exceed three years in length, and for successive interim periods of not more than two years in length, until the environmental impact statement required by section 3409 has been finally completed, at which time such interim renewal contracts shall be eligible for long-term renewal as provided above. Such interim renewal contracts shall be modified to comply with existing law, including provisions of this title.

CVPIA § 3404(c)(1).

This case concerns eight (8) such Interim Contracts, which authorize continuation of water service on terms similar to previous Interim Contracts, which in turn continued water service previously provided pursuant to pre-existing long-term water contracts. See, e.g., AR 490–94 (Interim Contract No. 14–06–200–495 A–IR3, concerning water service to Westlands Water District). The type of water service contract at issue here does not guarantee that any particular volume of water will be delivered to the contractor. This is, in part, because each Interim Contract incorporates by reference a shortage provision that relieves the Bureau of liability for any direct or indirect damages arising from reduced deliveries to as a result of, among other things, “actions taken by the Contracting Officer to meet legal obligations....” Natural Res. Def. Council v. Kempthorne, 2008 WL 5054115 (E.D.Cal. Nov. 19, 2008), superseded in part on other...