Pac. Coast Fed'n of Fishermen's Ass'ns v. U.S. Dep't of the Interior, No. 1:12–CV–01303–LJO–MJS.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtLAWRENCE J. O'NEILL
Citation929 F.Supp.2d 1039
PartiesPACIFIC 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.
Docket NumberNo. 1:12–CV–01303–LJO–MJS.
Decision Date08 March 2013

929 F.Supp.2d 1039

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.

No. 1:12–CV–01303–LJO–MJS.

United States District Court,
E.D. California.

March 8, 2013.


[929 F.Supp.2d 1042]


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

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


MEMORANDUM DECISION AND ORDER RE MOTIONS TO DISMISS (DOCS. 45 & 46)

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 allege 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. Plaintiffs also allege that Federal Defendants should have prepared an Environmental Impact Statement (“EIS”), rather than an EA/FONSI, in connection with approval of the Interim Contracts.

Before the Court for decision is Federal Defendants' motion to dismiss the FAC pursuant to Fed.R.Civ.P. 12(b)(1), (6), and/or (7). Doc. 45. Intervenor Defendants Westlands Water District, San Luis Water District, and Panoche Water District

[929 F.Supp.2d 1043]

join the Federal Defendants and add one unique argument to the dispute. Doc. 46. Plaintiffs oppose. Doc. 48. The Bureau and Defendant Intervenors replied. Docs. 49 & 50. The motions were taken under submission on the record without a hearing pursuant to Local Rule 230(g). Doc. 43 at 2.

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). “The Bureau is the agency within the Department of the Interior charged with administering the CVP.” Id.

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.


The CVPIA also provides for renewal of 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 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. 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 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. Id. In September 2005, Reclamation prepared and released a draft EIS for these longterm 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:

[929 F.Supp.2d 1044]

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).


On or about February 29, 2012, Reclamation issued a FONSI and EA regarding the “Three Delta Division and Five San Luis Unit Water Service Interim Renewal Contracts 2012–2014.” FAC ¶ 25. These documents purport to “tier” off of the CVPIA PEIS. Doc. 4–1, FONSI at 2.1 Based on the FONSI and EA, Reclamation approved the eight Interim Contracts at issue in this case. 2Id. Water delivery pursuant to the new two-year Interim Contracts commenced on March 1, 2012. Id.

III. DISCUSSION
A. Waiver.
1. Standard of Decision.

Federal Defendants appear to invoke Federal Rule of Civil Procedure 12(b)(1), which provides for dismissal of an action for “lack of subject-matter jurisdiction,” to argue that the FAC should be dismissed because Plaintiffs' failed to exhaust their administrative remedies. Although “[t]here is some uncertainty regarding whether a failure to exhaust administrative remedies is properly brought in a Rule 12(b)(1) motion as a jurisdictional defect, or in a Rule 12(b)(6) motion for failure to state a claim,” Hall v. Sebelius, 689 F.Supp.2d 10, 21–22 (D.D.C.2009) (citing cases), the Ninth Circuit appears to treat failure to exhaust under the Administrative Procedure Act (“APA”) 3 as a “legal question,” subject to Rule 12(b)(6), rather than as a jurisdictional issue, see Nw. Envtl. Advocates v. E.P.A., 537 F.3d 1006, 1014 (9th Cir.2008) (distinguishing between review of questions of subject matter jurisdiction and the “legal question of whether a plaintiff has exhausted the necessary administrative remedies”).

Dismissal under Rule 12(b)(6) is proper where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1990). In considering a motion to dismiss for failure to state a claim, the court generally accepts as true the allegations in the complaint, construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in the pleader's favor. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir.2008).

[929 F.Supp.2d 1045]

To survive a 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Even if this aspect of Federal Defendants' motion is subject to the Rule 12(b)(1) standard, this would be of little practical import. Faced with a Rule 12(b)(1) motion, a plaintiff bears the burden of proving the existence of the court's subject matter jurisdiction. Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir.1996). A challenge to subject matter jurisdiction may be facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000). As explained in Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1038 (9th Cir.2004):

In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.

“If the challenge to jurisdiction is a facial attack, i.e., the defendant contends that the allegations of jurisdiction contained in the complaint are insufficient on their face to demonstrate the existence of jurisdiction, the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made.” ...

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