Producers v. U.S.

• Decision Date: 16 February 2011
• Docket Number: No. 1:09–cv–01871 OWW DLB.,1:09–cv–01871 OWW DLB.
• Citation: 772 F.Supp.2d 1210
• Parties: SAN LUIS UNIT FOOD PRODUCERS, et al., Plaintiffs,v.UNITED STATES of America; Department of the Interior; Bureau of Reclamation, Defendants.
• Court: U.S. District Court — Eastern District of California

772 F.Supp.2d 1210

SAN LUIS UNIT FOOD PRODUCERS, et al., Plaintiffs,

v.UNITED STATES of America; Department of the Interior; Bureau of Reclamation, Defendants.

No. 1:09–cv–01871 OWW DLB.

United States District Court, E.D. California.

Feb. 16, 2011.

Theodore A. Chester, Jr., Smiland & Chester, Los Angeles, CA, for Plaintiffs.David B. Glazer, US Department of Justice, San Francisco, CA, for Defendants.

MEMORANDUM DECISION RE DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS (DOC. 24) AND PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (DOC. 17)

OLIVER W. WANGER, District Judge.

I. INTRODUCTION

This case concerns the ongoing operation of the San Luis Unit (the “Unit”) of the Central Valley Project (“CVP”). Plaintiffs, San Luis Unit Food Producers (“Food Producers”), an unincorporated association whose members include owners, operators, and managers of agricultural land in the Unit and their allied customers and suppliers, and various individuals and entities that own land and/or farm in the Unit, claim that various provisions of U.S. Reclamation law mandate that the Unit be operated to: (a) “provide farmers with irrigation water service” (Doc. 1, Compl. at ¶ 2); (2) “exercise the water rights obtained to divert, store, convey, and deliver the water necessary to irrigated project lands” ( id. at ¶ 3); and (3) “sell project water to irrigators ... in order to recoup the costs of construction and operation and maintenance of water supply works providing irrigation” ( id. at ¶ 4). Plaintiffs generally allege that the Department of the Interior and its Bureau of Reclamation (“Reclamation” or “Bureau”) (collectively, “Federal Defendants”) have managed the Unit in recent years in violation of these mandates:

10. In recent years, however, pursuant to a highly controversial new practice, defendants have unlawfully withheld from Unit farmers the irrigation water service mandated by federal reclamation statutes. Defendants are not operating certain pumps, dams, canals, and other facilities they previously built to provide such service, and such facilities now sit effectively idle. Defendants do not now exercise the water rights to bring about use of the water at the place and for the purpose of the appropriation. Defendants no longer sell project water to Unit irrigators, but allow virtually all of the water to be used without charge for other purposes and in other places. In the absence of defendants' obedience to the above statutory mandates, plaintiffs' lands and trees are being destroyed, and their farming operations are suffering massive and possibly fatal losses.

11. The first sentence of Section 1(a) of the 1960 Act authorizes construction and operation of the Unit as an integral part of the CVP for the “principal purpose” of furnishing water for the irrigation of lands in the Unit service area and, in addition, for several other specified purposes “as incidents thereto.” But, as a result of defendants' recent statutory violations, the principal purpose of the Unit is being treated as if it were, at most, a mere incidental purpose, and a purpose designated as incidental is being treated as if it were the principal purpose. The defendants have unlawfully turned the Unit on its head.

Id. at ¶¶ 10–11.

Federal Defendants move for judgment on the pleadings that:

(1) The United States has not waived its sovereign immunity to Plaintiffs' claims; and

(2) The Court lacks subject matter jurisdiction.

Doc. 25. Plaintiffs oppose. Doc. 36. Federal Defendants replied. Doc. 45.

Plaintiffs' cross-move for judgment on the pleadings, arguing that:

(1) The Court has subject matter jurisdiction;

(2) The APA provides an applicable waiver of sovereign immunity;

(3) Plaintiffs have standing to sue;

(4) Plaintiffs have exhausted any required administrative remedies;

(5) The action is not barred by the statute of limitations;

(6) The action is not barred by laches;

(7) Plaintiffs are entitled to declaratory and injunctive relief.

Doc. 18 at 5–11. In addition, Plaintiffs move for summary judgment that Defendants are violating fifteen (15) Reclamation statutes. Specifically, Plaintiffs allege:

(1) Five provisions of reclamation law mandate that Federal Defendants operate project facilities to provide irrigation water service, namely:

(a) The second sentence of Section 1(a) of the 1960 Act;

(b) A 1920 Amendment to the 1902 Reclamation Act;

(c) Section 6 of the 1902 Act;

(d) The second proviso of Section 2 of the 1937 Act;

(e) The fourth proviso of Section 2 of the 1937 Act; (2) The following four Reclamation statutes mandate that defendants exercise water rights:

(a) The 1920 amendment to the 1902 Act;

(b) The last sentence of Section 1(a) of the 1960 Act;

(c) The proviso of Section 8 of the 1960 Act;

(d) Section 8 of the 1902 Act; and

(3) The following six statutes mandate that Defendants sell irrigation water to farmers to recoup project costs:

(a) Section 4 of the 1902 Act;

(b) A 1914 amendment to the 1902 Act

(c) A 1926 amendment to the 1902 Act

(d) A 1939 amendment to the 1902 Act

(e) Section 1(5) of the 1956 amendments to the 1902 Act

(f) Another provision of the 1956 amendments to the 1902 Act.

Doc. 18. Federal Defendants oppose both the motion for judgment on the pleadings and the motion for summary judgment. Doc. 38. Plaintiffs replied. Doc. 43.¹

Oral argument was heard on August 3, 2010, at which time the parties were granted leave to submit supplemental briefs on a limited range of issues. Docs. 52 and 53. Those briefs have also been considered.

II. LEGAL & FACTUAL BACKGROUND.

A. History and Original Purposes of the CVP.

The Reclamation Act of 1902 (“1902 Act”), Pub. L. 57–161, 32 Stat. 388 (codified as amended at 43 U.S.C. §§ 371–600e), “set in motion a massive program to provide federal financing, construction, and operation of water storage and distribution projects to reclaim arid lands in many Western States.” Orff v. United States, 545 U.S. 596, 598, 125 S.Ct. 2606, 162 L.Ed.2d 544 (2005) (citing California v. United States, 438 U.S. 645, 650, 98 S.Ct. 2985, 57 L.Ed.2d 1018 (1978)). In the 1902 Act, “Congress committed itself to the task of constructing and operating dams, reservoirs and canals for the reclamation of the arid lands in 17 western states.” Peterson v. Dept. of the Interior, 899 F.2d 799, 802 (9th Cir.1990). Its goals were “to promote the growth of an agricultural society in the West.” Id. at 803. “The purpose of the original 1902 Act was to encourage people to go West, to grow crops on modest family farms in the country's drier regions so that the nation's agricultural bounty would increase.” Barcellos and Wolfsen v. Westlands Water District, 899 F.2d 814, 815 (1990).

The CVP, the largest reclamation project in the nation, was created to “capture and store” waters of the major Central Valley rivers and “pump” the waters “to the cultivated lands.” United States v. Gerlach Live Stock Co., 339 U.S. 725, 728–29, 733, 70 S.Ct. 955, 94 L.Ed. 1231 (1950). The CVP was created to bring to the valley's “parched acres a water supply sufficiently permanent to transform them into veritable gardens for the benefit of mankind.” Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 280, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958), rev'd on other grounds by California v. United States, 438 U.S. 645, 98 S.Ct. 2985. Snowmelts from the Sierra Nevada, if not controlled, “waste this phenomenal accumulation of water so valuable to the valley's rich alluvial soil. The object of the plan is to arrest this flow and regulate its seasonal and year-to-year variations ...” Id. at 281, 78 S.Ct. 1174. “The absence of rain” in the region served by the CVP, “makes irrigation essential, particularly in the southern region.” Id. “The grand design of the Project was to conserve and put to maximum beneficial use the waters of the Central Valley of California ...” Dugan v. Rank, 372 U.S. 609, 612, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963); see also United States v. Westlands Water District, 134 F.Supp.2d 1111, 1116 (E.D.Cal.2001) (citing above cases).

The 1937 Rivers and Harbors Act, Pub. L. 75–397, 50 Stat. 844, 850, authorized a large scale diversion of surplus water from the delta to the valley by means of the Jones Pumping Plant and the Delta–Mendota Canal, both of which had excess capacity. The Act of June 3, 1960, Pub. L. No 86–488, 74 Stat. 156, described the pumping plant and canal as integral parts of the Unit; Section 4 thereof describes diversion from the Delta via the pumping plant and the canal. See Sierra Club v. Andrus, 610 F.2d 581, 585–86, 602–03, 604–05 (9th Cir.1980).

B. Modern Administration of Central Valley Project and Delivery of Water Under Reclamation Law.

Pursuant to Section 8 of the Reclamation Act of 1902, Reclamation must obtain and maintain the water rights necessary for its CVP operations in compliance with state law. 43 U.S.C. § 383. Permits and licenses issued by California's State Water Resources Control Board (“SWRCB”), together with relevant SWRCB decisions and orders, define the parameters and conditions under which Reclamation may divert and deliver project water, which is then allocated to water districts in accordance with the terms and conditions of contracts for water service with these districts. Declaration of Ray Sahlberg, Doc. 40, (“Sahlberg Decl.”) ¶ 2; Declaration of Richard Stevenson, Doc. 41, (“Stevenson Decl.”) ¶ 3. Reclamation does not contract with individual irrigators or end-users on municipal and industrial water contracts. Stevenson Decl., Doc. 41, at ¶ 4.

Reclamation's diversion and delivery of project water to the San Luis Unit is governed by 13 separate permits, the authorized purposes of which include irrigation, domestic use, municipal and industrial use, fish and wildlife enhancement, salinity control, water quality control, stock-watering, and recreation. Sahlberg Decl. ¶ 3; Declaration of Ron Milligan (“Milligan Decl.”), Doc. 42, ¶ 2. Reclamation's CVP operations are also constrained...