San Luis Unit Food Producers v. United States

Decision Date01 March 2013
Docket NumberNo. 11–16122.,11–16122.
Citation709 F.3d 798
PartiesSAN LUIS UNIT FOOD PRODUCERS; El Dorado Farms; Laguna Excelsior Farms, LLC; JLK; Ryan Family Farms LP; Marlu Farms; Simcot Farms; Brad Gleason; Ross Allen; California Pistachio LLC; Double B. Farms; Buster Allen, Inc.; Truk Station LLC; C.S. Stefanopoulos; Elena Stefanopoulos; D.D. Stefanopoulos; Pagona Stefanopoulos; Universal Land Co.; Cort Blackburn; Laura Blackburn; MC Farms LLC; Marty Acquistapace; Curtis Stubblefield, Plaintiffs–Appellants, v. UNITED STATES of America; Department of the Interior; Bureau of Reclamation, Defendants–Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

OPINION TEXT STARTS HERE

Theodore A. Chester, Jr., Smiland & Chester, Los Angeles, CA, for PlaintiffsAppellants.

Peter Krzywicki and Michael T. Gray, United States Department of Justice, Washington, D.C., for DefendantsAppellees.

Appeal from the United States District Court for the Eastern District of California, Oliver W. Wanger, Senior District Judge, Presiding. D.C. No. 1:09–cv–01871–OWW–DLB.

Before: STEPHEN S. TROTT and JOHNNIE B. RAWLINSON, Circuit Judges, and FREDERIC BLOCK, District Judge.*

OPINION

TROTT, Circuit Judge:

Today we consider whether farmers and farming entities (collectively, “Farmers”) that irrigate their land using water from the San Luis Unit of the Central Valley Project—the nation's largest reclamation project—may maintain a claim under the Administrative Procedure Act (“APA”) to compel the United States Bureau of Reclamation (“the Bureau”) to provide the Farmers' irrigation districts with more water than it is currently providing. The Farmers argue that several federal statutes require the Bureau to provide irrigators with sufficient irrigation water to satisfy the Farmers' needs before delivering water to any other party for any other purpose. The district court granted summary judgment in favor of the Bureau on several grounds, including that the Bureau does not have a statutory duty to release a certain amount of water for irrigation and that, consequently, the Farmers' claims did not satisfy the final agency action requirement of the APA. Although the district court discussed this issue in terms of sovereign immunity, we resolve the case slightly differently.

Pursuant to the Supreme Court's unanimous decision in Norton v. Southern Utah Wilderness Alliance (“SUWA”), 542 U.S. 55, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004), we hold that the Bureau is not legally required to take a discrete action to deliver the Farmers' preferred amount of San Luis Unit water for irrigation before it provides water for other purposes. The Bureau retains the discretion to allocate San Luis water among various parties to satisfy its various obligations. There is no final agency action, nor is there any action that the Bureau has unlawfully withheld. See5 U.S.C. §§ 704 & 706(1). The Farmers' claims amount to a broad programmatic attack on the way the Bureau generally operates the Central Valley Project, see SUWA, 542 U.S. at 64, 124 S.Ct. 2373, and therefore the Farmers have not established subject matter jurisdiction under the APA,1Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1019–20 (9th Cir.2007).

I

Reclamation projects are indispensable features of agriculture in the Western United States. “The Reclamation Act of 1902 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); see generally43 U.S.C. §§ 371–600e. When the Department of the Interior decides to build and operate a reclamation project, the agency must “appropriate, purchase, or condemn necessary water rights in strict conformity with state law.” California v. United States, 438 U.S. 645, 665, 98 S.Ct. 2985, 57 L.Ed.2d 1018 (1978). As the Farmers acknowledge, the Bureau obtained all of the water rights involved in the San Luis Unit “in the 1960s under both federal and state law.” Op. Br. at 36.

The Central Valley Project (“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.” Orff, 545 U.S. at 598, 125 S.Ct. 2606. The CVP was originally “taken over and executed” by the United States under the Reclamation Act and was reauthorized by the Rivers and Harbors Act of 1937, Pub.L. No. 75–392, 50 Stat. 844, 850 (“the CVP Act). Westlands Water Dist. v. United States, 337 F.3d 1092, 1095 n. 3 (9th Cir.2003). The Bureau is the agency within the Department of the Interior charged with administering the CVP.

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, protectionand 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).

In 1960, Congress authorized the Secretary of the Interior to construct and operate the San Luis Unit “as an integral part” of the CVP. Act of June 3, 1960, Pub.L. No. 86–488, § 1(a), 74 Stat. 156, 156 (“the San Luis Act). The San Luis Act (1) states that the “principal purpose” of the Unit is to furnish water for irrigation and (2) identifies four “incident[al] purposes—among them, “fish and wildlife benefits.” Id. The San Luis Act also provides that [t]he principal engineering features of said Unit shall be a dam and reservoir at or near the San Luis site, a forebay and afterbay, the San Luis Canal, the Pleasant Valley Canal, and necessary pumping plants, distribution systems, drains, channels, levees, flood works and related facilities.” Id.

The Reclamation Act authorizes the Bureau to enter into contracts for the use of reclamation water for several purposes, including irrigation. See43 U.S.C. §§ 423e & 521. As is relevant here, the Bureau contracts with irrigation districts for the delivery of water from the San Luis Unit. Each contract contains a shortage provision excusing the Bureau from the full amount of its contractual water delivery obligations if water shortages are caused by, among other things, drought, mechanical malfunctions, or statutory obligations on the part of the Bureau to deliver water for other purposes—such as obligations imposed by the Endangered Species Act and the CVPIA. Once the Bureau contracts with an irrigation district, the district in turn contracts with end-users like the Farmers.

According to the Bureau's Deputy Regional Resources Manager, every year the Bureau projects the amount of CVP water that will be available “based upon reservoir storage, precipitation, runoff forecasts, and other indices.” Decl. of Richard Stevenson, April 26, 2010, ¶ 5. It then allocates that water among the Bureau's contractors, including irrigation districts and wildlife refuges.

The Farmers allege that for decades the Bureau delivered enough water to the irrigation districts—which then sold the water to the Farmers—or the Farmers to irrigate 100% of their lands to their satisfaction. But in the last several years the Bureau has provided less water for irrigation, allocating substantial amounts of San Luis water for other purposes—particularly for the protection and restoration of fish and wildlife. The Bureau also allows a significant volume of water to flow naturally, rather than capturing it to be used for irrigation. According to the Farmers, the Bureau has unlawfully “transmute[d] the Unit from an irrigation project into a fish and wildlife enterprise.” Op. Br. at 8.

The Farmers filed suit under the APA in the United States District Court for the Eastern District of California. The Farmers contended that the Bureau is required by federal law to deliver more water for irrigation and less water for non-irrigation purposes such as fish and wildlife. They claim they are entitled to the amount of water that they have historically put to beneficial use—presumably making this historical measurement sometime before the Bureau began curtailing its deliveries of irrigation water. At oral argument, counsel for the Farmers estimated this amount as approximately 1,000,000 acre-feet, at least in times when there is no water shortage.

The Bureau moved for judgment on the pleadings, and the Farmers moved for summary judgment. The district court granted the Bureau's motion, denied the Farmers' motion, and granted summary judgment to the Bureau. The district court determined that with respect to most of the statutory provisions cited by the Farmers, (1) the Bureau did not have a mandatory duty to act to provide a certain amount of irrigation water, (2) the Farmers thus did not satisfy the final agency action requirement of the APA, and (3) the Farmers' claims were therefore barred by the doctrine of sovereign immunity. The court held in the alternative that the Farmers lacked prudential standing. With respect to four of the Farmers' claims, the district court held that the Farmers lacked constitutional standing.

The Farmers timely...

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