Tehama-Colusa Canal Auth. v. United States Dep't of the Interior, No. 1:10–cv–0712 OWW DLB.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtOLIVER W. WANGER
Citation819 F.Supp.2d 956
PartiesTEHAMA–COLUSA CANAL AUTHORITY, Plaintiff, v. UNITED STATES DEPARTMENT OF the INTERIOR; Kenneth Lee Salazar, in his official capacity as Secretary of the Interior; United States Bureau of Reclamation; Michael L. Connor, in his official capacity as the Commissioner of Reclamation, and Donald R. Glaser, in his official capacity as Regional Director of the Bureau of Reclamation for the Mid–Pacific Region, Defendants,San Luis & Delta–Mendota Water Authority, Defendant–Intervenor,Westlands Water District, Defendant–Intervenor.
Docket NumberNo. 1:10–cv–0712 OWW DLB.
Decision Date02 August 2011

819 F.Supp.2d 956

TEHAMA–COLUSA CANAL AUTHORITY, Plaintiff,
v.
UNITED STATES DEPARTMENT OF the INTERIOR; Kenneth Lee Salazar, in his official capacity as Secretary of the Interior; United States Bureau of Reclamation; Michael L. Connor, in his official capacity as the Commissioner of Reclamation, and Donald R. Glaser, in his official capacity as Regional Director of the Bureau of Reclamation for the Mid–Pacific Region, Defendants,San Luis & Delta–Mendota Water Authority, Defendant–Intervenor,Westlands Water District, Defendant–Intervenor.

No. 1:10–cv–0712 OWW DLB.

United States District Court, E.D. California.

Aug. 2, 2011.


[819 F.Supp.2d 960]

Steven Paul Saxton, Ellen Lee Trescott, Kevin M. O'Brien, Downey Brand LLP, Sacramento, CA, James Mark Atlas, J. Mark Atlas, Attorney at Law, Willows, CA, for Plaintiff.

David Gehlert, Gov't, United States Department of Justice, Denver, CO, Charles Ray Shockey, United States Department of Justice, Sacramento, CA, for Defendants.

[819 F.Supp.2d 961]

Rebecca Rose Akroyd, Hanspeter Walter, Daniel Joseph O'Hanlon, Kronick Moskovitz Tiedemann & Girard, Sacramento, CA, for Defendant–Intervenor.

MEMORANDUM DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT (DOCS. 52, 60, 62) AND MOTION TO STRIKE (DOC. 77)
OLIVER W. WANGER, District Judge.
+----------------------------------------------------------------------------+
                ¦I. ¦INTRODUCTION ¦962 ¦
                +----+----------------------------------------------------------------+------¦
                ¦ ¦ ¦ ¦
                +----+----------------------------------------------------------------+------¦
                ¦II. ¦PROCEDURAL BACKGROUND ¦963 ¦
                +----+----------------------------------------------------------------+------¦
                ¦ ¦ ¦ ¦
                +----+----------------------------------------------------------------+------¦
                ¦III.¦JURISDICTION ¦963 ¦
                +----------------------------------------------------------------------------+
                
 A. 5 U.S.C. § 706(2) 964
                 B. 5 U.S.C. § 706(1) 964
                
IV. HISTORICAL BACKGROUND 965
                
 A. CREATION OF THE CVP 965
                 B. OPERATION OF THE CVP 967
                 C. ALLOCATION OF CVP WATER 967
                 D. STATE LAW AREA OF ORIGIN STATUTES 967
                
 1. THE CALIFORNIA ATTORNEY GENERAL ANALYZES THE AREA OF ORIGIN STATUTES 968
                 THE BUREAU'S PERMITS FOR CVP WATER SUPPLY ARE CONDITIONED TO PROTECT APPROPRIATION OF WATER WITHIN THE AREA OF ORIGIN
                 2. 968
                 3. APPLICATION OF THE AREA OF ORIGIN STATUTES BY SWRCB AND REJECTION OF TCCA CLAIM FORPREFERENCE TO CVP WATER 969
                
 E. THE DISPUTED CVP WATER SERVICE CONTRACTS 970
                
 TCCA MEMBERS' RIGHT TO CVP WATER UNDER THEIR LONG–TERM CVP WATER SERVICE CONTRACTS
                 1. 971
                 2. INTERIM CONTRACTS 972
                 NEGOTIATION OF CURRENTLY OPERATIVE TCCARENEWAL CONTRACTS: THE BUREAU'SINTERPRETATION AND PERFORMANCE
                 3. 972
                 TCCA ACCEPTS LONG–TERM RENEWAL CONTRACTSWITHOUT PRIORITY ALLOCATION TERMS: THESHORTAGE PROVISIONS
                 4. 973
                 5. TCCA MEMBERS' VALIDATION OF ALL RENEWALCONTRACTS IN STATE COURT 974
                 6. EXECUTION BY PERFORMANCE AND CONDUCT UNDER THE TCCA RENEWAL CONTRACTS 974
                
V. STANDARDS OF DECISION 975
                
                
VI. LAW AND ANALYSIS 975
                
 A. STATUTE OF LIMITATIONS 975
                 B. CVP STATUTES AND SECTION 11460 DO NOT CONTAIN ORSUPPORT THE PRIORITY ALLOCATION RIGHT TO CVPWATER THAT TCCA ADVANCES 975
                
 1. STATUTORY INTERPRETATION OF THE CVP STATUTES 976
                
 a. Plain Language 976
                 b. Legislative History of the CVP Statutes 977
                
 2. STATUTORY INTERPRETATION OF SECTION 11460 978
                
 a. Plain Language 978
                 b. Decades of Consistent Interpretation By the California Attorney General, the SWRCB, and the Bureau is That Section 11460 Governs Appropriation Not Allocation of Water in the Area of Origin 979
                
 i. Attorney General Opinion 979
                 ii. The Bureau's Interpretation of Reclamation Law 980
                 iii. The SWRCB Has Independently Interpreted Section 1146 0 in the same manner as the AG Op. 981
                
 SECTION 11460's INTERPRETATION BY THE AG Op., SWRCB, AND THE BUREAU ARE ALL CONSISTENT WITH THE PERMIT TERMS
                 3. 981
                 4. SUBSEQUENT LEGISLATIVE ACTS 982
                 5. CALIFORNIA CASE LAW 982
                
 a. The El Dorado and Phelps Decisions 983
                 b. The SWRCB Cases Provide No Binding Or PersuasivePrecedent 984
                
 6. Plaintiff's Interpretation of Section 11460 Conflicts With TheCongressional Directive of the 1950 Act 985
                
 C. CONCLUSION RE: STATUTES 986
                 D. INTERPRETATION OF LONG–TERM CVP WATER SERVICECONTRACTS 987
                
 1. FEDERAL CONTRACT LAW 987
                 STANDARDS RE: THE BUREAU'S STATUTORY DISCRETION TO APPORTION CVP WATER IN TIMES OF SHORTAGE
                 2. 988
                 3. TCCA MEMBER LONG–TERM CVP CONTRACTS: SHORTAGE TERMS 989
                
 a. Discretionary Interpretive Authority in Renewal Contract Shortage Provisions 989
                 The Renewal Contract's Shortage Provisions Are Not aLimitation on the Bureau's Discretion to Apportion Contract Water
                 b. 990
                 Article 18(a) in Not a Limitation on the Bureau's Discretion to Apportion Contract Water
                 c. 993
                 d. Article 3 and 1(u) Are Not a Limitation on the Bureau's Discretion to Apportion Contract Water 993
                
 4. CONTRACT NEGOTIATION AND PERFORMANCE 993
                 5. CONCLUSION RE: INTERPRETATION OF THE CONTRACT RENEWAL TERMS 995
                 6. EFFECT OF TCCA RENEWAL CONTRACT VALIDATION 996
                
 E. THE BAR OF EQUITABLE ESTOPPEL 998
                 F. PLAINTIFF'S FUTILITY ARGUMENT IS WITHOUT MERIT 1000
                
VII. CONCLUSION 1000
                

[819 F.Supp.2d 962]

I. INTRODUCTION.

This lawsuit is brought by an association of Federal Water Contractors for federal water from the Sacramento River Division of the Central Valley Project (“CVP”) north of the San Joaquin–Sacramento Delta against the United States Department of the Interior (“Interior”), its Secretary, the Bureau of Reclamation (“Bureau”), and its Regional Director of the Mid–Pacific Region, and by Defendant–Intervenors, San Luis & Delta–Mendota Water Authority and Westlands Water District, Federal Contractors, who use CVP water on lands south of the Sacramento–San Joaquin Delta, and seeks to establish superior water rights under CVP water service contracts in the Sacramento Valley, which would limit and exclude export of CVP water south of the Delta, until after Plaintiff and its Members first receive 100% of their allocated CVP contractual water supply.

The Plaintiff, Tehama Colusa Canal Authority (“TCCA”), a Joint Powers Authority organized under the laws of the State of California, is comprised of 16 water agency members on whose behalf the case is brought. Cal. Gov't Code § 6500, et seq. Plaintiff filed this suit on February 11, 2010, seeking injunctive and declaratory

[819 F.Supp.2d 963]

relief against implementation of the shortage provisions of Federal water service contracts under the Federal Administrative Procedure Act (“APA”), 5 U.S.C. §§ 702 to 706. Specifically, §§ 706(1) and 706(2).

II. PROCEDURAL BACKGROUND

After TCCA filed its complaint February 11, 2010, Defendant–Intervenors, San Luis & Delta–Mendota Water Authority and Westlands Water District were granted leave to intervene on April 16, 2010. Doc. 23; Doc. 34. The case was reassigned to this Court on April 23, 2010. Doc. 30. Federal Defendants filed the Administrative Record on July 16, 2010, and filed a Supplemental Administrative Record on October 14, 2010. Doc. 39; Doc. 43. On December 1, 2010 Plaintiff filed a motion for summary judgment. Doc. 52. Federal Defendants and Defendant–Interveners filed cross-motions for summary judgment on July 1, 2010. Doc. 60, 62, respectively.1

III. JURISDICTION

Jurisdiction exists under 28 U.S.C. § 1331, as this case arises under the laws of the United States, specifically, § 8 of the United States Reclamation Act of 1902. Reclamation Act of 1902, ch. 1093, § 8, 32 Stat. 390 (codified at 43 U.S.C. § 383 (2006)). Section 8 is part of Federal Reclamation law that governs the Bureau's operation of the CVP Act, authorizing the construction, repair, and preservation of certain public works on rivers and harbors, Pub.L. No. 75–392, § 2, 50 Stat. 844, 850 (1937), as amended and supplemented, August 4, 1939 (53 Stat. 1187), July 2, 1956 (70 Stat. 483), June 21, 1963 (77 Stat. 68), October 12, 1982 (96 Stat. 1263), as amended and supplemented October 27, 1986 (100 Stat. 3050), and Title XXXIV of the Act of October 30, 1992 (106 Stat. 4706) (Central Valley Project Improvement Act (“CVPIA”)) collectively referred to as “Reclamation Law;” (authorizing the Central Valley Project); S. Delta Water Agency v. United States, 767 F.2d 531, 536 (9th Cir.1985).

Jurisdiction is also invoked under the APA. Section 702 of the APA waives the sovereign immunity of the United States, its agencies, and its individual officers acting in their official capacity. U.S. v. Park Place Associates, Ltd., 563 F.3d 907, 929, n. 15 (9th Cir.2009) (APA waives sovereign immunity but does not confer federal jurisdiction). APA Section 704 authorizes review of “final agency action for which there is no other adequate remedy in a court.” Because neither Federal Reclamation law nor California Water Code (“CWC”) § 11460 (“Section 11460”) grants a right of judicial review, the APA provides the appropriate standard of decision. S. Delta Water Agency, 767 F.2d at 536–541 (holding that a claim that the Bureau's operation of the CVP violated Section 11460 was reviewable under the APA.)

Plaintiff's declaratory and injunctive relief claims arise under 28 U.S.C. § 1361, 43 U.S.C. § 383, 28 U.S.C. § 2201 (declaratory relief) and Fed. R. Civ. Proc. 65 (injunctive relief).

Plaintiff claims 16 of its public agency members that supply water to agricultural or municipal and industrial water users or to both, received water from the CVP through the CVP's Tehama–Colusa and/or Corning Canals pursuant to a “Long–Term Renewal Contract Providing for Project Water Service From the Sacramento River Division” between each member and the

[819 F.Supp.2d 964]

Bureau. TCCA, in turn, has a separate contract with the Bureau under which TCCA operates and maintains the Tehama–Colusa and Corning Canals and their related facilities on behalf of its members. All Defendants' water service contracts are entered into and performed under Reclamation law.

Plaintiff and its Members' first claim is based on the Bureau allegedly:

a) Reducing Plaintiff's water...

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8 practice notes
  • Natural Res. Def. Council v. Norton, Case No. 1:05-cv-01207 LJO-EPG
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • October 20, 2016
    ...conduct, related agreements, and industry-wide custom;Page 37 (5) whether a contract (or any term) is ambiguous is a question of law.819 F. Supp. 2d 956, 987-88 (E.D. Cal. 2011) (certain internal citations and all footnotes omitted). It is not clear how any of the offered conduct-based exam......
  • G.P.P., Inc. v. Guardian Prot. Prods., Inc., Case No. 1:15-cv-00321-SKO
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • January 18, 2017
    ...and Tennessee Agreements, as a whole, for further guidance. See,Page 18 e.g., Tehama-Colusa Canal Auth. v. U.S. Dep't of Interior, 819 F. Supp. 2d 956, 987 (E.D. Cal. 2011) ("A written contract must be read as a whole and every part interpreted with reference to the whole, with preference g......
  • Clear Creek Cmty. Servs. Dist. v. United States, No. 10-420C
    • United States
    • Court of Federal Claims
    • May 17, 2017
    ...for natural flow, not contracts for water stored in Federal CVP facilities." Id. (citing Tehama-Colusa Canal Auth. v. United States, 819 F. Supp. 2d 956, 1001 (E.D. Cal. 2011)). In other words, defendant argues that area of origin laws do not confer on plaintiff a preferential right to wate......
  • City of Fresno v. United States, 16-1276C
    • United States
    • Court of Federal Claims
    • June 6, 2022
    ...and the intention of the parties as manifested thereby.") (cleaned up); see, e.g., Tehama-Colusa Canal Auth. v. U.S. Dep't of Interior, 819 F.Supp.2d 956, 965, 988 (E.D. Cal. 2011) ("The Bureau [of Reclamation] has contractual authority and administrative discretion over how it provides wat......
  • Request a trial to view additional results
8 cases
  • Natural Res. Def. Council v. Norton, Case No. 1:05-cv-01207 LJO-EPG
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • October 20, 2016
    ...conduct, related agreements, and industry-wide custom;Page 37 (5) whether a contract (or any term) is ambiguous is a question of law.819 F. Supp. 2d 956, 987-88 (E.D. Cal. 2011) (certain internal citations and all footnotes omitted). It is not clear how any of the offered conduct-based exam......
  • G.P.P., Inc. v. Guardian Prot. Prods., Inc., Case No. 1:15-cv-00321-SKO
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • January 18, 2017
    ...and Tennessee Agreements, as a whole, for further guidance. See,Page 18 e.g., Tehama-Colusa Canal Auth. v. U.S. Dep't of Interior, 819 F. Supp. 2d 956, 987 (E.D. Cal. 2011) ("A written contract must be read as a whole and every part interpreted with reference to the whole, with preference g......
  • Clear Creek Cmty. Servs. Dist. v. United States, No. 10-420C
    • United States
    • Court of Federal Claims
    • May 17, 2017
    ...for natural flow, not contracts for water stored in Federal CVP facilities." Id. (citing Tehama-Colusa Canal Auth. v. United States, 819 F. Supp. 2d 956, 1001 (E.D. Cal. 2011)). In other words, defendant argues that area of origin laws do not confer on plaintiff a preferential right to wate......
  • City of Fresno v. United States, 16-1276C
    • United States
    • Court of Federal Claims
    • June 6, 2022
    ...and the intention of the parties as manifested thereby.") (cleaned up); see, e.g., Tehama-Colusa Canal Auth. v. U.S. Dep't of Interior, 819 F.Supp.2d 956, 965, 988 (E.D. Cal. 2011) ("The Bureau [of Reclamation] has contractual authority and administrative discretion over how it provides wat......
  • Request a trial to view additional results

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