United States v. State Water Res. Control Bd., No. 20-15145

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: M. SMITH, Circuit Judge
• Citation: 988 F.3d 1194
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. STATE WATER RESOURCES CONTROL BOARD; E. Joaquin Esquivel, Board Chair, Defendants-Appellees.
• Decision Date: 24 February 2021
• Docket Number: No. 20-15145

988 F.3d 1194

UNITED STATES of America, Plaintiff-Appellant,
v.
STATE WATER RESOURCES CONTROL BOARD; E. Joaquin Esquivel, Board Chair, Defendants-Appellees.

No. 20-15145

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 13, 2021 San Francisco, California
Filed February 24, 2021

Kenneth A. Klukowski (argued), John L. Smeltzer, Romney Philpott, Erika Norman, and Daniel Halainen, Attorneys; Eric Grant, Deputy Assistant Attorney General; Jonathan D. Brightbill, Principal Deputy Assistant Attorney General; Jeffrey Bossert Clark, Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Michael Gheleta and Amy Aufdemberge, Attorneys, Office of the Solicitor, United States Department of the Interior, Washington, D.C.; for Plaintiff-Appellant.

Dylan Johnson (argued), Deputy Attorney General, Office of the Attorney General, San Diego, California; Mark W. Poole and Tamara T. Zakim, Deputy Attorneys General; Annadel A. Almendras and Michael P. Cayaban, Supervising Deputy Attorneys General; Robert W. Byrne, Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, Oakland, California; for Defendants-Appellees.

Before: CARLOS T. BEA and MILAN D. SMITH, JR., Circuit Judges, and JANE A. RESTANI,^** Judge.

M. SMITH, Circuit Judge:

The United States simultaneously brought suits in the United States District Court for the Eastern District of California and the Superior Court of the State of California for the County of Sacramento. The United States pleaded three identical causes of action under California state administrative law in both suits, and later added a federal constitutional claim to its federal suit. The federal district court stayed the three state law claims pursuant to Colorado River Water Conservation District v. United States , 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), and allowed the federal constitutional claim to proceed.

Our precedent does not allow a partial stay pursuant to Colorado River , except in rare circumstances. Such circumstances do not exist here. Accordingly, we reverse the decision of the district court granting a partial stay, and remand for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

The California State Water Resources Control Board (the Board) is a state agency

988 F.3d 1200

that administers water rights and water quality laws. See Cal. Water Code § 13001. As a part of its responsibilities, the Board manages the San Francisco Bay/Sacramento-San Joaquin Delta Estuary (the Bay-Delta). Included in the Bay-Delta system is the New Melones Dam, which is operated by the United States Bureau of Reclamation. The Bureau of Reclamation must comply with California law in operating the dam. See 43 U.S.C. § 383 ; California v. United States , 438 U.S. 645, 678–79, 98 S.Ct. 2985, 57 L.Ed.2d 1018 (1978).

The Board first adopted a water quality control plan for the Bay-Delta in 1978. In December 2018, after completing a nine-year process, the Board approved an Amended Plan. The Amended Plan made a number of changes to the management of the Bay-Delta, including altering flow objectives and salinity levels. The United States claims that these changes adversely affect operation of the New Melones Dam.

On March 28, 2019, the United States simultaneously filed separate suits against the Board in state and federal court.¹ In federal district court, the United States asserted jurisdiction pursuant to 28 U.S.C. § 1345. Section 1345 allows the United States to bring suits in federal court consisting entirely of state law claims. See United States v. California , 328 F.2d 729, 734 (9th Cir. 1964) ; Barrett v. United States , 853 F.2d 124, 130 (2d Cir. 1988).

In the federal court action, the United States initially alleged the same three causes of action as pleaded in the state court action. The United States claimed that the Board violated various provisions of the California Environmental Quality Control Act (CEQA), an administrative statute that partially governs the Board's actions. See Cal. Pub. Res. Code § 21000 et seq. After the Board moved to dismiss the federal suit, the United States filed a First Amended Complaint only in the federal suit. In that amended complaint, the United States asserted that the Board also discriminated against the United States under the intergovernmental immunity doctrine of the federal Constitution. See generally United States v. California , 921 F.3d 865, 878 (9th Cir. 2019).

In both the state and federal complaints, the United States informed each court of the existence of the other suit, and noted that the federal district court was its preferred forum. To the California Superior Court, the United States stated that the "action in federal district court preserves [the United States'] preferred choice of a federal forum to resolve its claims." The United States brought the state court suit "only out of an abundance of caution in the event that, for any reason, [the United States'] federal suit is not adjudicated on the merits in federal court and to ensure that the state statute of limitations was scrupulously complied with."

Similarly, the United States informed the federal district court that it "filed this action in federal district court to preserve its choice of a federal forum to resolve its claims." The United States noted that it "concurrently filed a similar action in California state court in Sacramento County, asserting claims under CEQA (but not the Intergovernmental Immunity doctrine)."

Between December 2018 and April 2019, parties other than the United States filed eleven additional suits in California state court asserting CEQA violations based on the Amended Plan. On May 8, 2019, a California state judge coordinated eleven of the cases, but did not coordinate the United States' case, as the United States had previously moved for a stay in its state

988 F.3d 1201

court case pending the resolution of its federal case. On May 24, 2019, the Board asked that the United States' case in state court also be coordinated. As of the date of the district court's decision in this case, that state court motion was still pending.²

The Board asked the district court to abstain from hearing the case or stay the case pursuant to Colorado River . The district court denied abstention under a number of doctrines, including Railroad Commission of Texas v. Pullman Company , 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). See United States v. State Water Res. Control Bd. , 418 F. Supp. 3d 496, 504–15 (E.D. Cal. 2019).

Next, the district court considered whether it could issue a Colorado River stay. The district court noted that we have "not addressed the propriety of issuing a partial Colorado River stay, but district courts in the Ninth Circuit [have] found partial stays permissible, ‘where some, but not all, of a federal plaintiff's claims are pending in a parallel state action.’ " Id. at 516 (quoting Krieger v. Atheros Comm'cs, Inc. , 776 F. Supp. 2d 1053, 1060–61 (N.D. Cal. 2011) ). Based on this precedent from other district courts, the district court examined the CEQA and intergovernmental immunity claims separately for the purposes of conducting a Colorado River analysis. The district court decided that the Colorado River factors weighed against staying the intergovernmental immunity claim, but that those factors weighed in favor of staying the CEQA claims. See id. at 516–19. The district court ultimately stayed the CEQA claims "until further notice," but allowed the intergovernmental immunity claim to proceed, subject to further briefing on ripeness and standing. Id. at 519–24.

The United States appealed the Colorado River stay. The Board did not cross-appeal the district court's decision to deny abstention pursuant to Pullman .

II. JURISDICTION AND STANDARD OF REVIEW

Ordinarily, we have "jurisdiction to review a Colorado River stay order pursuant to 28 U.S.C. § 1291." Seneca Ins. Co., Inc. v. Strange Land, Inc. , 862 F.3d 835, 840 (9th Cir. 2017) (citing Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp. , 460 U.S. 1, 9–13, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) ). In Moses H. Cone , the Supreme Court determined that a Colorado River stay was a final appealable order pursuant to § 1291 because "a stay of the federal suit pending resolution of the state suit meant that there would be no further litigation in the federal forum." Moses H. Cone , 460 U.S. at 10, 103 S.Ct. 927. The question of whether a partial Colorado River stay is a final order pursuant to § 1291 might be a distinct question. With a partial stay, there is still "further litigation in the federal forum." Id. The federal district court would still have to adjudicate the non-stayed claims. Thus, it is unclear whether we would have jurisdiction pursuant to the normal finality rules of § 1291.

However, the Supreme Court alternatively held that even if the district court "order were not final for appealability purposes, it would nevertheless be appealable within the exception to the finality rule under

988 F.3d 1202

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