Westlands Water Dist. v. Natural Resources Defense Council
| Decision Date | 21 December 1994 |
| Docket Number | 94-16108 and 94-16149,Nos. 94-16092,s. 94-16092 |
| Citation | 43 F.3d 457 |
| Parties | , 25 Envtl. L. Rep. 20,371 WESTLANDS WATER DISTRICT; San Benito County Water District; San Luis Water District; Panoche Water District, et al., Plaintiffs-Appellees, v. NATURAL RESOURCES DEFENSE COUNCIL; United Anglers of California; Save San Francisco Bay Association; California Waterfowl Association; Sierra Club; Bay Institute of San Francisco; Environmental Defense Fund, et al., Intervenors, v. UNITED STATES DEPARTMENT OF INTERIOR; United States Department of Reclamation; United States Fish and Wildlife Service; Bruce Babbitt, in his official capacity as the Secretary of the Interior; United States Department of Commerce; The National Marine Fisheries Service; and Ronald Brown, in his official capacity as Secretary of Commerce, et al., Defendants-Appellants. WESTLANDS WATER DISTRICT; San Benito County Water District; San Luis Water District; Panoche Water District, et al., Plaintiffs-Appellees, v. UNITED STATES DEPARTMENT OF INTERIOR; United States Department of Reclamation; United States Fish and Wildlife Service, Defendants, and Bruce Babbitt, in his official capacity as the Secretary of the Interior; United States Department of Commerce; The National Marine Fisheries Service; and Ronald Brown, in his official capacity as Secretary of Commerce, et al., Defendants-Appellants, and Natural Resources Defense Council; United Anglers of California; Save San Francisco Bay Association; California Waterfowl Association; Sierra Club; Bay Institute of San Francisco; Environmental Defense Fund, et al., Defendants-Intervenors-Appellants. WESTLANDS WATER DISTRICT; San Benito County Water District, Plaintiffs-Appellees, v. UNITED STATES DEPARTMENT OF INTERIOR; United States Department of Reclamation; United States Fish and Wildlife Service, Defendants, v. GRASSLAND WATER DISTRICT; and Grassland Resource Conservation District, Defendants-Intervenors-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Andrea Nervi Ward, U.S. Dept. of Justice, Washington, DC, for defendants-appellants.
Thomas W. Birmingham & William T. Chisum, Kronick, Moskovitz, Tiedemann & Girard, Sacramento, CA, for plaintiffs-appellees.
Brian E. Gray, San Francisco, CA, for defendants-intervenors-appellants Nat. Resources Defense Council, et al.
Daniel L. Cardozo, Adams & Broadwell, South San Francisco, CA, for defendants-intervenors-appellants Grassland Water Dist. and Grassland Resource Conservation Dist David J. Guy, California Farm Bureau Federation, Sacramento, CA, for amicus curiae.
Appeals from the United States District Court for the Eastern District of California.
Before: CHOY, FARRIS, and BRUNETTI, Circuit Judges.
Several water districts seek to enjoin the implementation of sections 3406(b)(2) and (d)(1) of the Central Valley Project Improvement Act. They contend that the Secretary of Interior must first complete an environmental impact statement as required by NEPA. The district court granted the water districts' motion for a preliminary injunction. The Secretary and environmental defendants appeal. We have jurisdiction pursuant to 28 U.S.C. Sec. 1292(a)(1) and vacate the preliminary injunction.
California's Central Valley is one of the most fertile agricultural regions in the United States. Several state and federal water projects, including the federal Central Valley Project, make this agricultural productivity possible by diverting water from streams that flow out of the Sierra mountains. These water projects produce many agricultural and economic benefits, but the water diversions harm wildlife habitats and ecological resources. In addition, agricultural water users consume most of California's developed water yet comprise only a small fraction of California's population. As urban populations continue to grow, urban water users are demanding more water. In 1992, Congress enacted the Central Valley Project Improvement Act, Pub.L. No. 102-575, title 34, 106 Stat. 4706. The Act reallocates a portion of federal reclamation water away from farmers to rehabilitate environmental and wildlife resources, and makes more water available to urban areas through water transfers.
Agricultural water users have filed two lawsuits to prevent the implementation of the CVPIA. In a companion case, O'Neill v. United States, No. 93-17154, farmers allege, among other things, that the CVPIA violates water service contracts between the United States and Westlands Water District. In this case, Westlands and other local water districts seek to enjoin implementation of sections 3406(b)(2) and (d)(1), two of the CVPIA's fish and wildlife provisions. They contend that implementation would violate the National Environmental Policy Act, 42 U.S.C. Sec. 4332 (1988). The district court granted their motion for a preliminary injunction, holding that (1) the water districts were likely to succeed in their NEPA claim and (2) the harm to the water districts would outweigh the harms cited by the Secretary and environmental defendants.
The water districts are entitled to a preliminary injunction if they demonstrate (1) a likelihood of success on the merits and a possibility of irreparable injury or (2) the existence of serious questions on the merits and a balance of hardships tipping in their favor. National Wildlife Fed'n v. Burlington N. R.R., 23 F.3d 1508, 1510 (9th Cir.1994). The two tests are not separate but represent a sliding scale in which the required probability of success on the merits decreases as the degree of harm increases. Oakland Tribune, Inc. v. Chronicle Publishing Co., 762 F.2d 1374, 1376 (9th Cir.1985). If the public interest is involved, the district court must also determine whether the public interest favors the water districts. Fund For Animals, Inc. v. Lujan, 962 F.2d 1391, 1400 (9th Cir.1992). We review the legal issues underlying the district court's preliminary injunction de novo. Miller v. California Pac. Medical Ctr., 19 F.3d 449, 455 (9th Cir.1994) (en banc).
The water districts make three arguments why NEPA should apply to the CVPIA: Sections 3406(b)(2) and (d)(1) of the CVPIA are not in conflict with NEPA; even if these sections conflict with NEPA, section 3406(b) overrides the language in sections 3406(b)(2) and (d)(1); and section 3409 does not exempt the CVPIA from NEPA compliance.
NEPA directs that, "to the fullest extent possible ... public laws of the United States shall be interpreted and administered in accordance with [NEPA]." 42 U.S.C. Sec. 4332 (1988). We give NEPA the broadest possible interpretation. Jones v. Gordon, 792 F.2d 821, 826 (9th Cir.1986). Only if there is an "irreconcilable" conflict between the statute and NEPA will the requirements of NEPA not apply. Id. An irreconcilable conflict is created if a statute mandates a fixed time period for implementation and this time period is too short to allow the agency to comply with NEPA. See Flint Ridge Development Co. v. Scenic Rivers Ass'n, 426 U.S. 776, 791, 96 S.Ct. 2430, 2439, 49 L.Ed.2d 205 (1976) (). If, however, the statute "does not require [implementation] within any particular period," NEPA will be applicable. Jones, 792 F.2d at 826.
The Secretary and environmental appellants contend that sections 3406(b)(2) and (d)(1) irreconcilably conflict with NEPA, and therefore the Secretary may implement those sections without first conducting an environmental impact statement. Section 3406(b)(2) provides:
[U]pon enactment of this title [the Secretary of Interior shall] dedicate and manage annually eight hundred thousand acre-feet of Central Valley Project yield for the primary purpose of implementing the fish, wildlife, and habitat restoration purposes and measures authorized by this title ...
106 Stat. at 4715. Section 3406(d)(1) directs the Secretary "[u]pon enactment of this title" to deliver a specified amount of water to wetlands within the Central Valley. 106 Stat. at 4722-23.
Giving the phrase "upon enactment of this title" its plain meaning, Farr v. United States, 990 F.2d 451, 455 (9th Cir.1993), an irreconcilable conflict exists between NEPA and sections 3406(b)(2) and (d)(1). The phrase means that implementation is triggered by enactment. Unlike Jones and even other sections within the CVPIA, Congress did not give the Secretary discretion over when he may carry out his duties under these sections. See, e.g., Sec. 3406(b)(1), 106 Stat. at 4714-15 (); Sec. 3406(b)(4), 106 Stat. at 4717 ().
This interpretation of sections 3406(b)(2) and (d)(1) is consistent with other sections in the CVPIA. Under section 3409, the Secretary must complete a programmatic EIS studying fish and wildlife restoration actions and the cumulative affect of renewing all water service contracts. While sections 3406(b)(2) and (d)(1) require implementation of fish and wildlife actions "upon enactment," the language pertaining to renewal of water service contracts is strikingly different:
No such renewals [of existing long-term contracts] shall be authorized until appropriate environmental review, including the preparation of the environmental impact statement required in section 3409 of this title, has been completed.
Sec. 3404(c)(1), 106 Stat. at 4709. The contrasting text of the CVPIA indicates that Congress intended for the Secretary to implement the fish and...
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