Firebaugh Canal Co, et al v. USA, et al

Filing 806

MEMORANDUM Decision Re: Plaintiffs' Motion To Supplement The Administrative Record 765 , signed by Judge Oliver W. Wanger on 9/17/2010. The motion to supplement the record is GRANTED as to 815 , 826 , 834 , 835 , and 836 , and DENIED as to all other Documents. Plaintiffs shall prepare a form of order consistent with this memorandum decision within five (5) days of electronic service. (Gaumnitz, R)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants. v. UNITED STATES BUREAU OF RECLAMATION, et al., Plaintiffs, v. UNITED STATES OF AMERICA Defendants. SUMNER PECK RANCH, et al., MEMORANDUM DECISION RE PLAINTIFFS' MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORD (DOC. 765) FIREBAUGH CANAL WATER DISTRICT, et al., Plaintiffs, 1:88-cv-00634 OWW DLB Partially Consolidated With: 1:91-cv-00048 OWW DLB UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

I. INTRODUCTION. Before the court for decision is Central California Irrigation District and Firebaugh Canal Water District's ("Plaintiffs") motion to supplement the Administrative Record ("AR") with twenty-two (22) additional documents. 1 Doc. 765. Of

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those, Federal Defendants have agreed to add four (listed below) to the AR, but object to the remaining eighteen (18). Doc. 793.

Defendants Westlands Water District, Panoche Water District, and Panoche Drainage District ("District Defendants") object to supplementation of the record with any of the documents. 795. Doc.

District Defendants also request that "the scope of the

issues remaining before the Court and the scope of the AR should be clarified prior to the upcoming motions for summary judgment...." the motion. Id. Environmental Intervenors take no position on Plaintiffs filed a reply. Doc. 802.

Doc. 796.

The sole remaining claim against Federal Defendants in this case concerns the Bureau of Reclamation's ("Reclamation" or the "Bureau") alleged failure to provide drainage service to the San Luis Unit pursuant to Section 1(a) of the San Luis Act. 1:91-cv-0048 OWW DLB, Nov. 19, 2004 Mem. Dec. ("11/19/04 Decision") at 25, 28-29, 36, 42. This claim arises under Section See

706(1) of the Administrative Procedure Act ("APA"), 5 USC § 706(1), which permits a reviewing court to "compel agency action unlawfully withheld or unreasonably delayed." II. APPLICABLE LEGAL STANDARD The APA generally limits the scope of judicial review to the administrative record. 5 U.S.C. § 706 (directing the court to

"review the whole record or those parts of it cited by a party."). "When a plaintiff challenges a final agency action, 2

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judicial review normally is limited to the administrative record in existence at the time of the agency's decision." Friends of

The Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir. 2000). Under such circumstances, the agency is only required to "justify its final action by reference to the reasons it considered at the time it acted." Id.

However, where a plaintiff invokes 5 U.S.C. § 706(1) to compel an agency to take an action mandated by law, "review is not limited to the record as it existed at any single point in time, because there is no final agency action to demarcate the limits of the record." Id. (emphasis added); see also

Independence Min. Co., Inc. v Babbitt, 105 F.3d 502, 511-12 (where "court is examining an agency's actions prior to final agency decision for purpose of measuring agency delay,... there is no date certain by which to evaluate an agency's justifications for its actions."). The reason for this

distinction is that, "when a court is asked to review agency inaction before the agency has made a final decision, there is often no official statement of the agency's justification for its actions or inactions." San Francisco Baykeeper v. Whitman, 297 Friends of the Clearwater defines

F.3d 877, 886 (9th Cir. 2002).

an exception to the record review rule for cases challenging agency delay.1
Plaintiffs invoke a list of eight exceptions to the record review rule, which appear to come from Esch v. Yeutter, 876 F.2d 976, 992 (D.C. Cir.
1

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1989):

The caselaw provides limited guidance on the application of this exception. Friends of the Clearwater, a case challenging

the Forest Service's failure to prepare a supplemental environmental impact statement ("SEIS") under NEPA, supplemented the record with studies prepared by the Forest Service after the agency sent plaintiffs a letter refusing to prepare a SEIS. F.3d at 560-61. 222

Likewise, in San Francisco Baykeeper, the Ninth

Circuit permitted consideration of an extra-record program review document describing past and ongoing agency action. 886. 297 F.3d at

The district court in Consejo de Desarrollo Economico de

Mexicali, AC v. United States, 438 F. Supp. 2d 1207, 1221 (D.

(1) when agency action is not adequately explained in the record before the court; (2) when the agency failed to consider factors which are relevant to its final decision; (3) when an agency considered evidence which it failed to include in the record; (4) when a case is so complex that a court needs more evidence to enable it to understand the issues clearly; (5) in cases where evidence arising after the agency action shows whether the decision was correct or not; (6) in cases where agencies are sued for a failure to take action; (7) in cases arising under the National Environmental Policy Act; and (8) in cases where relief is at issue, especially at the preliminary injunction stage. (emphasis added). The sixth Esch exception parallels the exception articulated in Friends of the Clearwater. Federal Defendants and District Defendants entirely ignore the Friends of the Clearwater line of cases, and instead insist on applying the familiar four exceptions permitting supplementation in 706(2) cases when: (1) necessary to determine if the agency considered all factors and explained its decision; (2) the agency relied on documents not in the record; (3) necessary to explain technical terms or complex subjects; or (4) there has been a showing of bad faith. Fence Creek Cattle Co. v. United States Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010)(citing Lands Council v. Powell, 395 F.3d 1019, 1029 (9th Cir 2005). A court is not limited to those four exceptions in a 706(1) case.

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Nev. 2006), rev'd on other grounds, 482 F.3d 1157 (9th Cir. 2007), a 706(1) action to compel agency action unlawfully withheld, applied the Friends of the Clearwater exception more broadly, refusing to limit its review to the administrative record and those documents that met one of the Lands Council exceptions, instead considering "materials submitted by Plaintiffs as they relate to the present matter."

III. ANALYSIS A. The Lodged Administrative Record. Federal Defendants lodged a certified AR consisting of more than 38,700 pages on March 21, 2010. drainage-related decisions: The documents concern three

(1) the 2007 Record of Decision,

with a feasibility report to Congress, on the San Luis Drainage Feature Re-Evaluation ("2007 SLDFR ROD"); (2) the development, issuance, and implementation of Use Agreements for the San Luis Drain through the Grasslands Bypass Project, including a related 2009 Record of Decision ("2009 GBP ROD"); and (3) Reclamation's approval of funding agreements for local drainage projects, including projects consistent with the Westside Regional Drainage Plan. In general, the AR documents largely date to the early

1990s and later, after reclamation began to consider "in-valley" drainage treatment and disposal options following the closure of Kesterson Reservoir. included. 5 A few earlier reference documents are also

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B.

Scope of the Remaining Claims in this Case. Whether it is appropriate to supplement the record with the

offered documents turns, in part, on the purpose(s) for which the documents are offered. It is undisputed that only an APA Section To prevail on a 706(1) claim, (1) an agency had a

706(1) claim remains in this case. Plaintiffs must demonstrate that:

nondiscretionary duty to act; and (2) the agency either unreasonably delayed or unlawfully withheld an action on that duty. Timbisha Shoshone Tribe v. Salazar, 697 F. Supp. 2d 1181,

1187 (E.D. Cal. 2010) (citing Norton v. S. Utah Wilderness Alliance ("SUWA"), 542 U.S. 55, 63-64 (2004)). The nature of the drainage duty owed by Federal Defendants has been circumscribed by the Ninth Circuit's ruling in Firebaugh Canal Co. v. U.S., 203 F.3d 568, 574, 576 (9th Cir. 2000), which acknowledged that "the San Luis Act clearly expresses the intent of Congress to provide for the interceptor drain prior to the construction of the San Luis Unit," approved of the "district court's finding that the San Luis Act mandated the Secretary to provide the interceptor drain," and further found that the "district court properly held that [subsequent] appropriations riders, without more, failed to repeal the Secretary's duty to provide drainage under the San Luis Act." findings "d[id] not end the inquiry": The Government contends that Congress, through actions taken after the San Luis Act, has encouraged the Department of Interior to investigate and pursue 6 However, these

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drainage solutions other than the interceptor drain contemplated by the San Luis Act. Since the late 1970s, Congress has appropriated funds so that the Bureau of Reclamation could, in cooperation with the State, local water districts, and other entities, examine solutions to drainage other than the construction of the master drain.FN6 We reject the Government's contention that this action has eliminated the Bureau's duty to provide drainage; however, we do find that the subsequent Congressional action supplements the drainage solutions available to the Department of the Interior. See City of Los Angeles v. Adams, 556 F.2d 40, 50 (D.C.Cir. 1977); Skoko v. Andrus, 638 F.2d 1154, 1158 (9th Cir. 1979); District of Columbia v. Potomac Elec. Power Co., 402 A.2d 430, 435-36 (D.C. 1979). If, as the district court concluded, the interceptor drain was the only method through which the Department could meet its drainage obligations under the San Luis Act, then the alternative drainage solutions that Congress has supported for years would be superfluous. Thus, although the San Luis Act limits the drainage solution to an interceptor drain to the Contra Costa Delta, the subsequent Congressional action indicates that the Department of the Interior can meet its drainage obligations through means other than the interceptor drain. Therefore, we hold that the subsequent Congressional action has not eliminated the Department's duty to provide drainage, but that it has given the Department the authority to pursue alternative options other than the interceptor drain to satisfy its duty under the San Luis Act. FN 6: See "Reclamation Wastewater and Groundwater Study and Facilities Act of 1992", Pub. L. No. 102-575, §§ 1601-1617, 106 Stat. 4600, 4663 (1992) (enacting 43 U.S.C. §§ 390h to 390h-15 (West Supp.1997)); "Central Valley Project Improvement Act", id. at §§ 3401-3411, 106 Stat. 4600, 4706. Id. at 577. Footnote 6 refers to the Reclamation Wastewater and Groundwater Study and Facilities Act of 1992, Pub. L. No. 102575, §§ 1601-1617, 106 Stat. 4600, 4663 (1992), which generally provides the Secretary of Interior the authority: to undertake a program to investigate and identify opportunities for reclamation and reuse of municipal, industrial, domestic, and agricultural wastewater, and 7

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naturally impaired ground and surface waters, for the design and construction of demonstration and permanent facilities to reclaim and reuse wastewater, and to conduct research, including desalting, for the reclamation of wastewater and naturally impaired ground and surface water. Id. at § 1602(a). The Secretary's ability to implement a program

to reclaim impaired groundwater was limited to measures recommended in a 1990 Management Plan (otherwise known as the "Rainbow Report"): The Secretary shall not investigate, promote or implement, pursuant to this title, any project intended to reclaim and reuse agricultural wastewater generated in the service area of the San Luis Unit of the Central Valley Project, California, except those measures recommended for action by the San Joaquin Valley Drainage Program in the report entitled A Management Plan for Agricultural Subsurface Drainage and Related Problems on the Westside San Joaquin Valley (September 1990). Id. at § 1602(d). The Rainbow Report recommends a complex mix of

"in-valley" solutions, without an interceptor drain with its terminus at the Contra Costa Delta. AR 38352-60.

In light of the Ninth Circuit's decision, the text of the Reclamation Wastewater and Groundwater Study and Facilities Act of 1992 cited therein, and the Rainbow Report, the Bureau has no obligation to construct an interceptor drain so long as the Bureau can find some other solution that works. Plaintiffs

cannot be permitted to pursue a 706(1) claim that the Bureau has unlawfully delayed construction of an interceptor drain, because the Bureau has no absolute, non-discretionary obligation to construct an interceptor drain. The Bureau simply has an 8

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unavoidable obligation to implement some kind of drainage solution. The district court has already so determined in the 11/19/04 Decision, which applied SUWA's holding that a claim under 706(1) can only proceed "where a plaintiff asserts than an agency failed to take a discrete agency action that it is required to take." 11/19/04 Decision at 25 (citing 124 S. Ct. at 2379)(emphasis added). SUWA addressed a challenge to a statute that gave

discretion to agency decisionmakers in the form of broadlyworded, open-ended commands. Id. at 27. Under those

circumstances, the final agency action requirement was not satisfied. Id. Plaintiffs' 706(1) claim regarding the drainage

obligation was distinguished from SUWA because: Here, Congress has given a statutory command to provide a drainage solution for the San Luis Unit. The Ninth Circuit has determined there has been a failure by the Federal Defendants to provide such a solution. Plaintiffs do not challenge the form of the drainage solution, a challenge that might be precluded under SUWA, but rather that Federal Defendants have failed to provide any drainage solution. Plaintiffs § 706 unreasonable delay claim is not barred by the final agency action doctrine. Id. at 28-29.2 ruling.
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Plaintiffs did not seek reconsideration of this

The district court also rejected the argument that Plaintiffs' had standing to sue over the drainage obligation as intended beneficiaries of the San Luis Act. 1:09-cv-00048, Doc. 928 at 46-47; Doc. 948 at 31. Instead, Plaintiffs were found to have standing to assert an APA claim based on failure to provide drainage because Plaintiffs fell within the zone of interest of the San Luis Act. Specifically, Plaintiffs interests are not "so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit." Doc. 948 at 33.

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To the extent Plaintiffs offer these offered documents to prove that the drainage solution the Bureau plans to implement will not prevent impaired groundwater from migrating under their downslope lands, their challenge is to the form of the drainage solution, a use expressly disclaimed by the 11/19/04 Decision. Plaintiffs also suggest that the Bureau has construed its drainage obligation too narrowly, and thereby unlawfully withholds action on its drainage "obligation" (e.g., the alleged obligation to protect downslope landowners). Plaintiffs maintain

certain questions were never addressed by the Firebaugh ruling: [N]amely, whether the duty to provide drainage to the San Luis Unit means intercepting, controlling and disposing of drainage water originating in the San Luis Unit before it does damage to adjoining areas and, if that duty is neglected, whether the duty continues to follow the escaped poor quality drainage water and hydraulic pressure that originated in and was caused by the irrigation of the San Luis Unit by the CVP. Doc. 802 at 2. It is unclear whether this amounts to anything

other than a disguised challenge to the form of the drainage solution. Plaintiffs offer several alternative purposes for the documents. During oral argument, Plaintiffs advanced the theory

that the documents help define the Bureau's duty by demonstrating either: (a) Congress' intent that "drainage" includes "control of the corpus of drainage water" generated by irrigation within the San Luis Unit; or (b) the Bureau's own interpretation of the San Luis Act consistent with that intent. 10 Plaintiffs also suggest

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the documents help to demonstrate that the Bureau's delay in providing drainage is unreasonable under the circumstances. Doc. 766 at 6. These legal theories are not completely Whether these theories justify See

foreclosed by previous decisions.

supplementation of the record with the particular documents offered is a different question. C. Documents Federal Defendants Agree to Add to the Record. Federal Defendants do not object to supplementation of the record with the following four documents: Document 815 (337 pp) -- "San Luis Unit, Central Valley Project, California, A Report on the Feasibility of Water Supply Development" Report of the Regional Director, Substantiating Report and Cooperating Agencies Reports, May 6, 1955. Document 826 (52 pp) -- "San Luis Unit Central Valley Project California Plan for Disposal of Subsurface Agricultural Drainage," United States Department of the Interior, Bureau of Reclamation, June 1, 1969. Document 834 (35 pp) -- Schmidt, K.D. 1988 Report of Aquifer Tests for Shallow Wells in Firebaugh Mendota Area. Unpublished report Prepared for the San Joaquin Valley Drainage Program, Sacramento California, May 16, 1988. Document 835 (53 pp) ­ Schmidt, K.D. 1989 Results of 14 Day Aquifer tests Near Mendota. Unpublished Report Prepared for the San Joaquin Valley Drainage Program, Sacramento, California, February 9, 1989. Federal Defendants concede Documents 834 and 835 were cited in documents already included in the AR and were considered by the decisionmakers. Federal Defendants also agree that Documents 815

and 825 provide relevant historical information. Despite these concessions, District Defendants object to inclusion of these documents in the record. 11 In particular,

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District Defendants maintain that the duty to provide drainage has been conclusively determined to only apply to the lands within the San Luis Unit. Accordingly, District Defendants

question the relevance of Documents 835 and 836, which concern groundwater conditions in the Plaintiffs' service area. Although

there are legitimate questions about the legal significance of these documents, Federal Defendants' concession that these four documents are appropriately included in the record is sufficient to include them. The request to supplement is GRANTED as to District Defendants' objection

Documents 815, 825, 834, and 835.

to the inclusion of these four documents in the AR is OVERRULED.

D.

Many of the Remaining Documents Either Do Not Need to be Added to the Record to be Considered or Are Already Part of the Record.
Many of the documents for which supplementation is sought are:

(a) better considered through the mechanism of judicial notice, (b) citable legal authorities that can be referenced as a matter of law, or (c) already part of the record.

1.

Documents 816-817, 828-829, 831-832 Are Best Considered through the Mechanism of Judicial Notice.

This group of documents consists of transcripts, or portions of transcripts, before committees of Congress or the California legislature, either prior to the enactment of the San Luis Act (Documents 816-17), in connection with proposed amendments thereto

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(Document 828), or regarding Kesterson Reservoir (Document 828, 831 and 832).

Document 816 (201 pp) -- Report on Hearings before the Subcommittee on Irrigation and Reclamation of the Committee on Interior and Insular Affairs, United States Senate, 85th Congress, Second Session, on S.1887, "A Bill to Authorize the Secretary of Interior to Construct the San Luis Unit of the Central Valley Project, California, to Enter into an Agreement with the State of California with Respect to the Operation and Construction of Such Unit, and for Other Purposes," March 17 and 18, 1958. Justification for Inclusion: This report includes the exchange between Senator Anderson and Harvey Banks of the DWR in the Subcommittee before the adoption of the San Luis Act approving the amendment that included the requirement that drainage be provided. The exchange indicates that the purpose of the requirement of drainage is to protect downslope lands from impacts. Document 817 (60 pp) -- Excerpts from report of Hearing before the Subcommittee on Irrigation and Reclamation of the Committee on Interior and Insular Affairs, U.S. Senate, 86th Congress, First Session, on S.44 "A Bill to Authorize the Secretary of Interior to Construct the San Luis Unit of the Central Valley Project, California, to Enter into an Agreement with the State of California with Respect to the Operation and Construction of Such Unit, and for Other Purposes," March 16, 1959 Justification: Transcript of testimony of C.W. Bates, Manager of Central California Water District requesting that the San Luis Unit Act include a requirement of interception and collection of drainage associated with irrigation of the San Luis Unit in order to protect the lower elevations lands from drainage impacts. Document 828 (62 pp) -- Hearing on HR 4390, to Amend the Act of June 3, 1960 (74 Stat. 156) Authorizing the Secretary of the Interior to Construct the San Luis Unit, Central Valley Project, California, April 20, 1977 Justification: Commissioner of Reclamation describes drainage requirement as: "pick up and remove the drainage water from beneath those project lands that are affected" (p. 16, Bates 39526). Document 829 (692 pp) -- Joint Hearing of the Assembly Water, Parks and Wildlife committee and Senate Natural Resources and Wildlife Committee on San Joaquin Valley Agricultural Drainage and Kesterson National Wildlife Refuge, Nov. 16, 1984 13

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Justification: The Department of Interior agrees that the Interceptor Drain and collection of drainage was to protect both existing agricultural lands such as the Plaintiffs from downslope flows and lands in the San Luis Unit going into production ( p. l4 , Bates 39591). The Bureau agrees that even though drainage waters are outside of the San Luis Unit because Kesterson was utilized as a disposal site, the Department of Interior has a duty to clean up the selenium that has escaped Kesterson through seepage of drainage water (p. 44, Bates 39620). Document 831 (321 pp) -- Agricultural Drainage Problems and Contamination at Kesterson Reservoir, Hearing before the Subcommittee on Water and Power resources of the Committee on Interior and Insular Affairs, House of Representatives, held in Los Banos, California, March 15, 1985. Justification: Testimony before United States Committee on Interior and Insular Affairs, House of Representatives, about increasing pollution of shallow waters within Firebaugh Canal Water District (p. l25l26, Bates 40419-40420) and effect of subsurface waters flowing downslope and appearing on lower lands (p. 426, Bates 40570). Document 832 (147 pp) -- Hearing before the Subcommittee on Water and Power of the Committee on Energy and Natural Resources, United States Senate, 95th Congress, First Session on ... S.1157, A Bill to Authorize the Secretary of the Interior to Perform Studies Relating to Disposal of Drain Water and to Construct Interim Corrective Measures Deemed Necessary for the San Luis Interceptor Drain, July 16, 1985. Justification: Testimony of Assistant Secretary for Water and Science of Department of Interior in regard to plans to correct for drainage impacts caused by closure of Interceptor Drain system and Kesterson Reservoir and admitting that drainage water not intercepted may affect Grasslands area in same manner (p. 42-44, Bates 40697-40698).
These documents are judicially noticeable portions of the legislative history of the San Luis Act, and may be relied upon by the parties in legal argument. Plaintiffs offer no specific reason why The request to supplement the record Federal

they must be included the AR.

with Documents 816-817, 828-829 and 831-832 is DENIED.

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Defendants' and District Defendants' objections to inclusion of these documents in the record are SUSTAINED.

2.

Documents 818, 820 & 833 are Legal Authorities that Can be Cited by the Parties and the Court.

Document 818 (7pp) -- San Luis Act, Public Law 86-488, 74 Stat. 156 Justification: Although the Court could take judicial notice of the contents of the San Luis Act and the fact it has not been amended to alter the Department of Interior's duties since its adoption, inclusion within the Administrative Record is appropriate for the Court's convenience. Document 820 (3 pp) -- Order upon Motion for Preliminary Injunction in CCID v. Udall, No. 2356 ND Civil, Southern District of California, Northern Division, by Judge M.D. Crocker, July 15, 1963 Justification: Judge Crocker entered judgment in the action between FCWD and CCID and United States denying the preliminary injunction sought but finding: "That such act clearly requires a drainage system to protect Plaintiff's land (FCWD and CCID) and must be complied with and drainage provided before water is delivered to and stored in the San Luis Dam." Document 833 (6 pp) -- Judge Edward D. Price's Memorandum Decision denying Firebaugh Plaintiffs' Request to Intervene in Westlands v. United States, USED Case No. CV F-81-245 Consolidated with No. CV F-79-106 ("Barcellos"), December 30, 1986 Justification: Judge Price Memorandum of Decision "Clearly, the removal of this drainage system tenders a serious threat to the downslope lands lying below the Westlands Water District (p. 4: 23-25, Bates 40824). As with the previous group of documents, there is no need to supplement the AR with copies of the San Luis Act or Judge Crocker's or Judge Price's unpublished decisions in related cases. court. These legal authorities can be cited by any party or the The request to supplement the record is DENIED as to Federal Defendants' and District 15

Documents 818, 820, and 833.

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Defendants' objections to inclusion of these documents in the record are SUSTAINED. 3. Documents 830 is Already in the Administrative Record.

Document 830 (84 pp) -- California State Water Resources Control Board Order No. WQ-85-1 Justification: The State Water Resources Control Board finds that the Bureau leakage of drainage water from Kesterson Reservoir into subsurface aquifers is a discharge and pollution by the Bureau (p. 25, Bates 39389). The document submitted by Plaintiffs is an incomplete copy of WQ 85-1. A complete copy is already in the record. Plaintiffs

agree that the request to supplement the record with Document 830 should be DENIED. Federal Defendants' and District Defendants'

objections to inclusion of this document in the AR are SUSTAINED. E. Remaining Documents. Document 819 (28 pp) -- Agreement between the United States and the California Department of Water Resources for Construction and Operation of the Joint Use Facilities of the San Luis Unit, December 30, 1961. Justification: Agreement shows interpretation of San Luis Act required each act of collection, interception and transport away from San Luis Unit and Plaintiffs' downslope lands. This document does not address drainage in the San Luis Unit. Plaintiffs have not explained its relevance to their The motion to supplement the AR with Document 819

706(1) claim. is DENIED.

Federal Defendants' and District Defendants'

objections to inclusion of this document in the AR are SUSTAINED.

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Document 821 (9 pp) -- Statement of United States Bureau of Reclamation to the Water Pollution Subcommittee of the California Assembly's Interim Committee on Water, by Vernon J. Hanson, Regional Project Development Engineer, December 9, 1963. Justification: Department of Interior description of drainage system is to collect, intercept and prevent damage to adjacent areas as well as protect San Luis Unit lands. Document 822 (43 pp) -- Letter from Acting Commissioner of Reclamation William I. Palmer to Congressman John McFall, December 13, 1963. Justification: Commissioner of Reclamation commitment that San Luis Act will be complied with and drainage interception and disposal will be operative when needed. Document 823 (8 pp) -- "The Bureau and the Drain," a talk given by Robert J. Pafford, Jr., Regional Director, Bureau of Reclamation at the Water Resources Conference, Fresno, California, May 1964. Justification: Bureau of Reclamation describes that drainage problems caused by shallow and rising saline water in lower eastern edge of San Luis service area will occur if facilities to collect and dispose of water are not in operation. Assures that operation will commence no later than July l968. Document 824 (8 pp) -- "The Bureau and the Drain," a talk given by Robert J. Pafford, Jr., Regional Director, Bureau of Reclamation at the Water Resources Conference, Fresno, California, May 14, 1965. Justification: Bureau of Reclamation Regional Director admits that destruction will occur unless drainage interception is provided. Document 825 (26 pp): "Drainage Problems in the San Luis Unit, Central Valley Project," by John A. McKeag, Drainage Specialist, United States Bureau of Reclamation, February 1967. Justification: Bureau of Reclamation describes drainage problems that will occur when imported surface water supply is provided if drainage is not collected, intercepted and disposed of.

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Document 827 (7 pp): Water Projects Review Analysis, San Luis Unit CVP by Mid-Pacific Region, Bureau of Reclamation, March 14, 1977. Justification: Department of Interior describes adjacent areas to the San Luis Unit being destroyed over time if the drain is not completed and operated and problems caused by highly saline waters entering San Joaquin River (pps 2-3, 7, Bates 39509, 39510, 39514). These documents, dating to the 1960s and 1970s, are descriptions of the nature and impact of the area-wide drainage problem, issued by the Bureau and various Bureau employees. In

general, Federal Defendants disclaim that these documents were not relied on or considered by Reclamation in developing any of the three actions described in the AR. Although, under Friends

of the Clearwater, the record is not strictly limited to those documents considered by Federal Defendants in developing the 2007 SLDFR ROD, the Grasslands Bypass Project, and/or in approving the local drainage projects, Plaintiffs have failed to offer any valid legal theory for inclusion of these documents in the AR. The motion to supplement the AR with Documents 821-25 and 827 is DENIED. Federal Defendants' and District Defendants'

objections to inclusion of these documents in the AR are SUSTAINED. Document 836 (57 pp) -- Factors Affecting Drainage in Firebaugh Canal Water District and in Firebaugh Canal Water District and in Firebaugh Canal Water District and Kenneth D. Schmidt and Associates, October 1, 2002. Justification: Further tests and modeling of quality of downslope migrating drainage water and quantity of drainage water entering Firebaugh and CCID from San Luis Unit after termination of interception and collection Department of Interior Drainage Reevaluation 18

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EIS page 9368 Federal Defendants agreed to include earlier data concerning groundwater conditions in Plaintiffs' service area collected and analyzed by Dr. Schmit in 1988 and 1989 (Documents 834 and 835). Plaintiffs assert Dr. Schmit verbally informed the Bureau of the content of his 2002 report (Document 836) in a telephone call referenced by the Bureau in the AR. Federal Defendants object

that the verbal communication referenced in the EIR was different from the content of the report and insist that the report was not provided to the agency during the administrative process. However, Federal Defendants concede that the agency did consider Dr. Schmit's two previous reports. Although it is not clear how,

if at all, his reports will be relevant to the legal issues before the court on summary judgment, under Friends of the Clearwater, the record in a 706(1) case is not limited to those documents before the agency at any particular date and time. For

the sake of completeness, Plaintiffs' request to supplement the record with Dr. Schmit's 2002 report (Document 836) is GRANTED. Federal Defendants and District Defendants' objections are OVERRULED.

IV. CONCLUSION The motion to supplement the record is GRANTED as to Documents 815, 826, 834, 835, and 836, and DENIED as to all other Documents. 19

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Plaintiffs shall prepare a form of order consistent with this memorandum decision within five (5) days of electronic service.

SO ORDERED DATED: September 17, 2010 /s/ Oliver W. Wanger Oliver W. Wanger United States District Judge

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