San Luis & Delta-Mendota Water Authority et al v. United States Department of Interior et al

Filing 66

ORDER DENYING 56 Defendants' Motion to Dismiss signed by District Judge Lawrence J. O'Neill on 4/25/2012. (Jessen, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SAN LUIS & DELTA-MENDOTA WATER
AUTHORITY, et al.,

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1:11-cv-00952 LJO GSA
ORDER RE DEFENDANTS’ MOTION
TO DISMISS (DOC. 56)

Plaintiffs,

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v.
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UNITED STATES DEPARTMENT OF THE
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Defendants.

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I. INTRODUCTION

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This case presents a conflict between two provisions of the 1992 Central Valley Improvement

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18 Act (“CVPIA”), Pub. L. No. 102-575, 106 Stat. 4700 (1992). CVPIA § 3406(b)(2) requires the
19 Secretary of the Interior to dedicate 800,000 acre feet (“AF”) of water to serve certain fish and wildlife
20 restoration purposes. CVPIA § 3411(b) requires the Secretary to comply with a 1985 Agreement
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Between the United States of America and the Department of Water Resources of the State of California

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for Coordinated Operation of the Central Valley Project and the State Water Project (otherwise
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referenced as “Coordinated Operations Agreement” or “COA”)1, which in turn requires the Bureau of

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A copy of the COA is attached to the First Declaration of James Snow, Doc. 14, as Exhibit 1. This document may be

27 considered at this stage of the litigation, as it is relied upon extensively in the complaint and its authenticity is not questioned.
Parino v. FHP, Inc., 146 F.3d 699, 705-706 (9th Cir. 1998), superseded by statute on other grounds as stated in Abrego

28 Abrego v. The Dow Chem. Co., 443 F.3d 676, 681 (9th Cir. 2006).
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Reclamation (“Bureau”) to export as much water as possible when the Delta is in “excess water”2

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conditions.

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Plaintiffs, San Luis & Delta-Mendota Water Authority (“Authority”) and one of the Authority’s
Member Districts, Westlands Water District (“Westlands”), filed this lawsuit on June 6, 2011, during a

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period when the Delta was in “excess water conditions,” complaining that, contrary to the mandate in

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CVPIA § 3411(b) to export as much water as possible, Defendants ordered reduced export pumping for

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a two-week period starting on June 8, 2011, pursuant to the Secretary’s authority under § 3406(b)(2).

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Plaintiffs’ motion for preliminary injunctive relief was denied, see Doc. 38 & 49, and the pumping

10 reduction expired of its own accord.
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Defendants now move to dismiss this case as moot. Doc. 56. Plaintiffs oppose the motion and
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attach the supporting declaration of James Snow. Docs. 57 & 57-1. Defendants replied. Doc. 58. The
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motion was originally set for hearing on February 24, 2012, but the hearing was vacated and the matter
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15 submitted for decision on the papers. On March 5, 2012, supplemental declarations were requested to
16 address the narrow issue of whether Federal Defendants have ever before, apart from the June 2011
17 instance that is the subject of the Complaint, ordered reduced pumping during excess conditions based
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purely on the Secretary’s authority under CVPIA § 3406(b)(2). Doc. 61. In accordance with the
deadlines set forth in the March 5, 2012 Order, Plaintiffs filed the Supplemental Declaration of James

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Snow on March 30, 2012. Doc. 64. Federal Defendants filed the Supplemental Declaration of Paul

22 Fujitani on April 9, 2012. The matter is now ripe for decision.
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II. BACKGROUND

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CVPIA § 3406 (b)(2) has been extensively litigated in this Court and the Ninth Circuit. A brief

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primer on that provision and related litigation provides context for this case.

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“Excess water conditions,” are defined in the COA as “periods when it is agreed that releases from upstream reservoirs plus

28 unregulated flow exceed Sacramento Valley inbasin uses plus exports.” COA ¶ 3(c), Doc. 14-1 at p. 7 of 46.
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A.

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Statutory Text.
CVPIA section 3406(b)(2) provides:

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(b) FISH AND WILDLIFE RESTORATION ACTIVITIES.--The Secretary [of the
Interior], immediately upon the enactment of this title, shall operate the Central Valley
Project 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., and all decisions of the
California State Water Resources Control Board establishing conditions on applicable
licenses and permits for the project. The Secretary, in consultation with other State and
Federal agencies, Indian tribes, and affected interest, is further authorized and directed to:

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(2) upon enactment of this title 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; to assist the State of California in its efforts to protect the
waters of the San Francisco Bay/Sacramento-San Joaquin Estuary; and to help
meet such obligations as may be legally imposed upon the Central Valley Project
under state or federal law following the date of enactment of this title, including
but not limited to additional obligations under the federal Endangered Species
Act....

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13 Pub. L. No. 102-575, § 3406(b)(2), 106 Stat. 4700, 4714 (1992).
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B.

Prior District Court and Ninth Circuit Rulings.

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Decisions in consolidated cases concerning § 3506(b)(2) comprehensively recount this history of
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previous litigation:
The CVPIA took effect October 31, 1992. In 1998, Plaintiffs in [San Luis & DeltaMendota Water Authority, et al. v. United States Dept. of the Interior, et al., 1:97-cv6140] challenged Federal Defendants’ October 5, 1999 “Final Decision on
Implementation of Section 3406(b)(2)...,” contending that Federal Defendants were
required to credit against the 800,000 AF allocation of CVP yield all water used to satisfy
either the 1995 Water Quality Control Program for the San Francisco Bay/ SacramentoSan Joaquin Estuary (“1995 WQCP”) or post-CVPIA Endangered Species Act (“ESA”)
requirements. See Doc. 466 at 26. The district court granted Plaintiffs’ motion for
summary judgment, concluding: “[A]s a matter of law, [the statutory] language is not
ambiguous -- water used to meet WQCP or post-CVPIA ESA requirements is an
additional (b)(2) purpose and must be charged against the 800 TAF [thousand acre-feet]
(b)(2) mandate if so used.” Id. at 33. The district court further found that to “hold
otherwise would render the 800 TAF figure superfluous.” Id. at 35. On March 20, 2002,
partial final judgment was entered in favor of Plaintiffs on that claim, and the issue was
certified for interlocutory appeal to the Ninth Circuit. Doc. 491 at 4.
On appeal, Environmental Plaintiffs [in a consolidated action] argued that the district
court “improperly elevated the subordinate purpose of the (b)(2) dedication over the
primary purpose.” Envt’l Appellants’ Opening Brief, 2002 WL 32123196 *36 (9th Cir.
Dec. 23, 2002). In response, Plaintiffs argued that “the plain words of the statute dictate
and Congress intended that all water used to assist the State in protection of the
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Bay/Delta, or to meet obligations (including ESA obligations) legally imposed upon the
CVP under State or Federal law following the date of enactment of CVPIA, would be
counted toward the 800,000 acre-feet limit.” Appellants’ Brief in Answer to Envt’l
Appellants’ Opening Brief, 2003 WL 21471613 *27, (9th Cir. Jan. 30, 2003). In reply,
Environmental Plaintiffs emphasized that “the CVPIA cannot defeat the statute’s specific
and non-discretionary directions to Interior to use the 800,000 AF for the ‘primary
purpose’ of implementing the CVPIA’s new restoration measures, and to achieve the
CVPIA’s salmon doubling mandate.” Envt’l Appellants’ Reply Brief, 2003 WL
21471615 *13 (9th Cir. Feb. 18, 2003).
The Ninth Circuit, in a ruling initially issued June 3, 2003 and amended January 23,
2004, affirmed the district court’s partial final judgment on four of five issues, but
reversed regarding (b)(2) accounting discretion:
The district court erred in concluding that Interior lacks discretion to refrain from
crediting the amount of Project yield actually used for any (b)(2) purpose against
the designated 800,000 acre feet of Project yield. To hold otherwise would defeat
the primary purpose for which the 800,000 acre feet were designated-fish,
wildlife, and habitat restoration. Section 3406(b)(2) provides that the “primary
purpose” to which the 800,000 acre feet should be dedicated is the
implementation of “fish, wildlife, and habitat restoration purposes authorized by
this title...” Section 3406(b)(2) also provides that the 800,000 acre feet may be
used to “help” meet obligations under the Endangered Species Act and to “assist”
in meeting water quality standards. If Interior were required to deduct some or all
the water it uses for water quality and Endangered Species Act purposes from the
(b)(2) dedication, the water needed for implementation of the [] Act’s restoration
mandate could be relegated to a secondary role, or perhaps no role at all. Such a
scenario would directly conflict with the Interior’s mandate to give effect to the
hierarchy of purposes established in Section 3406(b)(2).
Bay Institute of San Francisco v. United States, 87 Fed. Appx. 637 at 639-40 (9th Cir.
2004)[].

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San Luis & Delta-Mendota Water Authority, et al. v. United States Dept. of the Interior, et al., 1:97-cv6140, Doc. 711, at 1-5 (“(b)(2) Case”).
After remand, a September 19, 2008 ruling in the (b)(2) Case addressed cross-motions for

21 summary judgment in light of the Ninth Circuit’s ruling:
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Plaintiffs [in San Luis & Delta-Mendota Water Authority, 1:97-cv-6140] assert that
“primary purpose” should be interpreted broadly, to include the 159,200 AF designated
as “Non-B2 Fishery Actions” in late June and August/September 2004, because those
actions benefitted fish. (Doc. 681 at 9.) They suggest that any water used to meet
WQCP and/or ESA purposes must be counted unless doing so would not serve any fish,
wildlife, and habitat restoration purposes, or if counting the water toward the 800,000 AF
limit would “significantly impair” the primary restoration purposes. (Id.) However,
when “water is used pursuant to the mandates of the [WQCP] or the ESA to further fish
and wildlife restoration,” Plaintiffs maintain that such use “serves the primary purpose
and effectuates the hierarchy of purposes set in section 3406(b)(2).” (Id. at 7.) Plaintiffs
maintain that the Ninth Circuit could not have intended to emasculate the 800,000 AF
limit by granting Interior “unfettered discretion to exclude from its accounting of (b)(2)
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water any water dedicated to fulfill environmental obligations emanating from other
statutes.” (Id. at 8.) This, they argue, would run afoul of the cannon of statutory
construction that requires effect be given to every provision in a statute.
Federal Defendants rejoin that Interior properly exercised its discretion to designate the
159,200 AF as “Non-B2 Fishery Actions” in late June and August/September 2004,
because that water did not serve the “primary purpose” of the CVPIA. (See Doc. 658-3 at
24.) Federal Defendants argue that the Ninth Circuit’s decision construed (b)(2) broadly
to uphold the agency’s ability to carry out the CVPIA’s “restoration mandate,” holding
that if “Interior were required to deduct some or all of the water it uses for water quality
and Endangered Species Act purposes from the (b)(2) dedication,” then the water needed
to implement the restoration mandate could be relegated to a secondary role, or perhaps
no role at all.” 87 Fed. Appx. at 640. That result, “would directly conflict with Interior’s
mandate to give effect to the hierarchy of purposes established in Section 3406(b)(2).”
Id. Federal defendants insist that the Court of Appeals’ decision must be read as a
command to Interior to ensure that it exercises its discretion in a manner that will not
frustrate the primary purpose of fish, wildlife and habitat restoration. This is a partial
truth, as the 800,000 AF cap on CVP yield that must be annually dedicated to (b)(2)
purposes is not discretionary and can only be reduced in times of water shortage.
Environmental Plaintiffs add that the primary purpose of the CVPIA is anadromous fish
doubling and that Interior retains the discretion to refrain from counting actions that use
CVP yield for other purposes if doing so would give effect to the hierarchy of purposes.
(Doc. 686 at 9.) Environmental Plaintiffs [in the consolidated action] emphasize that
“since the Ninth Circuit has expressly held that Interior may -- indeed must -- prioritize
(b)(2) water for the CVPIA’s restoration mandate beyond mere compliance with the
CVP’s water quality obligations, there will be years in which the sum of the actions taken
under Section 3406(b)(2), the WQCP, and the ESA will exceed 800,000 AF.” (Id. at 6.)
Environmental Plaintiffs maintain that “[t]here is nothing illegal or inappropriate about
this. Interior is required to provide water for fishery purposes under several statutes. As
the appellate court decided, Section 3406(b)(2) did not simply subsume the CVP’s water
quality obligations. Contrary to the position of [the Authority], the 800,000 AF
dedication is not a cap on the CVP’s environmental water obligations.” (Id.)
The parties all agree that under the Ninth Circuit’s decision, Interior retains some degree
of discretion to refrain from deducting water from the (b)(2) account if doing so will give
effect to the hierarchy of purposes in the CVPIA. The dispute in this case arises over the
nature and extent of that discretion. The fundamental disagreement is, essentially, over
the scope and meaning of the phrase “primary purpose,” as that term is used in the Ninth
Circuit’s decision.

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1:97-cv-06140, Doc. 711 at 33-36 (footnotes omitted).
The September 19 Decision in the (b)(2) Case defined the scope and meaning of the phrase

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The Ninth Circuit explained in general that the “primary purpose to which the 800,000
acre feet should be dedicated is the implementation of ‘fish, wildlife, and habitat
restoration purposes authorized by this title....’” Bay Institute, 87 Fed. Appx. 639-40
(quoting CVPIA 3406(b)(2)). Plaintiffs suggest that the “primary purpose” includes any
action designed to help fish, while Environmental Plaintiffs and Federal Defendants
suggest that the “primary purpose” is the anadromous fish doubling program set forth in
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section 3406(b)(1). (Doc. 686 at 9; Doc. 696 at 19 n.3 (Federal Defendants “generally
agree” with Environmental Plaintiffs’ position on this issue).)

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The “primary purpose” includes all those fish and wildlife restoration activities
specifically described in section 3406(b). This includes water dedicated to accomplish
the anadromous fish doubling goal set forth in section 3406(b)(1), but also includes water
needed to accomplish any of the other specifically enumerated programs listed in section
3406(b) (e.g., 3406(b)(4), (5), (8), (9), (12), (18) & (19)).

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Under the Ninth Circuit Decision, Interior has discretion not to count water used for any
of the (b)(2) “secondary” purposes, so long as that water is “needed” to effectuate the
“primary” restoration programs specifically enumerated in section 3406(b), including the
fish doubling program contained within 3406(b)(1). The primary purpose language does
not globally encompass every action that benefits fish. Rather, it applies only to those
actions that support the specifically enumerated fish and wildlife restoration programs
contained within 3406(b).

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Id. at 36, 43, 45 (emphasis added).
The Decision also recognized that there is “potential for overlap between the ‘primary’ purpose

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For example, 3406(b)(1)(c) provides:
The Secretary shall cooperate with the State of California to ensure that, to the
greatest degree practicable, the specific quantities of yield dedicated to and
managed for fish and wildlife purposes under this title are credited against any
additional obligations of the Central Valley Project which may be imposed by the
State of California following enactment of this title, including but not limited to
increased flow and reduced export obligations which may be imposed by the
California State Water Resources Control Board in implementing San Francisco
Bay/Sacramento-San Joaquin Delta Estuary standards pursuant to the review
ordered by the California Court of Appeals in United States v. State Water
Resources Control Board, 182 Cal. App. 3d 82 (1986), and that, to the greatest
degree practicable, the programs and plans required by this title are developed and
implemented in a way that avoids inconsistent or duplicative obligations from
being imposed upon Central Valley Project water and power contractors.

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(Emphasis added.)

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Interior recognized the potential for this overlap in its December 2003 Guidance, which
provides:

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[A]ctions taken pursuant to the 1995 Water Quality Control Plan and State Water
Resources Control Board Decision D-1641 (“the 1995 WQCP”) involve the
dedication and management of Central Valley Project yield for long-term fishery
beneficial use and protection. Such actions are not taken to help meet agricultural
or municipal and industrial water quality standards that are set forth in the 1995
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WQCP. Most of the fishery beneficial uses and objectives under the 1995 WQCP
and in Reclamation’s water rights permits help fulfill the fish, wildlife, and habitat
restoration purposes and measures authorized by Section 3406(b). Consistent
with the June 3, 2003 Ninth Circuit decision, much of the (b)(2) water that is
dedicated and managed annually to help meet fishery beneficial use and
protection objectives of the 1995 WQCP serves Section 3406(b)(2)’s “primary
purpose” of fish, wildlife, and habitat restoration. Therefore the implementation
of Section 3406(b)(2) in accordance with the May 9, 2003 Decision and with this
supplemental guidance effectuates the “hierarchy of purposes” in Section
3406(b)(2).

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(AR 2156-57 [].)
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In practice, many actions taken to fulfill the fishery beneficial uses and objectives of the
WQCP and/or actions taken to comply with the ESA may serve the primary purpose of
the CVPIA. In keeping with the general structure of the CVPIA’s language, if the
“primary” purpose of any action taken under the WQCP and/or the ESA is to support or
effectuate a “primary purpose” program, such action must be counted toward the (b)(2)
account. Environmental Plaintiffs advance a helpful definition of the term “primary,” the
ordinary meaning of which is “predominant,” of “first importance,” or “principal.” See
Malat v. Riddell, 383 U.S. 569, 572 (1966). Applying this definition, if an action taken
under the WQCP and/or the ESA predominantly contributes to one of the primary
purpose programs (e.g., fish doubling), it must be counted toward the 800,000 AF limit.
Interior retains the discretion not to count other secondary actions, so long as doing so is
necessary to give effect to the hierarchy of purposes.

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This “primary purpose” definition was applied, resulting in a finding that Interior did not abuse
its discretion in connection with two sets of actions for which water was released but not charged against
the annual (b)(2) “account” of 800,000 AF of water:

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From June 17 through June 24, 2004 Interior allocated 9,100 AF to Non-B2 Fishery
Actions. The daily accounting for June 17 through June 30, 2004 indicates that water
costs were being incurred for changes in operations at Nimbus, Clear Creek, and New
Melones. (First Fujitani Decl. at ¶17.) Only those costs incurred at Nimbus and New
Melones were accounted for as Non-B2 Fishery Actions. (Id.) A draft document entitled
“Summary of (b)(2) Fish Actions for Water Year 2004,” dated December 1, 2004,
specifies that releases from Nimbus during the “latter part” of June were “to meet Delta
demands.” (AR 1521.) Mr. Fujitani states that releases from Nimbus were required to
meet the June Delta outflow standard. (First Fujitani Decl. at ¶17.) Releases from New
Melones were needed to meet San Joaquin River flow requirements at Vernalis. (Id.)
Interior did not count these releases as “(b)(2)” releases, but instead as “Non-B2 Fishery
Actions.” (Id.)
The question presented is: Did either of these actions predominantly contribute to one of
the (b)(2) primary purpose programs (e.g., fish doubling)? The Delta outflow standard
was promulgated as part of the 1995 WQCP (D-1641). The stated purpose of the outflow
standard is to protect “estuarine habitat for anadromous fishes and other estuarinedependent species.” (1995 WQCP at 15.) The Vernalis flow requirement on the San
Joaquin River, along with similar flow requirement on the Sacramento River, originate in
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the WQCP. The stated purpose of the Vernalis flow requirements are “to provide
attraction and transport flows and suitable habitat for various life stages of aquatic
organisms, including Delta smelt and chinook salmon.” (Id. at 15.)
Although both of these standards are to benefit anadromous fish species, they do not
specifically identify an intent to support the fish doubling goal (or any other specificallyenumerated 3406(b) program). In fact, the WQCP contains a wholly separate “narrative
objective” for salmon doubling, which provides: “Water quality conditions shall be
maintained, together with [other] measures in the watershed, sufficient to achieve a
doubling of natural production of chinook salmon from the average production of 19671991, consistent with the provisions of State and federal law.” (Id. at 15 & 18.) The
existence of this separate provision, directed at anadromous fish doubling, suggests that
neither the Delta outflow objective nor the Vernalis flow requirement [was] intended to
achieve the CVPIA fish doubling purpose. Actions taken to comply with the Delta
outflow objective and/or the Vernalis flow requirement do not “predominantly”
contribute to primary purpose programs. Interior did not abuse its discretion in excluding
these actions that consumed approximately 9,000 AF of CVP yield from (b)(2)
accounting.

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Id. at 48-49 (footnotes omitted).
The San Luis plaintiffs’ narrow motion for reconsideration was granted on May 14, 2009, and

13 the Court corrected an error in the September 19 Decision by finding that “the State Board intended for
14 the numeric flow standards in the 1995 WQCP to contribute toward the narrative fish doubling goal in
15 the WQCP.” Doc. 738 at 33. However, the Court refused to alter its ultimate conclusion, declining to
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find “water used for WQCP purposes also is predominantly used for primary CVPIA 3406(b)(2)
purposes.” Id. Rather, the Court found the “disputed actions were within the Federal Defendants’

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discretion and expertise in managing the CVP and implementing the CVPIA. Id. This discretion was

20 not abused by not charging against the (b)(2) account, CVP water released in late June 2004 to comply
21 with the 1995 WQCP’s Delta outflow and Vernalis flow requirements under the unique conditions that
22 then existed.” Id. On March 2, 2012, in a lengthy and detailed opinion, the Ninth Circuit affirmed,
23 agreeing that the Bureau’s accounting with respect to the June 2004 releases was lawful. San Luis &
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Delta-Mendota Water Auth. v. United States, 672 F.3d 676 (9th Cir. 2012):

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It is against the backdrop of this more than ten years of litigation history that Plaintiffs now
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complain Federal Defendants acted unlawfully by allocating water pursuant to (b)(2) during periods

28 when the Delta is in “excess water conditions.”

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C.

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The Coordinated Operations Agreement.
The COA, adopted by both the federal government and the State of California, was enacted as

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federal law in 1986 as Pub. L. No. 99-546, § 103, which amended § 2 of the Act of August 26, 1937, 50

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Stat. 850, by inserting the following new subsection: “(d) The Secretary of the Interior is authorized and

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directed to execute and implement the ‘Agreement Between the United States of America and the

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Department of Water Resources of the State of California for Coordinated Operation of the Central

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Valley Project and the State Water Project’ dated May 20, 1985.” The United States and the State of

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California signed the COA effective on November 24, 1986. COA, § 1.

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This statutory directive for Interior to comply with the COA was enacted as part of the 1992

11 CVPIA. Section 3411(b) of the CVPIA states:
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SEC. 3411 - COMPLIANCE WITH STATE WATER LAW AND COORDINATED
OPERATIONS AGREEMENT.
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(b) The Secretary [of the Interior], in the implementation of the provisions of this title,
shall fully comply with the United States’ obligations as set forth in the “Agreement
Between the United States of America and the Department of Water Resources of the
State of California for Coordinated Operation of the Central Valley Project and the State
Water Project” dated May 20, 1985, and the provisions of Public Law 99-546; and shall
take no action which shifts an obligation that otherwise should be borne by the Central
Valley Project to any other lawful water rights permittee or licensee.

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Of particular importance to this case is Section 6(g) of the COA, which provides:

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(g) Responsibilities During Excess Water Conditions: During excess water conditions
each party has the responsibility to export and store as much water as possible within its
physical and contractual limits.

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21 The COA defines “excess water conditions” as “periods when it is agreed that releases from upstream
22 reservoirs plus unregulated flow exceed Sacramento Valley inbasin uses, plus exports.” COA, § 3(c).
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D.

The Complaint in this Case.
Plaintiffs allege that, during “excess water conditions,” Interior is mandated by Section 6(g) of

26 the COA to pump water to the maximum physical and contractual limits of the CVP. Doc. 1,
27 Complaint, at ¶ 42. It is undisputed that excess water conditions existed in June 2011. Id. at ¶ 34.
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Those particular hydrological conditions led the Bureau, acting in response to a recommendation from

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the U.S. Fish and Wildlife Service (“FWS”), to issue a temporary change order, effective at 6:59 AM on

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June 8, 2011. Id. at ¶¶ 35-36. The Bureau directed the Authority, as the entity responsible for operating

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the Jones Pumping Plant, to reduce pumping from 4,200 cubic feet per second (“cfs”) to 3,000 cfs for up
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to fourteen days in order to reduce the number of fish that would be “taken” (i.e., injured or killed) due
to pumping operations at the higher flow levels. Id.
E.

Preliminary Injunction Motion.

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On June 10, 2011, Plaintiffs filed an application for a temporary restraining order (“TRO”) and a
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motion for preliminary injunction, seeking to halt the temporary pumping reduction. Docs. 8 & 9.

12 Plaintiffs asserted that Interior lacked discretion to reduce pumping during excess water conditions and
13 that its members would suffer immediate and irreparable injury as a result of Defendants’ actions. A
14 hearing was held on June 15, 2011, after which the Court denied the motion from the bench. Docs. 38 &
15 39. The Court found that Plaintiffs had not demonstrated likely success on the merits of their statutory
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claims and that Plaintiffs members were unlikely to experience irreparable injury absent immediate

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injunctive relief. Doc. 39, 6/15/12 Hng. Tr., at 106-08. Defendants were directed to prepare and submit
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proposed findings of fact and conclusions of law, which they did on July 25, 2011. Doc. 40. After

20 considering Plaintiffs’ objections, Doc. 45, the Court issued its findings of fact and conclusions of law
21 on September 6, 2011. Doc. 49.
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III. STANDARD OF DECISION
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A.

Motion to Dismiss Under Fed. R. Civ. P. 12(b)(1).
Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action for “lack of subject-

26 matter jurisdiction.” Faced with a Rule 12(b)(1) motion, a plaintiff bears the burden of proving the
27 existence of the court’s subject matter jurisdiction. Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir.
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1996). A federal court is presumed to lack jurisdiction in a particular case unless the contrary

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affirmatively appears. Gen. Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968–69 (9th Cir. 1981).

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A challenge to subject matter jurisdiction may be facial or factual. White v. Lee, 227 F.3d 1214,

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1242 (9th Cir. 2000). As explained in Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1038 (9th Cir.
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2004):
In a facial attack, the challenger asserts that the allegations contained in a complaint are
insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack,
the challenger disputes the truth of the allegations that, by themselves, would otherwise
invoke federal jurisdiction.

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In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint
without converting the motion to dismiss into a motion for summary judgment. Savage v. Glendale

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Union High School, 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003); McCarthy v. United States, 850 F.2d 558,

13 560 (9th Cir. 1988). “If the challenge to jurisdiction is a facial attack, i.e., the defendant contends that
14 the allegations of jurisdiction contained in the complaint are insufficient on their face to demonstrate the
15 existence of jurisdiction, the plaintiff is entitled to safeguards similar to those applicable when a Rule
16 12(b)(6) motion is made.” Cervantez v. Sullivan, 719 F. Supp. 899, 903 (E.D. Cal. 1989), rev’d on other
17

grounds, 963 F.2d 229 (9th Cir. 1992). “The factual allegations of the complaint are presumed to be

18
true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter
19
20

jurisdiction.” Id.; see also Cassirer v. Kingdom of Spain, 580 F.3d 1048, 1052 n. 2 (9th Cir. 2009),

21 rev’d on other grounds en banc, 616 F.3d 1019 (9th Cir. 2010) (applying Ashcroft v. Iqbal, 556 U.S.
22 662, 129 S. Ct. 1937 (2009), to a facial motion to dismiss for lack of subject matter jurisdiction).
23
IV. DISCUSSION
24
25
26

A.

The Mootness Doctrine.
Here, Defendants argue that the Court lacks subject matter jurisdiction over the case because

27 Plaintiffs’ claims are moot. An issue is moot “when the issues presented are no longer ‘live’ or the
28 parties lack a legally cognizable interest in the outcome.” City of Erie v. Pap’s A.M., 529 U.S. 277, 287
11

1

(2000). “The underlying concern is that, when the challenged conduct ceases such that there is no

2

reasonable expectation that the wrong will be repeated, then it becomes impossible for the court to grant

3

any effectual relief whatever to the prevailing party.” Id. (internal citations and quotations omitted). If

4
the parties cannot obtain any effective relief, any opinion about the legality of a challenged action is
5
6

advisory. Id. “Mootness has been described as the doctrine of standing set in a time frame: The

7

requisite personal interest that must exist at the commencement of the litigation (standing) must continue

8

throughout its existence (mootness).” Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n. 22

9

(1997) (internal citation and quotation omitted). “[A]n actual controversy must be extant at all stages of

10 review, not merely at the time the complaint is filed.” Id. at 67.
11
Even if a case is technically moot, a case may nevertheless be judiciable if one of three
12
exceptions to the mootness doctrine applies: (1) where a plaintiff “would suffer collateral legal
13
consequences if the actions being appealed were allowed to stand”; (2) where defendant voluntarily
14
15 ceased the challenged practice; and (3) for “wrongs capable of repetition yet evading review.” Ctr. for
16 Biological Diversity v. Lohn, 511 F.3d 960, 964-66 (9th Cir. 2007). “The party asserting mootness has a
17 heavy burden to establish that there is no effective relief remaining for a court to provide.” In re
18

Palmdale Hills Property, LLC, 654 F.3d 868, 874 (9th Cir. 2011).

19
20 B.

Are Plaintiffs’ Claims Moot?

21

Federal Defendants maintain that this case is moot because the challenged government action

22 expired by its own terms in June 2011. Doc. 56-1 at 4. Federal Defendants argue that “there is no basis
23 for meaningful relief” because the action ended more than a year ago. Id. at 5.
24
Plaintiffs contend that Federal Defendants are mischaracterizing their claim as challenging only
25
Reclamation’s temporary pumping restriction in June 2011. Rather, Plaintiffs maintain that their claim
26
“includes a challenge to Reclamation’s claimed discretion to order pumping reductions during any
27
28 period of excess water conditions,” citing paragraphs 1 and 55 of the Complaint. Doc. 57 at 4. The
12

1
2
3
4
5
6

cited paragraphs allege:
1. This Complaint challenges the federal government’s failure to comply with the
mandatory, nondiscretionary duty set forth under Section 6(g) of the Coordinated
Operating Agreement (“COA”) between the United States and the State of California “to
export and store as much water as possible” during periods of excess water conditions in
the Sacramento-San Joaquin Delta (“Delta”). This duty is incorporated into section
3411(b) of the Central Valley Project Improvement Act (“CVPIA”), which requires that
the Secretary of the Interior “shall fully comply with the United States’ obligations”
under the COA in implementing the CVPIA.

7

***

8
9
10
11
12
13
14

55. An actual controversy has arisen between Plaintiffs and Defendants regarding
Defendant’s failure to administer and operate the CVP in accordance with federal law. A
judicial declaration is necessary and appropriate at this time under these circumstances in
order that Plaintiffs may ascertain its rights and Defendants’ obligations pursuant to
federal law, as alleged above. Unless such a declaration is issued, Plaintiffs will suffer a
loss and/or impairment of their interests, mission, rights and property in violation of law.
The extent to which these generic paragraphs even state a general “challenge to Reclamation’s claimed
discretion to order pumping reductions during any period of excess water conditions” is debatable,

15 particularly in light of the fact that the remainder of the Complaint focuses on the specific example of
16 the June 2011 pumping reduction. Even if, arguendo, the Complaint did include the generic challenge
17 Plaintiffs now advance, this Court could not adjudicate such a claim, as it fails to satisfy the
18
19

jurisdictional pre-requisites of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq.,
which Plaintiffs admit is the only waiver of sovereign immunity applicable in this case. See Compl. at ¶

20
21

8 (“The United States has waived its sovereign immunity, and that of the federal agencies and

22 employees, pursuant to 5 U.S.C. §§ 701 et seq. including sections 702 and 704). The APA permits a
23 federal court to “compel agency action unlawfully withheld or unreasonably delayed,” or “hold unlawful
24 and set aside” agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not
25 in accordance with law,” 5 U.S.C. § 706, but that power is limited to “[a]gency action made reviewable
26
27
28

by statute,” 5 U.S.C. § 704, which is not the case here, or “final agency action for which there is no
other adequate remedy in a court,” id (emphasis added). Lack of APA finality precludes judicial review.
13

1

Ukiah Valley Medical Center v. F.T.C., 911 F.2d 261, 263-64 (9th Cir. 1990). The only “final agency

2

action” to which Plaintiffs point is the June 2011 export pumping decision. A generic challenge to the

3

Bureau’s non-specific “exercise of discretion” is not cognizable under the APA.

4
Plaintiffs’ contention that the case is not moot because the court can grant declaratory relief is
5
6

equally misplaced. Plaintiffs cite Forest Guardians v. Johanns, 450 F.3d 455, 462 (9th Cir. 2006).

7

There, the Ninth Circuit considered a claim that that the U.S. Forest Service violated the ESA when it

8

failed to re-initiate consultation on the environmental impact of cattle grazing on a particular plot of

9

national forest land in Arizona. Id. at 456-57. The Forest Service authorizes livestock use of national

10 forest land through the issuance of grazing permits, which are typically granted for ten-year terms. Id. at
11
458. The particular permit at issue in Forest Guardians was for a ten-year term, but a related agreement
12
between the Forest Service and FWS required that the Forest Service annually confirm compliance with
13
certain “guidance criteria” designed to ensure that grazing was “not likely to adversely affect” the ESA14
15 listed Mexican spotted owl. Id. at 459. “In other words, the Forest Service was allowed to presume
16 annual concurrence by FWS in the ‘not likely to adversely affect’ finding only if it confirmed each year
17 that the guidance criteria were being satisfied.” Id. Grazing under this permitting scheme commenced
18
19

in 1999. Id.
In 2001, Forest Guardians sued, alleging that the Forest Service violated the ESA by not re-

20
21

initiating ESA consultation after “the agency failed over several years to meet the guidance criteria....”

22 Id. Specifically, Forest Guardians alleged that the Forest Service had failed to conduct adequate annual
23 monitoring of utilization levels on [the] grazed allotments [] and that, as a result, the continuing ‘not
24 likely to adversely affect’ findings for those allotments were invalid.” Id. at 459-60. The district court
25 ruled in favor of the Forest Service on the merits of the ESA claim. Id. at 460. Forest Guardians
26
27
28

appealed. Id. at 461. While the appeal was being briefed, however, the Forest Service re-initiated
consultation and FWS subsequently concurred in writing that the grazing activity was “not likely to
14

1

adversely affect” the Mexican spotted owl. Id. Before tackling the merits of the appeal, the Ninth

2

Circuit addressed the issue of mootness:

3
4

The Forest Service argues that, as a result of this recent re-consultation, there is no
effective relief that the district court can grant.

5

***

6

The only court of appeals case cited by the Forest Service in its effort to meet its burden
is Southern Utah Wilderness Alliance v. Smith, 110 F.3d 724 (10th Cir. 1997). In SUWA,
the plaintiff alleged that the Bureau of Land Management (BLM) violated § 7 of the ESA
by failing to consult with FWS on a management plan for BLM land that was home to a
listed species of plant life. 110 F.3d at 725. The management plan required BLM to close
certain access routes used by off-road vehicles but to leave open several others. Id. at
726. The plaintiff sought declaratory and injunctive relief-principally, it requested a stay
of the management plan pending consultation regarding the impact on the listed plant life
of off-road vehicle use on the still-open access routes. Id. While the matter was pending
in the district court, BLM initiated and completed consultation with FWS on the
challenged plan. The district court subsequently ruled against the plaintiff on the merits
and also found that the action was moot as a result of the inter-agency consultation. Id. at
727. The Tenth Circuit affirmed, ruling that “[t]here is no point in ordering an action that
has already taken place.” Id. at 728. However, the court expressly narrowed its holding:

7
8
9
10
11
12
13
14
15
16
17
18
19

This is not to say that a violation of section 7(a)(2) could always be cured by
subsequent consultation, nor is this general approval for consultation after the
fact. Instead, this merely recognizes that the changed circumstances of this
particular case no longer present an opportunity for meaningful relief.... A
declaratory judgment would serve no purpose in this case. This case does not
involve a continuing violation or practice, and SUWA has not shown that the
defendants are likely to violate section 7(a)(2) in the near future. A declaratory
judgment would not affect the matter, and would be in the nature of an advisory
opinion.

20
21
22
23
24
25
26
27
28

Id. at 729-20.
SUWA is distinguishable in two critical ways from the case before us. First, our case does
involve a continuing practice. The grazing permit [in question] has a ten-year term and
requires that the Forest Service obtain from FWS annual concurrence that the guidance
criteria governing the “not likely to adversely affect” finding have been met. Second, the
Forest Service’s practice of not complying with the monitoring requirements is likely to
persist despite the recent re-consultation. Notably, the Forest Service has argued
throughout this litigation that it is not required to meet the monitoring requirements
incorporated in the guidance criteria. The Forest Service asserts that those requirements
are “unreasonable.” Declaratory judgment in favor of Forest Guardians would thus ensure
that the Forest Service does not continue to fail to meet its monitoring responsibilities in
the future and that it fulfills its duty under the ESA to consult with FWS when necessary.
15

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

We have repeatedly held that where, like here, both injunctive and declaratory relief are
sought but the request for an injunction is rendered moot during litigation, if a declaratory
judgment would nevertheless provide effective relief the action is not moot. See, e.g.,
Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1174-75 (9th Cir. 2002); Northwest
Envtl. Defense Ctr. [v. Gordon], 849 F.2d [1241,] 1245 [(9th Cir. 1988)]. In Northwest
Environmental Defense Center, for instance, a federal agency charged with ensuring the
viability of salmon fisheries in the Pacific Northwest set a 1986 salmon escapement goal
that did not meet the requirements of its own fishery management plan. 849 F.2d at 1243.
The plaintiff filed a lawsuit requesting an injunction requiring the agency to meet the
management plan’s escapement goal and a declaratory judgment that the agency violated
various environmental laws. Id. at 1244. After the 1986 salmon season ended, the district
court dismissed the action as moot. We reversed, ruling that, although the request for an
injunction was rendered moot, a declaratory judgment could help to remedy the effects of
the agency’s statutory violations and to ensure that similar violations would not occur in
the future: “In deciding such a case the court is not merely propounding on hypothetical
questions of law, but is resolving a dispute which has present and future consequences.”
Id. at 1245.
Here, although it is true that the only agency action sought by Forest Guardians in this
appeal-re-initiation of informal consultation on [the permit]-has already occurred, that is
not the only form of effective relief that Forest Guardians seeks or that the district court
may grant. As discussed above, a declaratory judgment that the Forest Service’s actions
relating to [the permit] violated the ESA would provide effective relief by governing the
Forest Service’s actions for the remainder of the allotment’s permit term and by
prohibiting it from continuing to violate the law. It would, accordingly, “resolve a dispute
with present and future consequences.” Id. Because such relief remains available to
Forest Guardians notwithstanding the Forest Service’s re-initiation of consultation on
Water Canyon, the agency has failed to carry its burden to establish mootness. See id. at
1244.

19 450 F.3d at 461-63.
20

Key to the Ninth Circuit’s ruling in Forest Guardians was the notion of a “continuing practice.”

21 In Forest Guardians, the Forest Service was required to make annual findings about the guidance
22

criteria and obtain from FWS annual concurrences that the guidance criteria have been satisfied. In

23
addition, the Forest Service argued throughout the litigation that it was not required to meet the
24
25

monitoring requirements incorporated into the guidance criteria. This all-but ensured that the Forest

26 Service would repeat the alleged violation every year for the remainder of the permit term. Unlike the
27 almost guaranteed annual violations that could be expected in Forest Guardians, Plaintiffs point to no
28

16

1

such likelihood of repetitive violations in this case. Plaintiffs suggest that excess water conditions occur

2

in every year, but provide no evidence of an annual, repetitive or otherwise “continuing” practice3 by the

3

Bureau of ordering pumping reductions during periods of excess water conditions.4

4

In Northwest Environmental Defense Center, the Ninth Circuit emphasized the “continuing

5
6

effects” of the 1986 fishery management measures for the Oregon coho salmon, which permitted the

7

harvest of certain numbers of coho during the 1986 fishing season. 849 F.2d at 1245. The Ninth Circuit

8

found that the 1986 management measures would continue to have an effect on species because it would

9

impact the number of coho that would return to Oregon to spawn three years later, in 1989. Id. If the

10 1986 measures were unlawful and caused harm to the coho, the Ninth Circuit reasoned that “the damage
11
can still be repaired or mitigated – obviously not by restoring the fish harvested in 1986, but by allowing
12
more fish to spawn in 1989.” Id. “In a case such as this, where the violation complained of may have
13
caused continuing harm and where the court can still act to remedy such harm by limiting its future
14
15 adverse effects, the parties clearly retain a legally cognizable interest in the outcome.” Id.
16

In support of their argument that there is a continuing harm that could be remedied by the Court

17 here, Plaintiffs cite Pyramid Lake Paiute Tribe v. Hodel, 882 F.2d 364 (9th Cir. 1989). That case, which
18
19

has a complex history that must be explained in order to evaluate its discussion of mootness, concerned
the waters of the Truckee River, which if not diverted, flow into Pyramid Lake. Id. at 365-66. Some of

20
21

the Truckee’s water can be stored in upstream reservoirs, including the Stampede Reservoir. Id. Water

22 can then be released throughout the irrigation season for diversion by agricultural water rights holders.
23 See id. at 366. By the late 1960s, diversions of water from the Truckee had depleted Pyramid Lake to
24

3

The concept of a “continuing practice,” the presence of which precludes a threshold finding of mootness, is distinct from the

25 concept of a wrong that is “capable of repetition but evading review,” which is an exception to mootness that permits
adjudication of otherwise moot cases. See Ctr. for Biol. Diversity v. Salazar, 2010 WL 4055568, *9 (N.D. Cal. Oct. 15,

26 2010) (separately addressing both concepts). The latter is discussed below.
4

Plaintiffs do contend that “excess water conditions” occur frequently and that periods of excess water conditions occur

27 every year. Second Snow Decl., Doc. 57-1, ¶¶ 7-8. However, the existence of excess water conditions is only a precondition
to the type of violation alleged here. The conduct complained of occurs only when excess water conditions coincide with

28 pumping reductions taken only pursuant to the Bureau’s authority under CVPIA § 3406(b)(2).
17

1

such an extent that some of the Lake’s native fish received protected status. Id. The Bureau as operator

2

of the dams on the Truckee began to manage the dams under operating criteria designed both make

3

deliveries under existing water rights decrees and minimize diversions from the Truckee to make as

4
much water as possible available for Pyramid Lake. Id. In 1970 the Pyramid Lake Indian Tribe
5
6

challenged the operating criteria the Bureau was using to manage the Truckee system. Id. The district

7

court held that the Secretary of the Interior, who oversees the Bureau, was obligated by trust

8

responsibilities to the Tribe to ensure that the Lake received “the maximum benefit from the upper

9

Truckee flow ... which may be available under [] reasonable and proper interpretation of the decrees.”

10 Id.
11

A related dispute arose in the late 1980s, when the Bureau sought approval of proposed operating

12
13
14

criteria to govern diversions from the Truckee in 1987. Id. at 367. The agricultural water rights holders
objected to the operating criteria. Among other things, the agricultural users argued they should be

15 permitted to “carry over” to 1988 any water stored in upstream reservoirs for their use in 1987, but not
16 used in 1987. Id. In the spring of 1988, as the litigation progressed, the Bureau refused to release any
17 “carry over” water (also referred to as “credit water”). Id. However, in June 1988, the district court
18
19

ordered the Bureau to release the water. Id. The releases began in August 1988. Id. The next day, the
Tribe filed an emergency motion for a stay pending appeal. Id. at 367-68. The emergency stay request

20
21

was denied, but the Ninth Circuit established an expedited briefing schedule. Id. at 368. Nevertheless,

22 the credit water releases were completed by the time the appeal was ripe for decision. Id. The Ninth
23 Circuit then addressed whether the appeal had been rendered moot “by execution of the order to be
24 reviewed.” Id. Following Northwest Environmental Defense Center, the Ninth Circuit concluded:
25
26
27
28

The survival of the cui-ui and the Lahontan cutthroat trout is directly related to the
amount of water allowed to reach Pyramid Lake from the Stampede Reservoir during the
spawning season. [Citation]. If the Pyramid Lake fishery was or may be impaired by the
diversion of the Stampede Reservoir “credit water” to the Lahontan Reservoir in 1988
pursuant to the district court’s order, thus reducing the amount of water that might be
18

1

available to flow to Pyramid Lake in the future, that harm can be remedied by storing in
Stampede Reservoir an equivalent amount of water from the District’s future allotment to
be available for possible use during future spawning seasons—just as the District said it
could in its opposition to the Secretary’s motion to stay the district court’s order. [¶]
Since effective relief may still be available if we conclude the district court’s order was
issued in error, the appeal from the order is not moot.

2
3
4
5

Id. at 368-69.

6
7

Here, Plaintiffs maintain that “[i]f the Court concludes that the June 2011 pumping reduction
was unlawful ... [it may] require[] Reclamation to make available to Plaintiffs or send to storage an

8
amount of water equivalent to the water lost through implementation of the June pumping reduction.”
9
10

Doc. 57 at 7. Federal Defendants are correct that this proposed relief is very different than the type of

11 relief contemplated in Pyramid Lake. Critically, in Pyramid Lake, the agricultural users admitted any
12 harm to the Lake and its fishery could be remedied by holding back a portion of the users’ own water
13 allotment in a future year. Here, the Federal Defendants make no such admission. For one thing,
14
15

compelling the Bureau by way of an affirmative injunction to deliver water to Plaintiffs regardless of
whether that water is needed for other purposes (e.g., to protect ESA-listed fish) is totally

16
17
18

unprecedented. Pyramid Lake presented a unique example of a continuing harm that, despite the fact
that the specific dispute was rendered moot, could nevertheless be remedied by a court. The present

19 facts are simply not analogous.
20

With this in mind, given that the June 2011 action is now complete, Plaintiffs’ claims are

21 technically moot. However, adjudication may still be proper if one of the exceptions to the mootness
22

doctrine applies.

23
24 C.

Exceptions to Mootness.

25

Even if a case is technically moot, it may nevertheless be judiciable if one of three exceptions to

26 the mootness doctrine applies: (1) where a plaintiff “would suffer collateral legal consequences if the
27
28

actions being appealed were allowed to stand”; (2) where defendant voluntarily ceased the challenged
19

1

practice; and (3) for “wrongs capable of repetition yet evading review.” Ctr. for Biological Diversity v.

2

Lohn, 511 F.3d at 964-66.

3
4

1.

Collateral Legal Consequences.

5

This exception applies “to situations where a [plaintiff] would suffer collateral legal

6

consequences if the actions being challenged were allowed to stand. Pub. Util. Comm’n of State of Cal.

7

v. F.E.R.C., 100 F.3d 1451, 1460 (1996). It is commonly applied in habeas corpus proceedings where

8

mootness would generally bar relief if the petitioner completes his sentence before the court has

9
addressed the merits of his petition, but not if the plaintiff demonstrates he will suffer collateral legal
10
11

consequences if the challenged conviction is allowed to stand. See Zal v. Steppe, 968 F.2d 924, 926 (9th

12 Cir. 1992) (petitioner risked discipline by the California State bar if conviction was permitted to stand).
13 Plaintiffs point to no such collateral consequences here.
14
2.
15

Voluntary Cessation.

“It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive

16
17

a federal court of its power to determine the legality of the practice.” City of Mesquite v. Aladdin’s

18 Castle, Inc., 455 U.S. 283, 289 (1982). “[T]he standard ... is whether the defendant is free to return to its
19 illegal action at any time.... [I]n order for this exception to apply, the defendant’s voluntary cessation
20 must have arisen because of the litigation.” Pub. Util. Comm’n, 100 F.3d at 1460 (emphasis in original).
21
22

Here, there is no suggestion that Federal Defendants voluntarily ceased the challenged practice because
of this litigation. Rather, the challenged action expired of its own accord.

23
24

3.

25

Plaintiffs do invoke the final exception, which “permit[s] suits for prospective relief to go

Capable of Repetition Yet Evading Review.

26 forward despite abatement of the underlying injury [in] exceptional5 situations where the following two
27
28

5

In line with the Supreme Court’s explanation that this exception only applies in exceptional cases when the two stated

20

1

circumstances [are] simultaneously present: (1) the challenged action [is] in its duration too short to be

2

fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same

3

complaining party would be subjected to the same action again.” Fed. Elec. Com’n v. Wisconsin Right

4
to Life, Inc., 551 U.S. 449, 462 (2007) (internal citations and quotations omitted); San Luis, 672 F.3d at
5
6

703.

7
8

a.

Duration of Challenged Action.

There can be little dispute that the challenged action, a temporary pumping reduction, was too

9
short in duration to be fully litigated prior to its expiration. Federal Defendants admit as much. See
10
11
12
13
14
15

Doc. 58 at 8.6
b.

Reasonable Expectation of Repeat Conduct.

The crux of this motion is whether there is a reasonable expectation that the same complaining
party would be subjected to the same action again. As discussed above, Plaintiffs have failed to
demonstrate that there is a “continuing practice” here, but the “capable of repetition yet evading review”

16
17
18

exception is not so narrowly circumscribed.
Whether similar events occurred in the past is potentially dispositive of the application of the

19 “capable of repetition but evading review” exception. Demery v. Arpaio, 378 F.3d 1020, 1027 (9th Cir.
20 2004) (repeated past conduct on multiple occasions taken as evidence of likely repetition); Natural
21
22

Resources Defense Council, Inc. v. Evans, 316 F.3d 904, 910 (9th Cir. 2003) (same, noting that agency
repeatedly applied the same, challenged rationale, “year after year”); Greenpeace Action v. Franklin, 14

23
24 conditions are met, the Ninth Circuit only applies the exception in “extraordinary cases.” West Coast Seafood Processors
25
26
27
28

Ass’n v. Natural Res.s Def. Council, 643 F.3d 701, 704 (9th Cir. 2011).
6
Federal Defendants did initially suggest that the duration of the Bureau’s action in this case was sufficient to permit judicial
review, pointing to Headwaters, Inc. v. BLM, 893 F.2d 1012, 1016 (9th Cir. 1989), which held that the “evasion” prong of the
capable of repetition yet evading review exception was not satisfied “[w]here prompt application for a stay pending appeal
can preserve an issue for appeal....” Yet, Headwaters and the small number of other cases that have applied this test ignore
the weight of the authority that suggests the critical inquiry is whether a plaintiff can obtain “complete judicial review” before
the case is rendered moot. See Wisconsin Right to Life, 551 U.S. at 462. In Reply, Federal Defendants “acknowledge[] that
[Plaintiffs] can satisfy the first prong of the exception.” Doc. 58 at 8.

21

1

F.3d 1324, 1329 -1330 (9th Cir. 1992) (one subsequent instance of agency relying on allegedly

2

insufficient biological opinion sufficient to find reasonable expectation of recurrence).

3

Here, supplemental Declarations were submitted on the narrow issue of whether Federal

4
Defendants have ever before, apart from the June 2011 instance that is the subject of the Complaint,
5
6

ordered reduced pumping during excess conditions based purely on the Secretary’s authority under

7

CVPIA § 3406(b)(2). Critically, Plaintiffs do not challenge the Secretary’s authority to implement

8

reductions during excess conditions if those reductions are mandated by some other (i.e., non-CVPIA)

9

source of law or were imposed as part of the voluntary VAMP experiment.7 Plaintiffs only dispute that

10 the Secretary has the discretion to order such reductions when other laws are not controlling.
11
Plaintiffs submitted the Supplemental Declaration of James Snow,8 which indicates that Federal
12
Defendants have ordered reduced pumping based solely on the Secretary’s (b)(2) authority on three
13
separate occasions prior to 2011, from May 16-May 31, 2000, from February 7-February 22, 2004, and
14
15 from June 7 – June 21-2006. Doc. 64.
16
(1)
17

May 16 to May 31, 2000.

Interior’s (b)(2) accounting documents indicate: “CVP and SWP exports were reduced to a

18
19

combined 2250 cfs for 31 days from April 15 – May 15, 2000. From May 16 -31, CVP and SWP

20 exports were maintained at reduced levels.” Suppl. Snow Decl., Ex. 1, Doc. 64-1, at p 4 of 5. The April
21 15 to May 15, 2000 period coincided with the VAMP experiment, so reductions ordered during that
22 period cannot be attributed to the Bureau’s exercise of discretion under (b)(2). The latter period, from
23
24
25
26
27
28

7

“As part of the flow objectives in the 1995 Bay–Delta Plan, [California’s State Water Resources Control Board] set
minimum monthly average flow rates on the San Joaquin River at Vernalis .... Currently, the Vernalis Adaptive Management
Plan (“VAMP”), a voluntary arrangement, allocate[es] responsibility for meeting some but not all of the Vernalis flow
objectives for a twelve year period to members of the [San Joaquin River Group Authority], who in exchange would receive
$3 million per year from Reclamation and $1 million per year from the California Department of Water Resources (“DWR”).
San Joaquin River Group Authority v. Nat’l Marine Fisheries Serv., 819 F. Supp. 2d 1077, 1093 (E.D. Cal. 2011) (internal
citations and quotations omitted).
8
Mr. Snow, an engineer formerly employed by California’s Department of Water Resources and currently an employee of
Westlands, has previously been accepted as an expert in related cases.

22

1

May 16-31, however, fell outside the VAMP experimental period.

2
3

Mr. Snow endeavored to determine whether the May 16-31 reduction was mandated by some
source of law other than CVPIA § 3406(b)(2). Doc. 64 at ¶ 6. To determine whether this reduction was

4
required by the ESA, Mr. Snow consulted with Sheila Greene, a fish biologist with Westlands. Id. Ms.
5
6

Greene and Mr. Snow reviewed the then-applicable incidental take limits for the relevant ESA-listed

7

salmonids.9 Id. In light of the take limits, Mr. Snow and Ms. Greene determined the actual level of take

8

of salmonids at the CVP and SWP pumps in May 2000 would not have warranted a pumping reduction.

9

Id. Mr. Snow further opines that the May 16-31 pumping was not mandated by State Water Resources

10 Control Board Decision 1641 (“D-1641”)10 either, because D-1641 does not include any outflow or
11
salinity standards that require reductions in export pumping during excess water conditions.
12
However, Mr. Snow and Ms. Green appear to have overlooked an important legal obligation. In
13
response to Mr. Snow’s declaration, Federal Defendants submitted the Supplemental Declaration of Paul
14
11
15 Fujitani, the Deputy Operations Manager of the Bureau’s Central Valley Operations Office. Mr.

16 Fujitani points out that in May 2000, the Bureau was operating the CVP in accordance with, among
17 other legal requirements, a 1995 biological opinion for the protection of delta smelt, issued by FWS
18
19

pursuant to ESA § 7 (“1995 smelt BiOp”). A May 25 letter from the Bureau to FWS explained that
although the CVP and SWP had been operating under voluntary export reductions (i.e. VAMP) from

20
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April 15, through May 15, as of May 20, the California Department of Water Resources (“DWR”),

22 which manages the SWP, began a “gradual ramp up of exports” and had planned to be operating at a
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25
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27
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9

The winter-run and spring-run Chinook salmon and Central Valley steelhead.
In 1995, the SWRCB promulgated flow-dependent water quality objectives for the San Francisco Bay/Sacramento-San
Joaquin Delta (“Bay-Delta”) in the Water Quality Control Plan for the Bay-Delta (the “1995 Bay Delta Plan”). See SWRCB
Cases, 136 Cal. App. 4th 647, 687 (2006). In 2000, with the issuance of Revised Water Right Decision 1641, the SWRCB
attempted to allocate responsibility among various water rights holders for meeting the water quality objectives set forth in
the 1995 Bay Delta Plan. Id. Much of that responsibility was allocated to the CVP and SWP in the form of directives to
ensure maintenance of salinity and outflow objectives. Id. at 710-712. Federal Defendants are obligated to comply with
these and other state law mandates, so long as they do not conflict with federal law, by virtue of section 8 of the Reclamation
Act of 1902. Pub. L. No. 57–161, 32 Stat. 288, at § 8 (June 17, 1902); California v. United States, 438 U.S. 645, 675 (1978).
11
Mr. Fujitani has also been accepted as an expert in related cases on numerous occasions.
10

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relatively high pumping level (5000 cfs) by the end of May. Suppl. Fujitani Decl., Ex. 1, Doc. 65-1 at p.

2

2 of 34. Id. However, on May 23, DWR met with representatives from FWS, the Bureau and

3

California’s Department of Fish and Game to modify the “ramping schedule” to “minimize the

4

likelihood that Delta smelt .... will be drawn into the SWP export facility.” Id. at p. 2-3 of 34.

5
6

Therefore, just a few days into the May 16-31 period, pumping appears to have once again been

7

curtailed for ESA purposes. This period is not a good example of the Bureau exercising “pure” (b)(2)

8

discretion.

9
(2)

10

February 7 to February 22, 2004

Interior’s annual (b)(2) accounting document indicates that from February 7 through February

11

12 22, 2004, exports were reduced to provide “a functional equivalent in the delta for the Vernalis flow
13 objective of 2280 cfs.” Suppl. Snow Decl., Ex. 2, Doc. 64-2. Mr. Snow concluded, and Federal
14 Defendants do not dispute, that this export reduction was not taken to comply with the ESA or the 35 %
15 Export/Inflow ratio imposed by D-164112, nor was it undertaken as part of the Environmental Water
16

Account (“EWA”)13. Id. at ¶ 7. Mr. Snow also concluded that the export reduction was not mandated

17
by D-1641’s additional requirement that flow in the San Joaquin River at Vernalis remain at or above
18
19

2280 cfs. Id. Mr. Snow based this conclusion on the fact that reducing export pumping cannot

20 physically alter the flow of the San Joaquin at Vernalis, which is well upstream (and uphill) from the
21 export pumps. Id. Instead, Vernalis flow is a function of runoff conditions upstream of Vernalis and
22 releases from New Melones Reservoir, which is also located upstream of Vernalis.
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12

As part of D-1641, the SWRCB requires the CVP and SWP to limit project pumping (i.e. exports) to a certain percentage
of total outflow from the Delta. See Natural Res. Def. Council v. Kempthorne, 506 F. Supp. 3d 322, 331 (E.D. Cal. 2007).
13
It is not clear why any pumping reduction would ever be required to “comply” with the EWA. The EWA was a program
used to allow curtailment of project export pumping during critical time periods for fish. Natural Resources Defense Council
v. Kempthorne, 506 F. Supp. 2d 322, 340 (E.D. Cal. 2007). The EWA was originally designed to compensate CVP and SWP
contractors for water losses caused when pumping or diversions from the Delta were reduced to protect fish. Typically, the
EWA would replace water loss due to curtailment of pumping by purchasing surface or groundwater supplies from willing
sellers. San Luis & Delta-Mendota Water Authority v. Salazar, 760 F. Supp. 2d 855, 897 n. 23 (E.D. Cal. 2010) (internal
quotations and citations omitted).

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1
2
3

Once again, Mr. Snow appears to not have had the benefit of complete information. Mr. Fujitani
explains in his declaration that in January and February 2004, because of low reservoir storage
conditions in New Melones, the Bureau did not believe it was prudent to release water from new

4
Melones to meet D-1641’s flow objectives. Instead, on January 30, 2004, the Bureau petitioned the
5
6

SWRCB for a Temporary Urgency Change in Permit Conditions, requesting that the SWRCB change

7

the flow requirement to a lower objective. See Suppl. Fujitani Decl., Ex. 2, Doc. 65-1 at p. 7 of 34

8

(referencing Jan. 30, 2004 letter). The SWRCB asked Reclamation to provide a proposed alternative

9

flow objective and the basis for that objective. See id. at p. 8 of 34 (referencing request from SWRCB).

10 On February 9, 2004, the Bureau indicated that it would work with the relevant agencies to “develop
11
alternative actions to provide protection for fish and wildlife in the southern Delta” and that those
12
actions “ may not necessarily target a specific Vernalis flow objective, but may be composed of a
13
combination of actions both as instream flow and in the Delta to provide that protection.” Id. Among
14
15 other things, in the February 9, 2004 letter, the Bureau indicated that it would “reduce pumping at [the
16 CVP’s] Tracy pumping plant y approximately 500 cfs ... to improve delta smelt spawning habitat in the
17 southern Delta and improve survival of adult smelt.” Id. On February 25, 2004, the SWRCB approved
18
19

the Bureau’s petition through the issuance of Water Rights Order 2004-2005-DWR, which clearly
indicates that the measures proposed by the Bureau were required under D-1641 in lieu of the otherwise

20
21

applicable flow requirements at Vernalis. Suppl. Fujitani Decl., Ex. 3, Doc. 65-1 at p. 11 of 34. The

22 reductions in February 2004 were mandated under D-1641.
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(3)

June 7 to June 21, 2006.

Finally, according to Interior’s annual (b)(2) accounting document, from June 7 to June 21, 2006,
exports were reduced to “6000 cfs (combined) ... to help protect emigrating juvenile San Joaquin basin
salmon.” Suppl. Snow Decl., Ex. 3, Doc. 64-3. Federal Defendants concede that this period of reduced

28 exports was not mandated by either D-1641 or the ESA, impliedly conceding that this was a “pure”
25

1

exercise of the Bureau’s discretion under CVPIA 3406(b)(2). See Supp. Fujitani Decl., Doc. 65 at 4.

2
3
4

The June 7 through June 21, 2006 pumping reduction stands as the only clear example of Federal
Defendants engaging in conduct similar to that complained of in this case. Greenpeace suggests that
this single, additional instance is sufficient to trigger the “capable of repetition yet evading review”

5
6

exception. Greenpeace concerned the impact of pollock fishing in the Gulf of Alaska on the ESA-listed

7

Stellar sea lion. 14 F.3d 1324. For the 1991 fishing season, defendant, the National Marine Fisheries

8

Service (“NMFS”), based the “total allowable catch” (“TAC”) for the pollock fishery on a series of

9

biological opinions issued pursuant to section 7 of the ESA. Id. at 1327-28. Greenpeace sued, seeking

10 injunctive and declaratory relief to protect the Stellar sea lion, which relies on pollock as a major food
11
source, alleging that NMFS’s management of the 1991 fishery violated the ESA and NEPA. Id. at 132812
29. Among other things, Greenpeace argued the biological opinions on which NMFS based the 1991
13
TAC were unlawful. Id. at 1329. By the time the case made it to the Ninth Circuit, the 1991 fishing
14
15 season had ended. NMFS argued the appeal was moot, pointing out that it had already amended the
16 fishery management plan for 1992 based on an entirely new administrative record. Id. The Ninth
17 Circuit disagreed, applying the capable of repetition but evading review exception:
18

The regulation challenged was in effect for less than one year, making it difficult to
obtain effective judicial review. [Citation.] The major issue -- whether the Secretary has
adequately examined the effects of pollock fishing on the Steller sea lions -- is likely to
recur in future years. In fact, the [NMFS] has relied on the same biological opinion in
support of the 1992 TAC, and has declined to prepare an [environmental impact
statement under NEPA]. [Citation.]

19
20
21
22

Id. at 1329-30.14 The Ninth Circuit was content to apply the exception where there was a single,

23
subsequent example of NMFS relying on the allegedly unlawful biological opinion. Although
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28

14

In Greenpeace, in support of its finding that the “capable of repetition yet evading review” exception applied, the Ninth
Circuit also emphasized “there is a continuing public interest in determining the standards governing [NMFS’s] decision to
authorize a certain level of pollock fishing in the Gulf of Alaska. See Joint Bd. of Control v. United States, 832 F.2d 1127,
1130 (9th Cir. 1987)[ ]; Alaska Fish & Wildlife Fed’n v. Dunkle, 829 F.2d [933,] 939 [(9th Cir. 1987)].” Id. at 1329-30.
Although the two cited cases also apply a “public interest” component to the “capable of repetition yet evading review”
exception, more recent Ninth Circuit and Supreme Court cases do not. See Wisconsin Right to Life, 551 U.S. at 462; San
Luis, 672 F.3d at 703.

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1

Greenpeace did concern a regulatory regime that demanded annual fishery decisions affecting the

2

Steller sea lion, the only evidence that the complained of conduct would repeat itself was a single

3

instance of NMFS actually relying on the allegedly unlawful biological opinion. This suggests that for

4
purposes of the capable of repetition yet evading review exception, a single additional instance does a
5
6

pattern make.
Here, Plaintiffs have pointed to at least one previous example of the Bureau exercising its

7
8

discretion under CVPIA § 3406(b)(2) to reduce pumping during “excess water conditions” where no

9

other legal obligation mandated the pumping reduction. Although it is impossible to precisely predict

10 when excess water conditions will next coincide with hydrologic and/or biological conditions warranting
11
a pumping reduction to serve a (b)(2) purpose where that reduction would not be mandated by another
12
source of law, Federal Defendants do not disclaim they possess the discretion to order such a
13
reduction.15 That the conduct occurred on another occasion five years prior to the action challenged in
14
15 this case suggests there is a reasonable expectation Plaintiffs could be subject to the same conduct again.
16

This case is unlike Feldman v. Bomar, 518 F.3d 637, 640 (9th Cir. 2008), where Plaintiffs

17 challenged whether the National Park Service followed proper procedures when developing a feral pig
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19

eradication program on Santa Cruz Island, part of Channel Islands National Park. By the time the case
reached the appellate court, the pigs had already been eradicated. See id. at 642. Under the

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21

circumstances, there was no reasonable expectation that plaintiffs would be subjected to the same

22 alleged procedural violation in the future. Id. at 644. There was no live controversy there because
16
23 subjects of that case were, quite literally, dead.

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15

There is at least some Ninth Circuit authority that suggests Defendants bear the burden of demonstrating there is no
reasonable expectation Plaintiffs will not again be subjected to the allegedly wrongful conduct. See Johnson v. Rancho
Santiago Community College Dist., 623 F.3d 1011, 1020 (9th Cir. 2010) (non-union craftsmen could challenge public
entity’s decision to enter into an union labor contract that excluded non-members despite the fact that the contract had
expired because defendant failed to demonstrate there was “no reasonable expectation” that non-union plaintiffs would be
subject to the same type of contract again).
16
As additional support for their mootness argument, Federal Defendants cite In Defense of Animals v. U.S. Dep’t of the

27

1

The present case is distinguishable. Although no party can predict exactly when Federal

2

Defendants might again have the opportunity and motivation to exercise the discretion challenged in this

3

case, the possibility remains, and past conduct indicates a reasonable expectation that the conduct may

4
be repeated. The capable of repetition yet evading review exception applies here, permitting
5
6
7
8
9

adjudication of this case despite the fact that the underlying dispute over the 2011 pumping reduction is
now moot.
4.

Standing.

Although Mr. Fujitani concedes that the June 2006 pumping reduction was a “pure” exercise of

10
11

the Bureau’s discretion under CVPIA § 3406(b)(2), his Supplemental declaration does raise an issue not

12 addressed by any of the parties’ briefs. Mr. Fujitani points out that the water year encompassing June
13 2006 was considered a “wet” hydrologic year. Id. at ¶ 9. In that water year, despite the export reduction
14 that took place from June 7 to June 21, Plaintiffs received 100% of the water allocated to them in their
15 CVP water supply contracts. Id. Likewise, Mr. Fujitani points out that the June 2011 export reduction
16

at issue in this case did not impact Plaintiff’s water supply allocation in 2011. Id. Before June 2011, the

17
Bureau’s set Plaintiffs’ water supply allocation at 80%. Id. Although allocations can change throughout
18
19

the year, in 2011 Plaintiffs’ allocation remained at 80%. Id.17 Therefore, according to Mr. Fujitani,

20
Interior, 648 F.3d 1012, 1013 (9th Cir. 2011, which held that an interlocutory appeal from the denial of request for a

21 preliminary injunction against the roundup of wild horses was moot because the roundup had already been completed.

However, the Ninth Circuit specifically indicated that it was only the interlocutory appeal that was moot and “expressed no

22 opinion as to whether the entire action is moot.” Id.
17

This fact was also noted in the September 6, 2011 Findings of Fact and Conclusions of Law Re: Plaintiffs’ Motion for TRO

23 and Preliminary Injunction. Doc. 49, Finding of Fact # 6. In reaching the conclusion that Plaintiffs’ had not established they
would suffer irreparable harm, the Court reasoned:

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Here, Plaintiffs argue that the water not pumped during the fourteen-day reduced pumping period will be
“irrevocably and irretrievably lost and unavailable to Plaintiffs for allocation in the 2011-2012 water year and water
years thereafter.” Compl. ¶ 42. There is no evidence that Plaintiffs’ 2011 CVP water allocation, which is currently
eighty percent of their contract entitlement, will be affected by the reduced pumping. [¶]Plaintiffs expressly argue
that the estimated 35,000 af of water lost due to foregone pumping during the fourteen-day pumping during
reduction will “increase the risk and potential of future shortages.” Pls.’ Memo at 6 (emphasis added). Plaintiffs
concede that the “full, additional impacts of this loss of water . . . will depend upon ongoing operations and
hydrology.” Id. The Court concludes that this is exactly the sort of “conjectural or hypothetical” harm that the

28

1

“neither the June 2006 export reduction nor the June 2011 export reduction impacted the Plaintiffs’

2

allocation of CVP water in water year 2006 or 2011, respectively.” Id.

3

Essentially, Mr. Fujitani questions whether Plaintiffs have been injured by the conduct

4
complained of in this case. Injury-in-fact is a basic element of standing. Lujan v. Defenders of Wildlife,
5
6

504 U.S. 555, 560 (1992). Although Defendants have not (yet) challenged Plaintiffs’ standing to sue,

7

the Court has a sua sponte obligation to evaluate standing at every stage of a case. Grupo Dataflux v.

8

Atlas Global Group, 541 U.S. 567, 593 (2004) (“It is the obligation of both district court and counsel to

9

be alert to jurisdictional requirements.”). Mr. Fujitani’s Supplemental Declaration suggests that

10 Plaintiffs may not have suffered any injury as a result of the 2011 water supply reduction. However,
11
does the fact that the water supply allocation remained unchanged throughout 2006 and 2011 necessarily
12
preclude a finding that Plaintiffs were injured?
13
The Ninth Circuit recently confirmed in the (b)(2) case that Plaintiffs suffered an injury-in-fact in
14
15 2004 when interior failed to release 9,000 AF of water pursuant to the exercise of its discretion under
16 CVPIA 3406(b)(2). San Luis, 672 F.3d at 701. There, Plaintiffs claimed a beneficial interest in water
17 stored and delivered by the CVP. Id. The Ninth Circuit noted that “for most of the 2004 water year,
18
19

allocations of CVP yield to [Plaintiffs] were at 65% of contracted amounts” and that “in response to that
shortfall [Plaintiffs] had to purchase alternative supplies and [their] landowner customers had to pump

20
21

groundwater.” Id. It is not clear why the facts of this case would demand a different result just because

18
22 the allocation in 2011 was 80%.

23

The issue of standing or the specific issue of injury-in-fact has not been briefed by any party.

24

Ninth Circuit found could not constitute irreparable harm in Center for Food Safety v. Vilsack. Plaintiffs cannot
prove that even this future risk of potential harm is certain, much less likely, to occur. Based on these
considerations, the Court cannot conclude that Plaintiffs are likely to suffer irreparable injury absent injunctive
relief.

25
26
27
28

Id., Conclusion of Law ## 10-11.
18
Previously, in related cases, Plaintiffs have advanced the argument that because crop planning occurs early in the water
year, water supply reductions (or even threats of water supply reductions) earlier in the year can cause injury throughout the
growing season, even if water losses are later “made up.”

29

1

The present record does not presently permit a full inquiry into whether Plaintiffs suffered any injury as

2

a result of the June 2006 or 2011 or export reduction. Mr. Fujitani’s declaration raises concerns about

3

Plaintiffs’ standing that must be resolved. The parties are instructed to incorporate dispositive motions

4
on the issue of standing into their scheduling for this case.
5
6
7
8

V. CONCLUSION AND ORDER
For the reasons set forth above:
(1) Federal Defendants’ motion to dismiss as moot is DENIED, and

9
(2) The parties are further ordered to incorporate dispositive motions on the issue of standing
10
11

into their scheduling for this case.

12
13 SO ORDERED
Dated: April 25, 2012
14
/s/ Lawrence J. O’Neill
United States District Judge

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