North Coast Rivers Alliance, et al. v. United States Department of the Interior, et al.

Filing 104

ORDER SETTING EVIDENTIARY HEARING ON ISSUE OF MOOTNESS. Evidentiary Hearing set for July 31, 2019, at 08:30 AM in Courtroom 4 (LJO) before Chief Judge Lawrence J. O'Neill. The parties should be prepared to present relevant eviden ce on any planned or anticipated WIIN Act conversion of Westlands' contracts. Unless otherwise notified by the Court, on or before noon on July 26, 2019, the parties shall file a joint statement naming the witnesses they intend to call at the e videntiary hearing, the duration of their anticipated testimony, and a summary of the subject(s) each witness will cover. Meanwhile, the Court will hold the pending motions in abeyance. Order signed by Chief Judge Lawrence J. O'Neill on 4/18/2019. (Timken, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NORTH COAST RIVERS ALLIANCE, et al.,

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1:16-cv-00307-LJO-SKO

Plaintiffs,

ORDER SETTING EVIDENTIARY
HEARING ON ISSUE OF MOOTNESS

v.
UNITED STATES DEPARTMENT OF THE
INTERIOR, et al.,
Defendants,
WESTLANDS WATER DISTRICT, et al.,
Intervenor-Defendants.

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This case concerns approval by the United States Department of the Interior and its member

16 agency, the United States Bureau of Reclamation (collectively, “Federal Defendants,” “Reclamation,” or
17 the “Bureau”), of six interim renewal contracts that authorized delivery of water from March 1, 2016,
18 through February 28, 2018, from federal reclamation facilities to certain water districts served by the
19 federal Central Valley Project (“CVP”) (“2016-18 Interim Contracts”). ECF No. 64, First Amended and
20 Supplemental Complaint (“FASC”). The 2016-18 Interim Contracts at issue in this case provided water
21 service to Westlands Water District (“Westlands”), Santa Clara Valley Water District (“Santa Clara”),
22 and Pajaro Valley Water Management Agency (“Pajaro”) (collectively, “Interim Contractors”). See
23 FASC at ¶ 2. The 2016-18 Interim Contracts are part of a long line of two-year interim contracts
24 executed in recent years to provide CVP water to contractors with expired long-term water service
25 contracts, pending the anticipated execution of new long-term water service contracts after the
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completion of appropriate environmental review. See Central Valley Project Improvement Act

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(“CVPIA”), Pub. L. No. 102-575, 106 Stat. 4600 (1992), §§ 3402, 3404.
A coalition of environmental organizations led by the North Coast Rivers Alliance (collectively,

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“Plaintiffs”) allege in the FASC’s first claim for relief that Federal Defendants issued a deficient

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Revised Environmental Assessment (“EA”) and associated Finding of No Significant Impact (“FONSI”)

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prior to approval of the 2016-18 Interim Contracts, in violation of the National Environmental Policy

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Act (“NEPA”), 42 U.S.C. § 4321 et seq., and Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-

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706. FASC at ¶¶ 45-65. The second claim for relief alleges that Reclamation violated NEPA by failing

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to prepare an Environmental Impact Statement (“EIS”) for the 2016-18 Interim Contracts. Id. at ¶¶ 56-

10 59. The latter claim was dismissed on March 9, 2018. ECF No. 78. Currently pending before this Court
11 are cross-motions for summary judgment on the merits of certain aspects of the remaining claims in this
12 case.1 ECF Nos. 85, 90, 92.
The Court recently requested input from the parties addressing the issue of mootness. ECF Nos.

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14 99 & 101. The backdrop for the mootness inquiry includes the Ninth Circuit’s ruling in Pacific Coast
15 Fed’n of Fishermen’s Associations v. U.S. Department of the Interior, 655 F. App’x 595, 597 (9th Cir.
16 2016), which held that challenges to interim contracts like those at issue in this case are not moot, even
17 though the relevant contract period has expired, because “[t]he short duration and serial nature of
18 Reclamation’s interim water contracts place plaintiffs’ claims within the mootness exception for
19 disputes capable of repetition yet evading review.” Id. However, on March 12, 2019, in response to the
20 Court’s request for supplemental briefing, the United States revealed that Reclamation “no longer
21 intends to pursue the issuance of new long-term water service contracts to Westlands under the authority
22 of CVPIA § 3404. Rather, based on the authority and direction provided in the 2016 Water
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As Reclamation points out, see ECF No. 102 at 2, Plaintiffs do not address the adequacy of the Santa Clara and Pajaro
contracts in their motion for summary judgment, ECF No. 85-1, which, given that the remaining APA claim in this case is to
be decided on cross-motions for summary judgment, renders any such claim abandoned as to the Santa Clara and Pajaro
contracts.

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Infrastructure Improvements of the Nation (“WIIN”) Act, Pub. L. 114-322, § 4011, Reclamation intends

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to convert Westlands’ existing water service contracts into repayment contracts,” which, according to

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Reclamation, will not be “subject to the requirements of NEPA.” ECF No. 100 at ¶¶ 3-4. As of March

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12, 2019, Reclamation indicated it could not be “certain when the WIIN Act conversion of any of

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Westlands’ contracts might be completed, except that Reclamation would need to complete any such

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conversion before the authority provided by the WIIN Act expires on December 16, 2021.” Id. at ¶ 5

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(citing WIIN Act, § 4013).

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On March 19, 2019, pointing out that it has a sua sponte obligation to determine whether a case
is moot, the Court again requested additional information from Reclamation:
[Reclamation’s filing] raises more questions than it answers. The Court
cannot tell whether Federal Defendants are being deliberately cryptic or
whether the Court simply failed to make clear the underlying threshold
jurisdictional question(s) that must be answered. This case already is
technically moot because the 2016-18 Interim Contracts have expired.
However, pursuant to the Ninth Circuit’s ruling in Pacific Coast
Federation of Fishermen’s Associations v. U.S. Dep’t of the Interior, 655
F. App’x 595, 597 (9th Cir. 2016), “[t]he short duration and serial nature
of Reclamation’s interim water contracts place plaintiffs’ claims within
the mootness exception for disputes capable of repetition yet evading
review.” What the Court needs information on now is whether this
mootness exception still applies to the contracts at issue in this case. Even
though Federal Defendants do not appear to be encouraging the Court to
revisit the matter, mootness is a jurisdictional issue the Court must
nonetheless address sua sponte. Bernhardt v. County of Los Angeles, 279
F.3d 862, 871 (9th Cir. 2002) (raising sua sponte mootness and the
capable of repetition yet evading review exception because it is a question
of subject matter jurisdiction); see also Ackley v. W. Conference of
Teamsters, 958 F.2d 1463, 1469 (9th Cir. 1992) (“It is the defendant, not
the plaintiff, who must demonstrate that the alleged wrong will not
recur.”). “A mere speculative possibility of repetition is not sufficient.
There must be a cognizable danger, a reasonable expectation, of
recurrence for the repetition branch of the mootness exception to be
satisfied.” Williams v. Alioto, 549 F.2d 136, 143 (9th Cir. 1977).
ECF No. 101 at 3 (emphasis in original).
In response, the United States outlined the anticipated process for converting under the WIIN
Act long-term water service contracts (pursuant to which a contractor pays service charges to

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Reclamation every year over a fixed term) into repayment contracts (pursuant to which the contractor

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will repay remaining construction costs associated with water deliveries either in a lump sum or in equal

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installments over a period not to exceed three years). ECF No. 102 at ¶ 7. Thus far, Reclamation has

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received requests from 70 Central Valley Project contractors (including Westlands) to convert water

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service contracts to repayment contracts. Id. at ¶ 9. According to judicially noticeable information

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submitted by Plaintiffs, Reclamation has requested that interested contractors submit any such requests

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by April 30, 2019, a window that will soon close. ECF No. 103-1, Ex. 1 at 5 (ECF p. 9 of 28). However,

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Reclamation cannot be sure at this time whether conversion of the contracts at issue in this case will take

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place before the present Interim Contracts expire on February 29, 2020. ECF No. 102 at ¶ 12.

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If the Court could be sure that Reclamation would complete the WIIN Act conversions of the

11 contracts at issue in this case prior to February 29, 2020, this case would be moot, because the
12 challenged conduct would not repeat. What is less clear is how the relevant mootness jurisprudence
13 applies in the present circumstances, where it is decidedly unclear whether and/or when any such
14 conversions will take place. Reclamation argues that its “intent” to pursue the WIIN Act conversions
15 “casts doubt” on the “serial nature” of the conduct challenged in this lawsuit. ECF No. 102 at ¶ 12.
16 Relying (reasonably) on the authorities cited by the Court in its March 19, 2019 Order, Plaintiffs rejoin
17 that Defendants have not met their burden to demonstrate that “the alleged wrong will not recur.” See
18 ECF No. 103 at 4. Plaintiffs suggest the standard is at least one step more onerous than that which the
19 Court articulated, by citing Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 72 (1983), for the
20 proposition that Reclamation “must establish that ‘there is no reasonable likelihood that the wrong will
21 be repeated.’” See ECF No. 103 at 4.
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The Court has revisited the legal standards in detail. The more onerous standard articulated by

23 Plaintiffs applies where the voluntary discontinuance of challenged activities by a defendant moots a
24 lawsuit, but it is unclear whether this standard applies under the circumstances of the present case. See
25 Iron Arrow, 464 U.S. at 72 (reviewing cases and then assuming without deciding that the more onerous
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standard applied where case mooted by voluntary conduct of a third party, non-defendant). Here, the

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WIIN Act appears to require conversion of water service contracts to repayment contracts upon request.

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WIIN Act § 4011 (Secretary of the Interior “shall” convert a contract to a repayment contract if the

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contractor requests the conversion, pays off any amounts owing on its existing water service contract,

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and pays its share of the capital costs for the project).

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More generally the “capable-of-repetition” exception to mootness applies “only in exceptional

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situations, where (1) the challenged action is in its duration too short to be fully litigated prior to

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cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be

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subject to the same action again.” Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1976

10 (2016) (internal quotations omitted). Here, the crux of the inquiry is whether there is a “reasonable
11 expectation” of repeat conduct. The Supreme Court shed some light (or confusion – depending on how
12 you see it) on how to apply this standard in Honig v. Doe, reasoning that “reasonable expectation” in the
13 context of the “capable-of-repetition” exception does not require a “demonstrated probability” that the
14 event will recur. 484 U.S. 305, 319 n.6 (1988); see, e.g., Barry v. Corrigan, 79 F. Supp. 3d 712, 725
15 (E.D. Mich. 2015) (“[I]t is not necessary to show that recurrence of the dispute is more probable than
16 not, only that controversy is capable of repetition.” (alterations and quotation marks omitted)).
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Here, the Court’s concern is far from esoteric under any of these standards. The United States

18 has presented information that suggests it is possible (although unclear how probable) that the
19 challenged conduct will not recur ever again, at least not as presented in any remaining, non-abandoned
20 claims in this case. The Court believes it does not yet have enough information to make the requisite
21 determination about how to proceed. On the one hand, the Court is hesitant to allocate its scarce
22 resources toward issuance of a decision that may soon be rendered advisory. On the other hand, the
23 Court recognizes that Plaintiffs’ motion has been under submission for several months and that, if any of
24 the claims are meritorious and another round of interim contracts is planned, the window for the Court to
25 issue meaningful relief is not endless.
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Accordingly, and in light of Reclamation’s request that all contractors interested in conversion

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under the WIIN Act notify Reclamation of that interest by April 30, 2019, on or before July 16, 2019,

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the United States and Westlands are directed to file a joint status report, no longer than ten pages in

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length, exclusive of supporting materials, outlining the status of and any schedule for conversion under

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the WIIN Act as to the contracts at issue in the cross-motions for summary judgment. Unless the

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possibility has been foreclosed completely by subsequent developments, the joint report shall also

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outline the anticipated schedule for performing environmental review of any relevant interim contracts.

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On or before July 23, 2019, Plaintiffs may file a response of equal or lesser length. In the event these

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filings do not resolve the factual questions underlying the mootness inquiry, the Court sets an

10 evidentiary hearing for July 31, 2019 at 8:30 a.m. in Courtroom 4. The parties should be prepared to
11 present relevant evidence on any planned or anticipated WIIN Act conversion of Westlands’ contracts.
12 Unless otherwise notified by the Court, on or before noon on July 26, 2019, the parties shall file a joint
13 statement naming the witnesses they intend to call at the evidentiary hearing, the duration of their
14 anticipated testimony, and a summary of the subject(s) each witness will cover. Meanwhile, the Court
15 will hold the pending motions in abeyance.
16 IT IS SO ORDERED.
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Dated:

April 18, 2019

/s/ Lawrence J. O’Neill _____
UNITED STATES CHIEF DISTRICT JUDGE

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