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

Filing 151

ORDER GRANTING 130 131 Motions to Dismiss First Claim for Relief as MOOT without Prejudice and GRANTING Motion to Compel Joinder of Absent Contractors signed by District Judge Dale A. Drozd on 10/29/2021. (Sant Agata, S)

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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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No. 1:16-cv-00307-DAD-SKO

Plaintiffs,

ORDER GRANTING MOTIONS TO
DISMISS FIRST CLAIM FOR RELIEF
AS MOOT WITHOUT PREJUDICE AND
GRANTING MOTION TO COMPEL
JOINDER OF ABSENT
CONTRACTORS

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v.
UNITED STATES DEPARTMENT OF THE
INTERIOR, et al.,
Defendants,

(Doc. Nos. 130, 131)

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WESTLANDS WATER DISTRICT, et al.,
Intervenor-Defendants.

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INTRODUCTION
As originally filed, this case concerned approval by the United States Department of the Interior

22 and its member agency, the United States Bureau of Reclamation (collectively, “Federal Defendants” or
23 “Reclamation”), of six interim renewal contracts that authorized delivery of water from March 1, 2016,
24 through February 28, 2018, from federal reclamation facilities to certain water districts served by the
25 federal Central Valley Project (“CVP”) (“2016–18 Interim Contracts”). (Doc. No. 64, First Amended
26 and Supplemental Complaint (“FASC”).) The 2016–18 Interim Contracts at issue in the FASC
27 provided water service to Westlands Water District (“Westlands”), Santa Clara Valley Water District
28 (“Santa Clara”), and Pajaro Valley Water Management Agency (“Pajaro”). (See FASC at ¶ 2.) The
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2016–18 Interim Contracts are part of a long line of two-year interim contracts executed in recent years

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that provided CVP water to contractors with expired long-term water service contracts, pending the

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anticipated execution of new long-term water service contracts after the completion of appropriate

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environmental review. See Central Valley Project Improvement Act (“CVPIA”), Pub. L. No. 102-575,

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106 Stat. 4600 (1992), §§ 3402, 3404.

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Plaintiffs, a coalition of environmental organizations led by the North Coast Rivers Alliance,

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alleged in their FASC’s first claim for relief that Federal Defendants issued a deficient Revised

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

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approval of the 2016–18 Interim Contracts, in violation of the National Environmental Policy Act

10 (“NEPA”), 42 U.S.C. § 4321 et seq., and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–
11 706. (FASC at ¶¶ 45–65.)1 Currently being held in abeyance by the court are cross-motions for
12 summary judgment on the merits of that claim.2 (Doc. Nos. 85, 90, 92.)
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In late February 2019, the court requested input from the parties regarding the issue of

14 mootness. (Doc. Nos. 99, 101.) The backdrop for the mootness inquiry includes the Ninth Circuit’s
15 ruling in Pacific Coast Federation of Fishermen’s Associations v. U.S. Department of the Interior, 655
16 F. App’x 595, 597 (9th Cir. 2016)3, which held that challenges to interim contracts like those at issue in
17 this case were not moot, even though the relevant contract period had expired, because “[t]he short
18 duration and serial nature of Reclamation’s interim water contracts place plaintiffs’ claims within the
19 mootness exception for disputes capable of repetition yet evading review.” Id. However, on March 12,
20 2019, in response to the court’s request for supplemental briefing, the United States revealed that
21 Reclamation “no longer intends to pursue the issuance of new long-term water service contracts to
22 Westlands under the authority of CVPIA § 3404. Rather, based on the authority and direction provided
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Plaintiffs’ second claim for relief in the FASC asserted that Reclamation violated NEPA by failing to
prepare an Environmental Impact Statement (“EIS”) for the 2016–18 Interim Contracts. (Id. at ¶¶ 56–
25 59.) The latter claim was dismissed on March 9, 2018. (Doc. No. 78.)
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Given the ongoing concerns regarding mootness discussed below, the court ordered the pending
motions for summary judgment administratively terminated pending re-notice if appropriate once the
27 mootness issue was resolved. (See Doc. No. 117.)
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Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 363(b).
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in the 2016 Water Infrastructure Improvements of the Nation (“WIIN”) Act, Pub. L. 114-322, § 4011,

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Reclamation intends to convert Westlands’ existing water service contracts into repayment contracts,”

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which, according to Reclamation, will not be “subject to the requirements of NEPA.” (Doc. No. 100 at

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¶¶ 3–4.) The court ordered the United States to file periodic status reports addressing the progress of

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those WIIN Act conversions. (See Doc. No. 117.)

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On July 8, 2020, plaintiffs moved to amend their complaint to add claims pertaining to the six

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new, repayment contracts negotiated under the WIIN Act’s provisions (“WIIN Act Repayment

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Contracts” or “Repayment Contracts”). (Doc. No. 120.) That motion, which was unopposed, was

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granted by the court. (Doc. No. 126.) Notably, in their the second amended complaint (“SAC”)

10 plaintiffs did not abandon their claim against the 2016–18 Interim Contracts (the pre-conversion water
11 service contracts), but instead expanded that claim to include challenges to the environmental review
12 undertaken for the more recent Interim Contracts. (Doc. No. 127 (SAC) at ¶¶ 62–73 (hereinafter
13 referred to collectively as the “Interim Contracts”).) In addition, plaintiffs added related NEPA
14 challenges to the Repayment Contracts, along with other related claims. (See generally SAC.)
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In October 2020, Federal Defendants and Defendant-Intervenors filed motions to dismiss the

16 claim in the SAC premised on the Interim Contracts, arguing that the claim is moot because the
17 challenged Interim Contracts no longer exist and that no exception to mootness applies under these
18 circumstances. (Doc. Nos. 130, 131.) In addition, Defendant-Intervenors moved pursuant to Federal
19 Rule of Civil Procedure 19 to compel joinder of any absent contractors whose WIIN Act Repayment
20 Contracts are being challenged. (Doc. No. 131-1 at 13–16.) The motions to dismiss, which were set
21 for hearing in mid-December 2020, became ripe on December 8, 2020. (See Doc. Nos. 135, 138.)
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Meanwhile, several similar, albeit not identical, cases concerning repayment contracts executed

23 pursuant to the WIIN Act were transferred to the undersigned. See Ctr. for Biological Diversity v. U.S.
24 Bureau of Reclamation, 1:20-cv-00706-DAD-EPG (“CBD”); Hoopa Valley Tribe v. U.S. Bureau of
25 Reclamation, 1:20-cv-01814-DAD-EPG. Considering the change of Presidential Administration, the
26 parties to those cases agreed to stay those matters for a time in order to allow the Administration an
27 opportunity to analyze its position prior to proceeding in those cases. Similar stays were requested and
28 approved in other, related cases, including Pacific Coast Federation of Fishermen’s Associations v.
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Raimondo, No. 1: 20-cv-00431-DAD-EPG, and California Natural Resources Agency v. Raimondo,

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No. 1:20-cv-00426-DAD-EPG. The plaintiffs in this case declined to agree to any such stay. As a

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result, on April 5, 2021, Federal Defendants filed a motion to stay this case through May 12, 2021.

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(Doc. No. 141.) Over plaintiffs’ opposition (Doc. No. 144), the court granted the requested stay. (Doc.

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No. 146.) The stay in this case has now expired.

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For the reasons set forth below, the court will grant without prejudice the motions to dismiss the

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claims premised on Interim Contracts as moot. In addition, for many of the same reasons the

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undersigned already set forth in a ruling in CBD, the court will compel joinder of the absent contractors

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whose WIIN Act Repayment Contracts are being challenged here.

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ANALYSIS

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Motions to Dismiss as Moot Claims Concerning the Interim Contracts

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Federal Defendants and Defendant-Intervenors move to dismiss as moot the first claim in the

13 SAC—the only claim that concerns the Interim Contracts. (Doc. Nos. 130, 131-1 at 11–13.) An issue
14 is moot “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest
15 in the outcome.” City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000). “The underlying concern is
16 that, when the challenged conduct ceases such that there is no reasonable expectation that the wrong
17 will be repeated, then it becomes impossible for the court to grant any effectual relief whatever to the
18 prevailing party.” Id. (internal citations and quotations omitted). If the parties cannot obtain effective
19 relief, any opinion about the legality of a challenged action is impermissibly advisory. Id. “Mootness
20 has been described as the doctrine of standing set in a time frame: The requisite personal interest that
21 must exist at the commencement of the litigation (standing) must continue throughout its existence
22 (mootness).” Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n. 22 (1997) (internal citation
23 and quotation omitted). “[A]n actual controversy must be extant at all stages of review, not merely at
24 the time the complaint is filed.” Id. at 67.
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“The party asserting mootness has a heavy burden to establish that there is no effective relief

26 remaining for a court to provide.” In re Palmdale Hills Property, LLC, 654 F.3d 868, 874 (9th Cir.
27 2011). Mootness is evaluated on a claim-by-claim basis. Pac. Nw. Generating Co-op. v. Brown, 822
28 F. Supp. 1479, 1506 (D. Or. 1993), aff’d, 38 F.3d 1058 (9th Cir. 1994) (citing Headwaters, Inc. v.
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Bureau of Land Management, 893 F.2d 1012, 1015-16 (9th Cir. 1989) (separately addressing mootness

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as to different forms of relief requested)); see also In re Pac. Lumber Co., 584 F.3d 229, 251 (5th Cir.

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2009) (evaluating mootness on a claim-by-claim basis).

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An otherwise moot claim may nevertheless be justiciable if one of three exceptions to the

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

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

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

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Lohn, 511 F.3d 960, 964-66 (9th Cir. 2007).

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Here, Federal Defendants and Defendant-Intervenors argue that the claims in the SAC

10 concerning the Interim Contracts are moot because those contracts “no longer exist.” (Doc. No. 130 at
11 11–15; Doc. No. 131 at 11–13.) Plaintiffs oppose the motion to dismiss on the ground that the
12 execution of the WIIN Act Repayment Contracts did not extinguish the most recent Interim Contracts.
13 (Doc. No. 133 at 10.) In support of this argument, plaintiffs point to language in the WIIN Act
14 Repayment Contract held by Westlands. (Doc. No. 133 at 9–11.) The terms of Westland’s WIIN Act
15 Repayment Contract clearly indicate that Westland’s corresponding 2018–20 Interim Contract would
16 be “amended” by the terms of any WIIN Act Repayment Contract once the WIIN Act Repayment
17 Contract took effect. (Doc. No. 133-1, Ex. 1 (Executed WIIN Act Repayment Contract), Art. 7 at
18 9:52-574 (indicating that the 2018–20 Interim contract was the “Existing Contract” referenced
19 elsewhere in the document); id., Art. 30 at 13:146-148 (indicating that the parties thereto “agree to
20 amend and convert the Existing Contract pursuant to section 4011 of the WIIN Act . . . .” (emphasis
21 added).)5 While appearing to concede that this language extinguishes the 2018–20 Interim Contract
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All page references in this order are to the page numbers assigned to the documents by the court’s
CM-ECF system.

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The motions to dismiss on mootness grounds raise questions of subject matter jurisdiction and
therefore arise under Federal Rule of Civil Procedure 12(b)(1). An attack on the court's subject-matter
jurisdiction may be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.
2004). As is the case here, where defendants bring a factual challenge to the court’s subject-matter
jurisdiction by pointing to materials outside the pleadings, this court “may review evidence beyond the
complaint without converting the motion to dismiss into a motion for summary judgment.” Id. The
court “need not presume the truthfulness of plaintiffs’ allegations,” White v. Lee, 227 F.3d 1214, 1242
(9th Cir. 2000), and “may review any evidence, such as affidavits and testimony, to resolve factual
disputes concerning the existence of jurisdiction,” McCarthy v. United States, 850 F.2d 558, 560 (9th
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(referenced as Contract Number 14-06-200-495A-IR6), plaintiffs correctly point out that the 2018–20

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Interim Contract is not the most recent Interim Contract. Rather, the 2018–20 Interim Contract expired

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due to the passage of time at the end of February 2020. (See id. at 93: 32–34.) Because Westland’s

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WIIN Act Repayment Contract was not going to be executed by March 1, 2020, the parties entered into

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yet another Interim Contract, which became effective March 1, 2020 and was to run through February

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28, 2022: Contract Number 14-06-200-495A-IR7. (See Doc. No. 116 at 3.) Thus, according to

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plaintiffs, the WIIN Act Repayment Contract did not extinguish 14-06-200-495A-IR7. (See Doc. No.

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133 at 11.)

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Examining only the above-mentioned documents, plaintiffs’ argument appears to be correct.

10 But, as Federal Defendants and Defendant-Intervenors point out in reply, this gap was closed in the
11 final version6 of the relevant 2020–2022 Interim Contract, which contained a termination provision
12 triggered by the effective date of the corresponding WIIN Act Repayment Contract:
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Except as specifically modified by this Contract, all
provisions of IR6 [the 2018-2020 Interim Contract] are renewed with the
same force and effect as if they were included in full text with the
exception of Article 1 of IR6 thereof, which is revised as follows:
(a) The first sentence in subdivision (a) of Article 1 of IR6
is replaced with the following language: This Contract shall be effective
from March 1, 2020, and shall remain in effect through February 28, 2022,
and thereafter will be renewed as described in Article 2 of IR l if a longterm renewal contract has not been executed with an effective
commencement date of March 1, 2022 or until the Contract Between the
United States and Westlands Water District Providing for Project Water
Service, San Luis Unit and Delta Division and facilities Repayment, which
was executed pursuant to section 4011 of the Water Infrastructure
Improvements for the Nation Act, Public Law 114-322, and other Federal
Reclamation law, is in effect.

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Cir. 1988). Therefore, it is appropriate to consider the numerous referenced contracts as part of the Rule
23 12(b)(1) motion. In addition, these federal contracts are public records the authenticity of which is not
in question and are therefore judicially noticeable. See Nat. Res. Def. Council v. Kempthorne, 539 F.
24 Supp. 2d 1155, 1167 (E.D. Cal. 2008). The court need only rely upon them here to determine the
content of their terms, not for the truth of the matters set forth therein, which is an appropriate use of
25 judicial notice. See Coal. for a Sustainable Delta v. Fed. Emergency Mgmt. Agency, 812 F. Supp. 2d
1089, 1093 (E.D. Cal. 2011).
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Plaintiffs’ opposition briefs reference draft versions of the 2020-22 Interim Contracts that materially
differ from the final versions. (See Doc. No. 133 at 11.) According to plaintiffs, only the draft versions
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were available on Reclamation’s website at the time plaintiffs’ opposition brief was filed (December
28 2020). It is unclear to the court why this would have been the case, but it is also of no moment to the
court’s ruling on the pending motions.
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(Doc. No. 135-1 (Contract No. 14-06-200-495A-IR7) at 3, ¶ 1 (emphasis added); see also Doc. No. 135

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at 6 n.1 (noting corresponding language in the other five 2020-2022 Interim Contracts challenged by

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plaintiffs).) Although it is somewhat awkwardly worded, a plain reading of the italicized language

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above is amenable to only one interpretation: the parties meant to terminate the 2020-2022 Interim

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Contract upon the effective date of any corresponding WIIN Act Repayment Contract.

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The WIIN Act Repayment Contracts corresponding to the six Interim Contracts at issue in this

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case took effect on various dates in June and July 2020. (See Doc. No. 122 (Federal Defendants’ July

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15, 2020 Status Report).) Therefore, the 2020-2022 versions of the challenged Interim Contracts

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terminated by their own provisions in mid-2020. As a result, there is no longer a live controversy

10 pertaining to the Interim Contracts, rendering plaintiffs’ claims regarding those contracts moot.
11 Moreover, the record no longer supports a finding that any exception to mootness should be applied
12 here.
Defendant-Intervenors specifically request that the court dismiss plaintiffs’ claims with

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14 prejudice. (Doc. No. 131-1 at 13.) The court declines to do so. Because it is possible to imagine a
15 scenario in which one or more of the WIIN Act Repayment Contracts are set aside, it is likewise
16 possible that plaintiffs’ claims could be revived. Therefore, plaintiffs’ claims will be dismissed without
17 prejudice.
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Motion to Compel Joinder of Absent Contractors

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Defendant-Intervenors move pursuant to Federal Rule of Civil Procedure 19 to compel joinder

20 of those contractors holding WIIN Act Repayment Contracts that are being challenged in this action7
21 and who are not yet parties to this case. (Doc. No. 131-1 at 13–16.)
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1.

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Federal Rule of Civil Procedure 19, which governs the circumstances under which persons must

General Legal Standard Under Rule 19

24 be joined as parties to a lawsuit, provides in relevant part:
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The SAC discusses several Repayment Contracts between Reclamation and Defendant-Intervenor
Westlands (SAC at ¶¶ 77–78), as well as Repayment Contracts negotiated in early 2020 between
27 Reclamation and various American River Division contractors, including East Bay Municipal Utility
District, City of Folsom, Placer County Water Agency, City of Roseville, Sacramento County Water
28 Agency, Sacramento Municipal Utility District, and San Juan Water District, on February 19, 2020. (Id.
at ¶ 79.)
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(a) Persons Required to Be Joined if Feasible.
(1) Required Party. A person who is subject to service of process
and whose joinder will not deprive the court of subject-matter
jurisdiction must be joined as a party if:
(A) in that person’s absence, the court cannot accord
complete relief among existing parties; or
(B) that person claims an interest relating to the subject of
the action and is so situated that disposing of the action in
the person’s absence may:
(i) as a practical matter impair or impede the
person’s ability to protect the interest; or
(ii) leave an existing party subject to a substantial
risk of incurring double, multiple, or otherwise
inconsistent obligations because of the interest.
***
(b) When Joinder Is Not Feasible. If a person who is required to be joined
if feasible cannot be joined, the court must determine whether, in equity
and good conscience, the action should proceed among the existing parties
or should be dismissed. The factors for the court to consider include:
(1) the extent to which a judgment rendered in the person’s
absence might prejudice that person or the existing parties;
(2) the extent to which any prejudice could be lessened or avoided
by:

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(A) protective provisions in the judgment;

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(B) shaping the relief; or

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(C) other measures;

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(3) whether a judgment rendered in the person’s absence would be
adequate; and

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(4) whether the plaintiff would have an adequate remedy if the
action were dismissed for nonjoinder.

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In applying Rule 19, “a court must undertake a two-part analysis: it must first determine if an

24 absent party is ‘necessary’ to the suit; then if, as here, the party cannot be joined, the court must
25 determine whether the party is ‘indispensible’ so that in ‘equity and good conscience’ the suit should be
26 dismissed.” Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir. 1990). “The inquiry is a
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practical one and fact specific, and is designed to avoid the harsh results of rigid application.” Id.

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(internal citations and quotations omitted).8

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Under Rule 19(a)(1), a party may be deemed “required” (i.e., “necessary”) under one of two

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circumstances. First, a party may be “required” if “in that person’s absence, the court cannot accord

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complete relief among existing parties.” Fed. R. Civ. P. 19(a)(1)(A); see also Makah, 910 F.2d at 558

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(“First, the court must decide if complete relief is possible among those already parties to the suit.”).

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Defendant-Intervenors do not invoke this prong of Rule 19(a)(1). Defendant-Intervenors do invoke the

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alternative prong of Rule 19(a)(1) which deems an absent party necessary if that party “has a legally

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protected interest in the suit.” Makah, 910 F.2d at 558. “If a legally protected interest exists, the court

10 must further determine whether that interest will be impaired or impeded by the suit.” Id. “Impairment
11 may be minimized if the absent party is adequately represented in the suit.” Id.9
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2.

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The undersigned summarized the relevant caselaw in CBD as follows:

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[A] line of cases . . . apply Rule 19 to various disputes involving contracts
. . . These cases stand for the general principle that “a party to a contract is
necessary . . . to litigation seeking to decimate that contract.”
Dawavendewa v. Salt River Project Agr. Imp. & Power Dist., 276 F.3d
1150, 1157 (9th Cir. 2002). Dawavendewa concerned a lease between the
Navajo Nation and the Salt River Project Agricultural Improvement and
Power District (“SRP”), a power company that leased land from the
Najavo Nation. Id. at 1153. The lease in question required the SRP to
preferentially hire members of the Navajo Nation to work at the Navajo
Generating Station (“NGS”). Id. Dawavendewa, a member of the Hopi
Tribe, sought employment at NGS. Id. When he failed to secure
employment there, Dawavendewa filed suit against SRP, accusing it of
discriminating against him on the basis of his national origin in violation
of federal civil rights laws. Id. at 1154. SRP moved to dismiss
Dawavendewa’s complaint for failure to join the Navajo Nation, an
indispensable party that could not be joined due to its sovereign immunity.
See id. Particularly relevant here, the Ninth Circuit reasoned that the
Navajo Nation was “necessary” to the lawsuit because the suit concerned a

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Relevant Caselaw

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Here, no party suggests any of the absent contractors cannot be joined. Accordingly, the focus of the
present dispute is whether those parties are “necessary” and therefore must be joined. As a result, the
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court need not struggle with whether the absent contractors are “indispensable” or, relatedly, whether
26 dismissal is appropriate in their absence.
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Even if impairment is not expected, necessity may be found if the court determines that a risk of
inconsistent rulings will affect the parties present in the suit. Fed. R. Civ. P. 19(a)(1)(B)(ii); Makah, 910
28 F.2d at 558–59. This alternative basis for a finding of necessity under Rule 19(a)(1)(B) is not at issue
here.
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“fundamental” bargained-for lease term designed to secure for the Navajo
Nation employment opportunities and income for its reservation that could
be “grievously impaired by a decision rendered in its absence.” Id. at
1157.
The Ninth Circuit has drawn a line between cases such as Dawevendewa,
where the nature of the suit threatens to “grievously impair” an existing
contractual right, and circumstances in which a plaintiff is seeking only to
enforce procedural requirements. “Although an absent party has no
legally protected interest at stake in a suit seeking only to enforce
compliance with administrative procedures, [Ninth Circuit] case law
makes clear that an absent party may have a legally protected interest at
stake in procedural claims where the effect of a plaintiff’s successful suit
would be to impair a right already granted.” Dine Citizens Against
Ruining Our Env’t v. Bureau of Indian Affairs, 932 F.3d 843, 852 (9th Cir.
2019).
Makah provides an example of this distinction. In that case, the Makah
Indian Tribe brought a suit challenging federal regulations allocating
ocean harvest of migrating Columbia River salmon among various interest
groups, including three other tribes. 910 F.2d at 557. The lawsuit also
challenged the specific allocations made under those regulations for the
1987 harvest. Id. The Ninth Circuit held that the absent tribes were
necessary parties to the extent the complaint sought re-allocation of the
1987 harvest, but were not necessary parties to the extent the complaint
sought prospective injunctive relief against future decision-making under
the challenged regulations. Id. at 559.
In contrast, in Dine, the Ninth Circuit considered a suit brought by a
coalition of environmental organizations against agencies within the U.S.
Department of the Interior after those agencies reauthorized coal mining
activities on Navajo Nation land. Id. at 847–48. Plaintiffs alleged in Dine
that the federal agency defendants violated both NEPA and the ESA by
approving lease amendments and accompanying rights of way agreements
between the Navajo Nation and power plant operators. Id. at 847. The
Ninth Circuit held that the Navajo Nation was a necessary party to the suit
because, if the plaintiffs succeeded in vacating the agency reauthorization
decision, the Navajo Nation’s interest in “the existing lease, right-of-way,
and surface mining permits would be impaired.” Id. at 853. This is
because “[w]ithout the proper approvals, the [m]ine could not operate, and
the Navajo Nation would lose a key source of revenue in which [it] has
already substantially invested.” Id. The Ninth Circuit indicated that the
claims before it in Dine were distinguishable from the claims allowed to
proceed in Makah, because in Makah the court could “tailor the scope of
relief to being prospective only, preventing any impairment to a legally
protected interest.” Id.
Following these general patterns, a district judge ruling in a related case in
this district found that absent water contractors were necessary to a suit
that sought to “invalidate, rescind, or enjoin” Reclamation’s performance
under water service contracts. Nat. Res. Def. Council v. Kempthorne, 539
F. Supp. 2d 1155, 1186–87 (E.D. Cal. 2008). Another district judge in this
same district found that absent water contractors were not necessary where
plaintiffs declined to seek an order setting aside already-executed shortterm water service contracts, but rather sought only to impose
environmental review requirements on Reclamation’s efforts to enter into
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future short-term water service contracts. Pac. Coast Fed’n of
Fishermen’s Associations v. U.S. Dep’t of the Interior, 929 F. Supp. 2d
1039, 1062 (E.D. Cal. 2013) [ ].

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2021 WL 600952, at *3–4 (E.D. Cal. Feb. 16, 2021).

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3.

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Defendant-Intervenors specifically contend that each Repayment Contract at issue in this case

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amounts to a “valuable, permanent right[] to delivery of CVP water, which Plaintiffs’ claims for relief

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threaten.” (Doc. No. 131-1 at 15.) In addition, as mentioned in CBD, the WIIN Act Repayment

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Contracts are “repayment” contracts that, unlike “water service” contracts, allow contractors to prepay

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the repayment obligation imposed by Reclamation law, which in turn can reduce annual payments to

Legally Protected Interest

10 Reclamation; these contracts also provide significant opportunities for relief from certain other
11 requirements of Reclamation law, including acreage limitations. 2021 WL 600952 at *6 (citing WIIN
12 Act, Pub. L. No. 114-322 § 4011(a), (c)(1), 130 Stat. at 1878–80). These bargained-for terms are no
13 less “fundamental” than the lease terms designed to ensure employment opportunities and income for
14 Navajo Nation members at issue in Dawavendewa. Id. (citing Dawavendewa, 276 F.3d at 1157).
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Plaintiffs counter that under operative provisions of Reclamation law and the terms of the

16 Repayment Contracts themselves, the Repayment Contracts are not binding upon Reclamation until
17 they “have been confirmed by a decree of a court of competent jurisdiction.” (Doc. No. 134 at 12
18 (quoting 43 U.S.C. § 423e).) For example, one of the WIIN Act Repayment Contracts, executed on
19 February 28, 2020, provides at Article 47:
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Promptly after the execution of this amended Contract, the Contractor will
provide to the Contracting Officer a certified copy of a final decree of a
court of competent jurisdiction in the State of California, confirming the
proceedings on the part of the Contractor for the authorization of the
execution of this amended Contract. This amended Contract shall not be
binding on the United States until the Contractor secures a final decree.

24 (Doc. No. 133-1 (Irrigation and M&I Contract No. 14-06-200-495A-IR1-P between Reclamation and
25 Westlands Water District) at 77.) According to plaintiffs, “[a]bsent such a decree, the [absent]
26 contractors cannot claim that a legally protected interest is impaired by this suit. To the contrary, [they]
27 have at most a mere expectancy, which might ripen into a ‘legally protected interest’ only after the
28 /////
11

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Repayment Contracts ‘have been confirmed by a decree of a court of competent jurisdiction.” (Doc.

2

No. 134 at 12 (internal citations omitted).)

3

As the undersigned explained in CBD, “[i]n theory, plaintiffs’ argument could have some

4

traction,” based upon the decision in Northern Alaska Environmental Center v. Hodel. CBD, 2021 WL

5

600952 at *5. In Northern Alaska Environmental Center, absent miners submitted mining plans and

6

access permits to the National Park Service (“NPS”) for review but had not yet received approval of

7

those plans and permits. 803 F.2d 466, 469 (9th Cir. 1986). Environmental plaintiffs sued the

8

reviewing agencies to enjoin any “further” approvals of mining plans. Id. Because the subject matter

9

of the dispute concerned “NPS procedures regarding mining plan approval,” the Ninth Circuit reasoned

10 that, although the miners were certainly “interested” in how stringent those requirements would be,
11 “miners with pending plans have no legal entitlement to any given set of procedures,” and therefore did
12 not have to be joined to the suit. Id. (emphasis added).
13

But, as the undersigned explained in CBD, “as a matter of contract law, the present case is not

14 truly analogous to Northern Alaska because the WIIN Act [Repayment Contracts] have already been
15 executed.” 2021 WL 600952 at *5. This is because “even when an executed water repayment contract
16 may be voidable by one party, this does not mean that it is void.” Id.
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As the Eighth Circuit explained in Concerned Irrigators v. Belle Fourche
Irrigation District, “[f]ederal law gives the United States authority to enter
into repayment contracts with irrigation districts, but specifies that these
contracts are not ‘binding on the United States until the proceedings on the
part of the district for the authorization of the execution of the contract
with the United States shall have been confirmed by decree of a court of
competent jurisdiction, or pending appellate action if ground for appeal be
laid.’ 43 U.S.C. § 511 (1994).” 235 F.3d 1139, 1144 (8th Cir. 2001). The
Eighth Circuit reasoned that “[e]ven if the United States is not bound by
the [ ] contract because it was not judicially confirmed, the contract is not
necessarily invalid.” Id. (citing Restatement (Second) of Contracts § 7 &
cmt. a (1979) (where a party has the power to avoid the legal relations
created by a contract, that contract is voidable but not void)). In
Concerned Irrigators, the Eighth Circuit enforced the terms of a
repayment contract against third party landowners within the contracting
irrigation district, even though the contract had not been judicially
confirmed because there was “no evidence that the United States has ever
attempted to escape any obligation created by the contract.” Id. In a
nutshell, that contract, although potentially voidable by the United States,
was not void. See id.

28 Id. As was the case in CBD, as of the date of this order, there is no allegation or even a suggestion that
12

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the United States disclaims its contractual obligations to the absent contractors. The holding in

2

Concerned Irrigators therefore supports a finding that the WIIN Act Repayment Contracts can create

3

legal rights even in the absence of judicial confirmation.

4

4.

5

Given the conclusion reached above, the question becomes whether this lawsuit may impair the

Impairment of Interest

6

legal rights created by the absent contractors’ WIIN Act Repayment Contracts. See Dine, 932 F.3d at

7

852. Plaintiffs first argue that even if the WIIN Act Repayment Contracts were set aside, Reclamation

8

could nonetheless deliver CVP water to the absent contractors pursuant to their existing Interim

9

Contracts. (Doc. No. 134 at 12.) Presumably, plaintiffs are incorporating by reference their

10 arguments—discussed above—regarding the continued validity of those Interim Contracts. Because
11 those arguments have been rejected, there is no support for plaintiffs’ parallel contention that the
12 Interim Contracts can operate as a fallback mechanism for delivery of CVP water.
13

Plaintiffs also argue that they seek only Reclamation’s compliance with the APA and NEPA.

14 (See id. at 13.) Plaintiffs assert that their claims are therefore like those claims in Makah that were
15 determined to be merely requests for prospective injunctive relief against future decision-making under
16 challenged regulations for which joinder of potentially interested third parties was not required. (Id.)
17 Claims concerning the “future conduct of the administrative process” are indeed the type that the Ninth
18 Circuit has found “reasonably susceptible to adjudication without the presence of other parties to the
19 administrative process.” Makah, 910 F.2d at 559; see also Cachil Dehe Band of Wintun Indians v.
20 California, 547 F.3d 962, 977 (9th Cir. 2008) (“Rule 19 necessarily confines the relief that may be
21 granted . . . to remedies that do not invalidate the licenses that have already been issued to the absent
22 Compact Tribes.”) But this entire argument is based on a premise—that plaintiffs seek only
23 Reclamation’s compliance with lawful administrative process—that is not entirely true. For example,
24 the second claim in the SAC alleges that Reclamation should have prepared certain environmental
25 documents under NEPA before approving the WIIN Act Repayment Contracts and therefore that
26 Reclamation’s approval of those contracts “should be declared unlawful and set aside under the APA.”
27 (SAC at ¶ 88.) Likewise, the third claim alleges that Reclamation’s failure to prepare any
28 environmental review before entering into the WIIN Act Repayment Contracts violates the CVPIA.
13

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(SAC at ¶ 94.) As part of that claim, plaintiffs allege that “Reclamation’s entry into these repayment

2

contracts should be declared unlawful and set aside under the APA.” (Id.)

3

If Reclamation’s approvals of these WIIN Act Repayment Contracts are set aside, the entities

4

that hold those contracts would have no right to the delivery of CVP water under them. Moreover, as

5

discussed above, no other contract would provide them with CVP water in the interim. Under these

6

circumstances, the benefit of those bargained-for terms unique to a repayment contract could be

7

“grievously impaired” if, as a result of this case, the court were to “set aside” those repayment

8

contracts. See Dawavendewa, 276 F.3d at 1157.

9

Before concluding whether the identified legally protected interest exists would be impaired or

10 impeded by the suit, the court must examine whether any such impairment could be minimized “if the
11 absent party is adequately represented in the suit.” Makah, 910 F.2d at 558 (internal citation and
12 quotation omitted). “In assessing an absent party’s necessity under [Rule] 19(a), the question whether
13 that party is adequately represented parallels the question whether a party’s interests are so
14 inadequately represented by existing parties as to permit intervention of right under [Rule] 24(a).”
15 Shermoen v. United States, 982 F.2d 1312, 1318 (9th Cir. 1992). The Ninth Circuit employs the
16 following three-step inquiry to determine if a non-party is adequately represented by existing parties:
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A non-party is adequately represented by existing parties if: (1) the
interests of the existing parties are such that they would undoubtedly make
all of the non-party’s arguments; (2) the existing parties are capable of and
willing to make such arguments; and (3) the non-party would offer no
necessary element to the proceeding that existing parties would neglect.

20 Sw. Ctr. for Biological Diversity v. Babbitt, 150 F.3d 1152, 1153–54 (9th Cir. 1998) (citing Shermoen,
21 982 F.2d at 1318).
22

Plaintiffs contend that Federal Defendants and Defendant-Intervenors “have a strong interest in

23 defending the validity of [the WIIN Act] Repayment Contract approvals, and are capable of making all
24 necessary arguments to defend Reclamation’s actions.” (Doc. No. 134 at 13.) Plaintiffs further argue
25 that because “the parties will be limited to this Court’s review of Reclamation’s actions using
26 Reclamation’s existing Administrative Record, the absent parties would not be able to supply any new
27 or novel ‘necessary element’ that would otherwise be neglected.” (Id. at 13–14.) Here, as was the case
28 in CBD, federal defendants “cannot adequately represent the interests of absent contractors because
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they represent the government and a broad set of interests that are not the same as public or private

2

water contractors.” CBD, 2021 WL 600952, at *7 (quoting Kempthorne, 539 F. Supp. 2d at 1187–88).

3

As for the Defendant-Intervenors, they point out that some of the absent contractors are municipal

4

water districts and other entities that have different types of customers and to whom different laws

5

apply. As a result, they will not “undoubtedly make all of the non-party’s arguments.” Sw. Ctr., 150

6

F.3d at 1153–54.

7

For these reasons, the court concludes that the absent contractors are “required to be joined”

8

under Rule 19(a)(1)(B)(i) because they “claim[ ] interest[s] relating to the subject of the action and

9

[are] so situated that disposing of the action in [their] absence may as a practical matter impair or

10 impede [their] ability to protect [that] interest.”
11

5.

12

Plaintiffs invoke the “public rights exception” to Rule 19’s joinder requirements. (Doc. No. 134

The Public Rights Exception Does Not Bar a Finding of Necessity

13 at 14.) “Under this exception, even if [the absent party is a] necessary party, [the absent party is] not
14 deemed indispensable, and, consequently, dismissal is not warranted.” Kescoli v. Babbitt, 101 F.3d
15 1304, 1311 (9th Cir. 1996) (citing Makah, 910 F.2d at 559 n. 6). Generally, to fall within the public
16 rights exception, “the litigation must transcend the private interests of the litigants and seek to vindicate
17 a public right.” Id. (internal citation omitted). For the exception to apply, the litigation must not
18 “destroy the legal entitlements of the absent parties.” Id. (citations omitted) (finding the public rights
19 exception inapplicable in that case because rights of absent parties under lease agreements “could be
20 significantly affected” if the action proceeded in their absence).
21

However, the public rights exception does not operate as an exception to a finding of

22 “necessity.” Rather, it operates to exempt claims from being dismissed due to an absent party
23 otherwise being deemed indispensable. Id. Here, because no party suggests the absent contractors are
24 indispensable, the public rights exception is inapplicable.
25

In sum, the absent contractors must be joined because plaintiffs seek to set aside the executed

26 WIIN Act Repayment Contracts. Assuming plaintiffs retain this prayer for relief, any amended
27 complaint must name the contractors that are parties to the challenged contracts. As this court has
28 indicated previously, the undersigned will not permit duplicative briefing and will not allow the
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numerosity of parties to multiply the proceedings in ways that will effectively deny plaintiffs access to

2

this forum.

3
4

CONCLUSION
For the reasons set forth above:

5

(1) The motions to dismiss the first cause of action in the SAC as moot brought on behalf

6

of the Federal Defendants (Doc. No. 130) and the Defendant-Intervenors (Doc. No. 131)

7

are GRANTED WITHOUT PREJUDICE;

8

(2) The motion to compel joinder of the absent contractors whose WIIN Act Repayment

9

Contracts are challenged in this case brought on behalf of the Defendant-Intervenors

10

(Doc. No. 131) is GRANTED; and

11

(3) Within thirty (30) days of the date of this order, plaintiffs are directed to file an

12

amended complaint consistent with this order.

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IT IS SO ORDERED.
Dated:

October 29, 2021
UNITED STATES DISTRICT JUDGE

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