Center for Biological Diversity, et al. v. United States Bureau of Reclamation, et al.

Filing 23

ORDER GRANTING Motion to Compel Joinder of Absent Contractors and GRANTING Unopposed Motion to Amend 11 , 14 signed by District Judge Dale A. Drozd on 2/15/2021. (Lundstrom, T)

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Case 1:20-cv-00706-DAD-EPG Document 23 Filed 02/16/21 Page 1 of 13 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 CENTER FOR BIOLOGICAL DIVERSITY; RESTORE THE DELTA; and PLANNING AND CONSERVATION LEAGUE, No. 1:20-cv-00706-DAD-EPG ORDER GRANTING MOTION TO COMPEL JOINDER OF ABSENT CONTRACTORS; AND GRANTING UNOPPOSED MOTION TO AMEND Plaintiffs, 13 14 v. 15 UNITED STATES BUREAU OF RECLAMATION; SCOTT DE LA VEGA, in his official capacity as Acting Secretary of the Interior; and UNITED STATES DEPARTMENT OF THE INTERIOR, 16 17 (Doc. Nos. 11, 14) 18 Defendants. 19 20 21 BACKGROUND In this lawsuit, plaintiffs challenge the U.S. Bureau of Reclamation’s (“Reclamation”) 22 23 conversion of certain existing long-term federal “water service” contracts into permanent 24 “repayment” contracts1 without first conducting any environmental review under the National 25 Environmental Policy Act (“NEPA”). (Doc. No. 1.) Named as defendants in the initial complaint 26 1 27 28 Specifically, the initial complaint, filed May 20, 2020, lists fourteen (14) contracts that had been “converted” as of February 28, 2020, as well as twenty-six (26) contracts that were in the process of being converted under the WIIN Act, for a total of forty (40) contracts. (Doc. No. 1 at ¶¶ 40–41.) 1 Case 1:20-cv-00706-DAD-EPG Document 23 Filed 02/16/21 Page 2 of 13 1 are Reclamation, as well as the U.S. Department of the Interior and Scott de la Vega,2 the acting 2 Secretary of the Interior (collectively, “federal defendants”). 3 Reclamation has negotiated and executed the challenged repayment contracts pursuant to 4 authority set forth in the 2016 Water Improvements for the Nation Act (“WIIN Act”), Pub. L. No. 5 114-322, 130 Stat 1628 (2016). According to plaintiffs, Reclamation asserts3 that conversion of 6 the water service contracts into permanent repayment contracts under the WIIN Act (“WIIN Act 7 conversion contracts”) is a non-discretionary act not subject to NEPA review. (Id. at ¶ 4.) 8 Plaintiffs contend that Reclamation’s position in this regard is untenable, citing various provisions 9 of the WIIN Act and the Central Valley Project Improvement Act, Pub. L. No. 102–575, 106 Stat. 10 4600 (1992). (See generally Doc. 1.) Plaintiffs seek, among other remedies, a court order that 11 would “vacate, set aside, and rescind Reclamation’s contract conversions” and enjoin federal 12 defendants from “taking any action pursuant to the contract conversions” or “converting any other 13 contracts” until NEPA compliance is achieved. (Doc. No. 1 at 21.) 14 Before the court for decision are two motions. First, federal defendants move pursuant to 15 Federal Rules of Civil Procedure 12(b)(7)4 and 19 to compel joinder of the contractors whose 16 converted contracts are being challenged. (Doc. No. 11.) In the alternative, federal defendants 17 demand that plaintiffs drop their prayer for an order that would “void”5 the converted contracts. 18 (Id. at 6.) Plaintiffs oppose joining the absent contractors. (Doc. No. 13.) Federal defendants 19 have filed a reply. (Doc. No. 18.) 20 ///// 21 22 2 Scott de la Vega is automatically substituted as a federal defendant in this action for David Bernhardt pursuant to Federal Rule of Civil Procedure 25(d). 23 3 24 25 26 27 Reclamation has in fact already made this assertion in a related case. (See N. Coast Rivers Alliance v. U.S. Dep’t of the Interior, No. 1:16-cv-00307-DAD-SKO, Doc. No. 100 at 2.) 4 Federal defendants invoke Fed. R. of Civ. Pro. 12(b)(7), which permits any party to present by motion the defense of “failure to join a party under Rule 19” as the procedural mechanism for bringing this motion Plaintiffs’ complaint does not actually use the word “void” but instead calls for the contracts to be “set aside” pursuant to the Administrative Procedure Act, 5 U.S.C. § 706(2). 5 28 2 Case 1:20-cv-00706-DAD-EPG Document 23 Filed 02/16/21 Page 3 of 13 1 In addition, plaintiffs move to amend their complaint to enumerate additional converted 2 contracts and add claims under the Endangered Species Act (“ESA”). (Doc. No. 14.) Federal 3 defendants have not filed any opposition to this motion. (See Doc. No. 19.) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION TO COMPEL JOINDER OF ABSENT CONTRACTORS A. General Legal Standard Under Rule 19 Federal Rule of Civil Procedure 19, which governs the circumstances under which persons must be joined as parties to a lawsuit, provides in relevant part: (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: (A) protective provisions in the judgment; (B) shaping the relief; or (C) other measures; 3 Case 1:20-cv-00706-DAD-EPG Document 23 Filed 02/16/21 Page 4 of 13 1 (3) whether a judgment rendered in the person's absence would be adequate; and 2 3 (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder. 4 In applying Rule 19, “a court must undertake a two-part analysis: it must first determine 5 if an absent party is ‘necessary’ to the suit; then if, as here, the party cannot be joined, the court 6 must determine whether the party is ‘indispensible’ so that in ‘equity and good conscience’ the 7 suit should be dismissed.” Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir. 1990). 8 “The inquiry is a practical one and fact specific, and is designed to avoid the harsh results of rigid 9 application.” Id. (internal citations and quotations omitted). Here, no party suggests any of the absent contractors cannot be joined. Accordingly, the 10 11 focus of the present dispute is whether those parties are “necessary” and therefore must be joined. 12 As a result, the court need not struggle with whether the absent contractors are “indispensable” or, 13 relatedly, whether dismissal is appropriate in their absence. 14 B. The Absent Contractors Are “Necessary” Parties Under Rule 19(a)(1), a party may be deemed “required” (i.e. “necessary”) under one of 15 16 two circumstances. First, a party may be “required” if “in that person’s absence, the court cannot 17 accord complete relief among existing parties.” Fed. R. Civ. P. 19(a)(1)(A); Makah, 910 F.2d at 18 558 (“First, the court must decide if complete relief is possible among those already parties to the 19 suit.”). Here, there is no suggestion that complete relief could not be accomplished in the absence 20 of the absent contractors. Indeed, federal defendants do not even mention the “complete relief” 21 prong of Rule 19(a)(1). (See Doc. Nos. 11, 18.) Federal defendants do invoke the alternative prong of Rule 19(a)(1) which deems an 22 23 absent party necessary if that party “has a legally protected interest in the suit.” Makah, 910 F.2d 24 at 558. “If a legally protected interest exists, the court must further determine whether that 25 ///// 26 ///// 27 ///// 28 ///// 4 Case 1:20-cv-00706-DAD-EPG Document 23 Filed 02/16/21 Page 5 of 13 1 interest will be impaired or impeded by the suit.” Id. “Impairment may be minimized if the 2 absent party is adequately represented in the suit.” Id.6 3 1. Relevant Caselaw 4 Federal defendants focus on a line of cases that apply Rule 19 to various disputes 5 involving contracts. (Doc. No. 11 at 5.) These cases stand for the general principle that “a party 6 to a contract is necessary, and if not susceptible to joinder, indispensable to litigation seeking to 7 decimate that contract.” Dawavendewa v. Salt River Project Agr. Imp. & Power Dist., 276 F.3d 8 1150, 1157 (9th Cir. 2002). Dawavendewa concerned a lease between the Navajo Nation and the 9 Salt River Project Agricultural Improvement and Power District (“SRP”), a power company that 10 leased land from the Najavo Nation. Id. at 1153. The lease in question required the SRP to 11 preferentially hire members of the Navajo Nation to work at the Navajo Generating Station 12 (“NGS”). Id. Dawavendewa, a member of the Hopi Tribe, sought employment at NGS. Id. 13 When he failed to secure employment there, Dawavendewa filed suit against SRP, accusing it of 14 discriminating against him on the basis of his national origin in violation of federal civil rights 15 laws. Id. at 1154. SRP moved to dismiss Dawavendewa’s complaint for failure to join the 16 Navajo Nation, an indispensable party that could not be joined due to its sovereign immunity. 17 See id. Particularly relevant here, the Ninth Circuit reasoned that the Navajo Nation was 18 “necessary” to the lawsuit because the suit concerned a “fundamental” bargained-for lease term 19 designed to secure for the Navajo Nation employment opportunities and income for its 20 reservation that could be “grievously impaired by a decision rendered in its absence.” Id. at 1157. 21 The Ninth Circuit has drawn a line between cases such as Dawevendewa, where the nature 22 of the suit threatens to “grievously impair” an existing contractual right, and circumstances in 23 which a plaintiff is seeking only to enforce procedural requirements. “Although an absent party 24 has no legally protected interest at stake in a suit seeking only to enforce compliance with 25 administrative procedures, our case law makes clear that an absent party may have a legally 26 6 27 28 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 F.2d at 558–59. This alternative basis for a finding of necessity under Rule 19(a)(1)(B) is not at issue here. 5 Case 1:20-cv-00706-DAD-EPG Document 23 Filed 02/16/21 Page 6 of 13 1 protected interest at stake in procedural claims where the effect of a plaintiff's successful suit 2 would be to impair a right already granted.” Dine Citizens Against Ruining Our Env’t v. Bureau 3 of Indian Affairs, 932 F.3d 843, 852 (9th Cir. 2019). 4 Makah provides an example of this distinction. In that case, the Makah Indian Tribe 5 brought a suit challenging federal regulations allocating ocean harvest of migrating Columbia 6 river salmon among various interest groups, including three other tribes. 910 F.2d at 557. The 7 lawsuit also challenged the specific allocations made under those regulations for the 1987 harvest. 8 Id. The Ninth Circuit held that the absent tribes were necessary parties to the extent the 9 complaint sought re-allocation of the 1987 harvest, but were not necessary parties to the extent 10 the complaint sought prospective injunctive relief against future decision-making under the 11 challenged regulations. Id. at 559. 12 In contrast, in Dine, the Ninth Circuit considered a suit brought by a coalition of 13 environmental organizations against agencies within the U.S. Department of the Interior after 14 those agencies reauthorized coal mining activities on Navajo Nation land. Id. at 847–48. 15 Plaintiffs alleged in Dine that the federal agency defendants violated both NEPA and the ESA by 16 approving lease amendments and accompanying rights of way agreements between the Navajo 17 Nation and power plant operators. Id. at 847. The Ninth Circuit held that the Navajo Nation was 18 a necessary party to the suit because, if the plaintiffs succeeded in vacating the agency 19 reauthorization decision, the Navajo Nation’s interest in “the existing lease, right-of-way, and 20 surface mining permits would be impaired.” Id. at 853. This is because “[w]ithout the proper 21 approvals, the [m]ine could not operate, and the Navajo Nation would lose a key source of 22 revenue in which [it] has already substantially invested.” Id. The Ninth Circuit indicated that the 23 claims before it in Dine were distinguishable from the claims allowed to proceed in Makah, 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 6 Case 1:20-cv-00706-DAD-EPG Document 23 Filed 02/16/21 Page 7 of 13 1 because in Makah the court could “tailor the scope of relief to being prospective only, preventing 2 any impairment to a legally protected interest.” Id.7 3 Following these general patterns, a district judge ruling in a related case in this district 4 found that absent water contractors were necessary to a suit that sought to “invalidate, rescind, or 5 enjoin” Reclamation’s performance under water service contracts. Nat. Res. Def. Council v. 6 Kempthorne, 539 F. Supp. 2d 1155, 1186–87 (E.D. Cal. 2008). Another district judge in this 7 same district found that absent water contractors were not necessary where plaintiffs declined to 8 seek an order setting aside already-executed short-term water service contracts, but rather sought 9 only to impose environmental review requirements on Reclamation’s efforts to enter into future 10 short-term water service contracts. Pac. Coast Fed’n of Fishermen’s Associations v. U.S. Dep’t 11 of the Interior, 929 F. Supp. 2d 1039, 1062 (E.D. Cal. 2013) (“PCFFA”).8 12 2. Necessity Analysis 13 In the instant case, plaintiffs appear to concede that a prayer to “set aside” a water service 14 contract would ordinarily be considered an impairment of a legal right sufficient to render all 15 parties to such a contract “necessary” for purposes of Rule 19. (See Doc. No. 13 at 45.) Instead, 16 plaintiffs suggest that their effort to set aside the WIIN Act conversion contracts at issue in this 17 case is distinguishable because (1) at least some of those contracts are not yet fully enforceable 18 (see Doc. No. 13 at 4) and (2) if the WIIN Act conversion contracts were vacated, the absent 19 contractors would continue to receive Central Valley Project water under their existing water 20 service contracts (id. at 5). 21 22 23 24 25 26 27 28 7 The court notes that Makah, Dine, and Dawevendewa all discuss issues of sovereign immunity in the context of determining whether absent tribes cannot be joined and therefore are “indispensable.” See Makah, 910 F.2d at 559–60; Dine, 932 F.3d at 856; Dawevendewa, 276 F.3d at 1150. However, sovereign immunity did not drive those courts’ determinations as to whether any absent party held a legally protected interest. As such, any attempt to distinguish those cases on the ground that sovereign immunity is not an issue in this case is misplaced. 8 The district court in PCFFA somewhat conflated the necessity and indispensability analyses and therefore did not explicitly make a finding with regard to the issue of necessity. See 929 F. Supp. 2d at 1061–63. Nonetheless, in light of the fact that the plaintiffs in PCFFA were only requesting prospective injunctive relief against the execution of future contracts, id. at 1062, the holding in PCFFA is entirely consistent with the necessity rules articulated herein. 7 Case 1:20-cv-00706-DAD-EPG Document 23 Filed 02/16/21 Page 8 of 13 1 a. Enforceability of the Disputed Contracts 2 With regard to enforceability, plaintiffs correctly point out that many of the WIIN Act 3 conversion contracts in dispute contain provisions that require “judicial confirmation” in state 4 court, a step that (at least as of the date of plaintiffs’ last brief) has not yet occurred. (Doc. No. 13 5 at 5; see also Doc. No. 13-1 at ¶ 5.) For example, one of the WIIN Act conversion contracts, 6 executed on February 28, 2020, provides at Article 47: 7 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. 8 9 10 11 Irrigation and M&I Contract No. 14-06-200-495A-IR1-P between Reclamation and Westlands 12 Water District, available at 13 (last visited February 15, 2021). In theory, plaintiffs’ argument could have some traction. In Northern Alaska 14 15 Environmental Center v. Hodel, absent miners submitted mining plans and access permits to the 16 National Park Service (“NPS”) for review but had not yet received approval of those plans and 17 permits. 803 F.2d 466, 469 (9th Cir. 1986). Environmental plaintiffs sued the reviewing 18 agencies to enjoin any “further” approvals of mining plans. Id. Because the subject matter of the 19 dispute concerned “NPS procedures regarding mining plan approval,” the Ninth Circuit reasoned 20 that, although the miners were certainly “interested” in how stringent those requirements would 21 be, “miners with pending plans have no legal entitlement to any given set of procedures,” and 22 therefore did not have to be joined to the suit. Id. (emphasis added). 23 However, as a matter of contract law, the present case is not truly analogous to Northern 24 Alaska because the WIIN Act conversion contracts have already been executed. As mentioned, 25 plaintiffs suggest that the court should disregard any legal rights created by a WIIN Act 26 ///// 27 ///// 28 ///// 8 Case 1:20-cv-00706-DAD-EPG Document 23 Filed 02/16/21 Page 9 of 13 1 conversion contract even if executed, so long as that contract contains a validation9 clause and has 2 not yet been validated.10 (See Doc. No. 13 at 4.) This requires the court to interpret the terms of a 3 federal contract, a process that is governed by “federal common law” (sometimes referred to as 4 “federal contract law”), United States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1135 (E.D. 5 Cal. 2001), which in turn looks to the Restatement of Contracts, Pauma Band of Luiseno Mission 6 Indians of Pauma & Yuima Reservation v. California, 813 F.3d 1155, 1163 (9th Cir. 2015) 7 (explaining that courts “often look to the ... Restatement when deciding questions of federal 8 common law”) (internal citation and quotation omitted). Applying the Restatement, at least one 9 appellate court has found that even when an executed water repayment contract may be voidable 10 by one party, this does not mean that it is void. As the Eighth Circuit explained in Concerned 11 Irrigators v. Belle Fourche Irrigation District, “[f]ederal law gives the United States authority to 12 enter into repayment contracts with irrigation districts, but specifies that these contracts are not 13 ‘binding on the United States until the proceedings on the part of the district for the authorization 14 of the execution of the contract with the United States shall have been confirmed by decree of a 15 court of competent jurisdiction, or pending appellate action if ground for appeal be laid.’ 43 16 U.S.C. § 511 (1994).” 235 F.3d 1139, 1144 (8th Cir. 2001). The Eighth Circuit reasoned that 17 “[e]ven if the United States is not bound by the [ ] contract because it was not judicially 18 confirmed, the contract is not necessarily invalid.” Id. (citing Restatement (Second) of Contracts 19 § 7 & cmt. a (1979) (where a party has the power to avoid the legal relations created by a 20 contract, that contract is voidable but not void)). In Concerned Irrigators, the Eighth Circuit 21 enforced the terms of a repayment contract against third party landowners within the contracting 22 irrigation district, even though the contract had not been judicially confirmed because there was 23 “no evidence that the United States has ever attempted to escape any obligation created by the 24 9 26 As federal defendants point out, not all of the WIIN Act conversion contracts challenged in this case contain a validation clause because validation is only required for irrigation district contractors, not for municipal and industrial contractors. (Doc. No. 18 at 3 n. 3 (citing 43 U.S.C. § 511).) 27 10 25 28 The court will assume for purposes of this order that the challenged WIIN Act conversion contracts in this case that do contain a validation clause have not yet been validated. No party has suggested to the contrary. 9 Case 1:20-cv-00706-DAD-EPG Document 23 Filed 02/16/21 Page 10 of 13 1 contract.” Id. In a nutshell, that contract, although potentially voidable by the United States, was 2 not void. See id. 3 Here, as of the date of this order, there is no allegation or other suggestion that the United 4 States disclaims its contractual obligations to the absent contractors. In fact, the instant motion, 5 which explicitly argues that the WIIN Act conversion contracts create legally enforceable rights, 6 belies any such suggestion, as does the letter from Reclamation to one contractor attached to 7 Reclamation’s reply brief. (See Doc. 18-2 (Reclamation “confirm[ing] its understanding that the 8 [contractor’s] inability to obtain a validation judgment does not render the Repayment Contract 9 void.”).)11 The holding in Concerned Irrigators therefore supports a finding that the WIIN Act 10 conversion contracts can create legal rights even in the absence of judicial confirmation. 11 b. 12 Legally Protected Interest/Impairment of Interest With the above conclusion in mind, the question becomes whether the executed WIIN Act 13 conversion contracts afford the absent contractors a legally protected “interest” sufficient to 14 trigger a finding of necessity under Rule 19(a)(1)(B). As mentioned, the WIIN Act conversion 15 contracts are “repayment” contracts that, unlike “water service” contracts, allow contractors to 16 prepay the repayment obligation imposed by Reclamation law, which in turn can reduce annual 17 payments to Reclamation; these contracts also provide significant opportunities for relief from 18 certain other requirements of Reclamation law, including acreage limitations. See WIIN Act, 19 Pub. L. No. 114-322 § 4011(a), (c)(1), 130 Stat. at 187880. These bargained-for terms are no less 20 “fundamental” than the lease terms designed to ensure employment opportunities and income for 21 Navajo Nation members at issue in Dawavendewa. 276 F.3d at 1157. Moreover, the benefit of 22 those bargained-for terms unique to a repayment contract could be “grievously impaired” if, as a 23 result of this case, the court were to “set aside” those repayment contracts. See id. at 1157. Plaintiffs relatedly suggest that the absent contractors’ interests would not be significantly 24 25 impaired because, if plaintiffs “obtain their requested relief, and Reclamation’s conversions of 26 existing contracts are vacated, the Contractors would continue to receive CVP water under their 27 11 28 The court expresses no opinion on whether the United States could change its position as to the enforceability of unvalidated contracts. 10 Case 1:20-cv-00706-DAD-EPG Document 23 Filed 02/16/21 Page 11 of 13 1 existing contracts.” (Doc. No. 13 at 5.) This argument, however, does not account for the above- 2 discussed unique and valuable provisions contained within a WIIN Act conversion contract. See 3 Dawavendewa, 276 F.3d at 1157 (suggesting that the impairment analysis must focus on the 4 interests unique to the bargained-for agreement at risk). 5 Before concluding whether the identified legally protected interest exists would be 6 impaired or impeded by the suit, the court must examine whether any such impairment could be 7 minimized “if the absent party is adequately represented in the suit.” See Makah, 910 F.2d at 558 8 (internal citation and quotation omitted). “In assessing an absent party’s necessity under [Rule] 9 19(a), the question whether that party is adequately represented parallels the question whether a 10 party’s interests are so inadequately represented by existing parties as to permit intervention of 11 right under [Rule] 24(a).” Shermoen v. United States, 982 F.2d 1312, 1318 (9th Cir. 1992). The 12 Ninth Circuit uses the following three-step inquiry to determine if a non-party is adequately 13 represented by existing parties: 14 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. 15 16 17 18 Sw. Ctr. for Biological Diversity v. Babbitt, 150 F.3d 1152, 1153–54 (9th Cir. 1998) (citing 19 Shermoen, 982 F.2d at 1318). Here, as was the case in Kempthorne, federal defendants “cannot 20 adequately represent the interests of absent contractors because they represent the government 21 and a broad set of interests that are not the same as public or private water contractors.” 539 F. 22 Supp. 2d at 1187–88. For these reasons, the court concludes that the absent contractors are “required to be 23 24 joined” under Rule 19(a)(1)(B)(i) because they “claim[ ] interest[s] relating to the subject of the 25 action and [are] so situated that disposing of the action in [their] absence may as a practical matter 26 impair or impede [their] ability to protect [that] interest.” 27 ///// 28 ///// 11 Case 1:20-cv-00706-DAD-EPG Document 23 Filed 02/16/21 Page 12 of 13 1 2 C. The Public Rights Exception Does Not Bar a Finding of Necessity There is a “public rights exception” to Rule 19’s joinder requirements. “Under this 3 exception, even if [the absent party is a] necessary party, [the absent party is] not deemed 4 indispensable, and, consequently, dismissal is not warranted.” Kescoli v. Babbitt, 101 F.3d 1304, 5 1311 (9th Cir. 1996) (citing Makah, 910 F.2d at 559 n. 6). Generally, to fall within the public 6 rights exception, “the litigation must transcend the private interests of the litigants and seek to 7 vindicate a public right.” Id. (internal citation omitted). For the exception to apply, the litigation 8 must not “destroy the legal entitlements of the absent parties.” Id. (citations omitted) (finding the 9 public rights exception inapplicable in that case because rights of absent parties under lease 10 11 agreements “could be significantly affected” if the action proceeded in their absence). However, the public rights exception does not operate as an exception to a finding of 12 “necessity.” Rather, it operates to exempt claims from being dismissed due to an absent party 13 otherwise being deemed indispensable. Id. Here, because no party suggests the absent 14 contractors are indispensable, the public rights exception is inapplicable. 15 In sum, the absent contractors must be joined if plaintiffs seek to set aside the executed 16 WIIN Act conversion contracts. Assuming plaintiffs retain this prayer for relief, any amended 17 complaint must name the contractors that are parties to the challenged contracts. The long history 18 of related challenges to CVP contracts indicates that these parties would participate one way or 19 another, whether joined by way of Rule 19 or intervening by way of Rule 24. As this court has 20 indicated in related cases, the undersigned will not tolerate duplicative briefing and will not allow 21 the numerosity of parties to multiply the proceedings in ways that will effectively deny plaintiffs 22 access to this forum. 23 MOTION TO AMEND 24 As noted at the outset, plaintiffs have moved to amend their complaint to challenge 25 additional contracts and add claims for relief under the ESA. (Doc. No. 14.) Federal defendants 26 have taken no position on this motion. (Id. at 3.) Good cause appearing and in light of the fact 27 that the Federal Rules favor granting leave to amend “freely,” the motion will be granted, subject 28 to the instant ruling on the motion to compel joinder. 12 Case 1:20-cv-00706-DAD-EPG Document 23 Filed 02/16/21 Page 13 of 13 1 CONCLUSION AND ORDER 2 For the reasons set forth above: 3 (1) 4 Federal defendants’ motion to compel joinder of the absent contractors (Doc. No. 11) is GRANTED; and Plaintiffs’ motion to amend (Doc. No. 14) is GRANTED. 5 (2) 6 Plaintiffs shall file any amended complaint within forty-five (45) days of service of this 7 order. 8 IT IS SO ORDERED. 9 10 Dated: February 15, 2021 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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