LAWRENCE J. O'NEILL, District Judge.
This case concerns approval by the United States Department of the Interior and its member agency the United States Bureau of Reclamation (collectively, "Federal Defendants," "Reclamation," or the "Bureau") of eight (8) interim renewal contracts ("Interim Contracts") which authorize delivery of water from federal reclamation facilities to certain water districts served by the federal Central Valley Project ("CVP") and provide for repayment of capital construction costs, as well as operational and maintenance expenses associated with CVP facilities. First Amended Complaint ("FAC"), Doc. 47 at ¶ 2. Plaintiffs' remaining claim alleges that Federal Defendants' issued a deficient Environmental Assessment ("EA") and associated Finding of No Significant Impact ("FONSI") prior to approval of the Interim Contracts, in violation of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq.
Before the Court for decision are cross motions for summary judgment filed by all parties. Plaintiffs filed their motion for summary judgment on September 6, 2013. Doc. 68. On October 2, 2013, pursuant to a request from Federal Defendants, this case was stayed in light of the federal government shutdown, and the briefing schedule was suspended. Doc. 71. The stay expired on October 21, 2013, when appropriations were restored. Doc. 72. Federal Defendants' subsequent, unopposed motion for a ten-day extension of time was granted. Doc. 75. Federal Defendants filed an opposition to Plaintiffs' motion as well as a separate cross motion on November 7, 2013, although the two memoranda are identical. Docs. 75-77. Also on November 7, Defendant Intervenors, Westlands Water District, San Luis Water District, and Panoche Water District, also filed an opposition, as well as a distinct cross motion. Doc. 78-80. After receiving a 22-day extension of time, Doc. 82, Plaintiffs filed a reply to their own motion for summary judgment on December
Having thoroughly reviewed the papers and those portions of the extensive Administrative Record ("AR") cited by the parties, the Court believes that the issues are sufficiently developed so as to obviate the need for oral argument. The Court therefore issues the following decision based upon the papers without a hearing pursuant to Local Rule 230(g).
The CVP is "a system of dams, reservoirs, levees, canals, pumping stations, hydropower plants, and other infrastructure that distributes water throughout California's vast Central Valley." San Luis Unit Food Producers v. United States, 709 F.3d 798, 801 (9th Cir.2013) (internal citation and quotation omitted). Although the CVP was originally planned by the State of California as a state project, the Federal government took over construction when California was unable to finance the project on its own. See Ivanhoe Irrig'n Dist. v. McCracken, 357 U.S. 275, 280, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958); S. Delta Water Agency v. United States, 767 F.2d 531, 534 (9th Cir.1985). "The essential components of the CVP have been operational since 1953 and certain of its facilities were in partial operation several years before." S. Delta Water Agency, 767 F.2d at 534.
Id.
"The Bureau is the agency within the Department of the Interior charged with administering the CVP." San Luis Unit Food Producers, 709 F.3d at 801.
Id. at 801-02.
Under Federal Reclamation law, the Bureau delivers waters from CVP facilities to users pursuant to contracts, which provide
The CVPIA also provides for renewal of pre-existing long-term water service contracts for successive periods of up to 25 years. CVPIA § 3404(c)(1), Pub. L. No. 102-575, 106 Stat. 4600 (1992). The CVPIA specifically called for completion of a programmatic Environmental Impact Statement "EIS" pursuant to NEPA that would analyze
CVPIA § 3409 (emphasis added). Renewal of any long-term (i.e., 25-year) contract may not be authorized by Reclamation "until appropriate environmental review, including the preparation of the [PEIS] required in section 3409 ... has been completed." CVPIA § 3404(c)(1). This requirement culminated in adoption of the Central Valley Project Improvement Act Final Programmatic Environmental Impact Statement ("CVPIA PEIS"), which was completed in 1999. FAC at p. 12. In January 2001, the Reclamation formally adopted the "Preferred Alternative" from the CVPIA PEIS in a Record of Decision ("CVPIA PEIS ROD"). AR 2418-2458. In addition, Reclamation began the process of preparing project-level EISs for long-term contract renewals for the West San Joaquin Division and San Luis Contractors. See FAC at 12. In September 2005, Reclamation prepared and released a draft EIS for these long-term contract renewals, but no final EIS has yet been adopted. See id.
The CVPIA provides for the eventuality that long-term contracts might expire prior to completion of appropriate environmental review:
CVPIA § 3404(c)(1).
This case concerns eight (8) such Interim Contracts, which authorize continuation
On or about February 29, 2012, Reclamation issued a FONSI and EA regarding the "Three Delta Division and Five San Luis Unit Water Service Interim Renewal Contracts 2012-2014." FAC ¶ 25. Based on the FONSI and EA, Reclamation approved the eight Interim Contracts at issue in this case.
This case was originally filed in the Northern District of California on April 30, 2012, but was transferred to the Eastern District of California on August 6, 2012, because of the "long history of litigation involving the CVP and CVPIA in the Eastern District, and the Eastern District's familiarity with the background facts, contracts, and the relevant law." Doc. 10 at
Federal Defendants and Defendant Intervenors moved to dismiss both claims in the FAC. Docs. 45-46. A March 8, 2013, Order granted the motions in part. Doc. 52; Pac. Coast. Fed'n of Fishermen's Assoc. v. U.S. Dep't of the Interior, 929 F.Supp.2d 1039, 1044-46 (E.D.Cal.2013). Among other things, Plaintiffs, whose opposition to the motion to dismiss primarily focused upon undermining Federal Defendants' choice of a "status quo" alternative as the "No Action Alternative," appeared to concede that that the Proposed Action, which proposed only a small water pricing difference from the No Action Alternative, would not alter the status quo. See Doc. 48 at 12-13 (indicating assent to the proposition that the No Action Alternative as defined in this EA was the continuation of the status quo). Accordingly, after finding the No Action Alternative to be appropriate, the Court dismissed Plaintiffs' second cause of action demanding that an EIS be prepared, relying in part on a line of cases which stand for the proposition that no EIS is required for a project that does not alter the status quo. Doc. 52, 929 F.Supp.2d at 1048-55. Plaintiffs did not request reconsideration of this ruling.
"NEPA is our `basic national charter for protection of the environment.'" Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin., 538 F.3d 1172, 1185 (9th Cir.2008) (quoting 40 C.F.R. § 1500.1) ("NHTSA"). "Although NEPA does not impose any substantive requirements on federal agencies, it does impose procedural requirements." N. Idaho Cmty. Action Network v. U.S. Dept. of Transp., 545 F.3d 1147, 1153 (9th Cir. 2008). "Through these procedural requirements, NEPA seeks to make certain that agencies will have available, and will carefully consider, detailed information concerning significant environmental impacts, and that the relevant information will be made available to the larger public audience." Id. (internal citations and quotations omitted).
NEPA requires federal agencies to analyze the potential environmental impacts of any "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). When an agency takes major federal action, the agency must prepare an EIS "where there are substantial questions about whether a project may cause significant degradation of the human environment." Native Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1239 (9th Cir.2005).
An agency may choose to prepare an environmental assessment ("EA") to determine whether an EIS is needed. 40 C.F.R. §§ 1501.4, 1508.9(b). An EA is meant to be a "concise public document... that serves to," among other things "[b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact." 40 C.F.R. § 1508.9; see also Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1225 (9th Cir.1988). Based on the EA, the agency "may conclude that the action will not significantly affect the environment and issue a [FONSI]." Bob Marshall, 852 F.2d at 1225 (citing 40 C.F.R. § 1508.13).
An agency's compliance with NEPA is subject to review under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701, et seq., pursuant to which a reviewing court may set aside agency actions that are:
5 U.S.C. § 706(2).
Where a court is asked to review a factual dispute implicating "substantial agency expertise" of a technical nature, the court's determination "is controlled by the `arbitrary and capricious' standard...." Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 376, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989).
Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.2008) (en banc) (internal quotations and citations omitted), overruled on other grounds by Am. Trucking Ass'ns Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.2009).
Certain agency decisions concerning the application of NEPA are not subject to the arbitrary and capricious standard. See Alaska Wilderness Recreation & Tourism Ass'n v. Morrison, 67 F.3d 723, 727 (9th Cir.1995). Alaska Wilderness concerned an agency's decision not to prepare an EIS based not upon "an assessment of the effects of [the action] on the environment," but, rather, on the "assessment of the effects of the [action] on the EIS process." Id.; see also Northcoast Envtl. Ctr. v. Glickman, 136 F.3d 660, 667 (9th Cir.1998) (holding that "the less deferential standard of `reasonableness' applies to threshold agency decisions that certain activities are not subject to NEPA's procedures").
It is not entirely clear which of these two standards applies to the arguments raised in the present motions. The "reasonableness standard" appears to be reserved for situations in which the agency categorically excludes a particular type of action from NEPA review. See, e.g., San Luis Obispo Mothers for Peace v. Nuclear Regulatory Com'n, 449 F.3d 1016, 1028 (9th Cir.2006) (reviewing an EA concerning construction of a radioactive waste storage site and applying "reasonableness" standard to action agency's conclusion that the possible risk of a terrorist attack upon the site did not warrant evaluation because the chance of such an attack was too remote). This is supported by Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1070 (9th Cir.2002), which held:
The Supreme Court has noted, however, that "the difference between the `arbitrary and capricious' and `reasonableness' standards is not of great pragmatic consequence." Marsh, 490 U.S. at 377 n. 23, 109 S.Ct. 1851 (1989). Moreover, as the
Regardless of the scope of discretion, judicial review under the APA is limited to the Administrative Record before the agency at the time the challenged decision was made. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985); Friends of the Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir.2000).
Federal Defendants advance the threshold argument that NEPA "does not apply" to this case at all. Doc. 76 at 8. It is true that NEPA does not apply retroactively to agency actions that occurred before the effective date of the statute, January 1, 1970. Upper Snake River Chapter of Trout Unlimited v. Hodel, 921 F.2d 232, 234 (9th Cir.1990) (no EIS required on the basis of construction of dam completed in 1956). However, "if an ongoing project undergoes changes which themselves amount to `major Federal actions,' the operating agency must prepare an EIS." Id.
Now, Federal Defendants appear to be advancing a different proposition: that no requirements of NEPA, not even the requirements regarding the content of an EA, apply to the renewal the interim contracts at issue in this case. This proposition was addressed in the March 8, 2013 Decision:
Doc. 52, 929 F.Supp.2d at 1056-57. Federal Defendants did not move for reconsideration of this ruling, nor have they presented any authority calling into question the Court's reasoning.
The Court acknowledges that, at first glance, this ruling appears to leave alive only a purely academic claim challenging the content of an EA, a document designed to help an agency determine whether to
The Court also acknowledges that some Ninth Circuit cases contain language that does appear to suggest that NEPA does not apply at all where the proposed action does not change the status quo. For example, in Grand Canyon Trust v. U.S. Bureau of Reclamation, 691 F.3d 1008, 1021-22 (9th Cir.2012), the Ninth Circuit found that Reclamation's issuance of an Annual Operating Plan ("AOP") that merely chronicles Reclamation's ongoing operation of a Dam under pre-existing operating criteria was not a major federal action requiring "compliance with NEPA procedures." There, the Ninth Circuit specifically agreed that "AOPs are not major federal actions for which NEPA requires that an EA and/or EIS be prepared." Id. at 1021 (emphasis added). Yet, Grand Canyon did not involve a challenge to the content of an EA voluntarily prepared by an agency.
In sum, the Court's previous ruling on this issue is the law of the case. Even though it has already been determined that no EIS was required, NEPA still applies to the content of an existing EA, and Plaintiffs may challenge the content that EA here.
There is one caveat to this conclusion. As discussed above, relying on Upper Snake River, the March 8, 2013 Decision concluded that no EIS was required in this case, after finding that Plaintiffs had conceded the Proposed Action would not alter the status quo. Plaintiffs now advance numerous arguments that directly conflict with this conclusion, and with the implied concession Plaintiffs made in their opposition to the motion to dismiss, a concession that was discussed in the March 8, 2013 Decision. See Doc. 52, 929 F.Supp.2d at 1055-56. Among other things, Plaintiffs now argue that while the Proposed Action might not alter the "contractual status quo," it will alter the "environmental status quo" because of the "deteriorating condition of the Delta" and the "bioaccumulative nature of selenium," a pollutant associated with the application of irrigation water to agricultural lands in the areas served by the contracts at issue in this case. Doc. 85 at 8. Plaintiffs also
The March 8, 2013 Decision addressed Federal Defendants argument, joined by Defendant Intervenors, that Plaintiffs waived all of the claims in the FAC because they did not provide any comments to Federal Defendants during the NEPA process. Doc. 52, 929 F.Supp.2d at 1045-47. Federal Defendants' motion focused on the fact that Federal Defendants received only two comment letters during the NEPA process, neither of which was authored by any of the Plaintiffs in this case. Doc. 45 at 6-8; see also AR 5068-5072 (comment letter from North Coast Rivers Alliance, California Sportfishing Protection Alliance, Friends of the River, and the Winnemem Wintu Tribe); AR 5076-5079 (Letter from the Hoopa Valley Tribe).
The general standard is well established. The APA requires that plaintiffs exhaust administrative remedies before bringing suit in federal court. Great Basin Mine Watch v. Hankins, 456 F.3d 955, 965 (9th Cir.2006). In the NEPA context, this means that a plaintiff "must structure [its] participation so that it ... alerts the agency [of its] positions and contentions, in order to allow the agency to give the issue[s] meaningful consideration." Id. (quoting Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 764-65, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004)). The purpose of the exhaustion requirement is to avoid premature claims and to ensure the agency is given "a chance to bring its expertise to bear to resolve a claim." Id. "[A] claimant need not raise an issue using precise legal formulations, as long as enough clarity is provided that the decision maker understands the issue raised." Lands Council v. McNair, 629 F.3d 1070, 1076 (9th Cir.2010) (internal quotation and citation omitted). Accordingly, "alerting the agency in general terms will be enough if the agency has been given a chance to bring its expertise to bear to resolve the claim." Id. If a plaintiff fails to meet exhaustion requirements, its claim is waived. See Pub. Citizen, 541 U.S. at 764-65, 124 S.Ct. 2204.
After reviewing a number of district court decisions from within the Ninth Circuit, the March 8, 2013 Decision concluded that "[s]everal district courts, including several within this Circuit and one within this District, have concluded that comments submitted by third parties may form the basis of a NEPA lawsuit, so long as the comments brought sufficient attention to the issue." Doc. 52, 929 F.Supp.2d at 1045-47 (citing, e.g., Conservation Congress v. U.S. Forest Service, 555 F.Supp.2d 1093, 1106 (E.D.Cal.2008) (rejecting agency argument that plaintiffs failed to raise an issue at the administrative level because "[t]here is no need for a litigant to have personally raised the issue, so long as the issue was raised by another party and the agency had the opportunity to consider the objection")).
On Summary judgment, Defendant Intervenors now raise the related, but not identical, argument that Plaintiffs waived
The question then becomes whether the comment letters in the record "alert[ed] the agency to [Plaintiffs'] position and contentions, in order to allow the agency to give the issue meaningful consideration." Pub. Citizen, 541 U.S. at 764, 124 S.Ct. 2204 (internal quotation and citation omitted). A plaintiff exhausts its administrative remedies if, "taken as a whole," the comments in the record "provided sufficient notice to the [agency] to afford it the opportunity to rectify the violations that the plaintiffs alleged," even if "a much less refined legal argument" was presented during the administrative process, Native Ecosystems Council v. Dombeck, 304 F.3d 886, 898-99 (9th Cir. 2002). This approach comports with the purposes of the exhaustion requirement by "avoiding premature claims and ensuring that the agency be given a chance to bring its expertise to bear to resolve a claim." Id. at 900. "Requiring more might unduly burden those who pursue administrative appeals unrepresented by counsel, who may frame their claims in non-legal terms rather than precise legal formulations." Id.
The Ninth Circuit applied the standard from Dombeck in Great Basin Mine Watch v. Hankins, 456 F.3d 955, 965 (9th Cir. 2006), where the Reclamation argued that an environmental plaintiff waived its argument that groundwater discharged from a project would violate federal and state water quality standards. Id. In its comment letter to Reclamation on the project's draft EIS, environmental plaintiff wrote:
Id. The Ninth Circuit found this was sufficient to preserve the claim for judicial review because "Great Basin clearly expressed concern about the current and future levels of toxins in the discharged water, and the Bureau was on notice of these concerns." Id.
In Nat'l Parks & Conservation Ass'n v. Bureau of Land Mgmt., 606 F.3d 1058 (9th Cir.2010), the Ninth Circuit considered a challenge to a federal agency's approval of a land exchange agreement. A private developer sought to build a landfill on a former mining site. Id. at 1062. As part of its development plan, the private developer sought to exchange certain private lands for several parcels of surrounding land owned by the Bureau of Land Management ("BLM"). Id. BLM approved the exchange over the objection of conservationists, who eventually argued in court that the BLM failed to consider whether a landfill was the "highest and best use" of the public parcels to be exchanged. Id. at 1065. The private developer and BLM argued that the conservation plaintiff failed to exhaust this issue during the administrative process. Id. The Ninth Circuit closely examined objections submitted by Plaintiff during the administrative process, which stated:
Id. at 1065-66 (emphasis included in Ninth Circuit opinion). Elsewhere in the administrative record, individual plaintiffs argued that "the public should receive fair appraisal for its lands," and "[n]ot an appraisal that has been artificially reduced in value through instructions to discount developments, improvements, and recent zoning changes." Id. at 1066. The Ninth Circuit concluded that these statements "adequately raised the highest and best use issue" because they "highlighted the BLM's failure to appraise the land's fair market value as a landfill" and because "[t]he highest and best use analysis is an integral part of the appraisal process." Id. (emphasis in original) (citing 43 C.F.R. § 2201.3-2(a)(1) ("In estimating market value, the appraiser shall: (1) Determine the highest and best use of the property to be appraised[.]")). This provided "sufficient notice to address the highest and best use issue." Id.
Here, of the two letters submitted in connection with the contracts at issue in this case, one, drafted by the Hoopa Valley Tribe, does not relate to the claims in this case. AR 5076-79 (addressing funding for Trinity River restoration, flows for the Trinity River basin, Trinity River salmonid habitat, and tribal trust assets in the Trinity River basin). The remaining letter, authored by counsel for the present Plaintiffs on behalf of a coalition of environmental organizations (hereinafter "Coalition Comment Letter") is five pages in length and maintains, generally, that:
AR 5068-5071.
Defendant Intervenors contend that the Coalition Comment Letter failed to alert Federal Defendants to Plaintiffs' concerns: (1) that the purpose and need statement of the EA is inadequate; (2) that it was inappropriate for Federal Defendants to rely on (a) certain biological opinions and/or (b) the water needs assessments appended to the EA/FONSI; or (3) that the analysis with respect to impacts on the Giant Garter Snake or California Least Tern is inadequate. Doc. 80 at 7.
EAs must "include [a] brief discussion[] of the need for the proposal...." 40 C.F.R. § 1508.9(b). Here, the EA offers the following "Purpose and Need" statement:
AR 5003 (emphasis added). Plaintiffs argue in their summary judgment motion
Defendant Intervenors' motion for summary judgment that Plaintiffs' challenge to the purpose and need statement has been waived is DENIED.
Defendant Intervenors next challenge whether the Coalition Comment Letter sufficiently questioned "any deficiency in the data relied upon, such as biological opinions [issued pursuant to the Endangered Species Act] or the water needs assessments." Doc. 80 at 7.
With respect to biological opinions, the Court is unable to locate anywhere in the FAC or Plaintiffs' motion for summary judgment where Plaintiffs assert that any biological opinion cited in the EA is itself deficient. Plaintiffs do assert that it is legally impermissible for the EA to equate "no jeopardy" findings in certain biological opinions with the absence of harm to the species in question. Whether the Coalition Comment Letter provides Federal Defendants with sufficient notice of this issue is discussed below.
Plaintiffs' motion for summary judgment does specifically contend that the "water needs assessments" relied upon by Reclamation were deficient. This challenge is embedded within Plaintiffs' broader argument that the EA is flawed in part because Reclamation erroneously assumed it did not have the discretion to reduce contract quantities. Doc. 68-1 at 9-18. In the EA, Reclamation preliminarily considered, but rejected, an alternative that would have reduced contract water quantities, in part because, after performing water needs assessments for all CVP contractors, Reclamation concluded that each "contractor's water needs equaled or exceeded the current total contract quantity." AR 5011; see also 5013-14; 5058-61. In their Summary Judgment motion, Plaintiffs maintain that Reclamation's water needs assessments were flawed because they did not take into consideration the fact that some land within the areas serviced by the contracts had been permanently retired. Doc. 68-1 at 10-12, 14.
Defendant Intervenors argue that Plaintiffs have waived this argument because it is nowhere mentioned in the Coalition Comment Letter. Defendant Intervenors are correct. While the comment letter does raise the general concern that Reclamation
Defendant Intervenors' motion for summary judgment that Plaintiffs' challenge to the sufficiency of the water needs assessments has been waived is GRANTED. This conclusion extends to the aspect of Plaintiffs' challenge to the purpose and need statement that is premised upon deficiencies in the water needs assessments.
Plaintiffs' motion for summary judgment also argues that the EA's analysis of the giant garter snake and the California least tern impermissibly equates a finding of no jeopardy under the ESA with a finding of no significant impact under NEPA. The Coalition Comment Letter does generally protest that the EA's impacts analysis is flawed because it does not address how contract renewal will impact Reclamation's ability to comply with other laws, including the Migratory Bird Treaty Act and the ESA. AR 5071-72. But, the letter makes no mention of the giant garter snake or the California least tern. Nor does the letter even hint at the specific legal objection raised in these motions: that it is improper to equate a finding of no jeopardy with a finding of no significant impact under NEPA. Plaintiff has not provided the agency with any notice of this argument, which will not be addressed on the merits. Defendant Intervenors' motion for summary judgment that Plaintiffs have waived their arguments based upon the California least tern and giant garter snake is GRANTED.
As mentioned above, an EA "[s]hall include [a] brief discussion[]s of the need for the proposal...." 40 C.F.R. § 1508.9(b). In applying the related requirement that a full EIS shall "briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action," 40 C.F.R. § 1502.13, the Ninth Circuit has afforded agencies "considerable discretion" in defining the purpose and need of a project. Friends, 153 F.3d at 1066 (citing City of Angoon v. Hodel, 803 F.2d 1016 (9th Cir. 1986)). In City of Angoon, for example, the Ninth Circuit examined the adequacy of an EIS prepared in conjunction with the issuance of a permit for construction and operation of a logging facility. See 803 F.2d at 1017. The district court had held that the EIS was inadequate under NEPA because it failed to consider an alternative under which the land on the island could be exchanged for land elsewhere. See id. In reaching this conclusion, the district court rejected the agency's statement of the permit's purpose. The Ninth Circuit reversed, explaining:
Id. at 1021 (internal citations omitted).
Nevertheless, the discretion afforded the agency is not unlimited. "[A]n agency cannot define its objectives in unreasonably narrow terms." Friends, 153 F.3d at 1066 (citing City of Carmel-By-The-Sea v. U.S. Dep't of Transp., 123 F.3d 1142, 1155 (9th Cir.1997)); see also City of New York v. United States Dep't of Transp., 715 F.2d 732, 743 (2d Cir.1983) ("[A]n agency will not be permitted to narrow the objective of its action artificially and thereby circumvent the requirement that relevant alternatives be considered."). According to the Ninth Circuit's own reading of this line of cases: "The combined teaching of City of Angoon and City of Carmel-By-The-Sea is that the [agency's] statement of purposes is to be evaluated under a reasonableness standard." Friends, 153 F.3d at 1066-67. An EA's purpose and need statement may be fatally flawed if it is based on the agency's erroneous assumption that "it had no discretion to consider" a different purpose. NHTSA, 538 F.3d at 1219.
Here, the stated purpose of the Propose Action "is to execute eight interim contracts in order to extend the term of the contractors' existing interim renewal contracts for two years, beginning March 1, 2012 and ending February 28, 2014." AR 5003. Plaintiffs maintain that Reclamation interpreted this language to mean that the purpose of the Proposed Action is to extend the contracts at existing quantities, because, according to Plaintiffs, Reclamation erroneously believes that it lacks authority to reduce contract quantities. Doc. 68-1 at 9.
NEPA requires the agencies to "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." 42 U.S.C. § 4332(2)(E). This "alternatives provision" applies whether an agency is preparing an EIS or an EA, and requires the agency to give full and meaningful consideration to all reasonable alternatives. Native Ecosystems, 428 F.3d at 1245. "Although an agency must still `give full and meaningful consideration to all reasonable alternatives' in an environmental assessment, the agency's obligation to discuss alternatives is less than in an EIS." Western Watersheds Project v. Abbey, 719 F.3d 1035, 1050 (9th Cir.2013) (internal citations and quotations omitted). "The existence of a viable but unexamined alternative renders an [EA] inadequate." Id.
Here, the EA considered four alternatives:
The Non-Renewal and Reduced Quantity Alternatives were "considered but eliminated from further analysis." AR 5010-11.
NEPA and its implementing regulations require the following with respect to the alternatives that must be considered by an agency:
Native Ecosystems, 428 F.3d at 1245-46. "The statutory and regulatory requirements that an agency must consider `appropriate' and `reasonable' alternatives does not dictate the minimum number of alternatives that an agency must consider." Id. An alternative may be rejected so long as the agency provided an "appropriate explanation" as to why the alternative was eliminated. Id. Plaintiffs' claims concerning the Non-Renewal Alternative were dismissed by the March 8, 2013 Decision. Doc. 52, 929 F.Supp.2d at 1048-55. Plaintiffs now move for summary judgment that the EA unlawfully rejected the Reduced Quantity Alternative. Federal Defendants and Defendant Intervenors cross move for summary judgment that
Reclamation offered four reasons why it rejected the Reduced Quantity Alternative:
AR 5011. Plaintiffs attack each rationale in turn.
The first reason Reclamation offered for rejecting the Reduced Quantity Alternative was that federal Reclamation Law mandates renewal of the contracts at existing quantities when previously contracted-for quantities can be beneficially used. Reclamation reviewed water needs
Plaintiffs attack this rationale in several ways. First, Plaintiffs maintain that Reclamation's water needs assessments were flawed because Reclamation failed to take into consideration the fact that substantial acreage had been retired within at least some of the areas served by the contracts at issue in this case. As discussed above, Plaintiffs failed to exhaust their administrative remedies as to this issue, which is not mentioned or hinted at in the Coalition Comment Letter. It will not be considered here.
Next, Plaintiffs argue that even if one assumes Reclamation law requires renewal of the contracts at existing volumes, it is unlawful for an agency to refuse to consider alternatives beyond that agency's authority. Doc. 68-1 at 14-15. In support of this proposition, Plaintiffs cite 40 C.F.R. § 1502.14(c), which provides that an EIS must "include reasonable alternatives not within the jurisdiction of the lead agency." Plaintiffs also cite Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 235 F.Supp.2d 1143 (W.D.Wash.2002) ("NWF v. NMFS"), which concerned an EIS prepared for a project to dredge sediment from river channels. There, applying 40 C.F.R. § 1502.14(c), the district court found unlawful the action agency's decision to reject an alternative that would have controlled the production of sediment upstream because the acting agency claimed it did not have authority to regulate land use within the vast majority of the basin:
NWF v. NMFS, 235 F.Supp.2d at 1154; see also Kilroy v. Ruckelshaus, 738 F.2d 1448, 1454 (9th Cir.1984) ("In some cases an alternative may be reasonable, and therefore required by NEPA to be discussed in the EIS, even though it requires legislative action to put it into effect.").
However, alternatives requiring legislative action will qualify for inclusion in an EIS "only in very rare circumstances." City of Sausalito v. O'Neill, 386 F.3d 1186, 1208-09 (9th Cir.2004) (quoting City of Angoon, 803 F.2d at 1021 n. 12). For example, in Muckleshoot Indian Tribe v. United States Forest Service, 177 F.3d 800 (9th Cir.1999), the Ninth Circuit found that the Forest Service should have considered an alternative that would have requested more funds to help protect land impacted by an agency decision. See id. at 814. The Ninth Circuit noted that the Forest Service admittedly relied upon other "speculative" sources of funding, and found troubling the agency's "selective willingness to rely upon the availability of funding sources beyond the Forest Service's direct control." Id. Under those circumstances, the Ninth Circuit concluded that it would have been reasonable to consider seeking federal funds as an alternative. Id.
In contrast, in City of Sausalito v. O'Neill, 386 F.3d 1186, 1207-09 (9th Cir. 2004), no "rare circumstance" required the National Park Service to consider an alternative that would have explored the possibility of obtaining congressional funding to
The Court does not believe that this case is one of the "rare circumstances" in which the action agency must consider alternatives beyond that agency's existing authority. Here, Reclamation, this Court, and all of the parties to this case are acutely aware of the body of caselaw addressing the interplay between contractual "entitlements" and actual deliveries. As discussed above, Reclamation routinely reduces actual deliveries for a variety of reasons, including fish and wildlife protection. See generally San Luis, 672 F.3d 676. In light of the shortage provisions in the contracts that make this possible, there is simply no compelling reason to consider an alternative that would require Reclamation to seek Congressional authorization to reduce contract quantities.
Moreover, the cases discussed above all concern the preparation or an EIS. While an EA is subject to the requirement that a "reasonable range" of alternatives be considered, "an agency's obligation to consider alternatives under an EA is a lesser one than under an EIS." Native Ecosystems, 428 F.3d at 1246.
Reclamation's second rationale for rejecting the Reduced Quantity Alternative was that reducing contract quantities would be inconsistent with the CVPIA PEIS ROD and the "balancing requirements" of the CVPIA.
It is undisputed that the EA at issue in this case tiers off of the CPVIA PEIS. The EA explains this tiered relationship:
AR 4986 (emphasis added).
The CVPIA PEIS analyzed a number of alternatives designed to evaluate implementation of the various programs authorized and required by the CVPIA, including contract renewal and implementation of programs designed protect and restore fish and wildlife populations. While the various alternatives differed in many respects, all (including the No Action Alternative) assumed contract renewal would take place at full, pre-CVPIA quantities, at least with respect to the contractors at issue in this case. See AR 2341-44. The CVPIA selected a "Preferred Alternative" that incorporated these assumptions about contract renewal at pre-CVPIA quantities, AR 2436, yet acknowledged that the CVPIA's programs would result in reduced water deliveries to CVP contractors, see AR 2445. Therefore, the CVPIA PEIS ROD impliedly adopts the background assumption that Reclamation has taken in many other contexts: water service contract quantities do not control deliveries.
In the EA, Reclamation asserts that evaluating a Reduced Quantity Alternative would be inconsistent with the CVPIA PEIS ROD. AR 5011. This is a reasonable conclusion. The CVPIA PEIS ROD adopted a Preferred Alternative that assumed renewal of the contracts at existing quantities. It would be problematic at best to discuss in an EA tiering off of the CVPIA PEIS alternatives that are inconsistent with the Preferred Alternative adopted in the CVPIA PEIS ROD.
Relatedly, the CVPIA PEIS ROD concluded that "[a]chieving a reasonable balance among competing uses is a principle purpose of the CVPIA, as provided under [CVPIA] section 3402(f)." AR 2441. "Each Final PEIS alternative combined various elements that modified this balance to some degree, thereby providing the decision maker a reasonable range of choices based on analyses in the Final
The CVPIA PEIS ROD explains why the Preferred Alternative "best balances environmental benefits, affordability, and technical feasibility" and why the modifications to the Preferred Alternative set forth in the ROD "provide[] the greatest level of a reasonable balance among competing demands for CVP water....":
AR 2444-45 (emphasis added). Plaintiffs do not directly attack this rationale.
The EA also correctly asserts that each of the water service contracts at issue in this case incorporates a shortage provision that "provides Reclamation with a mechanism for annual adjustments in contract supplies." AR 5011. As the EA explains:
Id. Plaintiffs do not actually challenge the substance of these assertions. Rather, they contend that this amounts to "an admission that reducing deliveries is viable, rather than a reason not to study the environmental consequences of doing so." Doc. 68-1 at 16. Plaintiffs' argument continues:
Id.
This argument might hold force were it not for the line of Ninth Circuit authority indicating that agency actions that do not alter the status quo ipso facto do not have a significant impact on the environment. Here, the Court has previously determined that renewal of the Interim Contracts does not alter the status quo. When Reclamation makes decisions that actually impact how much water to deliver pursuant to these contracts, NEPA requires Reclamation to evaluate the environmental impacts of such decisions. See San Luis & Delta-Mendota Water Auth. v. Salazar, 686 F.Supp.2d 1026,
Relatedly, the EA further justifies rejecting the Reduced Quantity Alternative because "retaining the full historic water quantities under contract provides the contractors with assurance the water would be made available in wetter years and is necessary to support investments for local storage, water conservation improvements and capital repairs." AR 5011. Plaintiffs argue: "this is not a reason why reducing contract quantities is infeasible. It is a policy decision by Reclamation to promote the economic security of agricultural users rather than devote more water to environmental purposes." Doc. 68-1 at 16. Plaintiffs are correct that this is a policy-driven rationale designed to maximize possible deliveries when operational conditions permit. Plaintiffs are also correct that reducing contract quantities might make it possible to devote more water to environmental purposes, but Plaintiffs totally fail to acknowledge that this is not a policy of Reclamation's invention. Congress articulated this policy in the CVPIA. "The CVPIA represented a compromise between competing needs for limited CVPIA yield. It dedicated 800,000 AF of CVP yield to fish and wildlife restoration purposes." San Luis & Delta-Mendota Water Auth. v. U.S. Dep't of Interior, 637 F.Supp.2d 777, 793 (E.D.Cal.2008) on reconsideration, 624 F.Supp.2d 1197 (E.D.Cal.2009) aff'd sub nom. San Luis & Delta-Mendota Water Auth. v. United States, 672 F.3d 676 (9th Cir.2012). Although the Ninth Circuit's most recent decision addressing the CVPIA's 800,000 AF dedication gives Reclamation some flexibility to dedicate more than 800,000 AF of CVP yield to fish and wildlife purposes, Reclamation's authority to do so is not unlimited and likely only extends to actions required to satisfy particular legal obligations. See San Luis, 672 F.3d at 705-15. The EA's decision to reject a Reduced Quantity Alternative because issuing contracts at full quantity provides contractors with assurance of deliveries in wetter years is at least arguably consistent with Congressional policy set forth in the CVPIA. Reclamation's decision to rely on this rationale is reasonable.
An alternative may be rejected so long as the agency provided an "appropriate explanation" as to why the alternative was eliminated. Native Ecosystems, 428 F.3d at 1245-46. Plaintiffs cite Klamath-Siskiyou Wildlands Center v. U.S. Forest Serv., 373 F.Supp.2d 1069 (E.D.Cal.2004), in support of their contention that Reclamation's explanations for rejecting the Reduced Quantity Alternative are not appropriate. Klamath-Siskiyou involved a proposed timber harvesting plan that would have generated money to be utilized for watershed improvement. Id. at 1072-73. The Forest Service considered three alternatives to the proposed action: a no action alternative, and two alternatives that were "nearly identical," only modifying the rate of harvest in a certain area and slightly altering mitigation measure. Id. at 1088. The Forest service rejected any proposed alternatives that would have eliminated or reduced the
The present case is very different. The EA challenged here is tiered to the 2001 CVPIA PEIS. The CVPIA PEIS ROD selected a Preferred Alternative that assumes full contract quantities, while simultaneously indicating that deliveries would be reduced to implement the CVPIA. Reclamation has been operating the CVP pursuant to that ROD since its adoption in 2001. Reclamation's decision to reject an alternative that conflicted with the ROD does not amount to a "dismissal out of hand" of a feasible alternative. Rather, Reclamation acted reasonably to maintain consistency with a prior, foundational decision. The Court finds this rationale, standing alone, to be an "appropriate explanation" for Reclamation's decision to eliminate the Reduced Quantity Alternative from further consideration. The additional reasonable explanations offered by Reclamation only further support that decision.
Plaintiffs' motion for summary judgment that Reclamation unlawfully rejected the Reduced Quantity Alternative is DENIED; Federal Defendants' and Defendant Intervenors' cross motions are GRANTED.
Relatedly, Plaintiffs argue that consideration of nearly identical alternatives makes it impossible for the agency to "make an informed decision on the project's environmental impacts." Doc. 85 at 14 (quoting Western Watersheds Project v. Abbey, 719 F.3d 1035, 1051 (9th Cir.2013)). In Western Watersheds the BLM prepared an EA addressing renewal of grazing permits at a specific site within a National Monument. Id. at 1050-51. The BLM considered three alternatives and one no-action alternative. The three action alternatives each considered issuing new grazing permits at the same grazing level as the previous permit. Id. at 1050. The BLM also considered, but did not analyze in detail, alternatives that would provide for no grazing, reduced grazing, and alternative management strategies. Id. The Ninth Circuit found that the range of alternatives considered was unreasonable, "question[ing] how an agency can make an informed decision on a project's environmental impacts when each alternative considered would authorize the same underlying action — permitting grazing at the [previous] level...." Id. at 1051.
At first glance, there appear to be parallels between this case and Western Watersheds. There is one critical distinction, however. Western Watersheds concerned approval of a permit, the issuance of which would directly cause an impact to the environment from grazing. Here, Reclamation's renewal of the Interim Contracts does no such thing, because, as discussed above, the contracts do not actually control delivery of water. Therefore, Reclamation focused instead on alternatives that would compare contract terms (e.g. pricing provisions) that are likely to make a practical
Plaintiffs' motion for summary judgment that Reclamation acted unlawfully by considering only alternatives that were "nearly identical" to one another is DENIED; Federal Defendants' and Defendant Intervenors' cross motions are GRANTED.
Plaintiffs move for summary judgment that the EA is inadequate because it fails to address impacts beyond the water delivery area. Doc. 68-1 at 18. Plaintiffs are correct that NEPA requires the action agency to "analyze all of the environmental consequences of a project." Save Our Sonoran v. Flowers, 408 F.3d 1113, 1122 (9th Cir.2005) (emphasis added). It is therefore unlawful for an agency to artificially circumscribe the geographic scope of a NEPA analysis. Id. In Save Our Sonoran, for example, the Ninth Circuit set aside an Army Corps of Engineers' EA reviewing the environmental impacts of issuing a dredge and fill permit, because the EA only evaluated impacts on desert washes under the Corps' jurisdiction. Id. Because impacts to these "jurisdictional waters" would in turn impact a larger property, the Corps was required to evaluate impacts to the larger property. Id.
Here, however, as discussed above, the picture is complicated by the fact that the present EA tiers off the CVPIA PEIS. The CVPIA PEIS, which was issued in 1999, is not part of the administrative record in this case, nor could the Court readily locate its entire text online. However, the executive summary, which is readily available and subject to judicial notice for its content,
CVPIA PEIS Executive Summary at 20, available at http://www.usbr.gov/mp/cvpia/docs_reports/fpeis/fpeis_full_doc.pdf (last visited February 5, 2014).
Tiering, which is permitted under NEPA, is described in the CEQ regulations at 40 C.F.R. § 1508.28:
Tiering only obviates the need for independent environmental impact analysis if the document tiered to actually addresses the potential impacts of the proposed action. For example, in Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 997-98 (9th Cir.2004), the action agency tiered EA to a regional EIS in order to evaluate the impacts of approving several timber sales. However, although the tiered to regional EIS did "contain[] general statements about the [] effects of logging across the [region]" neither the regional EIS nor the challenged EA revealed the "impact that can be expected on the [] watershed as a result of each of [the challenged] timber sales." Id. at 997. Critically, the record in Klamath-Siskiyou revealed "the potential for [] serious impacts... such that the subject require[d] more discussion than the[] EAs [alone] provide." Id.
Here, however, the Court cannot find that renewal of the Interim Contracts has the potential for serious impacts because doing so would conflict with the law of the case, namely the previous finding that the Interim Contract renewals did not change the status quo. This previous conclusion effectively dooms Plaintiffs' challenge to the content of the EA's impact analysis. A similar conclusion was reached in Sabine River Auth. v. U.S. Dept. of Interior, 745 F.Supp. 388 (E.D.Tex.1990), the only case this Court has been able to locate that independently analyzed challenges to the content of an EA after rejecting a challenge to an action agency's failure to prepare an EIS on the ground that the project did not alter the status quo. Sabine concerned the U.S. Fish and Wildlife Service's issuance of an EA and FONSI in connection with its decision to acquire certain conservation easements. The district court found that the action would not change the status quo because the purpose of acquiring the easements was to "foreclose any change in the physical environment." Id. at 394. As a result, the district court also rejected plaintiffs' contention that the action agency failed to consider the acquisition of the easements sets a precedent for acquisitions of additional easements in the future, reasoning: "To the extent that the acquisition of this easement sets a precedent for acquisitions of additional conservation easements by the FWS, such future actions would not have `significant effects' under NEPA because the acquisition of such easements does not cause any `change in the physical environment.'" Id. at 402. Although the basis for the status quo finding in this case is distinct from the basis for that finding in Sabine, the end result is the same. An action that does not change the status quo cannot cause any change in the environment and therefore cannot cause effects that require analysis in the EA.
This conclusion applies with equal force to Plaintiffs' additional challenges to the content of the EA's impact analysis and cumulative impact analysis, including Plaintiffs' arguments that: (1) that the EA contains no analysis of the impact of agricultural runoff and subsurface drainage from Westlands' CVP-irrigated lands, which according to Plaintiffs "contaminates the San Joaquin River and thence the Delta with selenium and other toxic substances," Doc. 68-1 at 19; and (2) that the EA's cumulative impacts analysis is inadequate because, among other things, "selenium bioaccumulates, meaning that continued additions of the same quantity of selenium have compounding environmental impacts," id. at 24. The Court expresses no opinion as to the scientific validity of these arguments. Rather, the Court declines to address these arguments on the merits because they are untimely
Plaintiffs do raise one line of argument about the content of the EA's impact analysis that is not directly undermined by the previous status quo ruling. Plaintiffs point out, correctly, that the EA states that "impacts to salmonid species and green sturgeon in the Delta are solely the result of CVP operations, and are addressed in the CVP/State Water Project Coordinating Operations ["OCAP"] consultation," which resulted in the issuance of an ESA biological opinion on the subject. AR 4988. Interpreting this as an attempt by Reclamation to skirt its responsibility to evaluate impacts to Delta fish species by incorporating the OCAP BiOp by reference, Plaintiffs argue that it is per se impermissible for an EA to incorporate documents by reference. In support of this argument, Plaintiffs cite, Natural Resources Defense Council v. Duvall, 777 F.Supp. 1533, 1538-39 (E.D.Cal.1991), which appears to hold that while incorporation by reference may be appropriate in certain circumstances in an EIS, EA's conclusions should "be close to self-evident," rendering incorporation of other studies inappropriate.
Finally, Plaintiffs point to statements in the AR suggesting that at least the U.S. Fish and Wildlife service assumed that contract renewal would be subject to tiered NEPA analysis. For example, the November 2000 BiOp issued in connection
AR 569. Elsewhere the CVPIA BiOp states:
AR 609. The legal significance of these passages, present in a document not authored by Reclamation, is unclear. But, even if they are relevant to the inquiry regarding the necessity of preparing an EIS in this case, that train has left the station, at least in this litigation. The Court ruled in March 2013 that the EIS claim could not proceed because the Interim Contracts did not modify the status quo. Plaintiffs failed to move for reconsideration and make no serious suggestion of doing so in the context of these crossmotions. As discussed above, that ruling has consequences for Plaintiffs case. This Court will not here consider arguments that, if accepted, would conflict with its previous dismissal of the EIS claim. Accordingly, Plaintiffs' motion for summary judgment that the EA's effects analysis and cumulative effects analysis is flawed is DENIED; Federal Defendants' and Defendant-Intervenors' Cross motions are GRANTED.
For the reasons set forth above:
(1) The Court's March 8, 2013 dismissal of Plaintiffs' claim that Reclamation unlawfully failed to prepare an EIS is law of the case and the key reasoning underlying that ruling (i.e., that renewal of the Interim Contracts will not change the status quo), renders many of Plaintiffs' arguments on summary judgment untimely.
(2) Defendant Intervenors' motion for summary judgment that certain of Plaintiffs' arguments have been waived for failure to exhaust is GRANTED IN PART AND DENIED IN PART;
(3) Plaintiffs' motion for summary judgment on the merits of their remaining NEPA claim is DENIED;
(4) Federal Defendants' and Defendant-Intervenors' cross motions for summary judgment on the merits of Plaintiffs' remaining NEPA claim are GRANTED.
(5) The Clerk of Court is directed to enter judgment for Federal Defendants and Defendant Intervenors and against Plaintiffs.
IT IS SO ORDERED.
