LAWRENCE J. O'NEILL, District Judge.
This case concerns Temporary Urgency Change Petitions ("TUCP") requesting temporary modification of water quality standards and objectives included in the California State Water Resources Control Board's ("State Board") Revised Decision 1641 ("D-1641"), associated approvals of those TUCPs by the State Board pursuant to California Governor Edmund G. Brown, Jr.'s ("Governor Brown") December 22, 2014 Executive Order B-28-14, and implementation of approved modifications to D-1641's requirements during the late winter and spring of 2015. Plaintiffs, a coalition of environmental organizations led by the California Sportfishing Protection Alliance (collectively, "Plaintiffs"), originally filed suit against the United States Bureau of Reclamation (the "Bureau" or "Reclamation") and related federal entities and officials ("Federal Defendants"); the State Board and various State Board officials ("State Board Defendants"); and the California Department of Water Resources ("DWR") and DWR's Director (collectively, "DWR Defendants"). See Doc. 43.
On August 19, 2015, Plaintiffs voluntarily dismissed all claims in the currently operative First Amended Complaint ("FAC"), Doc. 43, against the State Board Defendants and DWR Defendants. See Doc. 52. Remaining are two causes of action against Federal Defendants, generally alleging that Federal Defendants failed to comply with water quality standards set forth in the Central Valley Project Improvement Act ("CVPIA"), Pub. L. No. 102-575, 106 Stat. 4600 (1992), the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., and various other provisions of state and federal law, in part because neither the State Board nor Governor Brown has the authority to waive Federal Defendants' legal duties.
Federal Defendants move to dismiss the remaining claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Doc. 50. Federal Defendants argue that the actions challenged in this case do not constitute "agency action" as that term is defined by the Administrative Procedure Act ("APA"), 5 U.S.C. § 551(13); 5 U.S.C. §§ 701 et seq., and thus this Court lacks jurisdiction over Plaintiffs' claims. Doc. 50-1. In the alternative, Federal Defendants argue Plaintiffs fail to state a claim on which relief may be granted. Plaintiffs oppose dismissal. Doc. 55. Federal Defendants replied. Doc. 56. The Court took the matter under submission on the papers pursuant to Local Rule 230(g). Doc. 57.
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). "The Bureau is the agency within the Department of the Interior charged with administering the CVP." Id. The Bureau operates the CVP in coordination with DWR, the California agency in charge of operating the parallel State Water Project ("SWP"). Pac. Coast Fed'n of Fishermen's Ass'ns v. Gutierrez, 606 F.Supp.2d 1195, 1225 (E.D. Cal. 2008) ("PCFFA").
The Sacramento-San Joaquin River Delta ("Delta"), which lies at the convergence of the Sacramento, San Joaquin, and other rivers, forms the centerpiece of a "massive and fragile ecosystem" and the heart of both the CVP and the SWP. See San Luis & Delta-Mendota Water Auth. v. United States, 672 F.3d 676, 682 (9th Cir. 2012).
United States v. State Water Res. Control Bd., 182 Cal.App.3d 82, 97 (1986).
Pursuant to permits granted by the State Board, the state agency charged with the task of issuing permits to appropriate water and exercising functions related to water pollution and quality control, see Cal. Water Code § 179, the Bureau "appropriates water from various [] sources, and delivers it for beneficial uses to central California areas." Cent. Delta Water Agency v. United States, 306 F.3d 938, 943 (9th Cir. 2002). Among other conditions, Reclamation's operation of CVP facilities in the Delta must comply with the State Board's D-1641. See PCFFA, 606 F. Supp. 2d at 1133; see also CVPIA § 3406(b) ("The Secretary [of the Interior] . . . shall operate the [CVP] to meet . . . all decisions of the [] State [] Board establishing conditions on applicable licenses and permits for the project."). D-1641 implements the Bay Delta Water Quality Control Plan ("Bay Delta Plan")
In response to extreme drought conditions prevailing in California, Governor Brown issued a number of Proclamations and Executive Orders permitting, if not encouraging, the State Board to consider making changes to water permits in order to conserve water for future use. On January 17, 2014, Governor Brown issued a Proclamation stating:
Office of Governor Edmund G. Brown, Jr., Governor Brown Declares Drought State of Emergency, January 17, 2014, at ¶ 9, available at https://www.gov.ca.gov/news.php?id=18379 (last visited Oct. 18, 2015). This Proclamation suspended operation of California Water Code § 13247 (requiring state agencies to comply with water quality control plans approved by the State Board) and the California Environmental Quality Act, Cal. Pub. Res. Code § 21000, et seq., as to actions taken by DWR and the State Board to "make water immediately available." Id. at ¶ 9. On December 22, 2014, Governor Brown issued Executive Order B-28-14, which extended the suspension of California Water Code § 13247 and CEQA through May 31, 2016. Office of Governor Edmund G. Brown, Jr., Executive Order B-28-14, December 22, 2014, available at https://www.gov.ca.gov/news. php?id=18815 (last visited Oct. 18, 2015).
On January 23, 2015, Reclamation and DWR jointly filed a TUCP with the State Board seeking temporary modifications to their water rights to, among other things, permit Reclamation and DWR to reduce instream flow requirements in the Delta to conserve water for future use. See FAC at ¶ 1. On February 3, 2015, the State Board issued an order approving in part and denying in part the TUCP ("February 3, 2015 Order"). Id. at ¶ 2. On March 24, 2105, the Bureau and DWR submitted another TUCP requesting an extension of the modifications granted in the February 3, 2015 Order. Id. at ¶ 4. On April 6, 2105, the State Board issued an order granting in part and denying in part the requested extension of the TUCP ("April 6, 2015 Order"). Id. at ¶ 5.
Plaintiffs' main contention in this case is that neither the February 3, 2015 Order nor the April 6, 2015 Order (collectively, the "TUCP Orders") absolves the Bureau, a federal agency, from compliance with water quality standards found in, among other places, EPA regulations, 40 C.F.R. § 131.37, and the CVPIA's requirement that the Bureau operate the CVP in compliance with state and
The scope of the second cause of action, entitled "Violation of CWA, CVPIA and APA — Operation of CVP in Violation of Water Quality Standards," id. at 29, is likewise somewhat unclear. For example, paragraph 135 contains a number of statutory references, including yet another reference to the CVPIA:
Id. at ¶ 135. In light of assertions made in Plaintiffs' opposition, see, e.g., Doc. 55 at 11 ("The court has federal question subject matter jurisdiction under 28 U.S.C. § 1331, because this action is enforcing the Bureau's failure to comply with federal law, namely Section 1323 of the CWA and Section 3406(b) of the CVPIA."), and the fact that the first cause of action appears to be a CVPIA claim, the Court concludes that the second cause of action alleges a violation of 33 U.S.C § 1323, a section of the CWA that provides that every federal agency must "comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity." 33 U.S.C. § 1323(a).
Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action for "lack of subject-matter jurisdiction." Faced with a Rule 12(b)(1) motion, a plaintiff bears the burden of proving the existence of the court's subject matter jurisdiction. Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir. 1996). A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears. Gen. Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968-69 (9th Cir. 1981). A challenge to subject matter jurisdiction may be facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). As explained in Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1038 (9th Cir. 2004):
The present motion is a facial attack, because Federal Defendants "contend[] that the allegations of jurisdiction contained in the complaint are insufficient on their face to demonstrate the existence of jurisdiction." Beco Dairy Automation, Inc. v. Global Tech Sys., Inc., ___ F. Supp. 3d ___, 2015 WL 2185121, at *4 (E.D. Cal. May 8, 2015) (internal citation and quotation omitted). In a facial attack, "the plaintiff is entitled to safeguards similar to those applicable when a 12(b)(6) motion is made." Id. "The factual allegations of the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction." Id.; see also Cassirer v. Kingdom of Spain, 580 F.3d 1048, 1052 n. 2 (9th Cir. 2009), rev'd on other grounds, 616 F.3d 1019 (9th Cir. 2010) (en banc) (applying Ashcroft v. Iqbal, 556 U.S. 662 (2009), standard to a facial motion to dismiss for lack of subject matter jurisdiction); Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004) ("[I]n reviewing a Rule 12(b)(1) motion to dismiss for lack of jurisdiction, we take the allegations in the plaintiff's complaint as true.").
The United States, as a sovereign, is immune from suit unless it has expressly waived immunity and consented to be sued. See United States v. Mitchell, 463 U.S. 206, 212 (1983). Federal Defendants move to dismiss for lack of jurisdiction because the only waiver of sovereign immunity pled by Plaintiffs is that contained in the APA § 702; APA § 702's waiver is limited by APA § 704's requirement of "final agency action"; and the acts of Federal Defendants challenged in this lawsuit do not qualify as final agency action as that phrase is defined in the APA. Doc. 50-1 at 5-7. Plaintiffs do not dispute that APA § 702 provides the only possible sovereign immunity waiver for their claims, but argue that they have satisfied APA § 704's "final agency action" requirement, or, alternatively, that it does not apply. Doc. 55 at 6-12.
APA § 702 provides, in pertinent part:
5 U.S.C. § 702. APA § 704 provides, in pertinent part: "Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." 5 U.S.C. § 704. The APA further defines "agency action" to "include[ ] the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." 5 U.S.C. § 551(13). Where the final agency action requirement applies, lack of APA finality precludes judicial review. Ukiah Valley Medical Ctr. v. F.T.C., 911 F.2d 261, 263-64 (9th Cir. 1990).
Plaintiffs first argue that the final agency action requirement is satisfied here. The APA defines reviewable "agency action" to include "the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." 5 U.S.C. § 551(13) ("§ 551(13)"). While this definition is "expansive," federal courts "have long recognized that the term [agency action] is not so all-encompassing as to authorize us to exercise judicial review over everything done by an administrative agency." Wild Fish Conservancy v. Jewell, 730 F.3d 791, 800-01 (9th Cir. 2013) (quoting Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 19 (D.C. Cir. 2006) (alteration in original)). To qualify as "final," the action challenged must "mark the consummation of the agency's decisionmaking process" and "must be one by which rights or obligations have been determined, or from which legal consequences will flow." Id. at 801 (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)).
Here, Plaintiffs argue "agency action" is present because:
Doc. 55 at 7. Plaintiffs further argue that "[i]t is the action of submitting the TUC Petition to the State Board followed by the Bureau's actual operation of the CVP to comply with the TUC in violation of the water quality standards" that marks the consummation of the agency's decisionmaking process. Doc. 55 at 8-9.
As a threshold matter, the Court finds that Reclamation's filing the TUCPs with the State Board roughly is the equivalent of Reclamation applying to the State Board for a permit. Plaintiffs point to no authority that even remotely suggests that filing for a permit is agency action. At least one case, Citizens Legal Enforcement & Restoration v. Connor, 762 F.Supp.2d 1214, 1223-24 (S.D. Cal. 2011) ("CLEAR"), aff'd, 540 F. App'x 587 (9th Cir. 2013), suggests otherwise. In CLEAR, the plaintiffs alleged that Reclamation failed to obtain a necessary permit from a different federal agency under the Rivers and Harbors Act of 1899 ("RHA"), 33 U.S.C. § 403, before completing a project on the Colorado River that impacted flows in a particular area of concern to plaintiffs. Id. at 1218, 1223-24. The district court in CLEAR held that obtaining a permit from another federal agency "is not like a rule, an order, a license, a sanction, or relief." Id. at 1224 (citing 5 U.S.C. § 551(4), (6), (8), (10), (11)).
Id. CLEAR's reasoning is persuasive and provides compelling reasons to conclude that filing a TUCP with the State Board is not "agency action."
Nor does the Bureau's implementation of the TUCP Orders approving in part the TUCPs constitute "agency action." As the Ninth Circuit explained in Wild Fish Conservancy, 730 F.3d at 801, the mere operation of a water project does not constitute "agency action." In Wild Fish Conservancy, plaintiffs alleged that the U.S. Fish and Wildlife Service was operating gates at a hatchery in a manner that dewatered a one-mile segment of a creek. Id. at 794-95. Plaintiffs further alleged that the agency's operation of the gates obstructed fish passage in violation of Washington State law, which in turn violated Section 8 of the Reclamation Act of 1902, which requires federal reclamation projects be operated in compliance with state water law. Id. at 704-95, 800-801. The Ninth Circuit concluded that the allegation that the defendant agency "operate[d] dams [] in a manner that obstructs fish passage . . . during some or all of the year" was a "vague allegation [that] is insufficient," because, among other things, "it does not identify a discrete `agency action' that fits within the APA's definition of that term." Id. at 801. While acknowledging that the gate closures had "immediate physical consequences, such action is not fairly analogous to a `rule, order, license, sanction, [or] relief.'" Id. (quoting § 551(13)).
Moreover, this Court has previously found that Reclamation's day-to-day operation of the CVP is not "agency action," absent a specific implementation order issued by Reclamation. See San Luis & Delta-Mendota Water Auth. v. U.S. Dep't of the Interior, 870 F.Supp.2d 943, 954 (E.D. Cal. 2012) (generic challenge to Reclamation's claimed discretion to order reduced export pumping during a period of "excess water conditions" not reviewable because not "final agency action," while challenge to specific pumping reduction order was subject to review). Likewise, the present case is unlike NWF v. USACOE, 92 F.Supp.2d 1072, cited by Plaintiffs, which concerned a challenge to the operation of four dams pursuant to two formal Records of Decision ("ROD"). It is well established that, absent some appellate process delaying the immediate effectiveness of a ROD, the issuance of a ROD constitutes "final agency action." City of Las Vegas, Nev. v. F.A.A., 570 F.3d 1109, 1114 (9th Cir. 2009) (ROD issued under the National Environmental Policy Act constituted final agency action); Nat'l Parks & Conservation Ass'n v. Bureau of Land Mgmt., 606 F.3d 1058, 1064 (9th Cir. 2010) (ROD subject to administrative appeal not final agency action). Plaintiffs fail to point to a ROD, or any other similar document, issued by Reclamation in this case.
In contrast, where an agency has formally articulated its position in a rule or a memorandum interpreting a rule, agency action exists. Siskiyou Reg'l Educ. Project v. U.S. Forest Serv., 565 F.3d 545, 554-55 (9th Cir. 2009) (finding final agency action where plaintiffs challenged Forest Service's actions taken pursuant to its formal interpretation of a rule in a Memorandum to Regional Foresters); see also Wild Fish Conservancy, 730 F.3d at 801 (distinguishing Siskiyou on the ground that the Forest Service's formal statement of agency policy in the Memorandum to Regional Foresters was "fairly analogous to a `rule' and thus fell within the ambit of § 551(13)."). However, Plaintiffs have pointed to no formal articulation of Reclamation policy akin to that present in Siskiyou. Plaintiffs attempt to argue that filing the TUCP was akin to a formal statement of agency policy, but, as discussed above, the closest relevant authority, CLEAR, persuasively suggests a permit application does not rise to the level of agency action.
Finally, Plaintiffs cannot evade the requirement of "agency action" by labeling the circumstances at issue in this case a "failure to act." The Supreme Court has made it abundantly clear that § 551(13)'s reference to "failure to act" is "properly understood as a failure to take an agency action-that is, a failure to take one of the agency actions (including their equivalents) earlier defined in § 551(13)." Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 62-63 (2004) ("SUWA") (emphasis added).
Therefore, the Court concludes that no "agency action," let alone any "final"
Plaintiffs alternatively argue that the "final agency action" requirement does not apply to their claims. They offer several sub-arguments in support of this proposition.
Plaintiffs argue that § 704's "final agency action" requirement does not apply where a claim is not brought under the APA. Doc. 55 at 12. This is true as a general proposition. The APA's final agency requirement does not apply to certain claims that arise under citizen suit provisions that provide private right of actions to bring suit for violations of certain environmental statutes. For example, the CWA's citizen suit provision allows a citizen to commence a civil action "against any person . . . who is alleged to be in violation of [] a[] [CWA] effluent standard or limitation." 33 U.S.C. § 1365(a). In Oregon Natural Res. Council v. U.S. Forest Serv., 834 F.2d 842, 848 (9th Cir. 1987) ("ONRC"), the Ninth Circuit found that the CWA's citizen suit provision only applies to claims alleging violations of effluent standards or limitations established to control point source pollution, while plaintiffs aiming to enforce state water quality standards applicable to nonpoint sources must bring their claim pursuant to the APA and demonstrate "final agency action."
Here, however, Plaintiffs do not allege that any of their claims arise under the CWA's citizen suit provision. First, Plaintiffs allege that Reclamation's operation of the CVP pursuant to the TUCP Orders violate CWA water quality standards, rather than effluent limitations.
Likewise, it is well established that the CVPIA does not contain a citizen suit provision and that, accordingly, CVPIA claims must arise under the APA. San Luis & Delta-Mendota Water Auth. v. U.S. Dep't of Interior, 637 F.Supp.2d 777, 785 (E.D. Cal. 2008), on reconsideration, 624 F.Supp.2d 1197 (E.D. Cal. 2009), aff'd sub nom. San Luis, 672 F.3d 676; Friant Water Auth. v. Jewell, 23 F.Supp.3d 1130, 1144 n.8 (E.D. Cal. 2014); see also San Luis, 672 F.3d at 699 (applying APA to claim based upon the CVPIA).
Therefore, Plaintiffs cannot establish that they can bring their claims directly under any alternative statute.
Plaintiffs also make reference to an additional line of authority that suggests APA § 704's "final agency action" requirement does not apply to all claims invoking APA § 702 as a waiver of sovereign immunity. In The Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 523-26 (9th Cir. 1989), the Ninth Circuit held that Congress did not limit APA § 702's sovereign immunity waiver to "final agency action," and accordingly declined to read APA § 704's final agency action requirement as a bar to claims for equitable relief against a government agency's investigations alleged to have violated First and Fourth Amendment rights. Shortly after Presbyterian Church was decided, the Supreme Court decided Lujan v. National Wildlife Federation, 497 U.S. 871, 882 (1990), which held that "agency action" is a requirement of APA § 702 and looked to 5 U.S.C. § 551(13) to define that phrase. It is unclear whether, if at all, Presbyterian Church's holding survives Lujan and related Ninth Circuit precedent. See Rattlesnake Coalition v. EPA, 509 F.3d 1095, 1103 (9th Cir. 2007) (explaining that "[w]hen a claim is brought pursuant to the APA, the agency action must be a `final agency action for which there is no other adequate remedy in court.' 5 U.S.C. § 704."); Gallo Cattle Co. v. U.S. Dept. of Agriculture, 159 F.3d 1194, 1198 (9th Cir. 1998) (holding "the APA's waiver of sovereign immunity contains several limitations," including APA § 704's "final agency action" requirement); but see Gros Ventre Tribe v. United States, 469 F.3d 801, 808-809 (9th Cir. 2006) (noting without resolving a "conflict" between Gallo Cattle and Presbyterian Church); Siskiyou, 565 F.3d at 554 n. 8 ("In light of our determination that [plaintiff] challenges final agency action, we need not address the `intra-circuit split' that we have recognized exists on the question whether the `final agency action' requirement of the APA is jurisdictional.").
San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1096 (9th Cir. 2005), provides an example of how these cases can be reconciled in practice. In that case, the San Carlos Apache Tribe sought to maintain certain water levels in a reservoir in Arizona. Id. at 1092. The Tribe brought suit against various federal agency defendants under, among other things, the National Historic Preservation Act ("NHPA"), 16 U.S.C. §§ 470 et seq., which requires federal agencies to "take into account the effect of the[ir] undertaking[s] on any district, site, building, structure, or object that is included or eligible for inclusion in the national Register." San Carlos, 417 F.3d at 1092-93. The Tribe argued that its suit was properly brought as a private right of action directly under NHPA rather than under the APA. Id. at 1093. The Ninth Circuit quoted Presbyterian Church for the general proposition that "in enacting the APA `Congress was quite explicit about its goals of eliminating sovereign immunity as an obstacle in securing judicial review of the federal official conduct.'" Id. at 1096 (quoting Presbyterian Church, 870 at 524). However, in San Carlos, the Court of Appeals found that the case could not "proceed directly under [the NHPA] and bypass the APA," because this would permit litigants to "sidestep the traditional requirements of administrative review under the APA" including "procedural requirements" such as requiring "the challenged agency action [to be] final." Id. Critical to San Carlos's reasoning was the Ninth Circuit's finding that NHPA, like the analogous National Environmental Policy Act ("NEPA"), does not create a private right of action. Id. at 1097-98. Therefore, although APA § 702 may waive sovereign immunity, absent a private right of action to sue the United States directly under the substantive statute, a plaintiff may not sidestep the APA's procedural requirements. Id. at 1098-99.
This line of reasoning is also found in Gros Ventre, in which a coalition of Indian Tribes sued several federal agencies for violating federal obligations to protect tribal trust resources by authorizing and planning to expand two gold mines located upriver from the Tribes' lands. 469 F.3d at 803. The Tribal plaintiffs argued they did not need to satisfy the "final agency action" requirements set forth in APA § 704. Id. at 808. The Ninth Circuit recognized that there is a "conflict" in the Circuit's case law between Presbyterian Church, 870 F.2d 518, which supported the Tribes' argument that APA § 702's waiver of sovereign immunity is not limited to only "agency actions," and Gallo Cattle, 159 F.3d 1194, which supported federal defendants' contrary position that the APA's waiver of sovereign immunity contains several limitations, including APA § 704's "final agency action" requirement. See Gros Ventre, 469 F.3d at 808-09. The Gros Ventre decision declined to reconcile the conflict, however, because it found that the Tribes "did not have a common law cause of action for breach of trust"
Applying these principles here, Plaintiffs cannot evade the APA § 704's final agency action requirement. Plaintiffs bring two claims: one under the CVPIA, for which, as explained above, there is no citizen suit provision or other source of a private right of action; and another under provisions of the CWA to which the CWA's citizen suit provision does not apply. Neither claim provides an independent private right of action apart from that provided by the APA. Therefore, as in San Carlos and Gros Ventre, Plaintiffs cannot avoid compliance with the APA's procedural requirements, including the "final agency action" requirement.
Finally, Plaintiffs point to the doctrine of "nonstatutory review," which, according to Plaintiffs, permits a federal district court to "review an agency action that is ultra vires even in the absence of an explicit grant of statutory review pursuant to the general `federal question' jurisdiction of the Court." Doc. 55 at 11. The doctrine finds its origins in Leedom v. Kyne, 358 U.S. 184 (1958), which concerned an action brought by a union president against National Labor Relations Board ("NLRB") members to set aside certification of a bargaining unit which included both professional and nonprofessional employees, despite a statutory requirement that the professional employees should have the opportunity to vote on whether they wish to be included. Id. at 185-87. The Supreme Court held that a federal district court had jurisdiction to review the certification, despite the absence of express authorization of judicial review of such determinations. See id. at 188-89. The Court stated that it "cannot lightly infer that Congress does not intend judicial protection of rights it confers against agency action taken in excess of delegated powers." Id. at 190. Thus, after finding that the agency was violating a "clear" statutory right, the Supreme Court held that an action for injunction relief could proceed under the "statutory provisions governing general jurisdiction." Id.
The rule articulated in Leedom has come to be known as "nonstatutory review." The most frequently cited modern articulation of the doctrine is found in Rhode Island Dep't of Envtl. Mgmt. v. United States, 304 F.3d 31, 41-43 (1st Cir. 2002). There, the State of Rhode Island brought suit to enjoin an administrative investigation proceeding before the Department of Labor pursuant to the Solid Waste Disposal Act ("SWDA"), 23 U.S.C. §§ 6901-6992k, which, among other things, prohibits retaliation against an employee who initiates or testifies in a proceeding brought pursuant to the SWDA. Id. at 36-37. Several employees of the Rhode Island Department of Environmental Management brought complaints pursuant to the SWDA's whistleblower protection provision. Id. at 38. In at least one of the pending investigatory proceedings, a Department of Labor Administrative Law Judge ("ALJ") found that the proceedings were not barred by Rhode Island's sovereign immunity. See id. at 40 (discussing "the ALJ's adverse immunity determination"). Rhode Island brought suit in federal court to enjoin the pending administrative proceedings, alleging that the proceedings infringed upon the Rhode Island's constitutionally protected sovereign interests. Id. at 36-38.
The Department of Labor argued that Rhode Island had "impermissibly sought review of agency action that is not `final' within the meaning of APA § 704." Id. at 40. The First Circuit began its analysis by noting "the strong presumption that Congress intends judicial review of administrative action." Id. at 41 (quoting Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670 (1986)).
Id. at 41-42. The First Circuit then explained that the "basic premise behind nonstatutory review is that, even after the passage of the APA, some residuum of power remains with the district court to review agency action that is ultra vires." Id. at 42 (internal citation and quotation omitted). Relying on Leedom, the First Circuit articulated two "critical factors" that "must be present to invoke nonstatutory review." Id. at 42. First, the agency's nonfinal action must "wholly deprive the party of a meaningful and adequate means of vindicating its rights." Id. (internal citation and quotation omitted). Second, "Congress must not have clearly intended to preclude review of the agency's particular determination." Id. (internal citation and quotation omitted). "[T]he evidence of Congress's intent to preclude review must be clear and convincing." Id. "Where either of these factors is absent, nonstatutory review is unavailable." Id.
In Rhode Island, the First Circuit found that the requirements of nonstatutory review were satisfied. First, absent immediate judicial review, permitting the Department of Labor proceedings would "wholly deprive the state of a meaningful and adequate means of vindicating its rights," namely, its asserted Constitutional sovereignty interests. Id. at 43. Second, the First Circuit found no indication that Congress specifically intended to preclude review of the agency's immunity determinations, because, while the SWDA provides a mechanism for judicial review of the Department of Labor's determinations of whether an employee was retaliated against, the agency's rulings regarding sovereign immunity are collateral to the SWDA's review provisions and outside the agency's expertise. Id. Finally, the First Circuit emphasized that "general equitable considerations" favored a nonstatutory action, including the fact that Rhode Island had claimed the violation of "a clear right that is constitutional in nature" and that its "immunity would be effectively lost absent judicial review." Id.; see also Commonwealth of Puerto Rico v. United States, 490 F.3d 50, 59 (1st Cir. 2007) (reiterating Rhode Island's articulation of the nonstatutory review doctrine)
In the Ninth Circuit, the doctrine of nonstatutory review appears to be circumscribed even further. For example, in Baker v. Int'l Alliance of Theatrical Stage Employees & Moving Picture Operators of U.S. & Canada, 691 F.2d 1291, 1294 (9th Cir. 1982), which itself arose in the context of the National Labor Relations Act ("NLRA"), the Ninth Circuit noted that "the Leedom v. Kyne, exception has been narrowly construed even in the certification context in which it arose." In fact, the Court has been unable to locate a single Ninth Circuit case that ever seriously considered applying nonstatutory review outside the context of labor relations law. See, e.g., Nat'l Ass'n of Agric. Employees v. Fed. Labor Relations Auth., 473 F.3d 983, 989 (9th Cir. 2007) (determination by the Federal Labor Relations Authority that certain government employees are professionals); NLRB v. California Horse Racing Bd., 940 F.2d 536, 541 (9th Cir. 1991) (concerning preemption by NLRA of California labor agency's administrative order regarding negotiation of a collective bargaining agreement); Staacke v. U.S. Sec'y of Labor, 841 F.2d 278, 282 (9th Cir. 1988) (challenge to Department of Labor's Office of Workers' Compensation Programs determination of eligibility for disability awards); Bays v. Miller, 524 F.2d 631, 633 (9th Cir. 1975) (lawsuit seeking order directing NLRB's General Counsel to reconsider an unfair labor practice charge); Teamsters, Chauffeurs, Helpers & Delivery Drivers, Local 690 v. NLRB, 375 F.2d 966, 968 (9th Cir. 1967) (action to set aside NLRB decision and to order NLRB to conduct an election).
Moreover, in Amerco v. NLRB, which concerned a request to enjoin an ongoing unfair labor practices hearing before the NLRB, the Ninth Circuit quoted Leedom for the proposition that nonstatutory review applies where the "absence of jurisdiction of the federal courts would mean a sacrifice or obliteration of a right which Congress has given professional employees." 458 F.3d 883, 889 (9th Cir. 2006) (quoting Leedom, 358 U.S. at 190). The Ninth Circuit reasoned that Leedom "held that the district court has jurisdiction to enter injunctive relief against certain representation decisions when a party's statutory or constitutional rights otherwise might never be vindicated." Id.
Here, Plaintiffs assert that dismissal of their claims on the ground that the Bureau's actions did not constitute "final agency action" would "allow the Bureau to continue its unlawful practices unchecked." See Doc. 55 at 11 n.2. Plaintiffs further argue that "[t]here is no indication that Congress intended for the Bureau to scheme with DWR and the State Board to use California's TUC procedure an a governor's waiver of state law to provide the Bureau a waiver of the federal requirements under the CWA and the CVPIA." Id. This Court declines to extend nonstatutory review beyond its current limits in this Circuit. Even assuming the doctrine of nonstatutory review applies outside the labor context within the Ninth Circuit, Plaintiffs have not pointed to any "statutory right"
In sum, Federal Defendants' motion to dismiss must be granted because this Court lacks jurisdiction over Plaintiffs' remaining claims. Plaintiffs have not identified any "agency action" subject to review under the APA and none of the exceptions to the "final agency action" requirement apply. It is therefore unnecessary to address Federal Defendants' alternative motion that Plaintiffs claims should be dismissed for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).
No party has addressed whether Federal Defendants' motion should be granted with leave to amend. The Court is unable to determine from the present record whether amendment would be futile, as there may be some aspect of Reclamation's activities in connection with implementation of the TUCP Orders that does qualify as final agency action. Therefore, the parties shall be afforded a brief period of time to supplement the record as to this issue only.
For the reasons set forth above:
The Clerk of Court is directed not to close the case at this time.
Nat'l Wildlife Fed'n v. U.S. Army Corps of Eng'rs, 92 F.Supp.2d 1072, 1075 (D. Or. 2000) ("NWF v. USACOE"). The Bay Delta Plan identified beneficial uses to be served by the waters of the Delta. "These uses fall into three broad categories: municipal and industrial, agricultural, and fish and wildlife." State Water Res. Control Bd. Cases, 136 Cal.App.4th 674, 701 (2006). The Bay Delta Plan also identified water quality objectives with respect to each of these categories of uses. See id.
Id.
NWF v. USACOE, 92 F. Supp. 2d at 1074.
