San Luis Unit Food Producers v. United States , 709 F.3d 798 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAN LUIS UNIT FOOD PRODUCERS; No. 11-16122
EL DORADO FARMS; LAGUNA
EXCELSIOR FARMS, LLC; JLK; RYAN D.C. No.
FAMILY FARMS LP; MARLU FARMS; 1:09-cv-01871-
SIMCOT FARMS; BRAD GLEASON ; OWW-DLB
ROSS ALLEN ; CALIFORNIA
PISTACHIO LLC; DOUBLE B. FARMS;
BUSTER ALLEN , INC.; TURK STATION OPINION
LLC; C.S. STEFANOPOULOS; ELENA
STEFANOPOULOS; D. D.
STEFANOPOULOS; PAGONA
STEFANOPOULOS; UNIVERSAL LAND
CO .; CORT BLACKBURN ; LAURA
BLACKBURN ; MC FARMS LLC;
MARTY ACQUISTAPACE ; CURTIS
STUBBLEFIELD ,
Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA ;
DEPARTMENT OF THE INTERIOR;
BUREAU OF RECLAMATION ,
Defendants-Appellees.
2 SAN LUIS UNIT FOOD PRODUCERS V . UNITED STATES
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, Senior District Judge, Presiding
Argued and Submitted
December 5, 2012—San Francisco, California
Filed March 1, 2013
Before: Stephen S. Trott and Johnnie B. Rawlinson,
Circuit Judges, and Frederic Block, District Judge.*
Opinion by Judge Trott
SUMMARY**
Water Rights
The panel affirmed the district court’s judgment in favor
of the United States Bureau of Reclamation in an action
brought by farmers under the Administrative Procedure Act
seeking to compel the Bureau to provide irrigation districts
with more water.
*
The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SAN LUIS UNIT FOOD PRODUCERS V . UNITED STATES 3
The panel held that the Bureau was not legally required to
take a discrete action to deliver the farmers’ preferred amount
of water from the San Luis Unit of the Central Valley Project
for irrigation before it provides water for other purposes. The
panel held that there was no final agency action, nor was there
any action that the Bureau had unlawfully withheld. The
panel concluded that the farmers had not established subject
matter jurisdiction under the Administrative Procedure Act.
COUNSEL
Theodore A. Chester, Jr., Smiland & Chester, Los Angeles,
California, for Plaintiffs-Appellants.
Peter Krzywicki and Michael T. Gray, United States
Department of Justice, Washington, D.C., for Defendants-
Appellees.
OPINION
TROTT, Circuit Judge:
Today we consider whether farmers and farming entities
(collectively, “Farmers”) that irrigate their land using water
from the San Luis Unit of the Central Valley Project – the
nation’s largest reclamation project – may maintain a claim
under the Administrative Procedure Act (“APA”) to compel
the United States Bureau of Reclamation (“the Bureau”) to
provide the Farmers’ irrigation districts with more water than
it is currently providing. The Farmers argue that several
federal statutes require the Bureau to provide irrigators with
4 SAN LUIS UNIT FOOD PRODUCERS V . UNITED STATES
sufficient irrigation water to satisfy the Farmers’ needs before
delivering water to any other party for any other purpose. The
district court granted summary judgment in favor of the
Bureau on several grounds, including that the Bureau does not
have a statutory duty to release a certain amount of water for
irrigation and that, consequently, the Farmers’ claims did not
satisfy the final agency action requirement of the APA.
Although the district court discussed this issue in terms of
sovereign immunity, we resolve the case slightly differently.
Pursuant to the Supreme Court’s unanimous decision in
Norton v. Southern Utah Wilderness Alliance (“SUWA”),
542 U.S. 55 (2004), we hold that the Bureau is not legally
required to take a discrete action to deliver the Farmers’
preferred amount of San Luis Unit water for irrigation before
it provides water for other purposes. The Bureau retains the
discretion to allocate San Luis water among various parties to
satisfy its various obligations. There is no final agency
action, nor is there any action that the Bureau has unlawfully
withheld. See 5 U.S.C. §§ 704 & 706(1). The Farmers’
claims amount to a broad programmatic attack on the way the
Bureau generally operates the Central Valley Project, see
SUWA, 542 U.S. at 64, and therefore the Farmers have not
established subject matter jurisdiction under the APA,1
Alvarado v. Table Mountain Rancheria, 509 F.3d 1008,
1019–20 (9th Cir. 2007).
1
W e express no opinion on the district court’s other reasons for
dismissing the Farmers’ claims.
SAN LUIS UNIT FOOD PRODUCERS V . UNITED STATES 5
I
Reclamation projects are indispensable features of
agriculture in the Western United States. “The Reclamation
Act of 1902 set in motion a massive program to provide
federal financing, construction, and operation of water storage
and distribution projects to reclaim arid lands in many
Western States.” Orff v. United States, 545 U.S. 596, 598
(2005); see generally 43 U.S.C. §§ 371-600e. When the
Department of the Interior decides to build and operate a
reclamation project, the agency must “appropriate, purchase,
or condemn necessary water rights in strict conformity with
state law.” California v. United States, 438 U.S. 645, 665
(1978). As the Farmers acknowledge, the Bureau obtained all
of the water rights involved in the San Luis Unit “in the 1960s
under both federal and state law.” Op. Br. at 36.
The Central Valley Project (“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.” Orff, 545 U.S.
at 598. The CVP was originally “taken over and executed” by
the United States under the Reclamation Act and was
reauthorized by the Rivers and Harbors Act of 1937, Pub. L.
No. 75-392, 50 Stat. 844, 850 (“the CVP Act”). Westlands
Water Dist. v. United States, 337 F.3d 1092, 1095 n.3 (9th
Cir. 2003). The Bureau is the agency within the Department
of the Interior charged with administering the CVP.
Congress initially prioritized the purposes of the CVP as
follows: “[T]he said dam and reservoirs shall be used, first,
for river regulation, improvement of navigation, and flood
control; second, for irrigation and domestic uses; and, third,
6 SAN LUIS UNIT FOOD PRODUCERS V . UNITED STATES
for power.” CVP Act § 2 (1937) (emphasis added).
However, Congress amended the CVP Act in 1992 with the
Central Valley Project Improvement Act, Pub. L. No. 102-
575, 106 Stat. 4600 (“CVPIA”), which re-prioritized the
purposes of the CVP. O’Neill v. United States, 50 F.3d 677,
686 (9th Cir. 1995). The hierarchy of purposes now reads,
“[T]he said dam and reservoirs shall be used, first, for river
regulation, improvement of navigation, and flood control;
second, for irrigation and domestic uses and fish and wildlife
mitigation, protection and restoration purposes; and, third,
for power and fish and wildlife enhancement.” CVPIA
§ 3406(a)(2) (emphasis added); CVP Act § 2. The CVPIA
also requires that the Bureau operate the CVP to “meet all
obligations under State and Federal law, including but not
limited to the Federal Endangered Species Act, 16 U.S.C.
1531, et seq.” CVPIA § 3406(b).
In 1960, Congress authorized the Secretary of the Interior
to construct and operate the San Luis Unit “as an integral
part” of the CVP. Act of June 3, 1960, Pub. L. No. 86-488,
§ 1(a), 74 Stat. 156, 156 (“the San Luis Act”). The San Luis
Act (1) states that the “principal purpose” of the Unit is to
furnish water for irrigation and (2) identifies four
“incident[al]” purposes – among them, “fish and wildlife
benefits.” Id. The San Luis Act also provides that “[t]he
principal engineering features of said Unit shall be a dam and
reservoir at or near the San Luis site, a forebay and afterbay,
the San Luis Canal, the Pleasant Valley Canal, and necessary
pumping plants, distribution systems, drains, channels, levees,
flood works and related facilities.” Id.The Reclamation Act authorizes the Bureau to enter into
contracts for the use of reclamation water for several
SAN LUIS UNIT FOOD PRODUCERS V . UNITED STATES 7
purposes, including irrigation. See 43 U.S.C. §§ 423e & 521.
As is relevant here, the Bureau contracts with irrigation
districts for the delivery of water from the San Luis Unit.
Each contract contains a shortage provision excusing the
Bureau from the full amount of its contractual water delivery
obligations if water shortages are caused by, among other
things, drought, mechanical malfunctions, or statutory
obligations on the part of the Bureau to deliver water for other
purposes – such as obligations imposed by the Endangered
Species Act and the CVPIA. Once the Bureau contracts with
an irrigation district, the district in turn contracts with end-
users like the Farmers.
According to the Bureau’s Deputy Regional Resources
Manager, every year the Bureau projects the amount of CVP
water that will be available “based upon reservoir storage,
precipitation, runoff forecasts, and other indices.” Decl. of
Richard Stevenson, April 26, 2010, ¶ 5. It then allocates that
water among the Bureau’s contractors, including irrigation
districts and wildlife refuges.
The Farmers allege that for decades the Bureau delivered
enough water to the irrigation districts – which then sold the
water to the Farmers – for the Farmers to irrigate 100% of
their lands to their satisfaction. But in the last several years
the Bureau has provided less water for irrigation, allocating
substantial amounts of San Luis water for other purposes –
particularly for the protection and restoration of fish and
wildlife. The Bureau also allows a significant volume of
water to flow naturally, rather than capturing it to be used for
irrigation. According to the Farmers, the Bureau has
unlawfully “transmute[d] the Unit from an irrigation project
into a fish and wildlife enterprise.” Op. Br. at 8.
8 SAN LUIS UNIT FOOD PRODUCERS V . UNITED STATES
The Farmers filed suit under the APA in the United States
District Court for the Eastern District of California. The
Farmers contended that the Bureau is required by federal law
to deliver more water for irrigation and less water for non-
irrigation purposes such as fish and wildlife. They claim they
are entitled to the amount of water that they have historically
put to beneficial use – presumably making this historical
measurement sometime before the Bureau began curtailing its
deliveries of irrigation water. At oral argument, counsel for
the Farmers estimated this amount as approximately
1,000,000 acre-feet, at least in times when there is no water
shortage.
The Bureau moved for judgment on the pleadings, and the
Farmers moved for summary judgment. The district court
granted the Bureau’s motion, denied the Farmers’ motion, and
granted summary judgment to the Bureau. The district court
determined that with respect to most of the statutory
provisions cited by the Farmers, (1) the Bureau did not have
a mandatory duty to act to provide a certain amount of
irrigation water, (2) the Farmers thus did not satisfy the final
agency action requirement of the APA, and (3) the Farmers’
claims were therefore barred by the doctrine of sovereign
immunity. The court held in the alternative that the Farmers
lacked prudential standing. With respect to four of the
Farmers’ claims, the district court held that the Farmers
lacked constitutional standing.
The Farmers timely appeal.
SAN LUIS UNIT FOOD PRODUCERS V . UNITED STATES 9
II
We review de novo the district court’s interpretation of
federal statutes such as the Reclamation Act, the CVP Act,
and the San Luis Act. Firebaugh Canal Co. v. United States,
203 F.3d 568, 573 (9th Cir. 2000). When interpreting a
statute, “our starting point is the plain language of the
statute.” Consejo de Desarrollo Economico de Mexicali v.
United States, 482 F.3d 1157, 1168 (9th Cir. 2007). That
plain meaning controls “except when its application leads to
unreasonable or impracticable results.” De Osorio v.
Mayorkas, 695 F.3d 1003, 1013 (9th Cir. 2012) (en banc)
(internal quotation marks omitted).
Where no other statute provides for judicial review of
agency action, as is the case here, the APA allows challenges
to final agency action. Agency action includes a “failure to
act.” 5 U.S.C. § 551(13). The Farmers do not challenge a
specific water allocation by the Bureau. Rather, they allege
that the Bureau has generally failed to deliver enough water
to the irrigation districts for those districts to sell sufficient
water to the Farmers. In such a “failure to act” case, a court
can “compel agency action unlawfully withheld or
unreasonably delayed.” 5 U.S.C. § 706(1).
The Supreme Court explained the requirements of
§ 706(1) in SUWA. In that case, the Court considered an APA
claim that the Bureau of Land Management (“BLM”) violated
several statutory provisions by failing to take action with
respect to off-road vehicle use on federal land. 542 U.S. at60–61. Noting that a “failure to act” within the meaning of
the APA is the failure of the agency to issue an “agency rule,
order, license, sanction or relief,” id. at 62, the Court held that
10 SAN LUIS UNIT FOOD PRODUCERS V . UNITED STATES
judicial review of a failure to act under § 706(1) “is properly
understood to be limited . . . to a discrete action,” id. at 63
(internal quotation marks and alteration omitted). “General
deficiencies in compliance . . . lack the specificity requisite
for agency action,” id. at 66, and thus “broad programmatic
attack[s]” on an agency’s administration of a program are
prohibited, id. at 64.
The Court also explained that even discrete agency action
cannot be compelled under § 706(1) unless that action is
“demanded by law.” Id. at 65. Statutory goals that are
“mandatory as to the object to be achieved” but leave the
agency with “discretion in deciding how to achieve” those
goals are insufficient to support a “failure to act” claim
because such discretionary actions are not “demanded by
law.” Id. at 66.
Therefore, “a claim under § 706(1) can proceed only
where a plaintiff asserts that an agency failed to take a
discrete agency action that it is required to take.” Id. at 64.
“Absent such an assertion, a Section 706(1) claim may be
dismissed for lack of jurisdiction.” Alvarado, 509 F.3d at1019–20; see also Gros Ventre Tribe v. United States,
469 F.3d 801, 814 (9th Cir. 2006) (upholding the district
court’s dismissal of an APA claim for lack of jurisdiction
because the government was not required “to take discrete
nondiscretionary actions”).
With these standards in mind, we turn to the Farmers’
claims.
SAN LUIS UNIT FOOD PRODUCERS V . UNITED STATES 11
III
The Farmers have no contractual rights with the Bureau
to irrigation water obtained as a result of its reclamation
works, and the Farmers do not contend that they are third-
party beneficiaries of the Bureau’s contracts with the
irrigation districts. See Orff, 545 U.S. at 597–98, 603–04
(holding that the government had not waived its sovereign
immunity with respect to suits brought by farmers claiming
third-party beneficiary status); Klamath Water Users
Protective Ass’n v. Patterson, 204 F.3d 1206, 1209, 1211–12
(9th Cir. 1999) (construing contract between the Bureau and
the California Oregon Power Company and holding that
irrigators were not intended third-party beneficiaries).
Rather than basing their claims in contract, the Farmers
argue that various reclamation statutes independently impose
mandatory obligations upon the Bureau to distribute more
water to the irrigation districts. The Farmers contend they are
entitled to whatever amount of water they historically put to
beneficial use and that the Bureau may use only “surplus”
water for any purpose other than irrigation. Op. Br. at 20.
The Farmers divide their claims into three groups. They
contend that the Bureau is violating statutory duties (1) to
“operate” the San Luis Unit in a manner that fully utilizes it
for irrigation above other purposes, (2) to “exercise” its water
rights to San Luis water, and (3) to “recoup Project costs.”
Op. Br. at 16, 27, 39. We conclude that none of the statutes
identified by the Farmers requires the Bureau to take a
discrete nondiscretionary action.
12 SAN LUIS UNIT FOOD PRODUCERS V . UNITED STATES
A
We first consider whether four federal statutes impose on
the Bureau a mandatory duty to “operate” the CVP so as to
provide the Farmers with their preferred amount of water.
1
Section 521 of Title 43 of the United States Code
authorizes the Secretary “to enter into contract to supply water
from any project irrigation system for other purposes than
irrigation” provided that “no water shall be furnished for the
uses aforesaid if the delivery of such water shall be
detrimental to the water service for such irrigation project, nor
to the rights of any prior appropriator.” 43 U.S.C. § 521(emphasis added). The Farmers rely on § 521 to argue that
their lands are suffering just such a detriment and that,
therefore, the Bureau must operate the San Luis Unit to
provide them with more irrigation water before distributing
water for non-irrigation purposes.
The fatal flaw in the Farmers’ argument is that although
they allege generally that they are being harmed by the
Bureau’s practice of allocating water for the protection of fish
and wildlife – a purpose which, like irrigation, the Bureau is
required to promote under the CVPIA – they have not
identified a single contract as a cause of that harm. Further,
the statute does not describe any specific action the Bureau is
required to take in the event an irrigator claims detriment
resulting from a non-irrigation reclamation contract. Thus,
without addressing the Farmers’ argument that they are prior
appropriators within the meaning of § 521, we conclude that
these claims fail for lack of a discrete statutory duty.
SAN LUIS UNIT FOOD PRODUCERS V . UNITED STATES 13
2
The Farmers next cite section 2 of the CVP Act, which
provides for “the sale of electric energy” generated by the
CVP “in order to permit the full utilization of the works
constructed” to accomplish the CVP’s purposes. Because
section 2 also states that “the CVP dam and reservoirs ‘shall
be used,’ after river regulation, for ‘irrigation’ and other
‘uses,’” the Farmers claim the entire infrastructure of the CVP
must be “used” for irrigation before the Bureau may distribute
water for non-irrigation purposes. Op. Br. at 22 (quoting
CVP Act § 2) (emphasis added).
The statute, as amended by the CVPIA, lists the purposes
of the CVP – e.g., improving navigation, river regulation,
irrigation, fish and wildlife protection and restoration, etc. –
and authorizes the sale of electricity to accomplish those
purposes. Section 2 does not indicate in the slightest that the
Bureau must take any nondiscretionary action, much less
deliver a certain amount of water to its irrigation contractors
so that those contractors can then sell it to the Farmers.
3
The Farmers also rely on the second sentence of section
1(a) of the San Luis Act, which states that the “principal
engineering features” of the San Luis Unit “shall be a dam
and reservoir . . . and necessary pumping plants, distribution
systems, drains, channels, levees, flood works and related
facilities.” The Farmers rely on our decision in Firebaugh
Canal for the proposition that this statutory language creates
a mandatory duty to distribute more water for irrigation.
14 SAN LUIS UNIT FOOD PRODUCERS V . UNITED STATES
Firebaugh Canal involved a challenge to the Secretary of
the Interior’s failure to complete construction of a master
interceptor drain for the San Luis Unit. 203 F.3d at 571–72.
The majority held that because section 1(a) of the San Luis
Act states that the principal engineering features of the San
Luis Unit “shall” include “necessary . . . drains,” the agency
was required to construct the interceptor drain. Id. at 573–75.
Firebaugh Canal described the government’s responsibility
under § 1(a) as a mandatory “duty to provide drainage
service” and held that providing such service “constitute[d]
agency action unlawfully withheld under § 706(1).” Id. at
570, 578. Although the majority held that “the district court
can compel the Department of Interior to provide drainage
service as mandated by the San Luis Act,” it recognized that
“the district court cannot eliminate agency discretion as to
how it satisfies the drainage requirement.” Id. at 578
(emphasis added).
The Farmers argue that section 1(a), as interpreted in
Firebaugh Canal, requires the Bureau to distribute the
Farmers’ preferred amount of irrigation water before it
engages in any fish and wildlife protection efforts. We
disagree that Firebaugh Canal stands for so attenuated a
proposition. Section 1(a) of the San Luis Act simply
describes the necessary engineering features of the San Luis
Unit, and Firebaugh Canal simply holds that the agency was
required to construct the interceptor drain. Neither the statute
nor Firebaugh Canal says anything in terms of a duty to
distribute a particular amount of water for irrigation.
Moreover, because Firebaugh Canal was decided before
the Supreme Court decided SUWA, we did not then consider
whether “provid[ing] drainage service” would have
SAN LUIS UNIT FOOD PRODUCERS V . UNITED STATES 15
constituted a discrete agency action. Id. at 578. The case
likely would have come out differently, because – as we
acknowledged – the Bureau has discretion under section 1(a)
to decide how to provide drainage service. However, we need
not determine whether Firebaugh Canal remains good law
after SUWA, because even assuming it does, the Farmers do
not dispute that the Bureau is providing water for irrigation –
just not as much as they would like.
4
The Farmers’ last “operation” claim is based on section 6
of the Reclamation Act, codified at 43 U.S.C. § 491. Section
491 “authorize[s] and direct[s]” the Secretary of the Interior
“to use the reclamation fund for the operation and
maintenance of all reservoirs and irrigation works
constructed” under the Reclamation Act.
The Farmers assert that the word “operation” means
“utilization of the works as fully as practicable.” Op. Br. at
18. The argument goes as follows: Because the Reclamation
Act deals with irrigation projects, those projects must be
operated as fully as practicable for irrigation before they can
be used for non-irrigation purposes.
The Farmers would have us ignore every word in the
statute other than the word “operation.” Section 491 does not
require the Bureau to take any particular action in its
management of its reclamation projects. It simply provides
that the Bureau will use a dedicated funding source – which
was established by § 1 of the Reclamation Act, 43 U.S.C.
§ 391 – for whatever action it chooses to take. Decisions on
how to operate the CVP are left to the Bureau’s discretion and
16 SAN LUIS UNIT FOOD PRODUCERS V . UNITED STATES
thus cannot be compelled under § 706(1). See SUWA,
542 U.S. at 64.
B
We next address the Farmers’ claims that the Bureau has
violated its alleged duty to exercise its water rights within the
San Luis Unit.
1
The Farmers rely on section 8 of the Reclamation Act,
codified in part at 43 U.S.C. § 383, and section 1702 of the
California Water Code. Section 8 states in part,
Nothing in this Act shall be construed as
affecting . . . the laws of any State or Territory
relating to the control, appropriation, use, or
distribution of water used in irrigation, or any
vested right acquired thereunder, and the
Secretary of the Interior, in carrying out the
provisions of this Act, shall proceed in
conformity with such laws . . . .
43 U.S.C. § 383. This section requires that the Bureau
comply with “any condition on the ‘control, appropriation,
use, or distribution of water’ through a federal reclamation
project that is not inconsistent with clear congressional
directives respecting the project.” California, 438 U.S. at 672(quoting 43 U.S.C. § 383). Thus, state law restrictions on the
Bureau’s water use are incorporated into the Reclamation Act
so long as they are consistent with other federal law.
SAN LUIS UNIT FOOD PRODUCERS V . UNITED STATES 17
The Farmers claim that the Bureau’s failure to release
more water to the irrigation districts violates section 1702 of
the California Water Code. Under California law, a permit
holder may apply to the State Water Resources Control Board
(“Board”) for a change in the “purpose of use.” Cal. Water
Code § 1701. Section 1702 states that the Board may not
grant any such application unless it finds that the permit
holder has “establish[ed] to the satisfaction of the [B]oard . . .
that the change will not operate to the injury of any legal user
of the water involved.” Cal. Water Code § 1702. According
to the Farmers, this “no injury” rule requires that the Bureau
deliver their preferred volume of irrigation water because the
amount of water they currently receive from the irrigation
districts is insufficient to irrigate all of their lands.
We disagree. The plain meaning of section 1702 requires
that the Board make a “no injury” finding prior to approving
a change in a water permit. It does not instruct the Bureau to
do anything.
2
The Farmers’ next claim regarding the Bureau’s alleged
duty to exercise its water rights relies on another part of
section 8 of the Reclamation Act. Originally enacted as a
proviso to section 8 and now codified at 43 U.S.C. § 372, the
statute provides that “[t]he right to the use of water acquired
under [the Reclamation Act] shall be appurtenant to the land
irrigated, and beneficial use shall be the basis, the measure,
and the limit of the right.” 43 U.S.C. § 372 (emphasis added).
Section 372 is the Farmers’ answer to the conundrum that
nowhere within the many statutes upon which they rely does
18 SAN LUIS UNIT FOOD PRODUCERS V . UNITED STATES
there appear any language specifying the amount of water to
which the Farmers are supposedly entitled. They claim that
under § 372 they are entitled to that amount of water they
have beneficially used each year when the Bureau allocated
enough water for the Farmers to irrigate 100% of their lands.
Whether or not the Farmers can be considered as having
rights under the Reclamation Act when they do not hold
contracts with the Bureau for the provision of irrigation water,
the statement that the beneficial use of water is the “measure”
of a water right is simply too vague to be construed as a
congressional directive to the Bureau to take a discrete action
such as delivering the Farmers’ preferred amount of irrigation
water. The amount of water the Farmers want is just that –
the amount that they want, not an amount to which they are
legally entitled. Simply put, to refer to § 372 as requiring a
“discrete” action is to distort the meaning of the word.
3
The Farmers’ last “exercise” claim rests on the final
sentence of section 1(a) of the San Luis Act, which provides
in relevant part:
Construction of the San Luis unit shall not be
commenced until the Secretary has . . .
secured, or has satisfactory assurance of his
ability to secure, all rights to the use of water
which are necessary to carry out the purposes
of the unit and the terms and conditions of this
Act . . . .
San Luis Act § 1(a).
SAN LUIS UNIT FOOD PRODUCERS V . UNITED STATES 19
The Farmers concede that the Bureau acquired the
necessary water rights long ago and agree that it “duly
exercised the rights for decades.” Op. Br. at 39. They
contend, however, that the Bureau’s “current non-irrigation
use, and even non-use, of the water is impermissibly
rendering the rights insecure.” Id.
By its plain terms, this statute imposes a condition only on
the construction of the San Luis Unit. Before the Unit could
be built, the Bureau had to acquire the necessary water rights
– which it did. There is nothing in the statute even remotely
suggesting that the Bureau must deliver a certain amount of
irrigation water prior to engaging in fish and wildlife
protection efforts.
C
Finally, the Farmers contend that various statutes require
the Bureau to sell more irrigation water to recoup the costs of
constructing, operating, and maintaining the CVP. None of
the statutes helps the Farmers.
Congress intended that reclamation projects would recoup
their own costs by requiring payments from those who benefit
from the federal government’s reclamation efforts.
Landowners who irrigate their land with reclamation water
must pay an operation and maintenance charge “whenever
water service is available for the irrigation of his land.”
43 U.S.C. § 492. Charges to recoup the cost of construction
“shall be determined with a view of returning to the
reclamation fund the estimated cost of construction of the
project.” 43 U.S.C. § 461 (emphasis added). The Bureau
must provide notice of “the charges which shall be made per
20 SAN LUIS UNIT FOOD PRODUCERS V . UNITED STATES
acre upon” the land to be irrigated, “the number of annual
installments in which such charges shall be paid[,] and the
time when such payments shall commence.” 43 U.S.C. § 419.
The Reclamation Act also states that contracts with
irrigation districts for the delivery of irrigation water “shall be
. . . at such rates as in the Secretary’s judgment will produce
revenues at least sufficient to cover an appropriate share of
the annual operation and maintenance cost and an appropriate
share of such fixed charges as the Secretary deems proper.”
43 U.S.C. § 485h(e) (emphasis added). Any such contract
must “provid[e] for payment by the district or districts of the
cost of constructing, operating, and maintaining the works
. . . , such cost of constructing to be repaid within such terms
of years as the Secretary may find to be necessary, in any
event not more than forty years.” 43 U.S.C. § 423e (emphasis
added).
As the above-emphasized language illustrates, Congress
unmistakably vested with the agency the discretion to
determine how to recoup the costs of irrigation projects. In
passing the recoupment statutes, Congress’s goals were broad
and general – “the rehabilitation of the several reclamation
projects and the insuring of their future success by placing
them upon a sound operative and business basis.” 43 U.S.C.
§ 423f. Congress delegated to the Secretary of the Interior,
and by extension to the Bureau, the discretion to determine
the best way to meet those goals. None of these recoupment
statutes requires the discrete agency action the Farmers seek.
Therefore, the Farmers cannot compel the Bureau to act.
SAN LUIS UNIT FOOD PRODUCERS V . UNITED STATES 21
IV
In the end, the Farmers’ claims boil down to a broad,
programmatic challenge to the Bureau’s operation and
management of the CVP and, as such, are not cognizable
under the APA. Although the Farmers contend that the CVP
is designed to promote irrigation over the protection of fish
and wildlife, Congress decided otherwise. The Bureau is
tasked with “operat[ing] the Central Valley Project to meet all
obligations under State and Federal law, including but not
limited to the Federal Endangered Species Act.” CVPIA
§ 3406(b) (emphasis added). That is a mandatory goal. The
decision of how to achieve it, however, is the Bureau’s. None
of the statutes identified by the Farmers require that the
Bureau deliver the Farmers’ preferred amount of water to its
irrigation contractors. For this reason, the Farmers’ APA
claims fail for lack of subject matter jurisdiction.
AFFIRMED.