Wild Fish Conservancy v. Kenneth Salazar , 730 F.3d 791 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILD FISH CONSERVANCY and No. 10-35303
HARRIET S. BULLITT,
Plaintiffs-Appellants, D.C. No.
2:09-cv-00206-
v. LRS
SALLY JEWELL*, in her official
capacity as Secretary of the United OPINION
States Department of the Interior;
U.S. DEPARTMENT OF THE INTERIOR;
SAM D. HAMILTON, in his official
capacity as Director of the United
States Fish and Wildlife Service;
U.S. FISH & WILDLIFE SERVICE;
DAVE IRVING, in his official capacity
as Leavenworth National Fish
Hatchery Complex Manager;
MICHAEL L. CONNOR, in his official
capacity as the Commissioner of the
Bureau of Reclamation; UNITED
STATES BUREAU OF RECLAMATION,
Defendants-Appellees.
Appeal from the United States District Court*
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Secretary of
the Interior Sally Jewell is substituted for her predecessor, Kenneth Lee
Salazar.
2 WILD FISH CONSERVANCY V. JEWELL
Argued and Submitted
May 7, 2013—Seattle, Washington
Filed September 11, 2013
Before: Sidney R. Thomas and Jacqueline H. Nguyen,
Circuit Judges, and Raymond J. Dearie, Senior District
Judge.**
Opinion by Judge Thomas
SUMMARY***
Standing / Jurisdiction
The panel dismissed an action brought by the Wild Fish
Conservancy challenging the United States’ diversion of
water from Icicle Creek, a tributary of the Wenatchee River
and the Columbia River, to the Leavenworth National Fish
Hatchery.
The panel held that the Conservancy lacked prudential
standing to bring an Administrative Procedure Act challenge
alleging that the federal defendants violated section 8 of the
Reclamation Act of 1902 by failing to comply with the
Washington water code’s permit requirement. The panel also
**
The Honorable Raymond J. Dearie, Senior District Judge for the U.S.
District Court 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.
WILD FISH CONSERVANCY V. JEWELL 3
held that it lacked jurisdiction over the Conservancy’s claim
that the federal defendants violated Washington’s fishway
law, Wash. Rev. Code § 77.57.030(1), by failing to submit
fishway plans to the Department of Fish & Wildlife and by
failing to maintain durable and efficient fishways across
hatchery structures, because these requirements were not
incorporated into section 8 of the Reclamation Act. Finally,
the panel held that it lacked jurisdiction over the
Conservancy’s claim that the Secretary of the United States
Department of Interior’s failure to supply Hatchery fishways
with adequate water violated the Reclamation Act, because
that claim did not challenge a final agency action and
consequently was not reviewable under the Administrative
Procedure Act.
COUNSEL
Brian A. Knutsen (argued) and Richard A. Smith, Smith &
Lowney, PLLC, Seattle, Washington, for Plaintiffs-
Appellants.
Charles R. Shockey, David C. Shilton, and Robert P.
Stockman (argued), United States Department of Justice,
Washington, D.C., Defendants-Appellees.
4 WILD FISH CONSERVANCY V. JEWELL
OPINION
THOMAS, Circuit Judge:
The historian Donald Worster described the Columbia
River as the river that died and was reborn as money.1 The
Columbia River Basin was once home to one of the world’s
largest salmon runs, but over the course of the twentieth
century the mainstem Columbia and its tributaries were
radically re-engineered to become the most hydroelectrically
developed river system in the world, incorporating more than
one hundred and fifty dams. Nw. Res. Info. Ctr., Inc. v. Nw.
Power Planning Council, 35 F.3d 1371, 1375 (9th Cir. 1994).
In combination with deforestation, over-fishing, irrigated
agriculture, grazing, mining, and urbanization, the
hydropower system reduced native salmon and steelhead
populations from levels of mythic abundance to the brink of
extinction. Id. at 1375–76.
This appeal concerns the control of water necessary to
sustain native fish populations in Icicle Creek, a tributary of
the Wenatchee River, which is itself a tributary of the
Columbia. The Wild Fish Conservancy and Harriet S. Bullitt
(collectively, “the Conservancy”) allege that the United States
is improperly diverting water from Icicle Creek to the
Leavenworth National Fish Hatchery (the “Hatchery”) and
otherwise violating Washington state law. We conclude that
the Conservancy lacks prudential standing to bring its claim
that the Hatchery operation violates the Washington water
code, and that we lack jurisdiction to consider the
Convervancy’s other claims because they either do not
challenge final agency action or rest on provisions of
1
DONALD WORSTER, RIVERS OF EMPIRE 276 (1985).
WILD FISH CONSERVANCY V. JEWELL 5
Washington law that are not incorporated into federal
reclamation law. Therefore, on de novo review,2 we dismiss
this action.3
I
Congress authorized construction of the Hatchery to
mitigate the adverse impact of the Grand Coulee Dam on
native fish in the Columbia River Basin. The Conservancy
claims that the Hatchery is subject to section 8 of the
Reclamation Act of 1902 (“section 8”), which requires that
federal reclamation projects operate in compliance with state
water law. 43 U.S.C. § 383. According to the Conservancy,
the United States Secretary of the Interior and subordinate
officials responsible for operating the Hatchery (collectively,
the “Federal Defendants”) violate section 8 by diverting water
from Icicle Creek without a permit required by the
2
As always, we review de novo the district court’s jurisdictional
determination, Atwood v. Fort Peck Tribal Court Assiniboine, 513 F.3d
943, 946 (9th Cir. 2008), and its grant of summary judgment to the
Hatchery officials, Native Ecosystems Council v. Dombeck, 304 F.3d 886,
891 (9th Cir. 2002). We likewise review questions of standing de novo.
Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934, 937 (9th Cir. 2005).
3
The district court granted summary judgment in favor of the Hatchery
officials, holding that the Conservancy’s claims are untimely. Wild Fish
Conservancy v. Salazar, 688 F. Supp. 2d 1225, 1237 (E.D. Wash. 2010).
In the alternative, the district court concluded that it should abstain from
adjudicating the Conservancy’s claims under the doctrine of primary
jurisdiction. Id. at 1238. Because administration of the Washington water
code and fishway law is committed to the Washington State Departments
of Ecology and Fish and Wildlife, respectively, the district court held that
the Conservancy should direct its claims to those agencies instead of the
federal courts. Id. Given our resolution of the issues, we need not decide
whether the district court properly found the Conservancy’s claims time-
barred or subject to the doctrine of primary jurisdiction.
6 WILD FISH CONSERVANCY V. JEWELL
Washington water code, Wash. Rev. Code § 90.03.250, and
by failing to provide adequate fish ladders as required by
Washington’s fishway law, Wash. Rev. Code. § 77.57.030.
When the Hatchery was completed in 1941, fish were
initially reared in a one-mile segment of Icicle
Creek—referred to by the parties as the “Historic
Channel”—equipped with dams and weirs to create holding
ponds. A four-thousand foot canal—the “Hatchery
Canal”—was constructed adjacent to the Historic Channel.
The Hatchery Canal splits off from the Historic Channel at
“structure 2”—a dam with radial gates that control the
amount of water flowing downstream through the Hatchery.
The Canal runs roughly parallel to the Historic Channel for
about one mile and then rejoins the Historic Channel
immediately downstream of “structure 5.” When the gates at
structure 2 are open, most of Icicle Creek’s flow travels down
the Historic Channel. When the gates are closed, most of the
creek’s flow travels down the Hatchery Canal. Thus, closing
the gates at structure 2 significantly, and sometimes entirely,
dewaters the one-mile segment of the Historic Channel
between structures 2 and 5. When this occurs, fish cannot
swim up the Historic Channel to spawning grounds above the
Hatchery. Though fish-rearing operations at the Hatchery
were moved to off-channel holding ponds in 1979, Hatchery
officials continue to close the gates at structure 2 at various
times during the year. The following illustration helps
explain the operation:
WILD FISH CONSERVANCY V. JEWELL 7
With this context in mind, we turn to the Conservancy’s
claims.
8 WILD FISH CONSERVANCY V. JEWELL
II
A
The Conservancy’s first claim alleges that the Federal
Defendants violate section 8 of the Reclamation Act,
43 U.S.C. § 383, by diverting water from Icicle Creek at
structure 2 without a state permit. Washington law prohibits
diversions without a permit from the Washington Department
of Ecology (“Department of Ecology”). Wash. Rev. Code
§ 90.03.250.4 The Conservancy argues that this state law
provision applies to the Hatchery by virtue of section 8 of the
Reclamation Act, which provides that nothing in that Act
shall be construed as affecting or intended to
affect or to in any way interfere with 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, and nothing herein shall in any way
affect any right of any State or of the Federal
Government or of any landowner,
4
The Federal Defendants have secured permits from the Department of
Ecology to divert water for Hatchery operations at other locations along
Icicle Creek. However, under Washington law a water right is limited to
the point of diversion specified in the permit, and the holder of a water
right cannot change the diversion point without authorization from the
Department of Ecology. Wash. Rev. Code § 90.03.380(1). Thus, the fact
that the Federal Defendants have permits to divert water at other points
along Icicle Creek does not itself establish their right to divert water at
structure 2.
WILD FISH CONSERVANCY V. JEWELL 9
appropriator, or user of water in, to, or from
any interstate stream or the waters thereof.
43 U.S.C. § 383. Section 8 requires the federal government
to follow state law when acquiring water rights for federal
reclamation projects and distributing project water, unless the
relevant state law conflicts with an express congressional
enactment. California v. United States, 438 U.S. 645, 650,
674–75 (1978). Thus, state law restrictions on the acquisition
and use of water for federal reclamation projects “are
incorporated into the Reclamation Act so long as they are
consistent with other federal law.” San Luis Unit Food
Producers v. United States, 709 F.3d 798, 806 (9th Cir.
2013).
At the outset, the parties dispute whether the Reclamation
Act applies to the Hatchery and whether the Washington
water code’s permit requirement is a state law “relating to the
control, appropriation, use, or distribution of water used in
irrigation” such that it is incorporated into section 8.
Additionally, the parties disagree as to whether directing
water from Icicle Creek into the Hatchery Canal, which
rejoins the Historic Channel after less than a mile, constitutes
a “diversion” as a matter of state law. We need not decide
these questions because the Conservancy lacks prudential
standing.
B
Because the Reclamation Act does not create a private
right of action, the Conservancy brought suit under the
Administrative Procedure Act (“APA”), which provides a
cause of action for persons “adversely affected or aggrieved
by agency action within the meaning of a relevant statute.”
10 WILD FISH CONSERVANCY V. JEWELL
5 U.S.C. § 702. This provision requires that, in addition to
demonstrating constitutional standing, a plaintiff “must assert
an interest ‘arguably within the zone of interests to be
protected or regulated by the statute or constitutional
guarantee in question.’” Nev. Land Action Ass’n v. U.S.
Forest Serv., 8 F.3d 713, 716 (9th Cir. 1993) (quoting Ass’n
of Data Processing Serv. Org., Inc. v. Camp, 397 U.S. 150,
153 (1970)). The purpose of this prudential standing
requirement is “‘to exclude those plaintiffs whose suits are
more likely to frustrate rather than to further statutory
objectives.’” Id. (quoting Clarke v. Sec. Indus. Ass’n,
479 U.S. 388, 397 n.12 (1987)). The test “‘is not meant to be
especially demanding.’” Match-E-Be-Nash-She-Wish Band
of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210
(2012) (quoting Clarke, 479 U.S. at 399). “[T]he benefit of
any doubt goes to the plaintiff.” Ibid. Still, the “zone of
interests” standard forecloses suit “when a plaintiff’s
‘interests are so marginally related to or inconsistent with the
purposes implicit in the statute that it cannot reasonably be
assumed that Congress intended to permit the suit.’” Id.(quoting Clarke, 479 U.S. at 399).
The focal point of the prudential standing inquiry is “the
statute whose violation is the gravamen of the complaint.”
Air Courier Conference of Am. v. Am. Postal Workers Union,
AFL-CIO, 498 U.S. 517, 529 (1991) (internal quotation marks
and citation omitted). Here, the relevant statutory provision
is section 8 of the Reclamation Act. 43 U.S.C. § 383.55
To the extent it is incorporated into section 8, we may also consider the
Washington water code provision that the Conservancy seeks to enforce,
as it bears an “integral relationship” to section 8. See Air Courier
Conference, 498 U.S. at 530. However, demonstrating that the
Conservancy’s claims fall within the zone of interests of the state law
WILD FISH CONSERVANCY V. JEWELL 11
In California v. United States, the Supreme Court
explained that section 8 advances the Reclamation Act’s goal
of “cooperative federalism” and maintains the longstanding
tradition of federal deference to state water law. 438 U.S. at
650, 653. By requiring federal reclamation projects to
comply with state water law, Congress aimed to avoid “the
legal confusion that would arise if federal water law and state
water law reigned side by side in the same locality.” Id. at
668–69. Congress also wished to avoid serious constitutional
questions regarding its authority “to override the States’
regulation of waters within their borders.” Id. at 669. To that
end, section 8 ensures that the operation of federal
reclamation projects within state borders will not affect or
interfere with the States’ sovereign authority to regulate the
appropriation and use of state waters or the protected property
interests of parties with vested water rights under state law.
At a high level of generality, the Conservancy’s interest
in ensuring the Hatchery’s compliance with the Washington
water code’s permit requirement aligns with section 8’s
mandate that federal reclamation projects follow state water
law. But as we have explained, the purpose of section 8 is to
protect the State’s sovereign authority to regulate the
appropriation and use of state waters. California, 438 U.S. at
653 (describing unbroken tradition of State sovereignty in the
field of water law); United States v. Alpine Land & Reservoir
Co., 887 F.2d 207, 212 (9th Cir. 1989). Section 8 serves this
purpose by mandating that the presence and operation of
provision at issue is a necessary but not sufficient condition to establishing
the Conservancy’s prudential standing to pursue an APA claim, which
ultimately rests on section 8 of the Reclamation Act. Because we find that
the Conservancy’s first claim does not fall within the zone of interests
protected by section 8, it lacks prudential standing.
12 WILD FISH CONSERVANCY V. JEWELL
federal reclamation projects shall not “in any way affect” the
operation of state water law nor the rights of any entity
thereunder. 43 U.S.C. § 383. Here, however, the
Conservancy invokes § 8 expressly in order to
“affect”—more specifically, to enlarge—its rights as a water
user under state law.
It is undisputed that the Department of Ecology has
exclusive authority to administer and enforce the Washington
water code. See, e.g., Wash. Rev. Code §§ 43.21A.064
(granting the Department of Ecology plenary authority to
regulate state water resources), 43.27A.190 (granting the
Department of Ecology authority to issue regulatory orders to
compel compliance with water code), 90.03.605 (describing
enforcement procedures). To be sure, parties holding
perfected water rights under state law have an enforceable
property interest in such rights. Rettkowski v. Dep’t of
Ecology, 858 P.2d 232, 237 (Wash. 1993) (en banc).
However, the Conservancy does not have any rights to water
in Icicle Creek. Thus, as it rightly conceded, the
Conservancy lacks the right to independently enforce the
water code’s permit requirement or compel enforcement
action by the Department of Ecology.6 Cf. Wash. Rev. Code
6
We do not question that the Conservancy has an interest in the waters
of Icicle Creek and in ensuring that sufficient water remains in the creek
to sustain fish and wildlife and maintain scenic values. That interest is
protected under state law by the minimum instream flow rules the
Department of Ecology established for Icicle Creek. Wash. Admin. Code
§§ 173-545-050 (1983), 173-545-060 (2001). Washington law protects
instream flows set by rule from impairment by junior users and
unpermitted diversions to the same extent as it protects all other vested
water rights. Wash. Rev. Code § 90.03.345; Postema v. Pollution Control
Hearings Bd., 11 P.3d 726, 735–36 (Wash. 2000) (en banc). Critically,
however, we find no rule of Washington law granting interested members
WILD FISH CONSERVANCY V. JEWELL 13
§§ 90.03.110–.245 (describing procedures by which persons
claiming vested water rights may petition for a judicial
determination of their rights).
The Conservancy correctly argues that an APA plaintiff
need not, as a general rule, establish a property interest in the
litigation in order to demonstrate prudential standing. But the
issue here is not the Conservancy’s lack of property rights as
such, but its lack of enforcement rights. Washington law
does not give the Conservancy a right to the relief it seeks in
this litigation. While a lack of state law rights is generally
immaterial to establishing APA standing, it is highly relevant
where, as here, the plaintiffs assert standing by virtue of a
federal statute predicated on cooperative federalism and
respect for separate sovereignty. The language and purpose
of section 8 make clear that Congress did not intend to permit
private parties who lack water rights a private right of action
to compel enforcement of state law against federal agencies.
Therefore, the Conservancy lacks prudential standing. See,
e.g., Ranchers Cattlemen Action Legal Fund United
Stockgrowers of Am. v. U.S. Dept. of Agric., 415 F.3d 1078,
1103 (9th Cir. 2005) (holding that plaintiffs asserting purely
economic interest lack prudential standing under the National
Environmental Policy Act because the statute does not reflect
concern with economic interests that are divorced from
concerns about the integrity of the physical environment).
of the public, such as the Conservancy, the right to initiate enforcement
action to protect instream flows. Instead, the Department of Ecology is
responsible for protecting instream flows through its general enforcement
authority and by limiting new water uses to ensure that instream flows are
met. See, e.g., Wash. Rev. Code § 90.03.290.
14 WILD FISH CONSERVANCY V. JEWELL
Our concern over federal court interference with the
administration of state water law is not theoretical. The
record reflects that the Department of Ecology is well aware
that the Federal Defendants periodically divert water from
Icicle Creek at structure 2 and of the effect of Hatchery
operations on instream flows and native fish passage in Icicle
Creek. The Department of Ecology has conditioned its grant
of a water quality certification for the Hatchery under section
401 of the Clean Water Act, 33 U.S.C. § 1341, on the
Hatchery’s adoption of a flow management plan designed to
address these and other issues. The flow management plan
describes the Hatchery’s existing state water rights, as well as
the Federal Defendants’ practice of periodically closing the
gates at structure 2 for flood control and groundwater
recharge. Thus, the parties do not dispute that the
Department of Ecology has actual notice of the Federal
Defendants’ periodic closure of the gates at structure 2 and
the resulting diversion of water into the Hatchery Canal. Yet
the Department of Ecology has never determined that this
practice violates section 90.03.250 of the Washington water
code nor directed the Federal Defendants to apply for a
permit. From this we must deduce that the Department of
Ecology either deems a permit unnecessary as a matter of
state law or has elected to address the underlying instream
flow and fish passage issues by alternative means such as the
flow management plan.
This context is significant. In effect, the Conservancy
seeks to override the Department of Ecology’s interpretation
of state law and exercise of enforcement discretion by
securing a federal court order requiring the Federal
Defendants to apply for a permit from the Department of
WILD FISH CONSERVANCY V. JEWELL 15
Ecology to continue diverting water at structure 2.7 Plainly,
adjudicating the Conservancy’s water code claim would be
“more likely to frustrate than to further [the] statutory
objectives” of section 8, Nev. Land Action, 8 F.3d at 716(internal quotation marks and citation omitted), by forcing the
Department of Ecology to adjudicate the need for a permit
and by deputizing the Conservancy to compel enforcement of
the state water code in a manner not provided by state law.
As the Supreme Court has emphasized, “[t]he legislative
history of the Reclamation Act of 1902 makes it abundantly
clear that Congress intended to defer to the substance, as well
as the form, of state water law.” California, 438 U.S. at 675.
The State of Washington has elected to delegate authority to
enforce its water code to the Department of Ecology and has
not recognized a public right to independently enforce the
permit requirement. In this context, “it cannot reasonably be
assumed that Congress intended to permit the suit.” Clarke,
479 U.S. at 399. Thus, in this limited context, we conclude
that the Conservancy lacks prudential standing to pursue its
first claim.
7
Context also distinguishes this case from Natural Resources Defense
Council v. Patterson, 333 F. Supp. 2d 906 (E.D. Cal. 2004) (“NRDC”), a
district court decision on which the Conservancy seeks to rely. There, the
state water agency supported the plaintiffs’ argument that state water law
applied, via section 8, to operation of a federal dam in California’s Central
Valley Project. Id. at 908, 921. Moreover, under the California law at
issue in NRDC, the judiciary shares concurrent jurisdiction with the state
water agency to enforce water code provisions implicating public trust
rights, and the state water agency asserted that adjudication of the
plaintiffs’ claim would not conflict with the agency’s prior decisions. Id.at 921–23. Thus, NRDC did not raise the federalism concerns that
animate our analysis here.
16 WILD FISH CONSERVANCY V. JEWELL
III
The Conservancy’s second claim similarly rests on the
APA and section 8 of the Reclamation Act. Instead of the
water code, however, it alleges underlying violations of
Washington’s fishway law, Wash. Rev. Code Ch. 77.57.
Specifically, the Conservancy alleges that the Federal
Defendants violate the fishway law by failing to (1) submit
fishway plans to the Washington Department of Fish and
Wildlife (“Department of Fish & Wildlife”), (2) maintain
durable and efficient fishways on Hatchery structures that
obstruct fish passage, and (3) supply existing fishways with
adequate water. The first two arguments fail because the
relevant provisions of the fishway law are not incorporated
into section 8 of the Reclamation Act. The third argument
fails because it does not challenge final agency action as
required by the APA.
A
The Conservancy argues that the Federal Defendants
violate Washington’s fishway law by, inter alia, failing to
submit fishway plans for approval to the Department of Fish
& Wildlife and by failing to provide “a durable and efficient
fishway” across Hatchery structures that block fish passage.
Wash. Rev. Code § 77.57.030(1). In the Conservancy’s view,
these state-law violations also violate the Reclamation Act’s
requirement that federal reclamation projects comply with
state laws “relating to the control, appropriation, use, or
WILD FISH CONSERVANCY V. JEWELL 17
distribution of water used in irrigation . . . .” 43 U.S.C.
§ 383.8We disagree. A fair reading of section 8 does not support
the Conservancy’s argument, as the requirement to maintain
durable and efficient fishways approved by the Department
of Fish & Wildlife does not concern “the control,
appropriation, use, or distribution of water.” Id. As we have
discussed, the goal of section 8 is to ensure that all water
rights within a state, including those associated with federal
reclamation projects, are subject to a uniform set of state
laws. California, 438 U.S. at 668–69. Statutory provisions
governing the physical design and maintenance of fishways
do not implicate this goal, as they do not relate to the creation
or exercise of water rights. The Conservancy’s sole evidence
that section 8 embraces the relevant fishway law provisions
is a statement made in a House report indicating that
Congress intended section 8 to encompass state law regarding
the construction and operation of the reclamation “works
themselves.” H.R. Rep. No. 57-794, pt. 2, at 8 (1902). In
light of the plain language and purpose of section 8, this
statement is too thin a reed on which to rest.
B
Even assuming section 8 incorporates the fishway law’s
requirement that fishways continuously be supplied with
sufficient water to freely pass fish, the Conservancy’s claim
that the Federal Defendants violate this provision cannot
8
Again, we need not and do not decide whether the Hatchery is a
“reclamation project” subject to section 8 of the Reclamation Act. Even
assuming that it is, the Conservancy’s fishway claims cannot proceed.
18 WILD FISH CONSERVANCY V. JEWELL
proceed under the APA because the suit does not target final
agency action.
To maintain a cause of action under the APA, a plaintiff
must challenge “agency action” that is “final.” Norton v. S.
Utah Wilderness Alliance, 542 U.S. 55, 61–62 (2004). 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). 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.” Fund for Animals, Inc. v. U.S.
Bureau of Land Mgmt., 460 F.3d 13, 19 (D.C. Cir. 2006)
(alteration in original) (internal quotation marks omitted). 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.”
Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (citations and
internal quotation marks omitted).
Here, the Conservancy merely alleges that the Federal
Defendants “operate dams 2 and 5 in a manner that obstructs
fish passage through Icicle Creek during some or all of the
year.” This vague allegation is insufficient for two reasons.
First, it does not identify a discrete “agency action” that fits
within the APA’s definition of that term. 5 U.S.C. § 551(13);
S. Utah Wilderness Alliance, 542 U.S. at 62–63. While the
Conservancy correctly argues that the act of closing the gates
at structure 2 has immediate physical consequences, such
action is not fairly analogous to a “rule, order, license,
sanction, [or] relief.” 5 U.S.C. § 551(13).
WILD FISH CONSERVANCY V. JEWELL 19
Our decision in Siskiyou Reg’l Educ. Project v. United
States Forest Service, 565 F.3d 545 (9th Cir. 2009), is not to
the contrary, as the Conservancy asserts. There, an
environmental group challenged the Forest Service’s
interpretation of a Northwest Forest Plan provision that
restricted mining activity in riparian reserves. Id. at 553. We
rejected the Forest Service’s argument that the plaintiff failed
to challenge final agency action within the meaning of the
APA. Id. The Conservancy seizes on our discussion
emphasizing that the plaintiff’s complaint referenced
“specific instances of the Forest Service’s actions taken
pursuant to its interpretation” of the Northwest Forest Plan
provision at issue. Id. at 554. This fact supported our
conclusion that the plaintiff’s suit did not advance “a
programmatic attack or a vague reference to Forest Service
action or inaction,” which would not be reviewable under the
APA. Id. The Conservancy argues that it, like the plaintiff
in Siskiyou Regional Education Project, challenges final
agency action because it targets the Federal Defendants’
specific actions in periodically closing the gates at structure
2. This argument fails to account for the fact that the
challenged Forest Service interpretation in Siskiyou Regional
Education Project was embodied in a memorandum that
formally articulated the agency’s position. Id. at 552–53.
Thus, the plaintiffs challenged a formal statement of agency
policy that was fairly analogous to a “rule” and thus fell
within the ambit of § 551(13). See 5 U.S.C. § 551(4)
(defining “rule” as “the whole or a part of an agency
statement of general or particular applicability and future
effect designed to implement, interpret, or prescribe law or
policy . . . .”).
The second reason that the Conservancy’s claims do not
implicate a final agency action is that the individual acts of
20 WILD FISH CONSERVANCY V. JEWELL
closing the gates at structure 2 do not “mark the
consummation of the agency’s decisionmaking process,”
Bennett, 520 U.S. at 177–78 (internal quotation marks and
citation omitted), because they constitute day-to-day
operations that merely implement operational plans for the
Hatchery. See Mont. Wilderness Ass’n, Inc. v. U.S. Forest
Serv., 314 F.3d 1146, 1150 (9th Cir. 2003), vacated on other
grounds, 542 U.S. 917 (2004) (holding that the agency’s
“routine maintenance work” on federal lands is not final
agency action because these activities “implement [the
agency’s] travel management and forest plans” for the lands
at issue).9 The APA’s requirement of final agency action
precludes our undertaking “a general judicial review of the
[Hatchery’s] day-to-day operations.” Lujan v. Nat’l Wildlife
Fed’n, 497 U.S. 871, 899 (1990).
In sum, because this claim does not challenge final
agency action, we lack jurisdiction to consider it.
9
The Conservancy obliquely argues that it in fact challenges the
Hatchery’s 2006 “operations plan,” which does constitute final agency
action. The Federal Defendants respond that this plan is documented in
the Hatchery’s 2006 Biological Assessment, which was invalidated when
we vacated the 2008 Biological Opinion for the Hatchery in Wild Fish
Conservancy v. Salazar, 628 F.3d 513 (9th Cir. 2010) (“Wild Fish I”). In
reply, the Conservancy insists that the defendants’ preparation of a new
biological assessment in response to our decision in Wild Fish I “does not
demonstrate that the underlying agency action—the Hatchery’s operations
plan—has changed.” But the Conservancy does not identify any
document setting forth an “operations plan” separate from the Biological
Assessment. Thus, there is no “underlying agency action” in the record
of this appeal for us to review. Clearly, any challenge to the 2006
Biological Assessment was mooted by our decision in Wild Fish I and the
U.S. Fish and Wildlife Service’s preparation of a new Biological
Assessment for the Hatchery in 2011. See Am. Rivers v. Nat’l Marine
Fisheries Serv., 126 F.3d 1118, 1124 (9th Cir. 1997).
WILD FISH CONSERVANCY V. JEWELL 21
IV
As we have often acknowledged, “[s]almon and
hydropower are the two great natural resources of the
Columbia River Basin,” and ardent desires to promote one or
the other have yielded a century of conflict. Nw. Res. Info.
Ctr., 35 F.3d at 1375. This iteration does not present the
“classic struggle between environmental and energy
interests,” id., but instead a more nuanced conflict between
two entities seeking to repair the damage that dams have done
to the Basin’s fisheries. Unlike the many cases we have
decided concerning the fate of fish in the Columbia River
Basin, the claims before us are not susceptible to federal
judicial review. Because the Conservancy lacks prudential
standing to bring an APA challenge alleging that the Federal
Defendants violate section 8 of the Reclamation Act by
failing to comply with the Washington water code’s permit
requirement, we dismiss for lack of jurisdiction over that
claim. We likewise lack jurisdiction over the Conservancy’s
claim that the Federal Defendants violate Washington’s
fishway law, Wash. Rev. Code § 77.57.030(1), by failing to
submit fishway plans to the Department of Fish & Wildlife
and by failing to maintain durable and efficient fishways
across Hatchery structures, as these requirements are not
incorporated into section 8. Finally, we lack jurisdiction over
the Conservancy’s claim that the Secretary’s failure to supply
Hatchery fishways with adequate water violates the
Reclamation Act, because that claim does not challenge final
agency action and consequently is not reviewable under the
APA.
DISMISSED.