San Luis & Delta-Mendota Water v. Kevin Haugrud

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAN LUIS & DELTA-MENDOTA No. 14-17493
WATER AUTHORITY; WESTLANDS
WATER DISTRICT, D.C. No.
Plaintiffs-Appellees, 1:13-cv-01232-
LJO-GSA
v.
KEVIN HAUGRUD,* as Acting
Secretary of the U.S. Department of
the Interior; U.S. DEPARTMENT OF
THE INTERIOR; U.S. BUREAU OF
RECLAMATION; DAVID MURILLO, as
Acting Commissioner, Bureau of
Reclamation, U.S. Department of the
Interior; DAVID MURILLO, as
Regional Director, Mid-Pacific
Region, Bureau of Reclamation, U.S.
Department of the Interior,
Defendants,
PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS;
*
Kevin Haugrud and David Murillo are substituted for their
predecessors, Sally Jewell and Michael L. Connor, as Acting Secretary of
the U.S. Department of the Interior and Acting Commissioner, Bureau of
Reclamation, pursuant to Fed. R. App. P. 42(c)(2).
2 SAN LUIS V. HAUGRUD
INSTITUTE FOR FISHERIES
RESOURCES; YUROK TRIBE,
Intervenor-Defendants,
and
HOOPA VALLEY TRIBE,
Intervenor-Defendant-Appellant.
SAN LUIS & DELTA-MENDOTA No. 14-17506
WATER AUTHORITY; WESTLANDS
WATER DISTRICT, D.C. No.
Plaintiffs-Appellees, 1:13-cv-01232-
LJO-GSA
v.
KEVIN HAUGRUD, as Acting
Secretary of the U.S. Department of
the Interior; U.S. DEPARTMENT OF
THE INTERIOR; U.S. BUREAU OF
RECLAMATION; DAVID MURILLO, as
Acting Commissioner, Bureau of
Reclamation, U.S. Department of the
Interior; DAVID MURILLO, as
Regional Director, Mid-Pacific
Region, Bureau of Reclamation, U.S.
Department of the Interior,
Defendants-Appellants,
and
SAN LUIS V. HAUGRUD 3
HOOPA VALLEY TRIBE; PACIFIC
COAST FEDERATION OF FISHERMEN’S
ASSOCIATIONS; INSTITUTE FOR
FISHERIES RESOURCES; YUROK
TRIBE,
Intervenor-Defendants.
SAN LUIS & DELTA-MENDOTA No. 14-17515
WATER AUTHORITY; WESTLANDS
WATER DISTRICT, D.C. No.
Plaintiffs-Appellees, 1:13-cv-01232-
LJO-GSA
v.
KEVIN HAUGRUD, as Acting
Secretary of the U.S. Department of
the Interior; U.S. DEPARTMENT OF
THE INTERIOR; U.S. BUREAU OF
RECLAMATION; DAVID MURILLO, as
Acting Commissioner, Bureau of
Reclamation, U.S. Department of the
Interior; DAVID MURILLO, as
Regional Director, Mid-Pacific
Region, Bureau of Reclamation, U.S.
Department of the Interior,
Defendants,
HOOPA VALLEY TRIBE; PACIFIC
COAST FEDERATION OF FISHERMEN’S
ASSOCIATIONS; INSTITUTE FOR
FISHERIES RESOURCES,
Intervenor-Defendants,
4 SAN LUIS V. HAUGRUD
and
YUROK TRIBE,
Intervenor-Defendant-Appellant.
SAN LUIS & DELTA-MENDOTA No. 14-17539
WATER AUTHORITY; WESTLANDS
WATER DISTRICT, D.C. No.
Plaintiffs-Appellants, 1:13-cv-01232-
LJO-GSA
v.
KEVIN HAUGRUD, as Acting OPINION
Secretary of the U.S. Department of
the Interior; U.S. DEPARTMENT OF
THE INTERIOR; U.S. BUREAU OF
RECLAMATION; DAVID MURILLO, as
Acting Commissioner, Bureau of
Reclamation, U.S. Department of the
Interior; DAVID MURILLO, as
Regional Director, Mid-Pacific
Region, Bureau of Reclamation, U.S.
Department of the Interior,
Defendants-Appellees,
HOOPA VALLEY TRIBE; YUROK
TRIBE; PACIFIC COAST FEDERATION
OF FISHERMEN’S ASSOCIATIONS;
INSTITUTE FOR FISHERIES
RESOURCES,
Intervenor-Defendants-Appellees.
SAN LUIS V. HAUGRUD 5
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief Judge, Presiding
Argued and Submitted December 12, 2016
San Francisco, California
Filed February 21, 2017
Before: Alex Kozinski and N. Randy Smith, Circuit Judges,
and Sharon L. Gleason,** District Judge.
Opinion by Judge N.R. Smith
SUMMARY***
Environmental Law / Water Rights
The panel affirmed in part and reversed in part the district
court’s judgment, and held that the Bureau of Reclamation
had the authority to implement the 2013 release of Trinity
River water from the Lewiston Dam, above and beyond the
amount designated in the applicable water release schedule.
Reversing the district court, the panel held that the Act of
August 12, 1955, gave the Bureau the authority to implement
**
The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, 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.
6 SAN LUIS V. HAUGRUD
the 2013 flow augmentation release to protect fish in the
lower Klamath River. Affirming the district court, the panel
also held that the 2013 flow augmentation release did not
violate Central Valley Project Improvement Act (“CVPIA”)
section 3406(b)(23), which called for a permanent water
release that would serve only the Trinity River basin. The
panel further held that the 2013 flow augmentation release
did not violate California water law and, in turn, did not
violate the Reclamation Act of 1902 or CVPIA section
3411(a), both of which require the Bureau to comply with
state water permitting requirements.
The panel did not reach the merits of an Endangered
Species Act claim because the plaintiff water contractors did
not have standing to pursue that claim. The panel held that the
water contractors lacked standing because they did not
demonstrate that the Bureau’s alleged failure to conduct a
Section 7 consultation for Endangered Species Act-listed fish
species would threaten their economic interests.
COUNSEL
Daniel J. O’Hanlon (argued), Rebecca R. Akroyd, and
Elizabeth L. Leeper, Kronick Moskovitz Tiedemann &
Girard, Sacramento, California; Steven O. Sims and Dulcinea
Z. Hanuschak, Brownstein Hyatt Farber Schreck LLP,
Denver, Colorado; for Plaintiffs-Appellees/Cross-Appellants
San Luis & Delta-Mendota Water Authority and Westlands
Water District.
Ellen J. Durkee (argued), Bradley H. Oliphant, and Anna K.
Stimmel, Attorneys; John C. Cruden, Assistant Attorney
General; Environment and Natural Resources Division,
SAN LUIS V. HAUGRUD 7
United States Department of Justice, Washington, D.C.;
Stephen Palmer, Office of the Regional Solicitor, Department
of the Interior, Sacramento, California; Carter Brown, Office
of the Solicitor, Department of the Interior, Washington,
D.C.; for Defendants-Appellants/Cross-Appellees Kevin
Haugrud, U.S. Department of the Interior, U.S. Bureau of
Reclamation, and David Murillo.
Thomas P. Schlosser (argued) and Thane D. Somerville,
Morisset Schlosser Jozwiak & Somerville APC, Seattle,
Washington, for Intervenor-Defendant-Appellant/Cross-
Appellee Hoopa Valley Tribe.
Amy Cordalis and Nathan Voegeli, General Counsel, Yurok
Tribe, Klamath, California; Daniel I.S.J. Rey-Bear, Nordhaus
Law Firm LLP, Spokane, Washington; for Intervenor-
Defendant-Appellant/Cross-Appellee Yurok Tribe.
OPINION
N.R. SMITH, Circuit Judge:
In late summer 2013, the Bureau of Reclamation (“BOR”)
released Trinity River water from the Lewiston Dam, above
and beyond the amount designated in the applicable water
release schedule (a schedule that was devised to benefit only
the Trinity River basin). That water flowed down the Trinity
River and into the lower Klamath River, where winter-run
salmon were beginning their migration upriver to their
spawning grounds. BOR released the water to help prevent
a mass die-off of these salmon in the lower Klamath, which
are threatened when the Klamath River runs low. BOR
asserted that the Act of August 12, 1955, (“1955 Act”) gave
8 SAN LUIS V. HAUGRUD
it the power to release this extra water. The 1955 Act
“authorized and directed” the Secretary of the United States
Department of the Interior (“DOI”) “to adopt appropriate
measures to insure the preservation and propagation of fish
and wildlife.” We agree with BOR. The broad language of
this clause gave BOR the authority to implement the 2013
water release.
In implementing the 2013 water release, BOR also did not
violate the Central Valley Project Improvement Act or
California water law (and correspondingly the Reclamation
Act of 1902, which requires agencies to comply with state
water law), as alleged by Cross-Appellants San Luis & Delta-
Mendota Water Authority and Westlands Water District.
Finally, Cross-Appellants lack standing to pursue their
Endangered Species Act claim.
BACKGROUND
I.
The Trinity River begins in the Trinity Alps of Northern
California. The river runs south and then wends its way
northwest, picking up tributaries along the way. It eventually
flows into the Klamath River at the town of Weitchpec. The
water then flows forty additional miles down the lower
Klamath before entering the Pacific Ocean.
The Trinity River was once known for its abundant
populations of salmon and steelhead. Before the construction
of dams on the Trinity, up to 75,000 fall-run Chinook salmon
are estimated to have migrated from the Pacific Ocean to the
North Fork of the Trinity River each year. The Yurok and
Hoopa Valley Indian Tribes (living along the Klamath and
SAN LUIS V. HAUGRUD 9
Trinity Rivers) have relied on the fish as their primary dietary
staple. In recognition of the Tribes’ rights to harvest these
fish, the federal government established reservations for the
Tribes in the mid-1800s that endure to this day. The Trinity
River bisects the Hoopa Valley Reservation, and the lower
Klamath River bisects the Yurok Reservation.
At the same time, water management has always been a
central concern for the state of California. For as long as it
has been a state, California has adopted laws to manage its
water resources. In the early 1920s, California began drafting
a comprehensive, statewide water plan. California
recognized that, while most of its water resources were
located in the northern part of the state, the majority of the
demand came from the state’s southern regions. In addition,
the population’s demand for water did not align with the
seasonal rainfalls and snow melt. With its statewide plan,
California hoped to control salinity and flooding, while
managing the storage and distribution of water. One of the
primary goals of the plan was to transfer water from the
Sacramento River to the San Joaquin Valley and from the San
Joaquin River to the southern regions of the Central Valley,
the heart of California’s farmland. In 1933, the California
Legislature authorized this statewide plan, known as the
Central Valley Project (“CVP”). Because the state was
unable to fully fund the plan, the United States took over in
1935. Construction of what would become the largest
federally managed water project began in 1937. See
generally San Luis & Delta-Mendota Water Auth. v. Jewell,
747 F.3d 581, 594 (9th Cir. 2014); Cent. Delta Water Agency
v. United States, 306 F.3d 938, 943 (9th Cir. 2002); United
States v. State Water Res. Control Bd., 227 Cal. Rptr. 161,
166 (Cal. Ct. App. 1986); Eric A. Stene, The Central Valley
10 SAN LUIS V. HAUGRUD
Project, BUREAU OF RECLAMATION (last updated Aug. 4,
2015), https://www.usbr.gov/history/cvpintro.html.
California’s statewide water plan originally included
plans to divert water from the Trinity River to the Central
Valley. Although these initial plans were abandoned before
the CVP was authorized, Congress began re-investigating the
possibility in the 1940s. During this investigation, DOI
estimated that more than 1.1 million acre-feet of water flowed
from the upper Trinity River basin each year.1 Reports
suggested that only 120,500 acre-feet of water were needed
to maintain the fishery resources of the Trinity and Lewiston
Rivers. These reports also suggested that the construction of
dams on the Trinity would actually help the fishery resources.
Congress ultimately concluded that 700,000 acre-feet of the
Trinity’s annual flow was being lost to the Pacific Ocean and
could be diverted to the Central Valley without harming the
Trinity or lower Klamath Rivers. Accordingly, in 1955,
Congress authorized the construction of the Trinity River
division (“TRD”), an addition to the CVP in Northern
California. Act of Aug. 12, 1955, Pub. L. No. 84-386 § 1,
69 Stat. 719, 719 (1955). The purpose of the TRD was to
divert water from the Trinity River to the Sacramento River
“for irrigation and other beneficial uses in the Central
Valley.” Id. Nevertheless, Congress designed the TRD “with
a view to maintaining and improving fishery conditions,”
which were an important asset to “the whole north coastal
area.” H.R. Rep. No. 84-602, at 4 (1955). Accordingly, in
1
An “acre-foot” is a unit of volume “equal to the amount of water it
would take to fill an acre [of land] to a foot-deep level—approximately
326,000 gallons. An average household uses between one-half and one
acre-foot of water in a year.” Westlands Water Dist. v. U.S. Dep’t of
Interior, 376 F.3d 853, 861 n.3 (9th Cir. 2004).
SAN LUIS V. HAUGRUD 11
the 1955 Act, Congress specifically directed the Secretary of
DOI to preserve and propagate fish and wildlife. § 2, 69 Stat.
at 719.
Under the authority granted by the 1955 Act, BOR
constructed two dams along the Trinity River: the Trinity and
the Lewiston. The Trinity Dam blocks water flowing from
the upper Trinity River, and several other tributaries, and
forms Trinity Reservoir.2 After passing through Trinity Dam,
water flows approximately eight miles downstream before
reaching Lewiston Dam, which forms Lewiston Reservoir.
At Lewiston Dam, the water either continues flowing down
the Trinity River, or BOR diverts it toward the Sacramento
River (via the Clear Creek Tunnel) for use in the CVP. If
diverted, the water passes through several additional dams
before reaching the Sacramento River. Water that is not
diverted at the Lewiston Dam continues to flow down the
Trinity River. As it did before the dams were constructed, the
water eventually passes through the Hoopa Valley Indian
Reservation and into the Klamath River at the town of
Weitchpec. The water then flows forty miles down the lower
Klamath and through the Yurok Indian Reservation until it
reaches the Pacific Ocean.
The TRD became fully operational in 1964. For the next
ten years, BOR diverted an average of 88 percent of Trinity
River annual inflow to the Sacramento River basin.
2
This body of water has been referred to both as Trinity Lake and
Trinity Reservoir. Similarly, the body of water created by Lewiston Dam
has been referred to both as Lewiston Lake and Lewiston Reservoir.
12 SAN LUIS V. HAUGRUD
II.
The construction and operation of the TRD had
devastating effects on the Trinity River environment and fish
populations. Westlands Water Dist. v. U.S. Dep’t of Interior,
376 F.3d 853, 862 (9th Cir. 2004). The dams blocked
significant upstream fish habitat. Id. The low flows caused
the Trinity River to narrow and the banks to steepen, resulting
in increasingly fast and uniform water velocities. Id. These
effects destroyed resting pools and vital spawning grounds.
Id. Within a decade, the TRD had significantly diminished
the salmon and steelhead populations in the Trinity River. Id.at 861–62.
A. Trinity River Basin Fish and Wildlife Task Force
In response to the effects of the TRD, the Trinity River
Basin Fish and Wildlife Task Force (“TRBFW Task Force”
or “Task Force”) formed in the early 1970s. The Task Force
was comprised of federal, state, and local agencies. It studied
the impact of the TRD and it worked to develop a plan for the
long-term management of the fish population and habitat in
the Trinity River basin.
B. Secretarial Decision of 1981
In the late 1970s and early 1980s, in recognition and
support of the Task Force, the Fish and Wildlife Service
(“FWS”), the Bureau of Indian Affairs, and the Water and
Power Resources Service studied the effects of increased
water releases from the Lewiston Dam into the Trinity River.
The agencies drafted an Environmental Impact Statement
(“EIS”) that considered eight alternative water release
schedules. The agencies agreed that the best alternative was
SAN LUIS V. HAUGRUD 13
to begin water releases from the Lewiston Dam at 287,000
acre-feet annually, and incrementally increase this flow to
340,000 acre-feet annually in normal years. BOR would
release less water in dry years. The agencies also agreed to
study and draft a report on the effect of restoration flows
during the first twelve years of the revised flow releases
(“Trinity River Flow Evaluation Study”). In 1981, then-
Secretary of the Interior, Cecil Andrus, gave legal effect to
this agreement in a Secretarial Decision.
C. Trinity River Basin Fish and Wildlife Management Act
of 1984
In 1984, Congress passed the Trinity River Basin Fish and
Wildlife Management Act (“1984 Act”). Pub. L. No. 98-541,
98 Stat. 2721 (1984). The 1984 Act directed the Secretary to
“formulate and implement a fish and wildlife management
program for the Trinity River Basin designed to restore the
fish and wildlife populations” to pre-TRD levels. Id. § 2,
98 Stat. at 2722. The 1984 Act also officially recognized the
TRBFW Task Force. Id. § 3, 98 Stat. at 2722–23.
D. Central Valley Project Improvement Act
In 1992, Congress enacted the Central Valley Project
Improvement Act (“CVPIA”). Pub. L. No. 102-575
§§ 3401–12, 106 Stat. 4600, 4706–31 (1992). Among other
things, the CVPIA sought “to protect, restore, and enhance
fish, wildlife, and associated habitats in the Central Valley
and Trinity River basins,” while also seeking “to achieve a
reasonable balance among competing demands for use of
Central Valley Project water.” Id. § 3402(a), (f), 106 Stat. at
4706.
14 SAN LUIS V. HAUGRUD
Section 3406(b)(23) (at issue here), provided for water
releases “to the Trinity River of not less than 340,000 acre-
feet per year” from 1992 through 1996. 106 Stat. at 4720. It
also directed DOI to “complete the Trinity River Flow
Evaluation Study” (required by the 1981 Secretarial
Decision) by September 30, 1996. Id. § 3406(b)(23)(A), 106
Stat. at 4720. DOI was to complete the study “in a manner
which insures the development of recommendations, based on
the best available scientific data, regarding permanent
instream fishery flow requirements.” Id. If the Secretary of
the Interior and the Hoopa Valley Tribe agreed on the study’s
recommendations, then the recommendations were to “be
implemented accordingly.” Id. § 3406(b)(23)(B), 106 Stat. at
4720–21. “If the Hoopa Valley Tribe and the Secretary [did]
not concur, the minimum Trinity River instream fishery
releases established under [section 3406(b)(23) were to]
remain in effect unless increased by an Act of Congress,
appropriate judicial decree, or agreement between the
Secretary and the Hoopa Valley Tribe.” Id.
E. Trinity River Basin Fish and Wildlife Management
Reauthorization Act
In 1996, Congress enacted the Trinity River Basin Fish
and Wildlife Management Reauthorization Act (“1996
Reauthorization Act”), which amended the 1984 Act and
“extend[ed] for three years the availability of moneys for the
restoration of fish and wildlife in the Trinity River.” Trinity
River Basin Fish and Wildlife Management Reauthorization
Act of 1995, Pub. L. No. 104-143, 110 Stat. 1338, 1338
(1996). The 1984 Act had provided for “[t]he design,
construction, operation, and maintenance of facilities to . . .
rehabilitate fish habitats in the Trinity River between
Lewiston Dam and Weitchpec.” § 2(a)(1)(A), 98 Stat. at
SAN LUIS V. HAUGRUD 15
2722. Among other things, the 1996 Reauthorization Act
replaced “Weitchpec” with, “Weitchpec and in the Klamath
River downstream of the confluence with the Trinity River.”
§ 3(b), 110 Stat. at 1339.
F. The 2000 Record of Decision
As directed by the 1981 Secretarial Decision and CVPIA
section 3406(b)(23)(A), FWS biologists conducted flow
evaluation studies annually from 1983 to 1994. In June of
1999, FWS and the Hoopa Valley Tribe released the Final
Report for the Trinity River Flow Evaluation Study.3 A few
months later, BOR, the Hoopa Valley Tribe, FWS, and
Trinity County issued a Draft Trinity River Mainstem Fishery
Restoration Environmental Impact Statement/Report. The
EIS “addresse[d] the environmental issues, alternatives, and
impacts associated with restoration of the natural production
of anadromous fish on the Trinity River mainstem
downstream of Lewiston Dam.” The EIS identified and
analyzed four alternative actions and identified a “Preferred
Alternative.” In a Record of Decision (“2000 ROD”), DOI
adopted the Preferred Alternative, finding it to be the “action
which best meets the statutory and trust obligations [to the
Hoopa Valley and Yurok Tribes] of the Department to restore
and maintain the Trinity River’s anadromous fishery
resources.”
Under the Preferred Alternative, BOR would, among
other things, release a designated amount of water from the
Lewiston Dam into the Trinity River each year, based on that
3
FWS and the Hoopa Valley Tribe prepared the Final Report in
consultation with the U.S. Geological Survey, BOR, National Marine
Fisheries Service, and California Department of Fish and Game.
16 SAN LUIS V. HAUGRUD
year’s hydrology. This amount would range from 369,000
acre-feet in critically dry years to 815,000 acre-feet in
extremely wet years.
III.
In September 2002, two fish pathogens, Ich and
Columnaris, caused approximately 34,000 fish to die in the
Klamath River. These pathogens are normally present in the
river, but a combination of factors caused the pathogens to
proliferate and become lethal. The low river flow that year
was not attractive to migrating adult salmon, so the salmon
congregated in the warm waters of the lower Klamath River.
The low flows, warm water temperatures, and high density of
fish triggered an epizootic of Ich and Columnaris that spread
throughout the fish population.
In April 2003, Judge Oliver Wanger of the Eastern
District of California issued an order permitting BOR to
release 50,000 additional acre-feet of water from the
Lewiston Dam (above the annual instream flow release set by
the 2000 ROD) to reduce the likelihood of a recurrence of the
2002 fish die-off. To ensure that this “flow augmentation
release” would have no impact on the CVP water users, BOR
entered into an agreement with the Metropolitan Water
District of Los Angeles to exchange water from the Trinity
Reservoir for non-CVP deliveries. In August 2003, BOR
notified the Eastern District of California of its plan to release
33,000 acre-feet of water from the Lewiston Dam as a
preventative measure, while holding the additional 17,000
acre-feet of water in case an emergency release was needed.
In 2004, BOR notified the Eastern District of California
of its plan to release an additional 36,300 acre-feet of water
SAN LUIS V. HAUGRUD 17
in late summer, again to prevent another fish die-off. BOR
had 11,313 acre-feet of water left over from its 2003
exchange with the Metropolitan Water District of Los
Angeles. BOR also purchased 25,000 acre-feet of water from
willing sellers in the Sacramento River Water Contractors
Association to cover the remaining water needed for the 2004
flow augmentation release.
Over the next eight years, conditions improved such that
BOR did not find it necessary to augment the river flow.
Then, in 2012, BOR predicted that the fall-run of adult
salmon in the Klamath basin would be incredibly large (the
largest since it began keeping records in 1978), while the
flows in the Klamath River would be relatively low.
Accordingly, in order to prevent another potential fish die-off,
BOR studied and proposed a flow augmentation release of an
additional 48,000 acre-feet from the Lewiston Dam. BOR
drafted an Environmental Assessment (“EA”) and a Finding
of No Significant Impact (“FONSI”), concluding that an EIS
was not required because the flow augmentation release
would not significantly impact the quality of the human
environment. In the Final EA for the 2012 flow
augmentation release, BOR stated that the 1955 Act
“provide[d] the principle authorization for implementing” the
release. BOR ultimately released an additional 39,000 acre-
feet of water in 2012.
In 2013, BOR proposed releasing an additional 62,000
acre-feet of water from the Lewiston Dam in the late summer
to reduce the likelihood of a mass fish die-off in the lower
Klamath River. The agency drafted an EA and a FONSI for
the proposed release, again concluding that an EIS was not
required. On August 6, 2013, BOR issued the Final EA and
FONSI for the 2013 flow augmentation release. BOR also
18 SAN LUIS V. HAUGRUD
concluded again in its Final EA for the 2013 flow
augmentation release that the 1955 Act “provide[d] the
principal authorization” for the release. Due in part to the
current legal action, BOR ultimately released only 17,500
acre-feet during the 2013 flow augmentation release.
IV.
San Luis & Delta-Mendota Water Authority is an agency
comprised of local water districts in central California that
hold contracts for CVP water. Westlands Water District is a
member of this joint agency (collectively “the Water
Contractors”). On August 7, 2013, the day following BOR’s
issuance of the Final EA and FONSI for the 2013 flow
augmentation release, the Water Contractors filed suit against
BOR, DOI, and several individuals working within these
agencies (“Federal Defendants”). Two days later, the Water
Contractors filed a motion for a temporary restraining order
and a preliminary injunction to halt the 2013 flow
augmentation release, which was scheduled to take place
between August 15 and September 21, 2013. The Hoopa
Valley Tribe, the Yurok Tribe, the Pacific Coast Federation
of Fishermen’s Association, and the Institute for Fisheries
Resources promptly moved to intervene, and the district court
permitted them to intervene as defendants. On August 13,
2013, the district court temporarily “enjoin[ed] the Federal
Defendants from making releases from Lewiston Dam to the
Trinity River in excess of 450 cubic feet per second for
fishery purposes through and including August 16, 2013.”
However, after holding a hearing on the matter, the district
court lifted this temporary restraining order and denied the
motion for preliminary injunction.
SAN LUIS V. HAUGRUD 19
The Water Contractors filed an amended complaint on
October 4, 2013, alleging that Federal Defendants violated
the following four statutes in implementing the 2012 and
2013 flow augmentation releases4: (1) the Endangered
Species Act (“ESA”); (2) the National Environmental
Protection Act (“NEPA”); (3) CVPIA § 3411(a) and
43 U.S.C. § 383; and (4) CVPIA § 3406(b)(23). Several
months later, the parties filed cross-motions for summary
judgment.
On October 1, 2014, the district court issued a
Memorandum Decision resolving these motions as follows:
(1) the Water Contractors lacked standing to bring their ESA
claim; (2) the NEPA claim was moot; (3) the 2013 flow
augmentation release did not violate CVPIA § 3411(a) or
43 U.S.C. § 383; and (4) the 2013 flow augmentation release
did not violate CVPIA § 3406(b)(23) or the 2000 ROD. San
Luis & Delta-Mendota Water Auth. v. Jewell, 52 F. Supp. 3d
1020, 1069–70. (E.D. Cal. 2014). Accordingly, the district
court granted summary judgment in favor of Federal
Defendants on all four claims in the first amended complaint.
Id. However, the district court also concluded that the 1955
Act did “not provide authorization for Federal Defendants to
implement the 2013 flow augmentation release[] to benefit
fish in the lower Klamath.” Id. at 1070.
4
The amended complaint purports to challenge the 2012 flow
augmentation release. However, the 2012 release was largely ignored in
the parties’ briefing and in the district court’s orders and judgment. The
material facts of the 2012 and 2013 flow augmentation releases are almost
identical and the omission of a discussion of the 2012 release does not
alter the analysis in this case. Accordingly, this Opinion focuses on the
2013 flow augmentation release.
20 SAN LUIS V. HAUGRUD
Federal Defendants and the Hoopa Valley and Yurok
Tribes filed timely notices of appeal of the district court’s
ruling regarding the 1955 Act. Shortly thereafter, the Water
Contractors filed a timely notice of cross-appeal of all claims
except the NEPA claim.
STANDARD OF REVIEW
We review a district court’s grant of summary judgment
de novo. San Luis & Delta-Mendota Water Auth. v. United
States, 672 F.3d 676, 699 (9th Cir. 2012). We also review de
novo a “district court’s interpretation and application of
federal statutes” and its conclusions on a party’s standing to
sue. Id.The Administrative Procedure Act (“APA”) governs the
review of a challenge to an agency’s action brought under a
federal statute that “contains no provision for judicial
review.” Id. (citing United States v. Bean, 537 U.S. 71, 77
(2002) (“[I]n the absence of a statutorily defined standard of
review for [an agency’s] action under [a federal statute], the
APA supplies the applicable standard.”)). Neither the CVPIA
nor the Reclamation Act (43 U.S.C. § 383) includes such a
provision. Id.; Wild Fish Conservancy v. Jewell, 730 F.3d
791, 796 (9th Cir. 2013) (“[T]he Reclamation Act does not
create a private right of action.”). Thus, the APA governs our
review of the Water Contractors’ challenges brought under
these statutes. We review de novo a district court’s
application of the APA standards. Pyramid Lake Paiute
Tribe of Indians v. U.S. Dep’t of the Navy, 898 F.2d 1410,
1414 (9th Cir. 1990).
We first address Federal Defendants’ argument that BOR
had the authority to implement the 2013 flow augmentation
SAN LUIS V. HAUGRUD 21
release under the 1955 Act. The flow augmentation release
may be set aside under the APA if it is “in excess of statutory
jurisdiction, authority, or limitations, or short of statutory
right.” 5 U.S.C. § 706(2)(C). We then address whether BOR
violated any other statute raised by the Water Contractors.
Under the APA, the panel also may set aside BOR’s actions
if they were “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” § 706(2)(A). Under
this standard, we must consider “if the agency has articulated
a rational connection between the facts found and the
conclusions made.” Pac. Coast Fed’n of Fishermen’s Ass’ns
v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1090 (9th Cir.
2005) (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mutual
Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
ANALYSIS
I. The 1955 Act
We begin our analysis by addressing whether the 1955
Act authorized BOR to release additional water from the
Lewiston Dam to protect fish populations in the lower
Klamath River. It is well settled “that the starting point for
interpreting a statute is the language of the statute itself.”
Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc.,
447 U.S. 102, 108 (1980).
Section 2 of the 1955 Act states, in full:
Subject to the provisions of this Act, the
operation of the Trinity River division shall be
integrated and coordinated, from both a
financial and an operational standpoint, with
the operation of other features of the Central
22 SAN LUIS V. HAUGRUD
Valley project, as presently authorized and as
may in the future be authorized by Act of
Congress, in such manner as will effectuate
the fullest, most beneficial, and most
economic utilization of the water resources
hereby made available: Provided, That the
Secretary is authorized and directed to
adopt appropriate measures to insure the
preservation and propagation of fish and
wildlife, including, but not limited to, the
maintenance of the flow of the Trinity
River below the diversion point at not less
than one hundred and fifty cubic feet per
second for the months July through November
and the flow of Clear Creek below the
diversion point at not less than fifteen cubic
feet per second unless the Secretary and the
California Fish and Game Commission
determine and agree that lesser flows would
be adequate for maintenance of fish life and
propagation thereof; the Secretary shall also
allocate to the preservation and propagation of
fish and wildlife, as provided in the Act of
August 14, 1946 (60 Stat. 1080), an
appropriate share of the costs of constructing
the Trinity River development and of
operating and maintaining the same, such
costs to be non-reimbursable: Provided
further, That not less than 50,000 acre-feet
shall be released annually from the Trinity
Reservoir and made available to Humboldt
County and downstream water users.
SAN LUIS V. HAUGRUD 23
69 Stat. at 719–20 (bold emphasis added). We perceive no
ambiguity in the language regarding the preservation and
propagation mandate contained in section 2. This expansive
clause, directing the Secretary to adopt any “appropriate
measures,” contains no limiting language, geographic or
otherwise. The absence of limiting language indicates
Congress intended to delegate broad authority to the
Secretary, allowing the Secretary substantial discretion to
determine what constitutes “appropriate measures” in the face
of unforeseen or changing circumstances. See H.J. Inc. v.
Nw. Bell Tel. Co., 492 U.S. 229, 245 (1989) (“Congress’
decision not explicitly to limit RICO’s broad terms strongly
implies that Congress had in mind no such narrow and fixed
idea of what constitutes a [RICO] pattern as that suggested by
amici here.”); John v. United States, 247 F.3d 1032, 1043–44
(9th Cir. 2001) (en banc) (Tallman, J. concurring in
judgment)(per curiam); cf. Diamond v. Chakrabarty, 447 U.S.
303, 316 (1980) (“Congress employed broad general
language in drafting § 101 precisely because such inventions
are often unforeseeable.”).
Congress wanted to, and thought it could, maintain the
rivers and their fish populations below the TRD while
diverting substantial inflow to the Sacramento River. H.R.
Rep. No. 84-602, at 4–5 (1955) (“[T]here is available for
importation from the Trinity River water that is surplus to the
present and future water requirements of the Trinity and
Klamath River Basins.”); S. Rep. No. 84-1154, at 5 (1955).
Congress knew the Trinity River was the largest tributary of
the Klamath and was aware that any effect on the Trinity,
including water flows and water temperature, could ripple
24 SAN LUIS V. HAUGRUD
down to the Klamath.5 However, Congress was not sure what
these effects would be. So, to account for unintended
consequences, Congress used general language, with no
geographic limitation, to empower the Secretary to take any
measures it found necessary to preserve all fish and wildlife
at any point downstream of the Trinity and Lewiston Dams.
H.R. Rep. No. 84-602, at 4. (“[T]he [TRD] has been planned
with a view to maintaining and improving fishery
conditions.”). In fact, the House and Senate endorsed the
1955 Act before final studies to determine the “future water
requirements in the Klamath River Basin” were completed,
because it believed the “relatively small” diversion would not
harm the fishery resources, and the Secretary retained the
power to take measures to preserve and propagate fish and
wildlife if need be. Id. at 4–5; S. Rep. No. 84-1154, at 5.
Further, to avoid the ambiguities of establishing
causation, Congress omitted any requirement that the threat
to fish or wildlife be caused directly by the TRD. Thus, the
general language of the preservation and propagation
mandate gives the Secretary wide discretion in defining
“appropriate measures” and expands the statute beyond the
5
See To Authorize the Secretary of the Interior to Construct, Operate,
and Maintain the Trinity River Development, Central Valley Project,
California, Under Federal Reclamation Laws: Hearing on H.R. 123
Before the Subcomm. on Irrigation and Reclamation of the H. Comm. on
Interior and Insular Affairs, 83d Cong. 86 (1954) (statement of Harold
Del Ponte, Supervisor, Del Norte County); To Authorize the Secretary of
the Interior to Construct, Operate, and Maintain the Trinity River
Division, Central Valley Project, California, Under Federal Reclamation
Laws: Hearing on H.R. 4663 Before the Subcomm. on Irrigation and
Reclamation of the H. Comm. on Interior and Insular Affairs, 84th Cong.
10 (1955) (statement of Clyde Spencer, Regional Director, Bureau of
Reclamation); H.R. Rep. No. 84-602, at 4–5.
SAN LUIS V. HAUGRUD 25
“principal evil Congress was concerned with when it” passed
the 1955 Act. Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 79–80 (1998) (holding that Title VII, which
prohibits discrimination “because of sex,” covers same-sex
harassment, even though that was not “the principal evil
Congress was concerned with when it enacted Title VII”).
Thus, even if Congress, when it enacted the 1955 Act, did not
contemplate a mass fish die-off in the lower Klamath or the
flow augmentation release BOR implemented to prevent it,
we still must interpret the general language of the
preservation and propagation mandate as authorizing the
release. BOR unquestionably implemented the flow
augmentation release to protect the fish population
downstream of the Lewiston Dam. This measure, and the evil
it sought to prevent, fall well within the statute’s mandate.
See id. (“[I]t is ultimately the provisions of our laws rather
than the principal concerns of our legislators by which we are
governed.”).
The “including, but not limited to,” language also
indicates Congress’s intent to provide a broad—not
ambiguous—directive. Courts have long recognized that “the
term ‘including’ is not one of all-embracing definition, but
connotes simply an illustrative application of the general
principle.” Fed. Land Bank of St. Paul v. Bismarck Lumber
Co., 314 U.S. 95, 100 (1941) (citations omitted). Congress
identified the maintenance of a minimum flow from the
Lewiston Dam as one exemplary “appropriate measure” to
preserve fish and wildlife downstream from the Dam.
Congress expected the Secretary to adopt other measures,
including water releases above the minimum flow rate, to
preserve fish and wildlife when necessary, using the
minimum flow rate as a guiding directive.
26 SAN LUIS V. HAUGRUD
Our interpretation is further buttressed by the fact that the
broad preservation and propagation clause is juxtaposed with
other, very precise directives. For example, section 2
specifically states, “[t]hat not less than 50,000 acre-feet shall
be released annually from the Trinity Reservoir and made
available to Humboldt County and downstream water users.”
Act of Aug. 12, 1955, § 2, 69 Stat. at 720. Congress had the
ability to clearly define what does and does not constitute
“appropriate measures,” but it did not. For over six decades
thereafter, Congress has also declined to cabin or clarify this
term. We presume that Congress’s decision to “paint[] with
a broader brush” in the preservation and propagation mandate
was deliberate. United States v. Alexander, 725 F.3d 1117,
1121 (9th Cir. 2013) (comparing statutes in which Congress
has broadly and specifically defined terms).
The Water Contractors argue that flow augmentation
releases are not an “appropriate measure,” because they did
not serve the principal purpose of the 1955 Act—that is, to
provide water for the Central Valley. This position ignores
the emphasized “Provided,” with which the preservation and
propagation mandate begins. Such a proviso is intended “to
except something from the enacting clause, or to qualify and
restrain its generality and prevent misinterpretation.” United
States v. Morrow, 266 U.S. 531, 534 (1925); see also
Pennington v. United States, 48 Ct. Cl. 408, 412 (Ct. Cl.
1913) (explaining that provisos “tak[e] special cases out of
the general enactments and provid[e] specially for them”).
Although section 2 generally requires that the TRD be
operated such that the water is put to the “fullest, most
beneficial, and most economic” use, the proviso specifically
excepts measures to ensure the preservation and propagation
of fish and wildlife. Thus, the measures to protect and
SAN LUIS V. HAUGRUD 27
preserve wildlife need not harmonize with the 1955 Act’s
principal purpose.
The Water Contractors next argue that CVPIA section
3406(b)(23), and the 2000 ROD implementing its directives,
finally and permanently resolved how much water should be
released from the Lewiston Dam down the Trinity
River.Thus, the Water Contractors argue that the CVPIA
repealed or amended the 1955 Act such that “appropriate
measures” to protect fish and wildlife can no longer include
additional releases of water from the Lewiston Dam.
It is true that, in interpreting the 1955 Act, we must
consider the related legislation that Congress subsequently
enacted. See FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 143 (2000). But, we conclude that the later
legislation and administrative actions identified by the Water
Contractors did not limit or repeal the 1955 Act. First, we do
not hold that a statute has been repealed by a subsequent act
unless Congress’s intention is “clear and manifest.” Moyle v.
Dir., Office of Workers’ Comp. Programs, 147 F.3d 1116,
1120 (9th Cir. 1998) (emphasis omitted) (quoting Kee
Leasing Co. v. McGahan (In re the Glacier Bay), 944 F.2d
577, 581 (9th Cir. 1991)). There is no indication in the 1984
Act or CVPIA section 3406(b)(23) of a “clear and manifest”
intention to repeal or amend the 1955 Act.
Second, the general authority granted by the 1955 Act
was not repealed or replaced by the 1984 Act or CVPIA
section 3406(b)(23), because these later legislative acts
implemented specific programs to address particular
problems that had been brought to Congress’s attention. The
implementation of a specific program does not nullify an
agency’s pre-existing discretionary authority. Thus, the
28 SAN LUIS V. HAUGRUD
implementation of a fish management or restoration program
did not abrogate the need to continually protect fish and
wildlife in the face of unforeseen harm.
Finally, the Water Contractors argue that the 2013 flow
augmentation release would have been permissible if BOR
had “purchased additional water to protect Central Valley
uses,” as BOR did in 2003 and 2004. But this argument is at
direct odds with the Water Contractors’ position that the 2000
ROD placed an absolute cap on the water that BOR can
release down the Trinity River from the Lewiston Dam. In
addition, BOR need not protect the economic interests of
Central Valley water contractors when it implements
measures to preserve the fish and wildlife downstream of the
Lewiston Dam.
The broad language of the 1955 Act authorized BOR to
implement the 2013 flow augmentation release—an
appropriate measure—to protect fish downstream from the
Lewiston Dam, which includes the lower Klamath River.
Further, subsequent legislation did not clearly alter or limit
the expansive scope of the authority granted by the 1955 Act.
Thus, BOR acted within its “statutory . . . authority,” 5 U.S.C.
§ 706(2)(C), and we must reverse the district court on this
issue.
II. CVPIA § 3406(b)(23)
We next consider whether the 2013 flow augmentation
release violated CVPIA section 3406(b)(23).
Section 3406(b)(23) directed DOI to propose and adopt a
permanent water release schedule for the Lewiston Dam.
DOI went through the necessary procedural steps section
SAN LUIS V. HAUGRUD 29
3406(b)(23) called for and, in the 2000 ROD, DOI
established a permanent water release schedule that
accounted for changes in the area’s annual hydrology. The
parties agree this schedule sets both a minimum and a
maximum amount of water that BOR may release under the
authority granted by section 3406(b)(23) and the 2000 ROD.
The Water Contractors argue that this schedule sets an
absolute maximum and that the 2012 and 2013 flow
augmentation release impermissibly exceeded this cap.
Again, we start our analysis with the text of the CVPIA.
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc.,
484 U.S. 49, 56 (1987). The plain language of the statute
indicates that Congress intended the permanent water release
schedule to serve only the Trinity River. Section 3406(b)(23)
makes multiple references to the Trinity River and does not
contain any reference to the Klamath River. For example,
section 3406(b)(23) established an interim “release of water
to the Trinity River of not less than three hundred and forty
thousand acre-feet per year,” and called for a permanent
schedule of “Trinity River instream fishery releases.” Id.In addition, the statute provides that the directives of
section 3406(b)(23) were meant to “meet Federal trust
responsibilities to protect the fishery resources of the Hoopa
Valley Tribe, and to meet the fishery restoration goals of the
Act of October 24, 1984.” Congress’s citation to the 1984
Act is significant. The 1984 Act, as originally adopted, called
for rehabilitation of fish habitat in the “Trinity River between
Lewiston Dam and Weitchpec” and “in tributaries of such
river below Lewiston Dam and in the south fork of such
river.” § 2(a)(1)(A)–(B), 98 Stat. at 2722. Congress
amended the 1984 Act in the 1996 Reauthorization Act,
110 Stat. 1338, which altered the scope of the 1984 Act’s
30 SAN LUIS V. HAUGRUD
rehabilitation mandate to include “the Klamath River
downstream of the confluence with the Trinity River,” § 3(b),
110 Stat. at 1339. Thus, the 1984 Act originally did not
intend to cover “the Klamath River downstream of the
confluence with the Trinity River.” As the district court
found, we conclude the reference to the specific goal of the
1984 Act was a reference to a “limited and particular
provision[] of another statute,” which does not incorporate
subsequent amendments to that statute. Pearce v. Dir., Office
of Workers’ Comp. Programs, U.S. Dep’t of Labor, 603 F.2d
763, 767 (9th Cir. 1979) (quoting Dir., Office of Workers’
Comp. Programs, U.S. Dep’t of Labor v. Peabody Coal Co.,
554 F.2d 310, 322 (7th Cir. 1977)) (explaining the difference
between a “specific reference” and a “general reference”).
Accordingly, the reference to the 1984 Act in the CVPIA
(which was enacted in 1992) does not include the 1996
amendment. Section 3406(b)(23) of the CVPIA is thus
limited to the Trinity River basin and does not cover the
lower Klamath.
We also find significant section 3406(b)(23)’s reference
to the Hoopa Valley Tribe—and its exclusion of all other
tribes. The Hoopa Valley Reservation is within the Trinity
River basin. The Yurok Tribe Reservation lies outside of the
Trinity River basin, along the lower Klamath. If Congress
intended the directives contained in section 3406(b)(23) to
also serve the lower Klamath, it would have also listed the
“Federal trust responsibilities” it owes the Yurok Tribe. See
Botosan v. Paul McNally Realty, 216 F.3d 827, 832 (9th Cir.
2000) (“The incorporation of one statutory provision to the
exclusion of another must be presumed intentional under the
statutory canon of expressio unius.”).
SAN LUIS V. HAUGRUD 31
Thus, it is clear Congress intended section 3406(b)(23) to
be geographically limited to the Trinity River basin. Any
water that BOR releases from the Lewiston Dam to aid areas
outside of the Trinity River basin is not subject to the
permanent water release schedule called for in section
3406(b)(23) and implemented in the 2000 ROD. Because
BOR intended to aid the lower Klamath River (and not the
Trinity River) in implementing the 2013 flow augmentation
release, the release did not violate section 3406(b)(23).
Therefore, we must affirm the district court on this issue.
III. The Endangered Species Act Claim
Generally, “[t]o establish Article III standing, a plaintiff
must demonstrate that: (1) he suffered an injury in fact that is
concrete, particularized, and actual or imminent; (2) the
injury is fairly traceable to the challenged conduct; and
(3) the injury is likely to be redressed by a favorable court
decision.” Nat. Res. Def. Council v. Jewell, 749 F.3d 776,
782 (9th Cir. 2014) (en banc) (citing Friends of the Earth,
Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 168
(2000)). However, this standard is softened when a plaintiff
asserts a “violation of ‘a procedural right.’” Id. at 782–83
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 572 n.7
(1992)). “A showing of procedural injury lessens a plaintiff’s
burden on the last two prongs of the Article III standing
inquiry, causation and redressibility.” Salmon Spawning &
Recovery All. v. Gutierrez, 545 F.3d 1220, 1226 (9th Cir.
2008). To establish a procedural “injury in fact, [a plaintiff]
must allege . . . that (1) the [agency] violated certain
procedural rules; (2) these rules protect [a plaintiff’s]
concrete interests; and (3) it is reasonably probable that the
challenged action will threaten their concrete interests.”
Nuclear Info. & Res. Serv. v. Nuclear Regulatory Comm’n,
32 SAN LUIS V. HAUGRUD
457 F.3d 941, 949 (9th Cir. 2006) (quoting City of Sausalito
v. O’Neill, 386 F.3d 1186, 1197 (9th Cir. 2004)).
The Water Contractors assert that BOR implemented the
2013 flow augmentation release without conducting a formal
section 7 consultation for ESA-listed fish species.6 An
“alleged violation[] of Section 7(a)(2)’s consultation
requirement,” like the Water Contractors assert, “constitute[s]
a procedural injury for standing purposes.” Nat. Res. Def.
Council v. Jewell, 749 F.3d at 783 (citing Citizens for Better
Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 971 (9th Cir.
2003)). We focus our analysis on whether the Water
Contractors have shown that “it is reasonably probable that
the challenged action will threaten their concrete interests.”
Nuclear Info. & Res. Serv., 457 F.3d at 949.
The Water Contractors generally assert that BOR’s failure
to conduct a section 7 consultation threatens their concrete
economic interest “in ensuring the continued delivery of
water to their members.” More specifically, the Water
Contractors allege that the 2013 flow augmentation release
would reduce the total volume of water available to maintain
cold water temperatures in the Sacramento River. In support
of this assertion, the Water Contractors cite one of their
experts that maintains that the reduction of cold water storage
“may adversely impact winter-run and/or spring run salmon
egg incubation in 2013, and in 2014 if the winter of 2014
does not result in sufficient flows to refill the reservoirs,”
6
“Section 7 imposes on all agencies a duty to consult with either the
Fish and Wildlife Service or the [National Oceanic and Atmospheric
Administration] Fisheries Service before engaging in any discretionary
action that may affect a listed species or critical habitat.” Karuk Tribe of
Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1020 (9th Cir. 2012) (en banc).
SAN LUIS V. HAUGRUD 33
because incubating salmonid eggs can be harmed if the water
temperatures exceed fifty-six degrees.7 The Water
Contractors next assert that, if the salmonid eggs are harmed
and the salmonid populations in the Sacramento River shrink,
third-party agencies will place more stringent regulations on
CVP operations and restrict the amount of water delivered to
its members. Finally, the Water Contractors assert such
regulations and water restrictions will economically harm
them because San Luis’s member districts (including
Westlands Water District) rely on CVP water to irrigate
farms, employ farm workers, and generally maintain their
communities.
The Water Contractors’ posited series of events that must
occur before the economic harm is realized is both too
uncertain and too remote to constitute a reasonably probable
threat of injury. The Water Contractors have set forth “an
attenuated chain of conjecture,” Hall v. Norton, 266 F.3d 969,
977 (9th Cir. 2001) (quoting Ecological Rights Found. v. Pac.
Lumber Co., 230 F.3d 1141, 1152 (9th Cir. 2000)), that relies
on a series of contingencies in weather and water
temperature. Further, the allegation that third-party agencies
will eventually impose more regulations on CVP water is
speculative at best. The only evidence the Water Contractors
offered in support of this assertion is the declaration of Daniel
G. Nelson, San Luis & Delta-Mendota Water Authority’s
Executive Director, who discussed CVP regulations that were
7
The Water Contractors assert that their “ability to deliver water to
their members is dependent on the status and recovery of the listed
species,” which include coho salmon, winter- and spring-run Chinook
salmon, Central Valley steelhead, green sturgeon, and Delta Smelt. The
Water Contractors’ expert refers primarily to “salmonids,” which includes
“Chinook salmon, Coho salmon and steelhead.”
34 SAN LUIS V. HAUGRUD
put in place in the 1990s. This declaration regarding past
regulations is insufficient to show a “credible threat” that
third-party agencies will increase regulations on CVP water
at some point in the future. Id. at 976. The Water
Contractors can also only speculate as to what regulations
third-party agencies might put in place.
Not only is the alleged threat to the Water Contractors’
economic interests not “reasonabl[y] probabl[e],” it is also
not “fairly traceable” to BOR’s actions, because it “rel[ies] on
conjecture about the behavior of other parties.” Id. at 975,
977 (quoting Ecological Rights Found., 230 F.3d at 1152).
The imposition of regulations by an outside agency is an
“independent action of some third party not before the court,”
Ass’n of Pub. Agency Customers v. Bonneville Power Admin.,
733 F.3d 939, 950 (9th Cir. 2013) (quoting Lujan, 504 U.S.
at 560), that “break[s] the causal link” between the flow
augmentation release and the Water Contractors’ alleged
economic harm, id. at 953.
The district court found that the Water Contractors lacked
standing to bring their ESA claim both because they failed to
establish a “reasonable probability of the challenged action’s
threat to [their] concrete interest,” 52 F. Supp. 3d at 1042
(quoting Hall, 266 F.3d at 977), and because section 7 was
not designed to protect their asserted economic interest. We
decline to reach the latter issue. Instead, the Water
Contractors have failed to establish standing, because they
have not demonstrated a reasonable probability that the
alleged failure to conduct a section 7 consultation will
threaten their economic interests.
SAN LUIS V. HAUGRUD 35
IV. The Reclamation Act (43 U.S.C. § 383) and CVPIA
§ 3411(a)
Finally, we address whether BOR violated the
Reclamation Act, 43 U.S.C. § 383, or section 3411(a) of the
CVPIA by implementing the 2013 flow augmentation release
without first obtaining a modification in its water rights
permits.
A. The Reclamation Act
Under the Reclamation Act of 1902, BOR must comply
with state water law in “control[ling], appropriat[ing],
us[ing], or distribut[ing]” water, 43 U.S.C. § 383; see also
Westlands Water Dist. v. United States, 337 F.3d 1092, 1101
(9th Cir. 2003), unless the state law is “directly inconsistent
with . . . a preemptive federal statute,” Nat. Res. Def. Council
v. Houston, 146 F.3d 1118, 1132 (9th Cir. 1998). California
law provides that “[t]he issuance of a permit gives the right
to take and use water only to the extent and for the purpose
allowed in the permit.” Cal. Water Code § 1381. Further, a
water rights permit holder may only “change the point of
diversion, place of use, or purpose of use from that specified
in the . . . permit . . . upon permission of the [State Water
Resources Control Board].” Id. § 1701.
BOR has several water rights permits it obtained from the
state of California in the 1950s to divert water from the
Trinity River at Lewiston Dam to the CVP. The Water
Contractors argue that BOR did not comply with California
law when it implemented the 2013 flow augmentation
release, because these water rights permits did not list the
lower Klamath River as “an approved place of use,” and BOR
36 SAN LUIS V. HAUGRUD
did not obtain permission from the State Water Resources
Control Board to change the place of use of the permits.
California Fish & Game Code section 5937 creates an
exception to the permit change requirement. This code
section provides:
The owner of any dam shall allow sufficient
water at all times to pass through a fishway, or
in the absence of a fishway, allow sufficient
water to pass over, around or through the dam,
to keep in good condition any fish that may be
planted or exist below the dam.
Cal. Fish & Game Code § 5937. This code section not only
allows, but requires BOR to allow sufficient water to pass the
Lewiston Dam to maintain the fish below the Dam. The use
of the unconditional “shall” indicates that such required
releases are not dependent on having a proper water permit.
Although the lower Klamath River is many miles downstream
of the Lewiston Dam, it is still “below the dam.” Therefore,
section 5937 permitted BOR to release water from the
Lewiston Dam to “keep in good condition” the fish in the
lower Klamath River without changing its water rights
permits. Significantly, the California Department of Fish and
Wildlife has submitted an amicus brief asserting that section
5937 authorized the 2013 flow augmentation release.
Accordingly, BOR neither violated California water law nor
the Reclamation Act in implementing the 2013 flow
augmentation release.
SAN LUIS V. HAUGRUD 37
B. CVPIA § 3411(a).
Section 3411(a) of the CVPIA provides:
[T]he Secretary shall, prior to the reallocation
of water from any purpose of use or place of
use specified within applicable Central Valley
Project water rights permits and licenses to a
purpose of use or place of use not specified
within said permits or licenses, obtain a
modification in those permits and licenses, in
a manner consistent with the provisions of
applicable State law, to allow such change in
purpose of use or place of use.
The Water Contractors assert that BOR violated this
provision because it failed to obtain permission from the State
Water Resources Control Board to modify its water permits
before implementing the 2013 flow augmentation release.
The Water Contractors also assert that this section of the
CVPIA places a duty on BOR, independent of state law, to
obtain a change in the water rights permits.
We have previously concluded that “section 3411(a)
restates the requirements of California water law.” Westlands
Water Dist. v. Nat. Res. Defense Council, 43 F.3d 457, 461
(9th Cir. 1994). Indeed, section 3411(a) clearly provides that
any modification must be “consistent with the provisions of
applicable State law.” Accordingly, we reaffirm our holding
that section 3411(a) does not impose on BOR a duty to obtain
a permit modification that is independent of the duty created
by state law. As explained above, California Fish & Game
Code section 5937 creates an exception to the general rule
that water permit holders must obtain permission to modify
38 SAN LUIS V. HAUGRUD
their permits before altering the place or purpose of the water
use listed on their permits. Because the 2013 flow
augmentation release fell under the section 5937 exception,
BOR did not violate California law, and thus did not violate
CVPIA section 3411(a).
CONCLUSION
The broad language of the 1955 Act gave BOR the
authority to implement the 2013 flow augmentation release to
protect fish in the lower Klamath River. Because the 2013
flow augmentation release sought to protect fish in the lower
Klamath River, it did not violate CVPIA section 3406(b)(23),
which called for a permanent water release schedule that
would serve only the Trinity River basin. The 2013 flow
augmentation release also did not violate California water law
and, in turn, did not violate the Reclamation Act or CVPIA
section 3411(a), both of which require BOR to comply with
state water permitting requirements. Finally, we do not reach
the merits of the ESA claim, as the Water Contractors do not
have standing to pursue this claim.
The parties shall bear their own costs on appeal. The
judgment of the district court is AFFIRMED IN PART and
REVERSED IN PART.