Firebaugh Canal Water Dist. v. U.S., 712 F.3d. 1296 (9th Cir. 2013) (holding that the Department of the Interior is only required to provide drainage for lands within the San Luis Unit, has discretion to choose a drainage solution other than an interceptor drain, and is not liable under the Federal Tort Claims Act for failing to provide drainage to downslope lands).
In 1960, Congress passed the San Luis Act (“Act”), which authorized the Department of the Interior (“Interior”) to create and maintain the San Luis Unit (“Unit”). The Unit was to provide irrigation water for five hundred thousand acres of land in three California counties as part of the Central Valley Project, the largest water reclamation project in the nation. The Act required the Interior to construct a dam, reservoir, pumping plants, drains, and other facilities in the Unit, and authorized the Interior to participate in the construction of drainage facilities to serve the general areas affected by the Unit. Concerned that the Unit would increase regional drainage requirements, Congress conditioned the creation of the Unit on adequate assurance that the State of California would provide for a master drainage outlet and the Interior constructing an interceptor drain. Although California declined to provide a master drainage outlet, the Interior began constructing the interceptor drain. The Unit started making water deliveries in 1967.
However, the inability of federal and state governments to agree on environmental standards prevented the Interior from completing the endpoint of the interceptor drain. Awaiting approval to finish the interceptor drain, the Interior constructed the middle portion of the drain and the Kesterson Reservoir (“Kesterson”) to receive the Unit’s output in 1975. In 1983, studies revealed elevated levels of selenium in Kesterson drainage water. The Interior closed Kesterson and the drains leading to it in 1986. Nonetheless, the Interior continued to irrigate land within the Unit.
Several parties affected by the lack of drainage filed claims in the District Court of the Eastern District of California (“district court”), with the Firebaugh Canal Water District (“Firebaugh”) as the only party located outside the Unit. In 1995, the district court heard these claims consolidated under Firebaugh and ruled that the Interior must provide drainage to the Unit. The district court ordered the Interior to pursue a discharge permit from the California Water Resources Control Board for the completion of the interceptor drain. The Interior appealed, and the Ninth Circuit Court of Appeals (“court”) heard Firebaugh I in 2000. The court upheld part of the district court’s ruling, requiring the Interior to provide drainage within the Unit. However, the court held that the district court could not override the Interior’s discretion on how the drainage requirements are satisfied. Accordingly, the court gave the Interior authority to pursue alternative options rather than complete the interceptor drain. The court remanded the case back to the district court for further proceedings.
On remand, the district court ruled consistent with the court’s holding. The district court ordered the Interior to provide drainage to the Unit immediately but gave the Interior broad discretion in selecting a drainage solution. The district court required only that the Interior submit a plan describing anticipated actions and milestones. After a reevaluation of the Unit’s drainage needs, the Interior announced in 2007 an in-valley solution that relied on water treatment and reuse, evaporation ponds, and restricting irrigation to some in-Unit areas. The Interior had secured $7 million in appropriations toward the in-valley solution as of 2011, although the project is estimated to total $2.69 billion.
After all parties located inside the Unit settled with the Interior in 2002, Firebaugh was the only plaintiff to initiate a new suit against the Interior. Firebaugh presented two pertinent claims. First, Firebaugh sought damages under the Federal Tort Claims Act (“FTCA”), arguing that the Interior’s failure to provide drainage constituted a nuisance and trespass. Second, Firebaugh, invoking the Administrative Procedure Act, argued that the Interior’s failure to provide drainage constituted (1) a final agency action that was arbitrary, capricious, an abuse of discretion, and otherwise, not in accordance with law; and (2) agency action unlawfully withheld or unreasonably delayed. The district court dismissed Firebaugh’s first claim on two grounds, holding that under California law water, suppliers are not required to prevent drainage onto downslope lands, and that the Interior was immune from a FTCA claim due to the discretionary function exception. The district court rejected Firebaugh’s second claim as well, holding that the Interior’s only discrete duty was to provide drainage within the Unit, and although its actions were frustratingly slow, the Interior’s actions did not presently constitute an unreasonable delay. Firebaugh appealed the district court’s decision.
Addressing the first issue on appeal, the court reviewed the district court’s determination that both the private analog requirement and the discretionary function exemption barred Firebaugh’s claim. Under the private analog requirement, a government agency is liable for negligence only if a private person would be liable for similar acts. With no precedent on point, the court assumed the existence of a private analog and proceeded to the discretionary function analysis. To determine if the discretionary function exemption applied, the court inquired whether the challenged actions involved an element of judgment or choice, and whether that judgment was the kind of discretionary function that the exemption was designed to shield governmental actions based on public policy concerns. Firebaugh argued that the exemption should not apply because the Act imposed a duty on the Interior that was divorced from discretion. The court rejected this argument based on its Firebaugh I ruling, holding that the Interior had broad discretion in providing a drainage solution. Furthermore, the court reasoned that the Interior’s actions were grounded on multiple public policy concerns, and therefore, the discretionary function exemption applied, negating Firebaugh’s first claim.
For Firebaugh’s second claim to prevail, the court required Firebaugh to demonstrate that the Interior failed to take a discrete action that it was legally required to take. Firebaugh argued that the Interior failed to make two specific actions required by the Act: (1) to provide drainage to lands outside the Unit, and (2) to provide drainage to lands inside the Unit. The court rejected these assertions. First, the court held that the Act merely authorized the Interior to construct drainage facilities outside the Unit, with no actual requirement to do so. The court reasoned that the Interior’s discretion ended when it decided to construct the Unit as authorized by the Act. Congress never gave the Interior the discretion to choose necessary drainage facilities, so providing drainage to lands outside the Unit was not a discrete action that the Interior was required to take. Second, although the court recognized that progress on the in-Unit drainage solution was slow, the court held that the Interior was not withholding nor unreasonably delaying drainage within the Unit. The court reasoned that the scope and cost of the project was the root of the delay, not the Interior failing to take action. The court recognized that at some point the Interior’s sluggish progress could constitute a failure to provide in-Unit drainage; however, the court concluded that that point had not yet been reached. Therefore, Firebaugh’s second contention failed as well.
The court affirmed the district court’s ruling that the Interior was not required to provide drainage to lands outside the Unit, the Interior was not unlawfully withholding nor unreasonably delaying drainage within the Unit, and that the discretionary function exemption prohibited a federal tort claim against the Interior.
The title picture is of Lake Casitas, a reservoir located in southern California.