San Luis & Delta-Mendota Water Auth. v. Jewell, NO. 1:15-CV-01290-LJO-GSA, 2017 WL 1375232 (E.D. Cal. Apr. 17, 2017)(holding that (i) if an agency justifiably relied on a specific provision of a federal act to make Flow Augmentation releases, claims attacking the agency’s reliance on other provisions of the act will fail, and (ii) claims attacking Flow Augmentation releases under NEPA are moot and do not meet the “capable of repetition yet evading review” exception when an agency adopts a Long-Term Plan EIS that makes it unlikely the agency will follow the same procedures).
In order to reduce the risk of fish kill in the Lower Klamath River, the U.S. Bureau of Reclamation (“the Bureau”) made Flow Augmentation releases (“FARs”) in both 2014 and 2015 from Lewiston Dam, which is a part of the Trinity River Division. The Bureau released a total of 64,000 acre-feet of water in connection with the 2014 FARs. In 2015, the Bureau planned on making similar FARs and prepared an Environmental Assessment (“EA”) according to the National Environmental Policy Act (“NEPA”). After the Bureau released the EA, the San Luis and Delta-Mendota Water Authority and the Westlands Water District filed suit against the Bureau and its parent agency, the Department of the Interior, in the United States District Court for the Eastern District of California. The lawsuit included eight separate claims for relief, as well as a request for injunctive relief that was quickly denied.
The first, second, and third claims for relief challenged the Bureau’s statutory authority to make FARs. To justify the 2014 FARs, the Bureau relied on a proviso of a federal 1955 Act (the Act), which authorizes the Secretary of the Interior to adopt measures that protect fish and wildlife including maintaining the flow of the Trinity River below the diversion point (“Proviso 1”). Plaintiffs asserted in their second claim that Proviso 1 did not give the Bureau the authority to implement the 2014 FARs. While this lawsuit was pending, the Ninth Circuit Court of Appeals decided this issue, finding that the Bureau has the authority to implement FARs under Proviso 1. In light of the Ninth Circuit’s decision, the Court found the second claim to be moot and dismissed the claim with prejudice.
The Bureau also relied on a second proviso of the Act to justify the 2014 and 2015 FARs—this proviso required that at least 50,000 acre-feet of water be released annually from the Trinity River and be made available to downstream users (“Proviso 2”). The first and third claims attacked the Bureau’s reliance on Proviso 2. The first claim alleged that Proviso 2 did not give the Bureau the legal authority for FARs. The third claim alleged that even if the Bureau had legal authority under Proviso 2, reclamation law still requires that the Bureau enter into a contract for delivery of the water. The Court found that the Bureau had specifically relied on both Proviso 1 and Proviso 2 in justifying the FARs. Because the Court already concluded that the Bureau had the authority to make FARs under Proviso 1, the Court found that the first and third claims attacking Proviso 2 were moot. The Court dismissed these two claims without prejudice, contemplating a future challenge to FARs where the FARs are justified solely on Proviso 2.
The fourth and fifth claims alleged that the Bureau did not follow procedures required by NEPA. The fourth claim asserted that the Bureau’s EA for the 2015 FARs did not meet NEPA requirements and that the Bureau also needed to prepare an Environmental Impact Statement (“EIS”). The fifth claim alleged that the Bureau also acted unlawfully by not preparing either an EA or and EIS for the 2014 FARs. The Court found that these claims were technically moot “because the 2014 and 2015 FARs expired of their own accord.”
However, because the duration of FARs is so short relative to the timeline of litigation, the Court entertained that these claims might still be valid as capable of repetition yet evading review. However, the Court found that the claims did not meet this exception to mootness because there was no evidence that this same controversy would be likely to occur again. In making its determination, the Court relied on the Bureau’s recently issued Long-Term Plan to Protect Adult Salmon in the Lower Klamath River EIS, which identifies FARs as a proposed action and makes it unlikely that the Bureau would follow the same procedures for FARs as it did in 2014 and 2015. The Court also pointed out that even though the Long-Term Plan EIS only runs through 2030, that lack of clarity did not give rise to a demonstrated probability that the controversy would occur again. The Court dismissed the fourth and fifth claims without prejudice to a renewed claim with new facts showing the controversy is likely to recur.
The sixth, seventh, and eighth claims alleged that the Bureau did not comply with requirements in the Endangered Species Act (“ESA”) and Magnuson-Stevens Fishery Conservation and Management Act (“MSA”). While this lawsuit was pending, the Ninth Circuit addressed nearly identical claims in a companion case and found that the plaintiffs there did not have standing for their ESA and MSA claims. Accordingly, the Court requested a supplemental briefing in light of that decision and did not decide the merits of the sixth, seventh, and eighth claims.