Pacific Coast Federation v. U.S. Dept. of the Interior , 655 F. App'x 595 ( 2016 )

FILED
UNITED STATES COURT OF APPEALS
JUL 25 2016
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
PACIFIC COAST FEDERATION OF No. 14-15514
FISHERMEN’S ASSOCIATIONS; SAN
FRANCISCO CRAB BOAT OWNERS D.C. No.
ASSOCIATION, INC., 1:12-cv-01303-LJO-MJS
Eastern District of California,
Plaintiffs - Appellants, Fresno
v.
ORDER
UNITED STATES DEPARTMENT OF
THE INTERIOR; UNITED STATES
BUREAU OF RECLAMATION,
Defendants - Appellees,
and
WESTLANDS WATER DISTRICT; et al.,
Intervenor-Defendants -
Appellees.
Before: SILVERMAN, FISHER, and TALLMAN, Circuit Judges.
The memorandum disposition filed on March 28, 2016, is replaced with the
concurrently filed amended memorandum disposition.
With these amendments, Judges Silverman and Tallman have voted to deny
appellants’ petition for rehearing en banc, and Judge Fisher so recommends.
The full court has been advised of the petition for rehearing en banc, and no
judge has requested a vote on whether to rehear the matter en banc, Fed. R. App.
P. 35.
The petition for rehearing en banc (Docket Entry No. 56) is DENIED. No
further petitions for panel rehearing or rehearing en banc will be entertained.
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUL 25 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
PACIFIC COAST FEDERATION OF No. 14-15514
FISHERMEN’S ASSOCIATIONS; et al.,
D.C. No. 1:12-cv-01303-LJO-MJS
Plaintiffs - Appellants,
v. AMENDED MEMORANDUM*
UNITED STATES DEPARTMENT OF
THE INTERIOR; et al.,
Defendants - Appellees,
and
WESTLANDS WATER DISTRICT; et al.,
Intervenor-Defendants -
Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted February 9, 2016
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submission Withdrawn February 9, 2016
Resubmitted March 28, 2016
Before: SILVERMAN, FISHER, and TALLMAN, Circuit Judges.
Pacific Coast Federation of Fishermen’s Associations, Inc., and San
Francisco Crab Boat Owners Association, Inc. (“plaintiffs”) appeal the district
court’s partial dismissal and partial summary judgment of their action under the
National Environmental Policy Act (“NEPA”) against the United States
Department of the Interior and the United States Bureau of Reclamation. We have
jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and
remand.
Prior to approving eight interim two-year contracts for the delivery of water
from the Central Valley Project to California water districts, Reclamation issued an
environmental assessment (“EA”) and a finding of no significant impact
(“FONSI”). Plaintiffs seek declaratory and injunctive relief on the basis of alleged
violations of NEPA in (1) an inadequate EA and FONSI and (2) failure to prepare
an environmental impact statement (“EIS”) for the interim contracts. The district
court dismissed plaintiffs’ claims that an EIS was required and that the EA’s “no
action” alternative was deficient, and it granted summary judgment in favor of
defendants on the remaining challenges to the EA.
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Even though the two-year contracts expired on February 28, 2014, this
appeal is not moot. The short duration and serial nature of Reclamation’s interim
water contracts place plaintiffs’ claims within the mootness exception for disputes
capable of repetition yet evading review. See A.D. ex rel. L.D. v. Haw. Dep’t of
Educ., 727 F.3d 911, 914 (9th Cir. 2013).
We review de novo a dismissal for failure to state a claim under Fed. R. Civ.
P. 12(b)(6). Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 956
(9th Cir. 2013). We also review de novo the district court’s ruling on summary
judgment. San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601
(9th Cir. 2014), cert. denied, 134 S. Ct. 948 & 950 (2015). Claims under NEPA
are reviewed under the standards of the Administrative Procedure Act, which
provides that an agency action must be upheld unless it is “‘arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.’” Id. (quoting 5
U.S.C. § 706(2)(A)).
I. “No Action” Alternative
The EA’s “no action” alternative, which assumed continued interim contract
renewal, did not comply with NEPA. A “no action” alternative may be defined as
no change from a current management direction or historical practice. 43 C.F.R.
§ 46.30. But a “no action” alternative is “meaningless” if it assumes the existence
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of the very plan being proposed. Friends of Yosemite Valley v. Kempthorne, 520
F.3d 1024, 1038 (9th Cir. 2008). Rather, the “no action alternative looks at effects
of not approving the action under consideration.” 43 C.F.R. § 46.30. Here, the
action under consideration was the renewal of the water delivery contracts. See Pit
River Tribe v. U.S. Forest Serv., 469 F.3d 768, 784 (9th Cir. 2006) (holding that
extensions of Bureau of Land Management leases permitting production of
geothermal energy did not preserve the status quo where the extensions were not
mandatory). Ass’n of Pub. Agency Customers, Inc. v. Bonneville Power Admin.,
126 F.3d 1158 (9th Cir. 1997), is not to the contrary. There, the “no action”
alternative was not defined as the status quo of continuing existing power
contracts; instead, the proposed action was a new business strategy that would
result in “profound alterations in [Bonneville Power Administration’s]
relationships with certain large industrial customers,” and the “no action”
alternative analyzed in the EIS, and upheld by this court, was continued operations
under the existing management strategy. Id. at 1163, 1168, 1188.
When an agency action is mandatory, the “no action” alternative is properly
defined as the carrying out of that action. Dep’t of Transp. v. Pub. Citizen, 541
U.S. 752, 769 (2004). But we do not agree with the district court that the Central
Valley Project Improvement Act (“CVPIA”), a part of the Reclamation Projects
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Authorization and Adjustment Act of 1992, required Reclamation to enter into the
interim contracts. The CVPIA requires “appropriate environmental review,”
including the preparation of a programmatic EIS (“PEIS”), before Reclamation is
authorized to renew an existing long-term water service contract. CVPIA
§ 3404(c)(1). After the completion of the PEIS, Reclamation “shall, upon request,
renew any existing long-term repayment or water service contract for the delivery
of water from the Central Valley Project for a period of twenty-five years.” Id.
Prior to the completion of the PEIS, Reclamation “may” renew water service
contracts for interim three- or two-year periods. Id. As the district court
acknowledged, normally, when “may” and “shall” are used in the same statute, the
“‘inference is that each is being used in its ordinary sense—the one being
permissive, the other mandatory.’” Ctr. for Biological Diversity v. U.S. Fish &
Wildlife Serv., 450 F.3d 930, 935 (9th Cir. 2006) (quoting Haynes v. United States,
891 F.2d 235, 239-40 (9th Cir. 1989)) (interpreting Endangered Species Act). We
also reject Reclamation’s argument that the contracts themselves mandated
renewal. NEPA imposes obligations on agencies considering major federal actions
that may affect the environment. An agency may not evade these obligations by
contracting around them.
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Accordingly, the district court erred in dismissing plaintiffs’ claim regarding
the “no action” alternative.
II. Statement of Purpose and Need
The EA’s statement of purpose and need did not unreasonably narrow
Reclamation’s consideration of alternatives. See Alaska Survival v. Surface
Transp. Bd., 705 F.3d 1073, 1084 (9th Cir. 2013). The statement did not assume
that contract quantities would remain the same, and it was not an abuse of
discretion. See id.III. Reduction in Water Quantity
Reclamation’s decision not to give full and meaningful consideration to the
alternative of a reduction in maximum interim contract water quantities was an
abuse of discretion, and the agency did not adequately explain why it eliminated
this alternative from detailed study. See Te-Moak Tribe of W. Shoshone of Nev. v.
U.S. Dep’t in Interior, 608 F.3d 592, 602 (9th Cir. 2010); Native Ecosys. Council
v. U.S. Forest Serv., 428 F.3d 1233, 1245 (9th Cir. 2005). The four reasons set
forth in the EA do not establish the non-viability of the alternative of maximum
water quantity reduction. See W. Watersheds Project v. Abbey, 719 F.3d 1035,
1050 (9th Cir. 2013) (holding that existence of viable but unexamined alternative
renders EA inadequate).
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The first reason given by Reclamation was that the Reclamation Project Act
mandates renewal of existing contract quantities when beneficially used. See 43
U.S.C. § 485h-1(1) & (4). The EA stated that the water districts had complied with
contract terms, and, according to water needs assessments performed by
Reclamation, each water district’s needs equaled or exceeded the current total
contract quantity. Plaintiffs exhausted administrative remedies as to their
argument that Reclamation did not know whether existing water quantities were
“beneficially used” because Reclamation did not conduct a proper water needs
assessment, as contractually required, and Reclamation’s 2006 assessment was
inadequate because it was prepared with data from 1999 that predated a land
retirement project. See Barnes v. U.S. Dep’t of Transp., 655 F.3d 1124, 1132 (9th
Cir. 2011) (holding that issue was exhausted when agency had independent
knowledge of EA flaw); Lands Council v. McNair, 629 F.3d 1070, 1076 (9th Cir.
2010) (holding that issue is exhausted if agency is provided sufficient information
to give it a chance to bring its expertise to bear to resolve the claim). As plaintiffs
argue, Reclamation acted unreasonably by relying on stale water needs data. See
W. Watersheds Project, 719 F.3d at 1052 (holding that “an agency errs when it
relies on old data without showing that the data remain accurate”).
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Reclamation’s second reason for concluding that consideration of a
reduction in interim contract water quantities was not warranted was that the
Central Valley Project-wide PEIS for long-term contract renewal selected a
preferred alternative of renewal “for the full contract quantities.” Additionally, the
PEIS took into account the balancing requirements of the CVPIA, which provides,
among other things, for the weighing of fish, wildlife, and habitat restoration goals.
The PEIS did not, however, address site-specific impacts of individual contracts.
See W. Watersheds Project, 719 F.3d at 1050-51 (holding that when modification
of grazing practices was not considered at programmatic level, it must be given
hard and careful look at site-specific level). The government’s position that the
consideration of reduced-quantity alternatives should be required only with respect
to “long-term contract renewals” (Answering Brief at 47) is unreasonable under the
circumstances presented here, involving an ongoing – and hence long-term – series
of interim renewals.
Reclamation’s third reason was that a shortage provision in the interim
contracts provided it with a mechanism for annual adjustments in water supplies.
As plaintiffs argue, however, the existence of a mechanism for adjusting water
quantities after contract approval did not relieve Reclamation of its obligation to
consider a reduction in quantities prior to contract approval. See id. at 1050.
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Reclamation’s fourth reason was that “retaining the full historic water
quantities under contract provides the contractors with assurance the water would
be made available in wetter years and is necessary to support investments for local
storage, water conservation improvements and capital repairs.” This reasoning in
large part reflects a policy decision to promote the economic security of
agricultural users, rather than an explanation of why reducing maximum contract
quantities was so infeasible as to preclude study of its environmental impacts. See
id. Moreover, given the shortage provisions in the interim contracts and recent
drought conditions, the water districts have not been able to rely on delivery of
consistent quantities.
We therefore reverse as to the district court’s grant of summary judgment on
plaintiffs’ claim that the EA was inadequate because it did not give full and
meaningful consideration to the alternative of a reduction in maximum water
quantities. See id.
IV. Geographic Scope
Plaintiffs contend that the EA’s geographic scope was improperly limited to
the delivery areas and should also have considered the effects, including
cumulative effects, of interim contract renewal on the California River Delta, the
source of the water, and on the Delta’s fish and other wildlife. See Save Our
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Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1122 (9th Cir. 2004) (holding that agency
must analyze all environmental consequences of action). This contention lacks
merit because the EA was tiered off of the PEIS, which addressed Central Valley
Project-wide effects of long-term contract renewal. See 40 C.F.R. § 1508.28(describing tiering). In light of Reclamation’s obligation to conduct a more
comprehensive analysis in the PEIS, it would be impractical to require the agency
to trace the incremental effects of each two-year water service contract on the Delta
and all Central Valley Project waters. See Friends of the Wild Swan v. Weber, 767
F.3d 936, 943 (9th Cir. 2014) (stating that agency must balance need for
comprehensive analysis against considerations of practicality).
V. Impacts on Listed Species and Cumulative Impacts
Plaintiffs waived their argument that the EA’s analysis of the giant garter
snake and the California least tern impermissibly equated a finding of no jeopardy
under the Endangered Species Act with a finding of no significant impact under
NEPA. See Lands Council, 629 F.3d at 1076. Impacts on salmonids and green
sturgeon, as well as cumulative impacts related to drainage and selenium, were
more appropriately addressed in the PEIS and the San Luis Drainage Feature Re-
Evaluation Final EIS, rather than the EA for interim contract renewal. See Friends
of the Wild Swan, 767 F.3d at 943.
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We affirm the district court’s judgment in part. We reverse in part and
remand with instructions for the district court to vacate its grant of summary
judgment in favor of defendants on plaintiffs’ claim that the EA was inadequate
because it did not give full and meaningful consideration to the alternative of a
reduction in maximum water quantities. On remand, the district court shall direct
Reclamation consider such an alternative in any future EA for an interim contract
renewal. In satisfying this duty, Reclamation may rely upon any water needs
assessment for which the data remain accurate. See W. Watersheds Project, 719
F.3d at 1052. We also reverse the district court’s dismissal of plaintiffs’ claim that
the “no action” alternative set forth in the EA was inadequate under NEPA.
Each party shall bear its own costs.
AFFIRMED in part, REVERSED in part, and REMANDED.
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