568 F.Supp.3d 1167
D. Kan.2021Background
- Quivira National Wildlife Refuge in Kansas depends on groundwater and holds a 1957-priority Refuge Water Right; flows in Rattlesnake Creek have been diminished by junior groundwater pumping.
- U.S. Fish and Wildlife Service (Service) obtained a reduced certificated permit; a 2016 Impairment Report found long-standing impairment from junior pumping and recommended administrative action.
- The Service sought state administration to protect the Refuge Water Right; Kansas Division of Water Resources (KDA-DWR) deferred to the local Groundwater Management District No. 5 (District) and initially took little enforcement action.
- In 2019 federal and state actors reached a political accommodation: the Service withdrew formal requests to secure water while the District and KDA-DWR pursued voluntary, nonregulatory solutions and the Service and District executed a 2020 Memorandum of Agreement (MOA) to pursue augmentation and a subsequent agreement.
- Audubon sued in 2021 asserting APA/NWRSIA and NEPA claims, a claim for additional water rights, and an alleged improper disposal of federal property; State and Federal Defendants moved to dismiss. The District intervened in support of dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether State Defendants are subject to suit in federal court (Eleventh Amendment / Ex parte Young) | Audubon says state officials aided or facilitated federal-law violations by enabling the 2020 MOA and failing to administer water rights, so Ex parte Young permits prospective relief. | State Defendants say they are entitled to Eleventh Amendment immunity; they were not parties to the MOA and had no present state-law duty to act absent a formal request to secure water. | Dismissed: Ex parte Young does not apply; plaintiffs failed to plead a non-frivolous substantial federal-law violation by State Defendants. State claims dismissed without prejudice. |
| Whether the Service’s 2019 statements and 2020 MOA constitute "final agency action" under the APA | Audubon contends the statements and MOA fixed legal relationships for 2020–21, exempting junior users from liability and are reviewable final action. | Federal Defendants argue the statements and MOA are nonfinal, aspirational agreements to negotiate further, not consummation of decisionmaking nor actions creating legal consequences. | Dismissed: Court finds no final agency action; agreements were preliminary and not reviewable under the APA. |
| Whether agency inaction claims under APA §706(1) are actionable (failure to compel) | Audubon claims the Service failed to "ensure" refuge conditions and to acquire necessary water rights under NWRSIA, so court should compel discrete action. | Defendants say NWRSIA imposes broad, discretionary duties and Audubon has not identified a specific nondiscretionary, legally required agency action to compel. | Dismissed: Norton restrains courts from enforcing broad programmatic duties; Audubon failed to identify a discrete, non‑discretionary statutory duty. |
| Whether NEPA applies (was there a "major federal action") | Audubon argues the MOA and the 2019 bargain were major federal actions requiring NEPA review. | Defendants argue no irretrievable commitment of resources or final action occurred, so NEPA is not implicated. | Dismissed: Court finds no major federal action or final agency action triggering NEPA obligations. |
| Whether the claim for improper disposal of federal property is viable | Audubon asserts the MOA effectively surrendered federal priority year-to-year and thus improperly disposed of federal property without Congress. | Defendants respond the Service retained the Refuge Water Right and the MOA did not transfer or permanently dispose of federal property. | Dismissed: Court treats this as an APA claim tied to the same nonfinal conduct and rejects it for lack of final agency action. |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (establishes plausibility standard for pleading)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (pleading must state a plausible claim)
- Neitzke v. Williams, 490 U.S. 319 (dismissal where an issue of law precludes recovery)
- Elephant Butte Irrigation Dist. v. Dep’t of Interior, 160 F.3d 602 (10th Cir.) (Ex parte Young and state–federal agreements may support federal-law claim when state is party to the agreement)
- Colo. Farm Bureau Fed’n v. U.S. Forest Serv., 220 F.3d 1171 (10th Cir.) (framework for final agency action and nonfinal interagency agreements)
- Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (final agency action and limits on compelling agency inaction under APA §706(1))
- Bennett v. Spear, 520 U.S. 154 (final agency action test: consummation and legal consequences)
- Comm. to Save the Rio Hondo v. Lucero, 102 F.3d 445 (10th Cir.) (NEPA claims rely on final agency action reviewable under the APA)
- New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683 (10th Cir.) (NEPA "irretrievable commitment" concept)
- Sierra Club v. U.S. Army Corps of Eng’rs, 446 F.3d 808 (8th Cir.) (MOAs that prescribe future cooperation are not final agency action)
- Niobrara River Ranch, L.L.C. v. Huber, 277 F. Supp. 2d 1020 (D. Neb.) (NWRSIA does not eliminate judicial review and involved an APA §706(2) challenge)
- Sierra Club v. Block, 622 F. Supp. 842 (D. Colo.) (general statutory duties insufficient to create discrete, compelable agency action)
- Trudeau v. Fed. Trade Comm’n, 456 F.3d 178 (D.C. Cir.) (absence of final agency action defeats APA cause of action)
- Cherry v. U.S. Dep’t of Agric., [citation="13 F. App'x 886"] (10th Cir.) (finality of agency action is jurisdictional)