Citizens Legal Enforcement & Restoration v. Connor, 540 F. App'x 587

Background

In the 1950s–60s the Bureau of Reclamation built the Pretty Water Levee to divert the lower Colorado River into an artificial channel (Cibola Cut), leaving the old river channel (ORC) largely dry except for minor seepage and inflow from the Palo Verde Drain.
Reclamation promised to implement U.S. Fish & Wildlife Service mitigation recommendations for wildlife and recreation in the ORC but failed to adopt many measures; plans to add culverts to restore some flow were never executed and maintenance has been sporadic.
CLEAR (Citizens Legal Enforcement and Restoration), whose members own property along the ORC, sued alleging violations of state water and wildlife laws enforceable under § 8 of the Reclamation Act and sought prospective relief for ongoing mismanagement.
The district court granted summary judgment for defendants; the Ninth Circuit affirmed in part, holding some claims time-barred and others unsuitable under the APA.
The court noted that § 5937 (Cal. Fish & Game Code) likely does not apply to a levee that diverts the entire river into an artificial channel, although a concurrence disagreed on that statutory interpretation and concluded federal supremacy/Project Act concerns prevent applying state law here.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of challenge to original construction	CLEAR argued the construction and mitigation failures are ongoing and actionable	Defendants argued APA six-year limitations bar challenges to original construction	Claims attacking original plan/construction are time‑barred under 28 U.S.C. § 2401(a) and Wind River Mining Corp. v. United States
Ongoing failure-to-act claims under APA	CLEAR sought prospective relief for Reclamation’s ongoing management failures	Defendants argued broader, undifferentiated duties are not discrete agency actions	Prospective failure-to-act claims are not necessarily time‑barred, but must allege enforcement of a discrete agency action as required by Norton v. SUWA
Use of public trust and state constitutional law	CLEAR contended these doctrines/statutes compel specific remedial actions	Defendants said claims assert broad mandates, not discrete actions, and thus are not cognizable under APA	Public trust and state constitutional claims impermissibly seek compliance with broad mandates and cannot be enforced as discrete APA claims (per SUWA and related Ninth Circuit authority)
Applicability of Cal. Fish & Game Code § 5937	CLEAR argued § 5937 requires sufficient water passage to maintain fish below the levee	Defendants argued § 5937 applies to impounding dams, not a levee diverting an entire river flow into a cut	Majority concluded § 5937 likely does not apply to the levee/diversion; concurrence would read § 5937 broadly but found Section 8/Reclamation Act and federal control overriver operations preclude applying state law here

Key Cases Cited

Wind River Mining Corp. v. United States, 946 F.2d 710 (9th Cir. 1991) (APA six‑year statute of limitations applies to challenges to agency action)
Hells Canyon Pres. Counc. v. United States Forest Service, 593 F.3d 923 (9th Cir. 2010) (distinguishing time‑barred past actions from ongoing violations eligible for prospective relief)
Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004) (APA permits suits to compel discrete agency actions, not to enforce broad statutory mandates)
Ctr. for Biological Diversity v. Veneman, 394 F.3d 1108 (9th Cir. 2005) (applying Norton and rejecting APA claims that seek to enforce broad duties rather than discrete actions)
Natural Res. Def. Council v. Patterson, 333 F. Supp. 2d 906 (E.D. Cal. 2004) (example applying § 5937 to dams that impound and release surplus water)
California v. United States, 438 U.S. 645 (1978) (federal Project Act permits states to act so long as not inconsistent with federal control over lower Colorado River)
Arizona v. California, 373 U.S. 546 (1963) (on federal control and allocation of lower Colorado River flows)