712 F.3d 1296
9th Cir.2013Background
- CVP transfers water from northern to southern California and is managed by Interior.
- San Luis Act conditioned Unit construction on a master drainage outlet or San Luis interceptor drain.
- Section 5 authorizes Interior to participate in drainage facilities to serve general area tied to San Luis Unit.
- Interior began constructing the interceptor drain; Kesterson Reservoir operated as interim drainage.
- 1983 selenium findings led to Kesterson closure in 1986 and ongoing drainage challenges, prompting litigation by Firebaugh and others.
- Interior adopted an in-valley drainage plan in 2007, funded within a construction cap and subject to Congressional action for cost increases.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Interior’s failure to provide drainage is reviewable under the APA §706(1). | Firebaugh—Interior failed to take a discrete action required by law. | Interior—SUWA requires a discrete action; broad programmatic review is inappropriate. | No discrete agency action required by law; review limited by SUWA; APA relief denied. |
| Whether Firebaugh may pursue FTCA liability given the discretionary-function exception and private-analog requirements. | Firebaugh asserts a private-analog of tort liability for drainage failure. | FTCA barred by discretionary-function exception; private analog not controlling. | FTCA claim barred; discretionary function exception applies; damages not respondeable. |
| Whether the San Luis Act requires drainage outside the Unit or is limited to inside the Unit. | Act requires drainage beyond the Unit as part of Unit operation. | Section 5 authorizes but does not require out-of-Unit drainage; cannot compel outside drainage. | Section 5 precludes a requirement to provide drainage outside the Unit; duty remains inside the Unit. |
Key Cases Cited
- Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) (discrete agency action required for §706(1) relief)
- Rayonier, Inc. v. United States, 352 U.S. 315 (1957) (private-analog approach for FTCA liability)
- Olson v. United States, 546 U.S. 43 (2005) (private-analog under private-law liability for government conduct)
- Hells Canyon Preservation Council v. United States Forest Serv., 593 F.3d 923 (9th Cir. 2010) (final agency action required for §706(2) review; discretionary-acts context)
- Jachetta v. United States, 653 F.3d 898 (9th Cir. 2011) (FTCA/private-analog framework for federal tort claims)
- Terbush v. United States, 516 F.3d 1125 (2008) (two-step discretionary-function analysis)
- Berkovitz v. United States, 486 U.S. 531 (1988) (discretionary-function analysis framework)
- United States v. Olson, 546 U.S. 43 (2005) (private-analog interpretation of §/procedural standard)