313 F. Supp. 3d 1199
E.D. Cal.2018Background
- Federal Defendants (Department of the Interior/Bureau of Reclamation) approved six interim CVP water-service contracts for Mar. 1, 2016–Feb. 28, 2018 (the 2016–18 Interim Contracts); environmental groups (Plaintiffs) challenged the EA/FONSI and alleged NEPA required an EIS.
- The litigation follows a prior related case (PCFFA) in which the Ninth Circuit held Reclamation unlawfully assumed interim-contract renewal in its "no action" alternative and remanded for better consideration of reduced water-quantity alternatives.
- After voluntary remand, Reclamation issued a revised EA and FONSI for the 2016–18 Interim Contracts; Plaintiffs amended their complaint (FASC) to challenge those documents.
- Defendant-intervenors moved under Fed. R. Civ. P. 12(b)(6) to dismiss Plaintiffs’ claim that an EIS was required, arguing the contracts do not change the operational status quo and thus do not trigger NEPA's EIS requirement.
- Key legal question centers on whether the contracts constitute a "major Federal action significantly affecting the human environment" or merely continued operation within historic parameters (the "status quo" analysis under Ninth Circuit precedent).
- The court concluded the Interim Contracts did not alter the operational status quo (and were not an irreversible commitment of resources because they include shortage provisions), so NEPA did not require an EIS; the motion to dismiss the EIS claim was granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NEPA required an EIS for the 2016–18 Interim Contracts | The contracts’ cumulative environmental impacts are significant (increased diversions and ecosystem decline) so an EIS is required | Contracts do not change CVP operational status quo; operating within historic parameters so no EIS is required | Held: No EIS required; contracts do not alter status quo |
| Whether cumulative impacts alone (without change in operating policy) can trigger an EIS | Cumulative harm from serial interim contracts makes impacts significant and thus mandates an EIS | Cumulative impacts do not override the status-quo test from Ninth Circuit authority | Held: Cumulative impacts insufficient where action does not change status quo |
| Whether renewal of interim contracts is like lease extensions requiring EIS (Pit River analogy) | Contracts are new grants of rights that would otherwise expire—akin to lease extensions that required an EIS | Interim Contracts include shortage provisions allowing withholding of deliveries, so not an irreversible/irretrievable resource commitment like Pit River leases | Held: Pit River inapposite; shortage provisions distinguish these contracts from irreversible lease extensions |
| Whether PCFFA appellate ruling compels finding an EIS required for 2016–18 contracts | PCFFA found Reclamation could not assume renewal in a no-action alternative, suggesting heightened NEPA scrutiny | PCFFA addressed the proper definition of the "no-action" alternative, not whether the action itself changed the status quo | Held: PCFFA does not undermine status-quo analysis; it is legally distinct and does not compel EIS here |
Key Cases Cited
- Upper Snake River Chapter of Trout Unlimited v. Hodel, 921 F.2d 232 (9th Cir. 1990) (status-quo operations of pre-NEPA projects typically do not require an EIS)
- Idaho Conservation League v. Bonneville Power Admin., 826 F.3d 1173 (9th Cir. 2016) (reversion to prior operational regime does not change status quo; focus on whether action is a significant or long-term policy change)
- Pit River Tribe v. U.S. Forest Service, 469 F.3d 768 (9th Cir. 2006) (lease extensions that grant rights enabling future development can require an EIS where they effect an irreversible commitment)
- Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988) (EIS must precede irreversible and irretrievable commitments of resources)
- Westlands Water Dist. v. U.S. Dep't of Interior, 850 F. Supp. 1388 (E.D. Cal. 1994) (significant operational changes reallocating large water volumes can trigger NEPA/EIS requirement)
- Ocean Advocates v. U.S. Army Corps of Eng'rs, 402 F.3d 846 (9th Cir. 2005) (any one of the regulatory significance factors may require an EIS in appropriate circumstances)
- Pac. Coast Fed'n of Fishermen's Ass'ns v. U.S. Dep't of the Interior, [citation="655 F. App'x 595"] (9th Cir. 2016) (appellate ruling limiting assumption of mandatory interim-contract renewal and remanding EA issues)