ORDER
This mаtter comes before the court on plaintiffs’ motion for summary adjudication as to liability on their claim under § 8 of the Reclamation Act of 1902. Plaintiffs allege that since the late 1940s, the Department of Interior’s Bureau of Reclamation has failed to release the amount of water through the Friant Dam required to keep the San Joaquin River historic fisheries in good condition. The Friant defendants and the Chowchilla Water District bring cross-motions for summary adjudication and for dismissal in which the Madera Irrigation District joins. California’s State Water Resources Control Board (SWRCB), the Central Delta Water Agency and South Delta Water Agency, and Waterkeepers Northern California and Deltakeeper, have all filed amicus briefs in favor of plaintiffs’ motion and in opposition to the Friant defendants’ motion. 1
I.
UNDISPUTED FACTS
A. THE SAN JOAQUIN RIVER BEFORE FRIANT DAM
The San Joaquin River is the main artery of California’s second largest river system. The river originates high in the Sierra Nevada mountains, on mountain peaks southeast of Yosemite National Park, and then tumbles westward out of the mountains and into the trough of the Central Valley. Near the city of Mendota, the River turns abruptly north for thе final stretch of its several hundred mile journey, picking up the Merced, Tuolumne, Stanislaus, Mokelumne, Calaveras, and Co-sumnes Rivers as major tributaries on the way. It finally merges with the Sacramento River to form the San Francisco Bay-Delta estuary.
Historically, the San Joaquin River supported substantial populations of Chinook salmon, including both a fall and a spring run (Deck of Peter Moyle, Exh. F, at 16), Chinook are distinguishable from other species of Pacific salmon by their large size and unique markings. They are an anadromous species, which means that they emerge and rear in freshwater tributaries, migrate to the ocean as juveniles, and return to their natal waters to spawn two to four years later. The San Joaquin River’s adult spring-run Chinook historically returned to the River mostly during the months of March through June, and spent the summer holding in deep pools above and below the existing location of
Salmon on the San Joaquin River were abundant prior to the closure of Friant Dam (Moyle Decl., ¶ 1; Decl. of Amy Ma-caux, Exh. F, at 16). The river’s spring run was one of the largest Chinook runs anywhere on the Pacific Coast and has been estimated at several hundred thousand fish (Moyle Deck, ¶ 20; Macaux Deck, Exh. G, at 9; Macaux Deck, Exh. F, at 8). The historical fall run is conservatively estimated to have numbered 50,000 to 100,000 fish. So many salmon migrated up the San Joaquin River during the spawning season that some people who lived near the present site of Friant Dam compared the noise to a waterfall. Some residents even said that they were kept awake nights by the myriad salmon heard nightly splashing, over the sand bars in the River. One observer reported that salmon were so plentiful that ranchers trapped the fish and fed them to hogs. A fisherman who lived downstream recalls that, in the 1940s, the salmon were still “so thick that we could have pitch-forked them. One almost could have walked across the River on thе backs of the salmon when they were running.” (Deck of John Banks, ¶ 5).
The upper San Joaquin River contained Chinook habitat both above and below the location of Friant Dam, including some of the best spring-run habitat anywhere in California. This included a. mixture of deep pools for holding and gravelly riffles for spawning, over which cold water ran. (Moyle Deck, ¶ 19). Much of that habitat still survives in the River below Friant Dam. (Id.) Other anadromous fish, including Pacific lamprey and steelhead, once lived on the San Joaquin River below Fri-ant Dam as well. (Moyle Deck, ¶ 22; Ma-caux Deck, Exh. G, at 1,9; Wall Deck, Exh. B., at 29-32). Collections of fish made in the vicinity of Friant in 1898 and 1934 indicate that the River supported diverse native fish that included rainbhw trout, splittail, hitch, hardhead, and Kern brook lamprey, all species of conservation, interest today. The river’s flow into the Delta also helped support that important ecosystem’s water quality and habitat. In 1999, the National Marine Fisheries Service designated the San Joaquin River between Friant Dam and the Merced as “essential fish habitat” for Chinook salmon, pursuant to the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C: §§ 1801-83 (Deck of Michael E. Wall, Exh. A; RJN, Exh. A).
B. THE BUILDING OF FRIANT DAM
The Bureau built Friant Dam across the upper San Joaquin River, northwest of Fresno, in the early 1940s as part of the Central Valley Project. Construction began in 1939 and was largely completed by the mid-1940’s. The Dam stores the river’s flow in Millerton Lake, the reservoir. behind the Dam, and diverts water for irrigation and other- purposes into two canals. The first of these, the Madera Canal, was completed in .1945. The second, the Friant-Kern Canal, began delivering water by 1949. Since that time, the Bureau has operated Friant Dam to maximize the quantity of water diverted to its Friant Division contractors, including the non-federal defendants.
Friant Dam blocked upstream access to a portion of the San Joaquin River’s spawning habitat for salmon and steel-head; however, it was not the construction
By the late. 1940s, however, the Bureau’s operation of Friant Dam had caused long stretches of the River to dry up. (Macaux Decl., Exh. F, at 18). In the spring of 1948, the California Division of Fish, and Game responded with a dramatic fish rescue in an attempt to save the River’s spring-run Chinook salmon. About 2,000 up-migrating Chinook were trapped in the lower portion of the River, hauled by truck around the dewatered stretch of the River, and released at a point from which they could migrate upstream to deep pools just below Friant Dam. These salmon were able to hold over the summer in these pools, and to spawn successfully below Fri-ant Dam in the fall, but their offspring perished in early 1949 when they attempted to out-migrate through the dried-up River bed.
With the completion of the Friant-Kern Canal, the Bureau in 1949 further increased diversions, leaving even less water for the San Joaquin River. (Moyle Deck, ¶ 31; Macaux Deck, Exh. J, at 6). The last of the upper San Joaquin River’s fall-run Chinook salmon were reported in a pool below Mendota Dam in 1949. (Loud-ermilk Deck, Exh. K). Spring-run Chinook salmon disappeared from the San Joaquin River after unsuccessful salmon rescue attempts in 1949 and 1950. (Moyle Deck, ¶ 39; Macaux Deck, Exh. F., at 18; Macaux Deck, Exh. G, at 9). For most of the last 50 years, the Bureau has diverted virtually all of the River’s flows. (Macaux Deck, Exh. J, at 6; Macaux Deck, Exh. K, at 3; Moyle Deck, ¶¶ 22-28, 31; Louder-milk Deck, ¶ 2). While salmon continued to return and spawn until 1949, after that, “the San Joaquin chinook was extirpated in its southernmost range.” (Macaux Deck, Ex F, at 18).
Some sixty miles of the River upstream of its confluence with the Merced now lie continuously dry, except during rare flood events. (Macaux Deck, Exh. E, at 7; Ma-caux Deck, Exh. K, at 3; Wall Deck, Exh. B, at 43; Loudermilk Deck, ¶ 2). The spring-run Chinook- — once the most abundant race of salmon in the Central Valley — appear to have been extirpated from the length of the River. (Wall Deck, Exh. B, at 36, 42, 48; Macaux Deck, Exh. H, at 9). Small populations survive only in the Sacramento River system. (Moyle Deck, ¶¶ 26, 29). The fall-run Chinook, too, were eliminated from the upper San Joaquin River, although reduced populations of fall-run Chinook survive on downstream tributaries, principally the Merced, Tuo-lumne, and Stanislaus Rivers. (Moyle Deck, ¶ 27; Wall Deck, Exh. B, at 36, 42, 48; Macaux Deck, Exh J at 6). In the words of the Department of the Interior, Friant Dam’s operations have been a “disaster” for Chinook salmon. United States Dep’t of the Interior, The Relationship Between Instream Flow, Adult Immigration, and Spawning Habitat Availability for Fall-Run Chinook Salmon in the Upper San Joaquin River, California at 6 (Sept.1994) (Macaux Deck, Exh. J).
The Bureau’s operation of Friant Dam has also contributed significantly to declines in other native fish throughout the San Joaquin River system'. (Moyle Deck, ¶22, 31; Macaux Deck, Exh. G, at 1-2; Wall Deck, Exh. B, at 42-43). Following the construction of Friant Dam, ten of the sixteen species of native fish disappeared from the area. (Moyle Deck, ¶22; Ma-caux Deck, Exh. G, at 1-2). They were replaced, in the reaches where enough water for any fish still exists, primarily by a variety of non-native fishes. (Moyle Deck, ¶ 22; Macaux Deck, Exh. E, at 6-7).
Waters from the upper San Joaquin had been critical to providing habitat for fish species many miles below the Dam. (Moyle Deck, ¶ 31; Macaux Deck, Exh. G, at 1). San Joaquin River flows are needed to help attract adult salmon to their spawning grounds, to provide habitat for young and juvenile salmon, to move juvenile salmon downstream in the spring through the lower San Joaquin River,- and to provide sufficient dilution of toxic and saline drainage to maintain a minimum level of water quality. (Moyle Deck, ¶ 31; Macaux Deck, Exh. E, at 10). Failure to release water from Friant Dam has rendered many miles of fish habitat unusable, especially in the stretch between the Dam and the river’s confluence with the Merced, and has also adversely affected water quality along the whole course of the river. (Moyle Deck, ¶ 31; Macaux Deck, Exh. G, at 1, 2; Wall Deck, Exh. B, at 44, 46). Today, the first several miles of the San Joaquin River deep water ship channel, near Stockton, experience dissolved oxygen levels that are so low during summer and fall months that they do not meet the state water quality objective. (Wall Deck, Exh. C, .at 1).. Low dissolved oxygen in these reaches poses a danger to fish generally, and a migration barrier to anadromous fish,.including salmon in particular. Id.
Reduced flows in the San Joaquin below Friant Dam have diminished .the area available for fish, increased the temperature of the water that is available, reduced the ability of the river to assimilate agricultural runoff and other pollutants, and substantially degraded riparian- vegetation. (Moyle Deck, ¶ 31; Wall Deck, Exh. B, at 46; Macaux Deck, Exh. G, at 6). Native fishes such as hitch, splittail, tule perch, and pikeminnow, have largely disappeared from the River and have been replaced by exotic fishes tolerant of warm polluted water. PSUF 66. The present warm-water fishery- that exists on portions of the -San Joaquin River between Mendota Pool and the San Joaquin’s confluence with the Merced River is small and erratic. (Moyle Deck, ¶ 32). Many of the fish in this reach are contaminated with pesticides and other agricultural contaminants. (Moyle Deck, ¶ 31; Wall Deck, Exh. B., at 35). From Mendota Pool to Sack Dam, the river is basically used to convey irrigation water, and from Sack Dam to the river’s confluence with the Merced River, the river is dewatered for forty miles until agricultural drain water provides -a small flow that is a
II.
SUMMARY ADJUDICATION STANDARDS
Summary adjudication, or partial summary judgment “upon all or any part of a claim,” is appropriate where there is no genuine issue of material fact as to that portion of the claim.
Lies v. Farrell Lines, Inc.,
Under summary judgment practice, the moving party
always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett,
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists.
See
Fed.R.Civ.P. 56(e);
Matsushita,
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.”
First Nat'l Bank,
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c);
See also In re Citric Acid Litigation,
Finally, to demonstrate a genuine issue, the opposing party “must do more than simply show that there is 'some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’”
Matsushita,
III.
ANALYSIS
A. INTRODUCTION
As this court has previously held, and as explained in greater detail below, § 8 of the Reclamation Act of 1902,
2
makes California Fish and Game Code § 5937
3
appli
In
California v. United States,
In their motion for summary adjudication, plaintiffs ask this court to find that the federal defendants have violated § 8 and § 5937, but to reserve the question of remedy for a subsequent phase of the litigation.
In their oppositions to plaintiffs’ motion, and in their own motions, the defendants argue, inter alia, that (1) plaintiffs lack standing (2) the court lacks subject matter jurisdiction to entertain plaintiffs’ claim under the Administrative Procedure Act, (3) the State Water Resources Board has addressed the issue and the Board’s decision is entitled to preclusive effect, and (4) plaintiffs’ claim is preempted by the Central Valley Project Improvement Act.
This litigation was commenced in 1988. While much of that time was taken up by efforts to reach a good faith settlement, this court has invested a substantial amount of time over the past fifteen years rеsolving the many subtle and complex legal issues raised by this lawsuit and by the § 8/ § 5937 claim in particular. Many of the arguments raised by the defendants have been previously litigated and have resulted in decisions, both by this court and by the U.S. Court of Appeals for the Ninth Circuit. In that regard, the court has previously warned the parties against continually relitigating such issues.
See
Status (Pretrial Scheduling) Order filed Sept. 27, 1995, at 2 (admonishing the parties not to include “disguised motions to reconsider legal issues this court has already decided” in their summary judgment motions). Unfortunately, that admonition has not affected the defendants’ conduct. I thus now must reiterate that the court’s previous rulings are law of the case, and may not now be reopened or relitigated.
See, e.g., Pit River Home & Agric. Co-op. v. United States,
1. Article III Standing
Defendants’ challenge to plaintiffs’ Article III standing is effectively foreclosed by the law of the case doctrine. In January 1992, the defendants moved to dismiss the plaintiffs’ § 8/ § 5937 claim. Among other contentions, the federal defendants asserted that “the plaintiffs lack standing to bring this claim because their alleged injury does not fall within the zone' of interest [sic ] protected by Section 8.” Fed. Defs.’ Mem. in Supp. of Mot. to Dismiss Plfs.’ 4th Claim at 1-2 (filed Jan. 6,1992).
In a published order filed on April 30, 1992, this court denied the. defendants’ motions to dismiss, finding that the plaintiffs have both constitutional and statutory standing to enforce § 8 and § 5937.
See NRDC v. Patterson,
2. Judicial Review under the APA
Plaintiffs’ first, claim is brought pursuant to § 706(1) of the Administrative Procedure Act (“APA”), which authorizes claims to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). Both the federal defendants and the Friant defendants argue that this court lacks subject matter to hear plaintiffs’ claim because, under the Supreme Court’s recent decision in
Norton v. Southern Utah Wilderness Alliance,
— U.S. -,
In
SUWA,
various environmental groups brought suit under § 706(1), alleging that the Bureau of Land Management (BLM) failed to act to protect Utah public lands from environmental damage caused by off-road vehicles. The High Court held that “a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a
discrete
agency action that it is
required to take.”
— U.S. at -,
The Friant and federal defendants contend that the limitations addressed in SUWA bar the § 8/ § 5937 claim at issue here. Evaluation of this argument requires a comparison of the sort of “broad programmatic attack” rejected in National Wildlife Federation and SUWA, and in Ninth Circuit cases applying the same principles, with the claim at issue here.
In SUWA, the plaintiffs alleged three different failures to act on the part of the BLM, premised on different statutory and regulatory provisions. First, the plaintiffs claimed that the BLM had violated a statute requiring the Secretary of the Interior to manage certain wilderness study areas “so as not to impair the[ir] suitability for preservation as wilderness.” 43 U.S.C. § 1782(c). The Court found that the statute was “mandatory as to the object to be achieved, but it leaves to BLM a great deal of discretion in deciding how to achieve it.” Such an alleged general deficiency in compliance, the Court held, lacked the requisite specificity. Slip op. at 9-11. Second, the plaintiffs claimed that the BLM’s failure to comply with рrovisions of its land use plans contravened the requirement that the Secretary of the Interior manage public lands in accordance with such plans. 43 U.S.C. § 1732(a). This claim was not actionable, the Court reasoned, because a land use plan, unlike a specific statutory command, is generally a statement of priorities; it guides and restrains actions, but does not prescribe them. Thus, such statements are not legally binding commitments enforceable under § 706(1). Slip op. at 11-16. Third, the plaintiffs in SUWA argued that the BLM failed to fulfill certain obligations under the National Environmental Protection Act (“NEPA”); the Court disposed of this claim without resort to the principles at issue here.
The limitations described in
SUWA
and
Lujan
are important ones. They are designed to “protect agencies from undue judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve.”
Id.
at 10. They are, however, simply inapplicable here. Directly put, § 8 requires the Secretary to “proceed in conformity” with the relevant state laws, 43 U.S.C. § 383, and the relevant statе law here directs the Bureau to release sufficient water to “reestablish and maintain” the “historic fisheries.”
CalTrout II,
The federal defendants once again argüe that § 5937 does not apply to the Friant Dam. In their January 1992 motion to dismiss, the federal defendants also argued that § 5937 “does not apply to Friant Dam” as a matter of state law, that § 5937 “is inconsistent with clear Congressional directives and thus may not be applied to Friant Dam,” and that “[s]ection 5937 is simply not a statute that is included within Section 8’s mandate.” Fed. Defs.’ Mem. in Supp. of Mot. to Dismiss Plfs.’ 4th Claim at 1, 2, 10 (filed Jan. 6, 1992). In a parallel motion, the non-federal defendants likewise argued that § 5937 “is not one of the laws to which Congress directed or intended that the [Bureau] сomply when carrying out its responsibilities under the 1902 Federal Reclamation Act,” and urged the court to “invoke the abstention doctrine to stay further federal court proceedings.” Non-Fed. Defs.’ Mot. to Dismiss Plfs.’ 4th Claim at 1, 19 (filed Jan. 6, 1992); Non-Fed. Defs.’ Reply to Opp. to Mot. to Dismiss Plfs.’ 4th Claim at 10 (filed Feb. 21, 1992). This court’s April 1992 published order rejected these arguments, holding that § 5937 “relates to the control, appropriation, use or distribution of water used in irrigation,” and therefore that the state statute “must be held to be within the purview of state laws made applicable to the Bureau through Section 8 [of the Reclamation Act of 1902.]”
Patterson,
D. WHETHER § 5937 ESTABLISHES ALTERNATIVE REQUIREMENTS
Section 5937 provides that “[t]he owner of any dam shall allow sufficient water at all times to pass through a fish-way, or in the absence of a fishway, allow sufficient water to pass over, around or through the dam, to keep in good condition any fish that may be planted or exist below the dam.” The Friant defendants argue that this language sets forth alternative requirements for the release of water. The phrase “any fish that may be planted or exist below the dam,” they contend, when given its usual, ordinary, meaning, should be read to require a dam owner to release enough water from the dam to “keep” — that is, to maintain in good condi
tion
— either “any fish that may be planted” or, in the alternative, “any fish that may ... exist below the dam.” Plaintiffs, they argue, improperly read “any” as if it meant “all,” and “or” as if it meant “and.” Defendants cite case law which stands for the proposition that the word “or” in a statute must be read in the disjunctive, i.e., the word indicates the legislature’s intention to designate alternative categories.
See, e.g., Wards Cove Packing Corp. v. National Marine Fisheries Serv.,
The principle of statutory interpretation on which defendants rely is not a universal one. In certain cases, it may make more sense to interpret a phrase including the word “or” as denominating a single category using alternative words, or as a means of emphasis.
See, e.g., United States v. Olano,
At oral argument, counsel for
amicus
State Water Resources Control Board offered a common sense solution
to
the interpretive problem that is both consistent with the default rule of construction and the general purposes of the statute. The disjunctive language,
amicus
submits, merely “establishes the categories of fish that are to be protected.” Reporter’s Transcript at 54:14-15. The statute does not read “any fish that may be planted
and
exist below the dam” because there may well not have been any fish planted below the dam. As counsel for
amicus
observed, “[o]bviously, if there are no planted fish there, there is no duty to protect them.”
Id.
at 55:1-3. The language of the statute, on this interpretation, is to be read “dis-junctively so as to designate alternative or separate categories,”
Piscioneri,
The opinion of Justice Blease in
California Trout, Inc. v. Superior Court,
E. WHETHER THE CVPIA PREEMPTS § 5937
1. Prior Rulings
The Central Valley Project Improvement Act (CVPIA) provides that Friant Dam water is not to be released from the Friant Dam to comply with the provisions of the CVPIA regarding the development of a plan to reestablish fish below the Dam. CVPIA, Pub.L. No. 102-575, § 3406(c)(1), 1992 U.S.C.C.A.N. (106 Stat.) at 4721.
In February 1993, the federal defendants filed a motion to dismiss, arguing that the then recently-enacted CVPIA preempted § 5937 as applied to Friant Dam. The non-federal defendants joined in this motion, and also asserted that original federal authorization of Friant Dam indicated an intent tо preempt § 5937. See Non-Fed. Defs.’ Reply to Plf.’s Opp. to Fed. and Non-Fed. Defs.’ Mots, to Dismiss Pife.’ 4th Amend. Compl. at 20 .(filed May 24, 1993) (“[F]rom its original planning, construction, and operation, it was always intended that substantial portions of the San Joaquin River would be dry ....”).
This court denied these motions to dismiss in October 1993. Order filed Oct. 12, 1993. After rejecting the theory that the CVPIA either expressly preempted § 5937 or “occupied the field” so as to displace state law by implication, id. at 31-33, the court considered at length whether § 5937 was in “actual conflict” with the CVPIA. Id. at 33-45. After close examination, this court also rejected this preemption theory. The court explicitly ruled that the CVPIA’s requirement that the Secretary of the Interior develop a plan to address fish below Friant. Dam “need not preclude application of a state requirement,” for “the. Secretary’s comprehensive plan may be premised upon the Bureau’s compliance with section 5937.” Id. at 39. The court concluded:
[Considering the language and structure of the CVP Improvement Act and its purpose, the CVP Improvement Act and section 8, insofar as it incorporates section 5937, may be reconсiled and that both statutory schemes may operate with one another rather than one being completely ousted. Accordingly, this court cannot conclude that plaintiffs’ section 8/section 5937 claim is preempted. Because it is not preempted, application of section 5937 to the Bureau’s operation of the Friant Dam cannot be deemed inconsistent with congressional directives, and compliance with its mandate is compelled by section 8.
Id. at 44-45 (emphasis added; citations omitted); see also. id. at 35 (“[Compliance with both the CVP Improvement Act and section 5937 is not only possible, but required.”).
The Ninth Circuit squarely affirmed this court’s holdings that § 8 requires compliance with § 5937 and that federal law does not facially preempt § 5937.
See Houston,
In
California Trout, Inc. v. State Water Resources Bd.,
The opinion expressly did not “reach the question of the application of section 5937 alone as a rule affecting the appropriation of water.” Rather, the court held that
regardless of the original scope of application of section 5937, the purpose of its incorporation into section 5946 is, as section 5946 says, to “condition [ ]”, and therefore limit, the “appropriat[ion]” of water by the priority given to the preservation of fish as set forth in section 5937. Section 5946 provides that “[n]o permit or license to appropriate water in District 4 1/2 shall be issued ... after September 9, 1953, unless conditioned upon full compliance with Section 5937.” One does not show compliance with a rule by claiming that it is inapplicable. Compulsory compliance with a rule requiring the release of sufficient water to keep fish alive necessarily limits the water available for appropriation for other uses. Where that effects a reduction in the amount that otherwise might be appropriated, section 5946 operates as a legislative choice among competing uses of water.
Id.
at 601,
Cal Trout does not explicitly hold that § 5937 mandates placing the preservation of fish above the irrigation purposes of a dam, but reserves the question of the statute’s application alone as a rule аffecting appropriation of water, separate from § 5946. The court simply interprets the statute, based on its plain meaning and context, as “requiring the release of sufficient water to keep fish alive,” without addressing the issue whether that requirement might somehow be limited or conditioned in the context of a larger federal statutory regime.
As discussed above, the Supreme Court in
California v. United States,
In
Houston,
as also explained above, the Ninth Circuit addressed and rejected the
Thus, the question becomes whether the state statute, § 5937, may in fact be implemented in such a way in this case. That question, as the Ninth Circuit recognized, is not a question of facial incompatibility, but rather one of actual application. For this reason, the court affirmed on the facial preemption question and left open the question of preemption at the remedy stage. See id. at 1132 (“it has yet to be determined how much water release would be required under § 5937 and whether that would be consistent with the CVPIA”). Because the instant motions concern only liability under § 5937, such a determination must await the remedial phase of this litigation.
F. WHETHER THE STATE WATER RESOURCES CONTROL BOARD’S PRIOR DECISION PRECLUDES PLAINTIFFS’ CLAIM
The primary basis for the Friant defendants’ motion for summary adjudication, and an important component of the federal defendants’ opposition to the plaintiffs’ motion, is their position that the plaintiffs’ claim is barred by a prior decision of the State Water Resource Control Board known as D-935. That ruling, they argue, settlеd the question of whether § 5937 requires the release of additional water from Friant Dam for fish maintenance and protection, and the issue may therefore not be reopened. As I now explain, for several reasons defendants’ argument is not well-taken.
1. Law of the Case
This court has already ruled that D-935 does not bar plaintiffs’ claim. This ruling .is law of the case and may not be relitigated absent a change in law or circumstances. On July 23, 1992, the non-federal defendants filed a motion to dismiss, or in the, alternative, to join the Water Resources Control Board as an indispensable party. The defendants argued that “issuance of an order mandating the release of water from Friant Dam for the purpose of maintaining and preserving fish below the dam” might “copflict”. with the water rights permit, known as “D-935,” that the State Board had issued for Friant Dam; that an order from this court on the § 8/ § 5937 claim could “impede the Board’s ability to determine whether and how § 5937 should be applied”; and finally, that “in the absence of the Board, complete relief cannot be accorded.” See Order at 3, 5-6 (filed Jan. 8, 1993).
The California Attorney General then filed an
amicus
brief on behalf of the State Board supporting the plaintiffs’ right to bring their § 8/ § 5937 claim in this Court.
9
The State Board explained that under California law, the judiciary has concurrent jurisdiction to enforce § 5937,
see id.
at 3-7, and that an order from this court enforcing the federal statute would not conflict with the Board’s decision in D-935 for at least two reasons,
see id.
at 7-9.
On January 8, 1993, this court rejected the defendants’ motion to dismiss based on the State Board’s asserted exclusive jurisdiction and prior order. See Order filed Jan. 8, 1993. In doing so, the court specifically held that an order requiring “the release of water for enhancement or preservation of in-stream values ... would not impair or impede D-935 or the Friant Permits.” Id. at 9. The court further held that, “under California law, the Board does not have exclusive jurisdiction over such decisions.” Id. at 4. Rather, this Court has jurisdiction over § 8, and given its incorporation of § 5937 and the absence of exclusive Board jurisdiction, this court is empowered to require the Bureau to comply with the state statute’s provisions. Id. Thus, the argument based on the SWRCB’s exclusive jurisdiction and prior ruling — the gravamen of the Friant Defendants’ motion for summary adjudication— is entirely foreclosed by the law of the case.
Even if this court were to decide the question ab initio, the result would be the same. This is so because (1) D-935 itself did not address the merits of plaintiffs’ claim; (2) California law does not confer exclusive jurisdiction on the Board; and (3) the Board’s decision is not entitled to preclusive effect under the doctrines of res judicata or collateral estoppel. The California Attorney General has again submitted an amicus brief on behalf of the State Water Resources Control Board. The Board adopts each of these three positions.
2. D-935 Did Not Address Plaintiffs’ Claim
First, and perhaps most importantly, this court notes that the State Board decision at issue, D-935, does not so much as mention § 5937, let alone provide a ruling on the issue entitled to preclusive weight. In this regard, it is significant that the State Board disagrees with the defеndant’s characterization of its ruling. See Amicus Curiae State Water Resource Control Board’s Mem. in Oppo. to Defs Mot. and in Supp. of Pi’s Mot. (filed January 22, 2004), at 2 (“The defendant-intervenors have mischaracterized Water Right Decision 935 ... Decision 935 does not contain any findings or conclusions regarding Section 5937.”). As the Board points out:
[I]n decision 935, the State Board did not make any findings or render any conclusions regarding Section 5937 of the Fish and Game Code. If the Court reviews the entire 109 pages of Decision 935, the Court will find that the State Board did not at any point discussion Section 5937 ... Indeed, if the Court electronically scanned Decision 935 and applied a word search software to the text, the Court would discover that the terms “Fish and Game Code” and “5937” do not appear separately or con-junctively anywhere in the decision. The defendant-intervenors’ claim that Decision 935 contains findings and conclusions regarding the applicability of Section 5937 to the Friant Unit of the Central Valley Project, is therefore, flatly wrong.
Id.
at 5;
see generally id.
at 4-9;
see
Amicus State Board’s Request for Judicial Notice.
10
Thus, even if the Board’s deci
3. Concurrent v. Exclusive Jurisdiction
Second, as noted above, the Board also takes the position that it does not have exclusive jurisdiction over the issues presented here, and that the better course would be to use the procedure of court reference to the agency when and if it becomes necessary to do so.
See Amicus Curiae
State Water Resource Control Board’s Mem. in Oppo. to Defs Mot. and in Supp. of Pi’s Mot. (filed January 22, 2004), at 2 (“The defendant-intervenors have improperly described the California doctrine of concurrent jurisdiction as it relates to public trust-related claims such as Section 5937 of the Fish and Game Code. [The California Supreme Court has] held that the doctrine of concurrent jurisdiction applies to public trust-related claim, such as the plaintiffs’ claim under Section 5937.”). This court independently concludes that the Board’s position is consistent with this court’s prior orders and with California case law. As the California Supreme Court explained in
National Audubon Society v. Superior Court,
4. D-935 Is Not Entitled to Preclu-sive Effect
Third, even if D-935 did address the merits of plaintiffs’ claim, it would be not be entitled to preclusive effect under the doctrine of claim preclusion.
The doctrine of claim preclusion “treats a judgment, once rendered, as the full measure of relief to be accorded between the same parties on the same ‘claim’ or ‘cause of action.’ ... [T]he effect of a judgment extends to the litigation of all issues relevant to the same claim between the same parties whether or not raised at trial.”
Haphey v. Linn County,
It is hardly clear from the record that the process before the State Water Resources Control Board was sufficiently similar to a judicial process to make claim preclusion appropriate.
Miller
makes clear that an administrative ruling is
only
entitled to preclusive effect when that proceeding “was conducted with sufficient safeguards to be equated with a state court judgment.”
The
Miller
court held that three threshold requirements, known as the
Utah Construction
factors, must be met: (1) that the administrative agency act in a judicial capacity, (2) that the agency resolve disputed issues of fact properly before it, and (3) that the parties have an adequate opportunity to litigate.”
More fundamentally, there can be no claim preclusion here because the parties have not, under
Miller,
had “an adequate opportunity to litigate.”
For the foregoing reasons, the court cannot conclude that the State Board’s past decision forecloses plaintiffs’ prеsent claim.
G. WHETHER THE BUREAU HAS VIOLATED § 5937
Finally, with the defendants’ various contentions having been dispensed with, it is possible to arrive at the question of liability under § 5937. As it happens, the issue as to the actual merits of plaintiffs’ first claim is among the least difficult of the issues presented.
In
Cal. Trout,
Justice Blease addressed how much water must be released into a dry river to comply fully with § 5937. “The answer,” he said, “is enough to restore the historic fishery.”
In opposing plaintiffs’ motion, the defendants have focused their energies on various reasons why their claims should be barred. There is no genuine dispute, however, as to whether- the Bureau has released sufficient water to maintain historic fisheries, and the record, in any event, is clear that the Bureau has not. The administrative record, which defendants strenuously insisted must be produced before the court could rule on the instant motions,
The Bureau, by its own admission, releases no water for this purpose and long stretches of the River downstream are dry most of the time. See Fed’l Defs.’ Resp. to Pife.’ “Sep. Statement of Undisputed Facts in Support of Plfs.’ Mot. for Summ. J.,” ¶ 8, at 3 (filed July 2, 1992). 12 Ten years ago, the Bureau commissioned the Department of the Interior’s Fish and Wildlife Service to investigate and report on Chi-nook salmon in the upper San Joaquin River. The opening page of the report states:
Historically, the upper San Joaquin River supported a large spring-run of chi-nook salmon. The annual spawning run of these fish numbered in the tens of thousands as late as the mid-1940s. Although only sparse or incomplete records are available, there probably was a fall-run of chinook salmon as well. Counts made at the Dos Palos USGS gaging station indicate that fall-run escapement averaged about 1,000 spawn-ers in the 1940s. Both of these salmon stocks were extirpated when Friant Dam became fully operational.
The extinction of these San Joaquin stocks can be directly attributed to inadequate instream flows, specifically, those which enable adult salmon to migrate upstream.... The project diverted nearly the entire river and a long reach of the waterway had been dried up.
U.S. Dep’t of the Interior, Fish & Wildlife Service, The Relationship Between In-stream Flow, Adult Immigration, and Spawning Habitat Availability for Fall-Run Chinook Salmon in the Upper San Joaquin River, California at 6 (Sept.1994) (citations omitted) (Macaux Deck, Ex. J). There can be no genuine dispute that many miles of the San Joaquin River are now entirely dry, except during extremely wet periods, and that the historic fish populations have been destroyed.
Accordingly, the court concludes that the Bureau of Reclamation has violated § 5937 of the California Fish and Game Code as applied to it by virtue of § 8 of the Reclamation Act of 1902. 13
IV.
CONCLUSION
For the foregoing reasons, plaintiffs’ motion for summary adjudication as to liability alone on their first claim is hereby GRANTED and the Friant Defendants’ and Chowchilla Water District’s motions
IT IS SO ORDERED.
Notes
. The federal defendants have filed а "Motion that the Court Deny Plaintiffs’ Motion for Summary Judgment.” The court construes defendants’ motion as an opposition to plaintiffs’ motion.
. Section 8 provides:
Nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interi- or, in carrying out the provisions of this Act, shall proceed in conformity with such laws ....
43 U.S.-C. § 383.
. That statute provides:
The owner of any dam shall allow sufficient water at all times to pass through a fishway, or in the absence of a fishway, allow sufficient water to pass over, around or through the dam, to keep in good condition any fish that may be planted or exist below the dam.
Cal. Fish and Game Code § 5937.
. The defendants’ disregard of the court’s order has caused plaintiffs to submit additional affidavits demonstrating standing on the part of current individual members of plaintiff organizations. See, e.g., Decl. of Barry Nelson, ¶¶ 6-9; Decl. of John Banks, ¶¶ 9-10; Decl. of Nick Di Croce, ¶¶ 4-5.
. In
National Wildlife Federation,
the Court considered a challenge to BLM’s land withdrawal review program, which the plaintiff cast as unlawful agency "actiоn” that should be "set aside” under § 706(2) of the APA. The Court rejected this challenge, explaining that the plaintiff "cannot seek
wholesale
improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made. Under the terms of the APA, [plaintiff] must direct its attack against some particular ‘agency action’
. In their supplemental letter briefs, the parties argue over the precise scope of the limitation on APA § 706(1) challenges announced in
SUWA.
The federal defendants' letter brief cites
ONRC Action v. Bureau of Land Management,
. It is, of course, true that § 5937's priority must be reconciled with the purposes of the CVPIA. As noted in § V of this opinion, however, there is no apparent reason that the statutes cannot be read as complimentary.
. It may be that the reasonableness provision of the CVPIA ultimately insulates the Bureau from the full rigor of the state statute. That
. I cannot help but note the irony of the defendants’ insistence on the sanctity of a decision by the Board which it denies.
. Amicus State Board has filed a request for judicial notice of the full text of Decision 935.
. In
Miller,
these factors were satisfied; the county commission had rendered its decision only after "a public evidentiary hearing at which Miller was represented, by coungel and was permitted to present oral and documentary evidence and to call witnesses.”
. At oral argument, the non-federal defendants asked, in effect, how far below the dam was "below the dam” for § 5937 purposes. It appears to the court that the inquiry begs the question. If the dam's operation interferes with the well being of the historic fisheries in the river, under Cal Trout, the dam must be operated to obviate that result.
. That this court has reached the conclusion that the Bureau has violated its duty hardly begins to address the problem of remedies. In this regard, the court notes not only the issue of whether the reasonableness component of the CVPIA constitutes an overlay on the Bureau's duties, but as the non-federal defendants noted in oral argument, farmers throughout the valley have dedicated their lives and fortunes to making the desert bloom. They did so in reliance on the availability of CVP water. That reality most likely should be taken into account when the court comes to address a remedy.
See Amoco Production Co. v. Village of Gambell,