San Luis & Delta-Mendota Water Authority v. United States

jurisdiction require about federal sensitive V. intent,

judgments congressional ju- about reasons, For the foregoing we reverse system.” power, dicial and the federal Id. the district court’s order denying Nevada’s motion to remand. The district court is Grable, Here, exercising unlike in feder instructed to remand this case question jurisdiction al would have more Eighth Judicial District Court in Clark “microscopic than a effect on the federal- County, Nevada. Grable, state division of labor.” 545 U.S. REVERSED. at 125 S.Ct. 2363. State fre courts quently protec handle state-law consumer predicated

tion suits that refer to or are on forth in

standards set federal statutes.

Exercising question jurisdiction federal

over state law claim that references a protection

federal consumer statute would potentially

“herald[] enormous shift of SAN LUIS & DELTA-MENDOTA WA- traditionally state cases into federal AUTHORITY; TER Westlands Water 319, 125 courts.” Id. S.Ct. 2363. District, Plaintiffs-Appellants, Attorney The Nevada brought General parens patriae this action in state court to

enforce its own protection state consumer Pixley Irrigation District; Lower Tule laws. alleges only Nevada state law Irrigation District; Tri-Valley River action, brought causes of protect Neva- District; Valley Irriga- Water Hills da circumstances, District; residents. Under these tion Kern Tulare Water Dis- trict; Rag District; the “claim of sovereign protection Gulch Water District; Stockton East removal Fresno powerful arises its most form.” County; County, McGraw, (internal Tulare Plaintiffs-In- 646 F.3d at 178 quota- tervenors, omitted). tion marks “[Considerations of comity make [federal reluctant courts] snatch cases which a brought State has Francisco; Institute of San Save State, from the courts of that unless some Bay Association; San Francisco Envi- clear rule demands it.” Franchise Tax Fund; ronmental Defense Natural Re- Bd., 463 U.S. at 21 n. 103 S.Ct. 2841. Council; sources Defense Pacific Removing a state’s action from its own Coast Federation of Fishermen’s As- courts must overriding ] an “serve[ federal sociations; Institute for Fisheries Re- McGraw, interest.” 646 F.3d at 178. sources; Anglers California, United Bank of America has not demonstrated Plaintiffs-Appellees, that any removal, “clear rule demands” v. nor that removal “serves an overriding Therefore, federal interest.” Nevada’s America, Depart- UNITED STATES strong sovereign in enforcing interest Interior, ment of the Bureau of Rec- state laws—and its state-law-created Con- lamation; Salazar, Secretary Ken sent Judgment the courts of its own Interior; Robyn Thorson, Region- —in weighs state in favor of remand to its state al Director of the United De- States system. court partment of the Interior Fish and Service, Region 1; Donald Wildlife Director,

Glaser, Regional United Department of the Interior Bu-

States Reclamation, Re- Mid-Pacific

reau of Defendants-Appellees.

gion, 09-17594.

No. Appeals, States Court of

United

Ninth Circuit. March 2011.

Argued and Submitted

Filed March Fresno, CA;

Thomas Birmingham, W. and Daniel J. O’Hanlon and Andrew P. Tauriainen, Kronick, Moskovitz, Tiede- Girard, CA, Sacramento, mann & for the plaintiffs-appellants. Koehler, remaining dispute L. Environmental De- to the classification of

Cynthia (“AF”) Fund, Francisco, CA; approximately and Paul acre feet San fense Thomas, Peters, through Hines & San Francis- water released between June 17 A. CA; 2004 from co, Katherine Poole and Jason the Nimbus and New S. (“latter Melones reservoirs June 2004 re- Malinsky, Natural Resources Defense leases”) Counsel, Francisco, CA, within plain- for the California’s Central San (the Project “Project”) “CVP” De- tiffs-appellees. fendant-Appellee Depart- United States Tanaka, Interi- Department Kevin (“Interior”), ment of the Interior acting Solicitor, or, Regional Office of Sacramen- through the United States Bureau of Rec- Moreno, to, CA; Ignacia S. Assistant (the “Bureau”) lamation (collectively, General, Attorney Environmental & Natu- Appel- “Federal Defendants” or “Federal Division, and Charles Shoek- ral Resources lees”). Plaintiff-Appellants San Luis & and David ey, Mergen Andrew C. S. Shil- (“San Authority Delta-Mendota Water Justice, ton, Department Washington, Luis”) and Westlands Water District D.C., defendants-appellees. for the (“Westlands”) (collectively, Agen- “Water “Appellants”)

cies” or contend that Interi- or abused its discretion in failing apply against the latter June 2004 releases AF especially desig- of CVP fish, wildlife, nated and habitat restora- 3406(b)(2) tion under section of the Central A. FLETCHER Before: WILLIAM Valley Project Improvement Act SMITH, JR., and MILAN D. Circuit (“CVPIA”), 102-575, Pub.L. No. 106 Stat. WU, H. Judges, and GEORGE District (1992) (“section (b)(2)” 4600, 4715-16 Judge.* “(b)(2)”). jurisdiction pursuant We have to 28 WU; by Judge Partial Opinion § U.S.C. 1291. Because we find that the by Judge Partial Concurrence and Dissent Agencies standing Water have and the ac- SMITH, MILAN D. JR. counting which Interior conducted for the latter June 2004 releases did not constitute OPINION discretion, an AFFIRM abuse of we WU, Judge: District granting summary district court’s orders “One of the most contentious issues judgment Appellees in favor of the Federal manage- the western United States is the against Appellants.1 water ment of resources.” Westlands Wa- Interior, Dep’t v. 337 F.3d ter Dist. U.S. of BACKGROUND (9th Cir.2003) (“Westlands 1092, 1100 Wa- ”). Valley Project A. The I Central ter Dist. long-running largest a The is the nation’s federal appeal This arises from CVP present management project. which has to the Central Delta conflict devolved Wu, (E.D.Cal.2008) (“SL I"), George H. United States & DM Water Auth. *The Honorable reconsideration, and, Judge of Cali District for the Central District on motion 624 fornia, sitting by designation. (“SL (E.D.Cal.2009) F.Supp.2d & DM 1197 II"). Water Auth. Luis & Delta-Mendota Water Auth. See San Interior, Dep’t F.Supp.2d 777 v. U.S. 637 of 682 Reclamation, Co., v. Bureau Live Agency Water Gerlach Stock 339 U.S. Cir.2006) (“Cen- (9th 1021, 955, (1950)). 70

452 F.3d S.Ct. 94 L.Ed. 1231 The States, ”); v. tral Delta II United reservoirs within the have a CVP total Orff (9th Cir.2004). 1137, AF, The capacity approximately F.3d Cen- 11 million Valley tral of California extends 450 miles which 7 million AF is in an released aver- Department beginning Valley, age year. south at the Sacramento See California River which contains the Sacramento and Resources, California State Water tributaries, Project and is 100 miles wide on Valley Project, and the Central Rank, 609, average. Dugan v. 372 U.S. http://www.water.ca.gov/swp/cvp.cfm (1963). (“CDWR Website”) (last 999, S.Ct. 10 L.Ed.2d 15 January visited 2012). The Sacramento River runs southward supplies “The CVP two hun- Valley’s districts, northern edge, through from the dred water providing water for Sacramento, City thirty and then onward about people, irrigating million Cali- to the Francisco productive San and into the fornia’s most agricultural re- portion Pacific Ocean. Id. The southern of gion generating electricity at nine the Central includes the powerplants.” San Joa- Westlands Water Dist. v. River, Interior, quin which runs from Dep’t the Sierra U.S. 376 F.3d (9th Fresno, Cir.2004). Nevada northeast of towest Men- dota, join and then northwest to the Sacra- operated by CVP is the Bureau. mento River at the Joa- Sacramento-San I, Westlands Water Dist. 337 F.3d at 1096. quin Delta. Id. The San Francisco The Bureau’s control of the CVP water is Bay/Sacramento-San Joaquin River Delta subject plethora to a of federal statutes Estuary (“Bay-Delta”) lies at the conver- regulations governing many areas in- Sacramento, gence of the Joaquin, San (1) cluding, but not limited to: the release rivers, other and forms the centerpiece of (see, of the e.g., section 3406 of fragile ecosystem. massive and (2) CVPIA), (see, e.g., goals

One of the initial Act, 1321), § CVP was Clean Water 33 U.S.C. (3) to provide transportation for the of “sur- impact of the releases on the envi- plus” waters Valley (see, within the Sacramento ronment e.g., and wildlife San Luis & to the San River permit Salazar, and to Delta-Mendota Water Auth. v. (9th “the 1163, Cir.2011)) (“The waters of the latter river to be divert- 638 F.3d 1171 ed to new irrigation areas for ‘no-jeopardy’ and other provision in Endangered [the Id. “To accomplish Act, 1536(a)(2)] needs.”2 the project’s Species § 16 U.S.C. re- purposes, CVP’s quires construction includes a an agency to ensure any action dams, reservoirs, many series of hydro- it likely takes ‘is not jeopardize power stations, canals, generating electri- continued existence of endangered or lines, cal transmission omitted.]”). infra- other threatened species.’ [footnote I, structure.” Westlands Water Additionally, Dist. 337 the Bureau has entered into F.3d at 1095-96(citing United States v. over 250 long-term contracts for the deliv- percent 2. "[W]hile over 70 Bay-Delta, of the [state's] water from the and over seven Sacramento, nearly stream flow lies north of highly productive million acres of land are percent 80 of the supplies demand for water irrigated from the same source.” See In re originates regions in the southern of the Bay-Delta Programmatic Impact Report Envtl. state.'' United v. States State Water Res. Con- 1143, Proceedings, Coordinated 43 Cal.4th Bd., 82, 98, Cal.App.3d trol 182 Cal.Rptr. 227 1153, 578, Cal.Rptr.3d 77 184 P.3d 709 (1986). 161 "Two-thirds of California house- (2008). holds receive at least some of their domestic

683 peri- water Quantities of this stored are agricultural, to various ery of CVP water Pumps into the Delta. odically in addi- released industrial, entities and commercial edge at the southern of agencies. See situated municipal water tion Cases, lift the into ca- eventually 136 Delta water Bd. Res. Control Water State transport 189 south to the farmers Cal.Rptr.3d 39 nals Cal.App.4th (2006). municipali- and the Central California. ties of Southern Water Valley is the the Central Also within exported stored nor which is neither (“SWP”), Project State Water California through the Delta where it passes south storage includes which faeilities/reservoirs farmers, by local industries and is used annu AF of water and million (holding 5.8 The excess flows out municipalities. AF), average of 3 million delivering an ally Bay. into the San Francisco and about 700 power plants, hydroelectric See pipelines. canals and open miles of operation of the The construction largest The SWP is stressors, Website. CVP, CDWR other has had a along with country in the project water state-built native devastating upon effect California’s Depart managed California populations, including, particular, fish (“CDWR”). Resources ment Bay-Delta In re its native salmon. See Ass’ns v. Fed’n Fishermen’s Pac. Coast Impact Report Programmatic Envtl. Coor- 1122, Gutierrez, F.Supp.2d 1128 1156, at Proceedings, dinated 43 Cal.4th (E.D.Cal.2008). The CVP and SWP share 578, Cal.Rptr.3d 184 P.3d 709. Anadro- and, years, thirty for over salmon, facilities fish, certain particularly such as are mous increasingly in an coordinat operated have changes patterns, in flow salin- sensitive agreements to various pursuant manner ed ity, temperature and other conditions Id.; Bureau and the CDWR.3 Bay-Delta estuary. between upstream v. Res. Council see also Natural Fed’n Fisher- generally See Pac. Coast Def. 322, F.Supp.2d Kempthorne, Gutierrez, F.Supp.2d men’s Ass’ns v. (E.D.Cal.2007). (E.D.Cal.2008). 1218-23 Most ex- salmon face serious risk of California’s Water Res. Con- As described State tinction.4 Id. 1250-53. Bd., Cal.App.3d at 227 Cal. trol 161: Rptr. B. The CVPIA Joaquin] Delta The [Sacramento-San CVPIA, by Congress enacted as a conduit for the transfer serves authorizing leg- amended the projects. CVP’s by the statewide “mitigation, protec- divert water islation elevated Both the and the SWP tion, of fish and wildlife” to Delta and restoration rivers that flow into the from the irrigation. Project par on with purposes in reservoirs. and store the water example, the winter run chinook salm Con 4. For State Water Resources 3. “The California grants permits appropri August, Board threatened in trol on “which was listed as appropriates 1989, CVP. The Bureau ation from the endangered, under the and is now is it to various sources and delivers water from jurisdiction the National Marine protective Service____” West permit holders for beneficial uses.” Res. Fisheries Natural Def. I, "Un 337 F.3d at 1096. lands Dist. Houston, 1118, (9th F.3d 1124 v. Council Act of 1902 8 of the Reclamation der section 1998). Cir. 383), (43 required § Bureau U.S.C. is acquiring water comply law in with state storage rights and of water for the diversion by the CVP.” Id. at 1101. 3406(a)(l)-(2), 1531, seq., § et and all § 106 Stat. U.S.C. decisions of See CVPIA States, 4714; O’Neill v. United Resources see also California State Water Con- (9th Cir.1995) (“CVPIA establishing appli- F.3d trol Board conditions on modifying in reclamation law permits marks a shift cable licenses and for the project.” uses.”). The overall priority of water Id. are: purposes of the CVPIA Secretary further charged sec- (a) restore, protect, and enhance 3406(b)(1) developing imple- tion with and wildlife, fish, and associated habitats in menting, years within three Valley Trinity and River Central enactment, “a program CVPIA’s which California; basins of makes all reasonable efforts to ensure (b) impacts to address of the Central that, year production natural fish, Valley Project on wildlife and asso- Valley of anadromous fish Central rivers habitats; ciated sustainable, long- and streams will be on a (c) improve operational flexibil- basis, term at levels not less than twice the Project; ity Valley of the Central average during period levels attained ”5 (d) 3403(a) to increase water-related benefits of 1967-1991.... Id. Section de- provided by Valley Project the Central fines “anadromous fish” as “those stocks of through to the State of California ex- steelhead), bass, (including striped salmon panded voluntary use of water transfers sturgeon, and American shad that ascend conservation; improved Joaquin the Sacramento and San rivers

(e) and their tributaries Sacramento- to contribute to the State of Cali- Joaquin reproduce San Delta to after ma- long-term fornia’s interim and efforts to turing in San Francisco or the Pacific Bay/Sacra- protect the San Francisco Ocean.”6 Id. at 4707. Estuary; mento-San Delta (f) to achieve a reasonable balance 3406(b)(1)(B) Section of the CVPIA among competing demands for use of states that: water, Valley Project including Central goals As needed to achieve the of this wildlife, requirements of fish and doubling] program, [anadromous fish agricultural, municipal and industrial Secretary is authorized and directed to power contractors. modify Valley Project opera- Central 4706; § CVPIA 106 Stat. at Central provide quality, tions to flows of suitable II, Delta 452 F.3d at 1023-24. quantity, timing protect all life stages fish, Section 3406 of the deals except CVPIA with of anadromous “fish, wildlife and habitat restoration.” such flows shall provided ^[1] from the 3406(b) fish, at 4714. quantity Stat. Section states of water dedicated to wild- (“Secre- Secretary life, that the of the Interior and habitat restoration un- (2) tary”) operate “shall the Central der paragraph of this subsection Project to meet all obligations under State [§ 3406(b)(2) ]; ^[2] the water sup- law, (3) including and Federal but not plies acquired pursuant paragraph limited Act, 3406(b)(3)]; to the Endangered Species Federal of this subsection [§ average provision 5. This "twice the levels" principal is 6. "The anadromous fish of concern management Valley sometimes referenced as the "anadromous to the of the Central Pro- Coal, See, doubling" program. e.g., ject fish a is the Chinook salmon....” Central Delta for McCamman, States, 938, Agency Sustainable Delta v. 725 Water v. United 306 F.3d (E.D.Cal.2010). (9th Cir.2002) ("Central I"). F.Supp.2d 1198 945 n. 4 Delta

685 rights, do not agricultural other sources which and associated land.” 106 Stat. at 4716. with fulfillment of the Secre conflict remaining obligations tary’s contractual Requirements C. Objectives Outflow and water Valley Project Central provide to To present understand the dispute, purposes. authorized for other familiarity required some as to the “out 3406(b)(2) provides at 4715. Section Id. provisions flow” for certain portions of the Secretary part that the shall: waterways part pursuant enacted in upon enactment of this thousand habitat restoration ures the Central limited Project yield gations enactment to and sist the or Federal Estuary; co protect implementing Bay/Sacramento-San Federal authorized manage annually eight State of and the waters of the acre-feet of may of this additional Valley Project law for Endangered Species ^{[3] [1]} California to following title, legally purposes the this help fish, wildlife, obligations including title; Central title[,] dedicate meet such Joaquin imposed upon San under State and meas- ^[2] Francis- hundred purpose date of but not efforts to as- under Delta obli- Act. and Dep’t PUD to the S.Ct. ter ters istrative goals scheme that implicates both federal and state admin- to standards each [T]he consist of §§ ... A institute 1900, 128 1311(b)(1)(C), Act, No. of Section [commonly state water Clean State, subject complex Ecology, for responsibilities.... 33 U.S.C. of Jefferson the designated comprehensive establishing Water Act. 303 of the Act L.Ed.2d 716 governs all statutory known as the Clean Wa- 1313.... intrastate waters. to § U.S. 1251 et our Nation’s wa- federal As observed in Cnty. standard “shall and (1994): water quality water ... uses of the regulatory v. Wash. seq.] approval, requires quality ... 4715-16;7 I, navigable see Delta waters involved and the Id. at also Central water for 945; II, quality criteria such waters based at 306 F.3d Central Delta upon such uses.” 3406(b)(3) 33 U.S.C. F.3d at 1024. Section directs 1313(c)(2)(A). § Secretary a develop implement “for program acquisition of water the California State Re- supplement supply quantity water (“SWRCB”) sources Control Board un- dedicated fish and wildlife adopted Quality the “Water Plan Control 3406(b)(2) der which “the fol- [§ ]” utilizes the Sacramento-San Delta and lowing options: improvements in or modi- (the Plan”) Suisun Marsh” “1978 that es- operations project; fications of the water quality tablished new standards conservation; banking; water [water] salinity control and for fish and wildlife transfers; conjunctive use; temporary Delta, protection in the into which took permanent fallowing, including land account the combined massive effects lease, water, purchase, option the CVP and SWP.8 See Res. State Water Valley Project yield” Valley Project applicable 7. "Central is defined as the Central under delivery existing law capability "the Central State or Federal at the time of [water] this title Valley Project during drought enactment have been met.” the 1928-1934 3406(b)(2), § CVPIA 106 Stat. at 4716. fishery, period quality, after and other operational requirements imposed flow and licenses, Bd., existing terms conditions State Water As stated in Res. Control permits, agreements pertaining Cal.App.3d Cal.Rptr. and other 161: 686 Bd., 97-98, Cal.App.3d at Agency, Secretary

Control Protection and the CaLRptr. part plan, 161. As Agency) plus the California Resources cer- appropriation per modified the SWRCB (such tain parties interested as Plaintiff- by mits held the Bureau and the CDWR to Francisco, Appellee Bay Institute of San require the and the to release SWP Luis, Appellant San and the Environmen- (via flows) more into the Delta water Fund) tal Defense entered into a compact exports to curtail their of water from the “Principles Agreement entitled on diversions) (by pumping Delta means of Bay-Delta Standards between State of necessary as to maintain the quality water California and the Federal Government” 119, plan. standards under Id. at 227 (“Bay-Delta Accord”), available http:// at 1986, Cal.Rptr. 161. In certain of those calwater.ca.gov/content/documents/library/ quality water standards were deemed in (last SFBayDeltaAgreementpdf visited by valid a of Appeal, California Court inter 2012). 30, January 1, Bay-Delta Accord at (1) alia, improperly because the SWRCB: agreement 4-5. That contained detailed protection purportedly considered the interim measures for environmental pro- rights in vested water its formulation of quality tection and water standards for the (2) standards, failed to include in Bay-Delta.9 Bay-Delta See In Re Pro- analysis all quality sources of water grammatic Impact Report Envtl. Coordi- degradation upstream such as diverters Proceedings, 1156, nated 43 Cal.4th at 117-18, polluters. Id. at 227 CaLRptr. 578, Cal.Rptr.3d 184 P.3d 709. Included 1994, 161. In December order to “[i]n therein were provisions, water outflow provide ecosystem protection Bay- for the standard, salinity new a spring “pulse Estuary,” Delta representatives various requirement flow” on the Joaquin San Riv- state agencies California and federal Interior, er at (including Secretary of the Vernalis.10 See Central States, Administrator of the Agency Environment v. United 327 F.Supp.2d major affecting consumptive The factor (agricultural, water uses industrial and 115, municipal) the Delta is saltwater intrusion. of the Delta Delta waters.” Id. at lands, level, CaLRptr. 161. situated at or below sea are constantly subject to ocean tidal action. 9. The interim measures were "intended to be entering Salt water from San Francisco years....” in force for Bay-Delta three Ac Delta, Bay extends well into the and intru- cord at 1. sion of the saline tidal waters is checked only by by the natural barrier formed fresh 10. As observed in PUD No. 511 U.S. at flowing water out from the Delta. 114 S.Ct. 1900: increasingly But as fresh was water di- agricultural, verted from the Delta for in- cases, many quantity closely water municipal development, dustrial and salini- quality; related water a sufficient lower- intensified, ty particularly during intrusion ing quantity body of the water in a of water dry years summer months and in of low uses, destroy designated could all of its be it precipitation sys- and runoff into the river water, recreation, drinking navigation tems. or, here, fishery. aas major purposes One projects of the of the portion In reference to the southern of the was salinity containment of maximum in- Delta, Joaquin Sacramento-San it has been By storing trusion into the Delta. waters region quality deg- noted that: "In this during periods heavy releasing flow and radation is caused not oceanwater intru- flow, during times low the fresh- mainly by upstream depletions sion but water barrier could be maintained at a con- San River and salt infusion from irri- stant level. gation waste-water runoff carried the San primary purpose underlying Bd., the 1978 Joaquin River.” State Water Res. Control salinity protect Plan "was Cal.App.3d Cal.Rptr. control order to (3) (E.D.Cal.2004). Bay-Delta uses” —and “fish and wildlife beneficial 1180, 1194 that language “[a]ll quality objectives Accord also contained and water were uses” pursuant to these provided CVP water category. for each then established See be credited toward Principles shall WQCP at qual- 14-15. Certain water 3406(b)(2) of under Section obligation criteria/objectives ity overlap two or more Project Improvement the Central designated categories. For exam- project acre feet of provide Act to prevention salinity an ple, intrusion is purposes.” Bay-Delta specified for categories. element as to all three Accord at 3. WQCP at 14. adopted May SWRCB quality objectives for fish and Plan for the San Quality Control “Water wildlife beneficial uses are set out in Table Joaquin Bay/Sacramento-San Francisco WQCP. requirements 3 of the 1995 Those (“1995 WQCP”), Estuary, 95-1 Delta WR” (1) objectives cover: “Delta outflow ... http://www.swrcb.ca.gov/ available at protection included for the of estuarine waterrights/water_issues/programs/bay_ habitat for anadromous fishes and other delta/wq_controLplans/1995wqcp/docs/ (2) estuarine-dependent species”; “Sacra- (last January visited 1995wqcpb.pdf mento and objec- San river flow 2012). WQCP The 1995 covered certain ... provide tives included to attraction Bay-Delta included in the Ac- measures transport and flows and suitable habitat for the Delta provided cord and outflow stages aquatic organ- for various life in- objectives flow that are and Vernalis isms, including Delta smelt and chinook in this case. The 1995 also volved (3) salmon”; “[(Objectives export for “beneficial identified seventeen uses” ... protect limits included to the habitat water.11 Those utilizations CVP/SWP estuarine-dependent species by reduc- were, turn, placed general into three (1) ing the stages entrainment of various life categories: “municipal and industrial (2) uses,” major “agricultural export pumps beneficial beneficial in the south- (1) (12) Habitat,” (13) "Municipal “Migra- 11. Those seventeen uses are: "Cold Freshwater Supply” community, Aquatic Organisms” mil- and Domestic tion of of water "[u]ses —"for — itary, supply systems support necessary migration or individual water in- habitats for to, cluding, drinking temporary by aquatic but not limited water or other activities or- (2) fish,” (14) supply,” Supply”— ganisms, "Industrial Service such as anadromous including, “Spawning, Reproduction, Early activities ... but not De- “for industrial and/or to, mining, cooling supply, hy- velopment” support limited of water that "[u]ses— conveyance, gravel washing, pro- high quality aquatic fire suitable for re- draulic habitats tection, fish,” (3) repressurization,” production early development and oil well (15) Supply” "Industrial Process industrial “Estuarine of water “[u]ses Habitat” — —"for depend primarily support ecosystems including, activities that on water estuarine to, (4) quality,” "Agricultural Supply” including preservation but limited or enhance- — habitats, horticulture, fish, "farming, ranching” pur- vegetation, or ment of estuarine shellfish, (5) (6) mammals, poses, Recharge,” (e.g., "Ground Water or wildlife estuarine waterfowl, (7) shorebirds),” (16) "Navigation,” “Water Contact Recre- "Wildlife Habi- “mammals, birds, wading, "swimming, tat” —estuarine ation” —such as water- habitats invertebrates,” skiing, diving, surfing, reptiles, amphibians, skin and scuba white activities, "Rare, Threatened, (17) fishing, Endangered Spe- or use of natural hot or (8) springs,” support "[u]ses "Non-Contact Water Recre- of water that habitats cies”— "hiking, beachcombing, necessary, part, ation"' —such as least survival plant camping, boating, tidepool life maintenance of or animal and marine successful (9) study, hunting, sightseeing,” species "Shellfish established under State or federal law rare, threatened, (10) endangered.” Harvesting," Sport being "Commercial and Habitat,” (11) Fishing,” "Warm Freshwater at 12-13. WQCP objectives quality at 15. The water delineated in Ta- ern Delta.”12 objectives in State Water Res. Control ameter for those was the net 12. As delineated 701-03, Cases, (outflow index). Cal.App.4th at 39 Cal. Delta outflow index The Bd. Rptr.3d representing outflow index was a number 189: flowing the net amount of water out of salinity SWRCB] established various [The Delta, by the which was to be calculated protection objectives the reasonable of “for taking flowing the amount of water into [agriculture use] as a beneficial from subtracting figure the Delta and from that salinity agricultural intrusion and effects of interior, being the amount of water western, consumed in drainage in the being the Delta and the amount of water protect and wild- southern Delta.” To fish exported example, from the Delta. uses, WQCP] For established ob- [1995 life every year September, [1995 jectives parameters: oxy- for six dissolved WQCP] required monthly a outflow, minimum av- gen, salinity, amounts of Delta 3,000 erage outflow index of flows, limits, cubic feet export and Delta cross- river (cfs) per flowing second of water to be gate operation. plan The channel also in- protect out of the Delta to habi- estuarine objective a cluded narrative for salmon ([1995 WQCP], pp. tat within the Delta. protection ... 15, 19, 25.) Salinity Objectives 1. The Southern Delta Objectives 3. The Vernalis Flow adopted salinity The [SWRCB] various part objectives As river flow in the objectives plan (expressed in the as elec- WQCP], EC) [1995 set mini- [SWRCB] conductivity protect agri- trical or monthly average mum western, interior, flow rates on the cultural uses in the (the Joaquin San River at Vernalis Ver- protect agricultural southern Delta. To Delta, objectives). flow nalis The ex- [SWRCB] uses in the southern the [SWRCB] plained that "Sacramento and San Joa- adopted salinity objectives to be met at quin objectives river flow are included to [including four different locations the] provide transport attraction and flows Joaquin Airport Way Bridge, San River at (the stages and suitable habitat for various life salinity objec- Vernalis tive). Vernalis WQCP] aquatic organisms, including Delta specified ... [1995 The part smelt and chinook salmon.” One objectives as 0.7 EC [a measure of electri- objectives the Vernalis flow conductivity] April through was a cal from Au- "pulse” gust during 31-day period flow a September through and 1.0 EC from (the April May year March.... of each Vernalis WQCP] pulse objective). Objective Delta flow [1995 The The Outflow regulated average Water flow can be a called during as water for an flow rate because, objective quality period ranging WQCP], cfs, explained depending type year [SWRCB] in the [1995 on the of water quantity salinity “the rate and flow ... are and on certain measurements. physical WQCP] properties or characteristics of [Footnote omitted.] The [1995 impact specified the water” which “have an peri- on the also that while the default Bay-Del- beneficial pulse April uses of” water in the od May for the flow was 15 to Thus, objective ta.... a flow period may sets the time "[t]his be varied flowing amount of water that monitoring. must be based on real-time One given pulse, separate pulses watercourse at a time "for the or two of combined protection equal single reasonable pulse, beneficial uses duration should Obviously, meeting water.”---- migra- [the] be scheduled to coincide with fish achieved, objective may such an in San tion River tributaries and among ways, by reducing other period the Delta. The time for this 31- upstream amount of day requirement water that flow will be determined right operations group holders divert from the watercourse established un- ([1995 increasing Agreement.” amount of water der the Framework WQCP], 21, [18].) p. released into the watercourse. table fh. [WQCP], Objective In the 1995 the [SWRCB] ex- 4. The Salmon Protection WQCP] plained objectives that "Delta outflow [1995 are The also included a narra- protection objective included for the protection of estuarine tive of salm- on, habitat for anadromous provided: fishes and other which "Water con- maintained, estuarine-dependent species.” par- together ditions shall be with all consumptive “for the reasonable able needs of of the ble 3 are established nonconsumptive on enumerated beneficial demands the waters of the protection” Estuary. 17 which cover uses of through uses (1) or cold “wa- support: warm at 14-15. The 1995 limited ecosystems including, but not ter following also contained the concession re- to, of aquatic or enhancement preservation garding protection salmon and the wildlife, habitats, vegetation, fish or includ- anadromous fish doubling goal: CYPIA’s (2) invertebrates”; necessary habitats ing implementation “It is uncertain whether of early development, mi- reproduction, for objectives the numeric plan this alone temporary activities gration other and/or in achieving objec- will result the narrative including, but not aquatic organisms of protection.” tive for salmon (3) fish; to, and estua- limited anadromous at 28. fish, shellfish, ecosystems for inverte-

rine response petitions from the CDWR mammals, brates, amphibians, reptiles, change points and the Bureau “to of diver- rare, waterfowl, for including habitats (CVP) Valley Project sion of the Central endangered plant or animal threatened or (SWP) Project and the State Water in the 12-13, WQCP at species. 1995 15. Addi- change southern Delta” and “to the use objectives in tionally, quality the water CVP,” purpose of use of the protection for certain provide Table 3 also in March SWRCB 2000 issued the “Re- fish, uses that do not involve beneficial Right vised Decision 1641.” Water See In wildlife, habitat restoration such as Matter Implementation of: “[ujses travel, shipping, for of water Quality Objectives the San Francisco military, transportation by private, other Bay/Sacramento-San Joaquin Delta Estu- or commercial vessels.” Id. ary, http://www.waterrights. available at (“D-1641”). designated ca.gov/Decisions/D1641rev.pdf As to Delta outflow and river flows, explained the 1995 observed that: As therein: objectives Currently, pa- places water the authorized

Unlike oxygen, in the right per- rameters such as dissolved use [Bureau’s] chemicals, and toxic which mits do not all cover the same area. temperature, beyond commingles threshold levels which ad- Because the [Bureau] have impacts large to the beneficial uses oc- water from several reservoirs and verse works, cur, separate there are no defined threshold con- diversion and because objectives permits that can be used to set for these facilities have different ditions operations. requirements, In- it im- project [Bureau] for flows finds stead, practical information the available indi- infeasible ensure protection appropriated specific per- that a continuum of ex- under a cates only mit Higher exports ists. flows and lower is delivered to lands within the protection place specified permit. for the of use in the Ac- provide greater bulk cordingly, practice limit is to up [Bureau’s] of estuarine resources to the Therefore, any conditions. deliver water from source to unimpaired objectives must be set based on a location within its service area without these subjective ensuring appropriated that water under determination of the reason- watershed, provisions and fed- tent with the of State measures in suffi- [other] ([1995 WQCP], doubling p. cient to achieve a of natural law.” table eral 3.)

production from the of chinook salmon 1967-1991, average production consis- objectives only delivered to flow while the San Riv- permit a specific effect, permit.... Agreement in the To the er is in places specified [SWRCB] delivers water that the to establish the minimum [Bureau] ‘fail[ed] extent flows permitted place necessary to achieve the places salmon-doubling outside ” however, use, operating Cal.Rptr.3d it is inconsis- standard.’ Id. at tently with the terms and conditions of Challenges D. Previous This Liti- permit. gation to Implementa- Interior’s approved The SWRCB D-1641 at 119. 3406(b)(2) § tion of CVPIA permit places of CVP consolidation remedy prior poten- the Bureau’s

use Water allocations under the CVPIA tially practice. D-1641 at “inconsistent” generated approximately years have of 119-21. case, in protracted litigation this address- ing sequential four deci- administrative

Additionally, approved, D-1641 for a regarding implementation sions of years, conducting period of twelve the Ver- 3406(b)(2). began section The case as a Adaptive Management Plan nalis challenge by San Luis to Interior’s “Ad- (“VAMP”), experimental program an to on Proposal Management ministrative of impact changes determine the relative 3406(b)(2) (“Administra- Section Water” in in export flow and limitations the San Proposal”), 1997, tive in issued November Joaquin River on chinook salmon. D- See separate and was later consolidated with a 2, provides 17. The 1641 at VAMP for challenge brought various environmen- target gage certain flows at the Vernalis interests, including tal Plaintiff-Appellees on during 31-day the San River Institute of San Francisco and period in April-May and a concomitant (“Environmental Parties”). others potential in reduction SWP and CVP water 9, district court issued an April 1999 or- exports depending upon the amount of granting der a partial judgment finding hydrological available water due to condi- that the Administrative Proposal was defi- tions. Id. 19-20. agency, cient. After remand to the Inte- A challenges number of were raised to 5, rior released its October 1999 “Decision 2006, the D-1641. In appeal on of consoli- 3406(b)(2) on Implementation of Section challenging adoption, dated cases a Cal- Project Improvement the Central held, alia, ifornia of Appeal Court inter (“1999 Decision”), Act” setting forth the adopting portions that in of the D-1641 the in manner which it would calculate CVP SWRCB erred because it “was not entitled yield in accordance with the CVPIA and implement to objectives alternate flow (and how it manage) would account for agreed various in parties interested the use of the AF of dedicated objectives lieu of the flow actually provided yield. WQCP]____[and for in [1995 failed it] adequately 16, implement salinity 1999, certain On November San Luis filed a objectives WQCP] in the [1995 and failed First Amended Complaint challenging the to implement the minimum flows neces- 1999 Decision. A Second Amended Com- sary achieve objective plaint the narrative for adding Plaintiff-Appellant West- (and protection salmon WQCP].” updating lands challenge [1995 to the Cases, Decision) 5, State Res. Control Bd. 136 1999 April was filed on Therein, Cal.App.4th at 39 Cal.Rptr.3d 189. Appellants argued specific holdings “by One of the was that required Federal Defendants were to cred- failing all implement against of the Vernalis it AF allocation of CVP (b)(2) satisfy any require accounting water, used to yield all water use WQCP either the 1995 or the procedures ments under management and account- (“ESA”), Act Endangered Species (b)(2) 16 ability for the dedicated water.” § seq. U.S.C. 1531 et The district court The May 2003 Decision incorporated the agreed, writing in its October 2001 parts of the district ruling regard- court’s “if Decision that it were left Memorandum ing mandatory treatment of water to Interior’s ‘discretion’ whether or not to uses under the 1995 post- and/or (b)(2) pur count used for such requirements CVPIA ESA chargeable the annual TAF poses, [thousand acre against the dedicated yield.13 illusory.” cap would be See San Luis feet] On June we issued a memoran & Delta-Mendota Water Auth. v. U.S. opinion Bay dum Institute San Fran Interior, Dep’t F.R.D. States, cisco v. United 66 Fed.Appx. 734 (E.D.Cal.2006). particular, the district (9th Cir.2003), affirming part and re law, court held that a matter of “[a]s [the versing part the district court’s March statutory] language ambiguous is not —wa partial judgment. In particular, we post-CVPIA ter used meet overruled the district court’s decision re requirements an ESA additional garding Interior’s lack of discretion ac purpose charged against and must be (b)(2) counting any for water used for pur (b)(2) TAF if 800 mandate so used.” Id. (such pose WQCP as for 1995 or post 20, partial The district court’s March 2002 CVPIA requirements) against ESA (b)(2) judgment accounting certified the 800,000 Project yield.14 AF of appeal pursuant issues for to Fed.R.Civ.P. 54(b). Both Agencies the Water and the 17, 2003, On December the Bureau’s Re- appealed. Environmental Parties gional Director and the United States Fish (“USFWS”) and Wildlife Service’s

During pendency appeal, of that Califor- Operations agency Manager Interior issued a “final action” en- issued a nia/Nevada joint memorandum on Implementation titled “Decision on of “Guidance for Im- 3406(b)(2) 3406(b)(2) plementation Valley Section of the Central Section (“2003 9, Memo”) Project Improvement May CVPIA” 2003” Guidance which Act— Decision”) (“May “supplement 2003 which set out “the was intended to May the] ..., Decision, yield calculation of CVP the method light 2003 of the June 2003 May 13. The addressing public 2003 Decision stated: comments to an earli- decision, er draft of the Interior will continue to fulfill the Federal Defen- commit- WQCP Bay-Delta ment to meet the specifically "only meeting 1995 dants observed that (SWRCB D1641). obligations These costs post-1992 WQCP requirements and ESA will be accounted as the [sic] increase in may not be sufficient to meet the anadromous exports, compared releases and decrease in doubling goal fish pur- and other restoration exports to releases and that would have poses and measures included in the CVPIA.” oper- resulted from simulated CVP baseline I, See SL F.Supp.2d & DM Auth. 637 during period. ations the same CVP The 781 n. 1. operated will be in accordance with the WQCP obligations obligations. and ESA incorporat- To the extent that Interior had Interior will account for the total amount of May ed into its 2003 Decision the district meeting CVP water costs associated with position required counting court’s which all obligations WQCP obligations and ESA post-CVPIA 1995 ESA releases imposed against after enactment of CVPIA (b)(2) against yield, it would have been in allocation, (b)(2) up the annual to the bal- error. (b)(2) remaining ance of at the time the cost is incurred. carefully weighed actions are priority The Guidance Ruling.” Ninth Circuit in the de- against the standards that: Memo noted Fur- and wildlife benefits.” signed for fish specifically Decision May ther, provided the 2003 Guidance Memo 200,000 target up for a provides realized projected that “if the and/or through in the of use October acre-feet year WQCP/ESA accounting for the costs high prior- primarily for January period, (b)(2) wa- acre-feet exceed Moreover, uses. ity and wildlife fish ter, will Bureau] [USFWS] [the to the 1995 Wa- pursuant actions taken the best course confer to determine Plan and State Wa- Quality ter Control action.” Control Board Decision ter Resources (“the WQCP”) involve the

D-1641 January we issued an On management Central dedication in Institute San decision amended States, Project yield long-term fish- v. Francisco United Fed.Appx. protection. Cir.2004) use and Such ery (9th ”).15 beneficial (“Bay Institute On help agri- taken to meet actions are not Interior’s discretion not to the issue of and industrial wa- municipal cultural or secondary charge used for that are set forth ter standards account, AF purposes against WQCP. fishery Most of the in the 1995 we stated: objectives under the beneficial uses concluding court erred in The district in Reclamation’s water WQCP and that Interior lacks discretion to refrain fish, help fulfill the wild- rights permits Project crediting the amount of life, habitat restoration yield actually pur- used for authorized and measures Section 800,000 pose against designated acre 3406(b). Consistent with the June Project yield. To hold otherwise feet decision, much of the 2003 Ninth Circuit for primary purpose would defeat the (b)(2) man- that is dedicated and water 800,000 desig- acre feet were which annually help fishery to meet bene- aged fish, wildlife, and habitat resto- nated — objectives protection ficial use and 3406(b)(2) provides that ration. Section 3406(b)(2)’s WQCP 1995 serves Section 800,- “primary purpose” to which the wildlife, fish, purpose” of and “primary is the 000 acre feet should be dedicated habitat restoration. “fish, wildlife, implementation of Memo, authorized Also, purposes habitat restoration under the 2003 Guidance 3406(b)(2) title ... agreed year [sic]” to start each “with this Section agencies (b)(2) 800,000 300,000 feet provides feet of also that the acre targets upof to acre “help” obligations to meet annually high priority may fish and be used water Endangered Species Act and “up actions” and to acre- under wildlife (b)(2) annually help meeting quality meet to “assist” water feet of water However, If obligations.” required standards. Interior were and ESA or all the water it uses for recognized guid- deduct some agencies “[t]his Endangered Species but assures water caps ance does not establish Project yield”; replaced the final sen- specific and it 15. The amended decision made two opinion. paragraph 5 to make clear that such changes It tence of to the memorandum necessary implement Interi- paragraph modified the first sentence of 5 discretion give hierarchy "to effect to the emphasize that Interior the "discretion to or's mandate has purposes Section crediting Project established refrain from the amount of Institute, 3406(b)(2).” (b)(2) Fed.Appx. 87 yield actually purpose used for against designated acre feet of 638-39. (b)(2) dedication, contractors, including irrigation from the purposes Act dis- tricts, municipal users, implementation needed for industrial refuges.... and wildlife Improvement [The Act’s restoration man- Bureau’s] service contracts ... relegated secondary to a contain date could be shortage provisions that role, specifically re- perhaps no role at all. Such cite that [the is not liable for directly Bureau] would conflict with the scenario shortages caused compliance with le- give mandate to effect to the Interior’s gal obligations. hierarchy established in 3406(b)(2). Section In October the Bureau proposed a Id. at 639-40. Interior reviewed and con- of prognostications opera- series of CVP sidered our amended decision when under- for the upcoming year tions which (b)(2) actions, taking subsequent but made inter hydrology included alia two scenar- changes no to its 2003 Guidance Memo or ios—one where there was a 90% chance documents. DM policy (“90% other See SL & that the forecast would be exceeded I, F.Supp.2d numbers”) at 783. Water Auth. and one where there was a 50% (“50% being chance of its exceeded num- 2004(b)(2) Accounting E. The bers”). The Bureau also developed projec- accounting Interior set CVP (1) operations tions of pre- under: through run from year Sep- October (“baseline (2) forecast”), 1992 conditions 30 because that time frame is con- tember provisions under the of the SWRCB’s D- cycle the life of most salmon sistent with (“water quality control plan fore- spawn in the steelhead Central (3) cast”), and under the requirements of May rivers. See Decision at 4. the 1995 and other mandated Typically, early the fall and winter are (“(b)(2) forecast”). actions Initial project- spawning periods those anadromous monthly ed and annual CVP water costs eggs approximately fish whose hatch in by running were estimated comparing hatching, two months. Id. After the sal- against the forecasts the 90% and 50% fry spend early stages monid their life month, subsequent numbers. Each nearby rearing During April habitats. Bureau updated hydrology actual and June, through “fishery target actions and, turn, operations CVP data in devel- emigration juvenile habitat for salmon as oped a new set of the and num- 90% 50% downstream, they migrate through the (b)(2) actual accounting bers. The was Delta and to the ocean.” Id. comparison daily based on a of the CVP (b)(2) actions, operations, including the

As described in Luis San Unit Food daily hypothetical operations un- CVP States, F.Supp.2d Producers v. United (pre-1992) der the baseline conditions. (E.D.Cal.2011): 1210, 1218 year projects initially Each [the Bureau] Interior summarized its use of (b)(2) purposes during amount water that will be available CVP water for b(2) upon storage, precip- reservoir in a document “Preliminary based entitled (“Prelimi- itation, forecasts, Accounting, runoff other indi- '03-Sep and Oct '04” projection nary Accounting”). Preliminary ces.... Based on that and The Ac- taking after into account the amount of counting spring shows of 2004 was a (b)(2) satisfy statutory heavy required period and use for water. In (b)(2) regulatory requirements, account April, charges [the Bureau] incurred implement determines the amount of water that can to the VAMP and to meet Ver- addition, objectives. be delivered and allocated to its various nalis flow In due to water released to meet 1995 of storms in the with volume unexpected post-1992 requirements. addi- the water costs March middle of and/or tion, began taking actions to re- WQCP requirements re- Interior meeting the 1995 (b)(2) during sought “X2”16 other uses and to utilize location of duce lating to the (“EWA”) than Interior had Account higher much Environmental Water April were (b)(2) peri- another annual May manage opera- 2004 was assets anticipated.17 releases, upstream Ultimately, Interi- heavy accounting.18 use due tions and od of and releases implementation, categories or established three of use VAMP Reservoir. New Melones account for CVP releases of water under (1) statutory responsibilities: various in administrative record of the Much (2) Actions,” “PRIMARY PURPOSE Fish and of technical charts case consists this PRI- “WQCP Actions that contribute to showing constantly updated compilations (3) PURPOSE,” “WQCP/ESA MARY operations forecasts estimates that contribute to Actions SECONDARY (b)(2) Ap- accounting. As the Federal From June 17 to PURPOSE.” brief, in their there is pointed out pellees from the Nimbus Interior made releases comprises “rec- single no document River, American from the Reservoir on the the 2004 Year. ord of decision” for on the New Melones Reservoir Stanislaus However, prepared documents dur- certain (which River flows into the San the 2004 Water ing and at the end of Vernalis), River near and Clear Creek. chart entitled particularly a “Water Year— (“2004 Fishery Year 2004 Action Costs” Accounting 2004 Year-End reflects the ac- Accounting”) Year-End —illustrate that, during period, the Clear the relevant implemented Interior for that tions that (b)(2) charged to the Creek releases were Accounting re- year. The 2004 Year-End account, directly they are not involved (b)(2) 799,700 AF used for flects and a appeal. this The Nimbus releases “Non-(b)(2) AF used for other releases, Melones how- portion New Fishery Actions.” ever, charged against were ostensibly they it account because were As Interior realized that would reach general dedi- made to meet Delta outflow and AF limit on June, A total May early Interior Vernalis flow standards June. cations late USFWS) (in 5,500 AF the Nimbus with the consid- of was released from consultation portion latter of June accounting scenarios to deal Reservoir ered various provides protec- objective 18. "The EWA water for the 16. The Delta outflow dictates the zone, salinity mixing desig- the Delta’s recovery beyond site of and fish that which tion "X2,” the location of which is meas- nated as through existing base- would be available from the Golden Gate ured in kilometers project regulatory protection related to line of Bridge. n.ll. with the See D-1641 at 10 As buys operations. water from will- The EWA Standard, pur- Salinity salinity Vernalis for ing surplus water when safe sellers or diverts poses currently by a of X2 is determined fish, banks, stores, and re- for then transfers conductivity measurement of the electrical protect leases it as needed to fish and com- the water. See id. pensate water for deferred diversions.” users Kempthome, F.Supp.2d poten- at 340. EWA forecast showed a 17. The March 90% plan directly tial water control cost of about may either for the used 1,000 76,000 and AF for CVP releases about project protection compensate of fish "or to export April fore- AF for actions. In 90% exports project at the water users for reduced 317,000 cast, projected costs were AF for pumps.” Id. at 358. 115,000 export CVP releases and for CVP actions. WQCP 2004 in order to meet the 1995 2004 releases are not at issue this ap- Similarly, peal. in that Delta outflow standard. 17,600 a total of AF

period, there was September On the district the New Melones released from Reservoir court issued its decision on the cross-mo- at Dam in Complex the Goodwin order to tions, granting the Agencies’ Water motion require- meet the San River flow summary judgment as to the Au- ments at The Nimbus release Vernalis. gusVSeptember 2004 grant- actions19 and 3,500 AF of the New Melones release ing the Federal Defendants’ cross-sum- assigned accounting were Interior’s to mary judgment motion as to the latter category ‘WQCP/ESA the third Actions June 2004 releases. SL & DM Water that contribute to SECONDARY PUR- I, F.Supp.2d Auth. at 806-07. Accu- they categorized POSE.” Because were rately characterizing the Agencies’ Water actions, “Secondary Purpose” as Interior challenge concerning scope “the of Inte- 5,500 charging refrained from AF of the discretion, rior’s rather than whether Inte- 3,500 Nimbus release and AF of the New all,” any rior has discretion at id. at 795 n. 800,000 against Melones AF release (the question having latter been resolved (b)(2) account allocated for CVPIA’s resto- previous appeal), the district court ration mandate. The sum of the those engaged in a analysis detailed of the 2004 figures is the contested AF at issue allotments and concluded that Interior had appeal. in this not abused its discretion as to its treat-

ment of the latter June 2004 releases. Id. Summary Judgment F. Motions for 803-04, 806-07. Year,

Following the 2004 summary motion, Water the Wa In their judgment Agencies sought ter Agencies, obtained leave to Water acknowledging while Complaint. file a Supplemental enjoys See San Interior some discretion not charge WQCP/ESA Luis & Deltar-Mendota Water Auth. v. against actions Interior, Dep’t 236 F.R.D. yield, U.S. argued nevertheless that this (E.D.Cal.2006). Supplemental The extremely Com discretion is limited. Under the 2004(b)(2) plaint alleged that Interior’s Agencies’ ac Water interpretations counting arbitrary, capricious, was an CVPIA and of this court’s June 2003 discretion, decision, contrary abuse of any law. Institute water used to meet following November the Federal ESA must be and/or Appellees’ preparing filing against of the Ad counted unless do- 2004(b)(2) fish, ministrative Record for the ing wildlife, ac so any would serve year, counting Agencies the Water purposes, and habitat restoration or if Federal Defendants each counting filed cross-mo the water toward the AF summary tions judgment. limit “significantly impair” Water would section (b)(2)’s Agencies argued in their motion that Inte purposes. restoration See unlawfully rior classified certain actions id. at 795. The Agencies further and water releases in late in urged June and pursuant used to the “Non-(b)(2) August/September 2004 as or the ESA to further fish and Fishery The August/September Actions.” wildlife restoration necessarily “serves the regards AugusVSeptember proof, 19. to the failure of which makes its decision actions, the district court held that Interior arbitrary capricious.” F.Supp.2d. and at explain reasoning had failed to for its 806. accounting period, for that and a "[t]his is component a ty hier- that should be considered the and effectuates primary purpose ” Id. purpose.’ at 798. It ‘primary of the in section set archy purposes however, also, rejected Agen- the Water 3406(b)(2),” must be counted and so to the argument that the reference cies’ Id. allotment.20 against the WQCP in the requirements and ESA much proffered a Appellees The Federal Congress’s understanding reflects CVPIA scope the of Inte- interpretation broader always must requirements that these to CVP water used rior’s discretion part “primary purpose” of the considered ESA WQCP post-1992 or satisfy the 1995 of the CVPIA. See id. Ultimately, at They argued that the rul- requirements. plain that “a lan- the district court held Institute “must be read as ing primary of the lan- guage reading purpose ensure that it ex- to Interior command suggests Congress ... that intend- guage that will in a manner ercises its discretion by only specifically ed actions authorized fish, purpose of the frustrate ‘primary pur- to be considered the CVPIA Id. at wildlife, and habitat restoration.” Further, Id. at 799. it measures.” pose’ position Parties’ 796. The Environmental ‘primary purpose’ determined that “[t]he tracked that of the Federal approximately includes.... water dedicated to accom- except they expressly that also Appellees, doubling goal the anadromous fish plish primary purpose the argued that sole 3406(b)(1), set forth section but also doubling. the is anadromous fish CVPIA accomplish includes water needed Id. specifically pro- enumerated the other 3406(b)” rejected court the Environ- The district grams listed section could suggestion mental Parties’ the “fish conceivably affect water releases or flows (ie., 3406(b)(4), (5), (8), (9), (12), (18) forth in section doubling” requirement set & (19)).21 3406(b)(2) Id. Noting “po- only was “the restoration activi- 799-800. 1”; responded the Contra Canal Plant No. sec- 20. The district court to this con- Costa 3406(b)(8) part by referencing language provides making from tion for "use of tention Guidance Memo. As stated pulses short of increased water flows to in- court: migrating crease the survival of anadromous through moving and Sacramen- fish into [T]he December 2003 Guidance's statement Valley that "most” of the water dedicated to meet to-San Delta and Central riv- streams”; 3406(b)(9) fishery protec- and beneficial use and calls for ers and section objectives eliminating, possible, tion of the also serve "to extent losses of “primary purpose,” impliedly ac- CVPIA's anadromous fish due to flow fluctuations knowledges portion that some of water ded- Project by any storage caused Central WQCP goals icated to meet does not serve 3406(b)(12) re-regulating facility”; section primary purpose. Elsewhere in the ad- spawn- provides allow for "flows to sufficient record, specifically ministrative Interior incubation, ing, rearing, outmigration and for "only meeting stated that Whiskeytown and steelhead from salmon post-1992 requirements may ESA not be Dam”; 3406(b)(18) section directs Secre- sufficient to meet the anadromous fish dou- to, tary requested “if the State of Califor- goal bling and other restoration nia, developing implementing assist in included in CVPIA.” and measures management striped to restore the measures I, F.Supp.2d at 802 SL & DM Auth. fishery Bay-Delta estuary”; bass n. 15. 3406(b)(19) maintaining calls for section carryover storage "minimum at Sacramento 3406(b)(4) develop- deals with the 21. Section Trinity protect River reservoirs to program mitigate fishery ment of “a in those rivers. restore the anadromous fish” impacts operations associated with of the Tra- 106 Stat. at 4717-19. Plant”; 3406(b)(5) cy Pumping covers section “remaining development program mitigate "a The district court noted that 3406(b) fishery impacts resulting operations provisions in do not direct section Thereafter, overlap” primary pur- by between Interior is directed tential pursuant actions taken statute “to assist” the in measures and State its “ef- pose ESA, protect to the 1995 forts the waters of the San and/or Institute, ruling Bay applying prior Bay our Francisco Sacramento-San following Estuary,” the district court articulated Delta and “to help” meet obli- gations imposed precept: upon the CVP under law, “including State and Federal but an action taken under the [I]f obligations not limited to additional un- predominantly contrib- ESA and/or der the Endangered Species Federal primary purpose pro- to one of the utes Act....” doubling), it grams (e.g., fish must 800,000 AF

counted toward the limit. 3406(b)(2)). (quoting § Id. at 797-98 Interior retains the discretion not to rule, Applying its stated the district actions, secondary long count other so court then considered whether Interior necessary doing give so is effect to had abused its accounting discretion its hierarchy purposes. doing latter June 2004 releases. Id. at 801-02. so, acknowledged the district court that it was beyond forced to look the administra- court

The district found that tive record. It (that observed: not re conclusion CVPIA does WQCP compliance that all quire ESA of the guidance pre- [N]one documents actions count a primary purpose) towards in the sented Administrative Record di- by was “reinforced” the fact that section rectly identify explain the procedures “multiple priori itself delineates Interior must either in a follow “normal” ties.” Id. at 797. As the court stated: (b)(2) year “exceptional” or an one “fish, wildlife,

Primacy given is may those which the AF limit need to May and habitat restoration be exceeded. The 2008 [sic] closest, stating: CVPIA].” measures authorized Decision comes the [the specific arguments, they Interior to undertake restoration ac- nized this at oral when impact tivities that water releases and they could avowed that do not seek to use all CVP I, & DM deliveries.” SL Water Auth. purposes. annual for environmental F.Supp.2d I, at 798 n. 11. F.Supp.2d SL & DM Water Auth. opin- 806. That view was not reiterated in its Ultimately, rejected 22. it view while ion on the motion for reconsideration. SL & only predominantly actions that contributed II, F.Supp.2d DM Water Auth. specific goal doubling” to the of "fish had to true, course, It is not that Interior’s dis- actions, primary purpose be considered First, cretion is unlimited. the referenced initially district court went on to take a rather pertains among to the discretion allocation cryptic view of this court’s Institute rul- competing uses for the AF ing, stating: Second, least, very account. at the it is limiting language constrained in the gave predominant The Ninth Circuit requires CVPIA itself that the CVP "to meet (b)(2)’s primary purpose exclusive effect to law,” obligations all under State and Federal by interpreting Interior's discretion as un- acknowledged. as this court has Central See limited, to not count toward the 800 TAF II, Finally, Delta F.3d at 1024. section account, ESA, WQCP, and related uses of 3406(b)(1)(C) Secretary directs the to ensure yield. This leaves Interior with unlim- (i.e., that dual use the same dedication of statutory ited discretion to undermine other pur- water to meet CVPIA fish and wildlife purposes. CVP water non-environmental WQCP/ESA poses requirements) and to meet appear This does not to be fair or reason- degree accomplished greatest prac- interpretation "to the able of the CVPIA. The En- recog- responsibly vironmental ticable.” 106 Stat. at 4715. Plaintiffs that, WQCP numeric total because the 1995 account for the will Interior identify specifically an costs standards “do associated of CVP amount (or support doubling goal the fish WQCP obligations intent meeting the with 3406(b) specifically-enumerated after other imposed obligations and ESA satisfy the an- actions taken to those against program),” of CVPIA enactment “ (b)(2) allocation, the bal- contrib- up ‘predominantly’ standards do not nual remaining at the Id. at primary purpose programs.” ute to ance of cost is incurred. time the 804. however, Decision, predates

This ruling on the issue. Ninth Circuit’s G. Motion for Reconsideration (citation omitted). The district at 803 Id. Agencies moved for reconsid- The Water that the Federal De- further noted court court’s re- eration of the district decision themselves asserted that fendants had 2004 allocation of garding Interior’s June deci- there “no formal administrative was “Non-(b)(2) Fishery AF to Ac- defer- in this case to Chevron sion which May the district court tions.” On that, accordingly, the ence is owed” and motion, change did not granted that but stipulated “to allow for the parties had overall conclusion that Interior had not expert help submission declarations & DM abused its discretion. See SL Wa- contents of this ‘rather unusual explain the II, Al- F.Supp.2d ter Auth. 1217. ” record to the court.’ Id. administrative find- though the district court reversed its omitted). (citation ing that the SWRCB did not intend “for supplemental materials included the numeric flow standards the 1995 (the Roger Guiñee declarations Water WQCP the narrative to contribute toward Operations Division Chief WQCP,” doubling goal in the it noted fish Fishery Resources USFWS’s Water point its reversal on that did not (the Fujitani Paul E. Program) and Chief “resolve whether water used for Operations Division predominantly also is used for Valley Operations Of- Bureau’s Central 3406(b)(2) primary purposes.” CVPIA Id. (1) fice). declarations stated that: Those question, at 1217. to that the court As the latter June 2004 Nimbus and New summary judgment conceded that “[t]he specifically imple- were Melones releases very specific record contained little infor- respectively mented to meet the issue.” Id. at pertaining mation to this Delta outflow and the Vernalis flow re- (2) had not quirements, USFWS meantime, parties the Bureau increase In the had sub- recommended 2004 on Ameri- mitted new declarations with the motion flow releases June reconsideration, pur- including can River for fish restoration one (b)(2). Swanson, Ph.D., a Utilizing to section fisheries biolo- poses pursuant Christina submissions, gist con- with the Institute of San Francis- those district court co, had been cluded that Interior did not abuse its dis- whose earlier declaration also considered in connection with the sum- failing cretion deduct additional mary Id. at 1215. Dr. judgment AF of CVP released in the motions. 9.000 stated that the Delta outflow ob- portion latter of June of 2004 from Swanson jective primarily AF account. conclu- benefits non-salmonid This 800.000 sion, however, sturgeon, bay as white part species was based in on the fish such (later withdrawn) longfin shrimp, Crangon franciscorum, finding district court’s

699 just smelt, splittail.23 doubling, coupled Id. Dr. anadromous fish and Sacramento further testified that the releases the fact that there no with were salmon Swanson system not have benefitted salmon in present Joaquin at issue could the San 2004, because, in late June most late Bureau June the exercised from the San juvenile gone salmon were discretion and did not abuse it not agencies the were not River and counting comply water released to with for salmon the river sampling even the Vernalis flow standard toward the addition, that time. Id. at 1216. Gui- though account. Even the Bu stated supplemental ñee in his declaration clearly rationale not reau’s was articulat latter June 2004 Nimbus releases that the record, in the a “uphold ed court should support “specifically implemented were clarity if a decision of less than ideal the pumping” and “to meet Delta export path may reasonably agency’s be dis they that Absent evidence demands.” cerned.” Home [Nat’l Ass’n Build of] predominantly benefit were intended Wildlife, ers 551 U.S. [u Defenders of fish opposed anadromous fish as to other 644, 658, 127 2518, 168 S.Ct. L.Ed.2d 467 light “and in of the fact” that an species, (2007)]. Impact Report performed Environmental Id. at 1217. the indicat-

in connection with Delta ed that the outflow standard was STANDARD OF REVIEW multiple species intended to benefit fish We review de novo a district (as animals), as other the district well grant summary judgment. court’s No again found no abuse of discretion in court College, lan v. Heald 551 F.3d accounting with Interior’s connection 1153(9th Cir.2009). in The district court’s latter June 2004 releases made to sat- the terpretation application of federal stat objective. isfy the Delta outflow Id. at novo, are utes also reviewed de as is its 1215-16. standing. determination on the issue of to the water released from the New As (9th Vilsack, v. Levine 587 F.3d facility comply Melones with Vernal- Cir.2009). standard, court is flow noted there dispute among parties’ experts a

was Because the contains no CVPIA possible for the re- regarding reasons review, judicial provision for the Adminis “predominant [the] lease and use wa- (“APA”) governs Procedure trative Act Nevertheless, ter.” See id. at 1216-17. challenged review of Interior’s actions the court noted: 701-06; §§ this case. U.S.C. see also Bean, subject, a v.

As to such decision on water United States 537 U.S. (2002)(“[I]n 584, 154 inherently agen- accounting, within S.Ct. L.Ed.2d 483 cy’s expertise, statutorily the defer- absence of a defined standard discretion favoring agency’s agency’s] standard action under [an [a ential de- review statute], supplies ap cision is not overcome. Based on the federal the APA standard.”). APA, an totality plicable of the information available to Under the time, including may only Bureau at the action be set aside administrative “arbitrary, capricious, flow standard is if it is an abuse of fact the Vernalis discretion, or not in designed multiple purposes, to serve otherwise accordance court, however, tail) “arguably” noted the district an anadromous fish under As (unlike sturgeon bay shrimp, Crangon definition. See SL & DM Water the CVPIA’s francis- II, corum, smelt, F.Supp.2d longfin split- Auth. at 1215 n. 4. and Sacramento 706(2)(A). (“1995 WQCP”) against § “We will law.” 5 U.S.C. with imposed Congress. acre-feet limit agency action if the has agency an sustain connection between articulated a rational have re- Appellees Because the Federal made.” and the conclusions the facts found challenge Agen- newed their the Water v. Fishermen’s Ass’ns Pac. Coast Fed’n of issue, standing initial- cies’ to raise this we Reclamation, 426 F.3d Bureau U.S. jurisdictional ly requirement. turn to that Cir.2005) (9th 1082, (citing Motor Ve 1090 here, Where, plaintiff a to as seeks Farm Mut. hicle Ass’n v. State Mfrs. a action challenge agency’s federal under Co., Auto. Ins. 463 U.S. 103 S.Ct. APA, satisfy it must both the constitu (1983)). 2856, a Although 77 L.Ed.2d 443 standing tional for under Article elements if the may upheld agency’s decision be statutory requirements III as well as the inferred, reasonably it reasoning may be is “standing for under the APA.” See Public impermissible agency’s to “infer an reason 1002, Dep’t Transp., v. Citizen 316 F.3d ing 1091(quoting from mere silence.” Id. at (9th Cir.2003), 1019-20 rev’d on other Shalala, 1057, eno v. 30 F.3d 1073-74 B 2204, 752, grounds, 541 159 U.S. S.Ct. (9th Cir.1994)). agency Reversal of the (2004); EPA, Fair v. 795 F.2d L.Ed.2d 60 appropriate agency action is when “the has Cir.1986). (9th 851, 853-54 Congress relied on factors which has not consider, entirely intended it to failed to Article III standing: To establish important aspect prob consider an (1) “plaintiff inju a have an must suffered lem, explanation offered an for its decision inry legally protect fact—an invasion of a counter to the runs evidence before (a) par ed interest which is concrete and agency, implausible or is so it (b) ticularized, imminent, ... actual or not a in could be ascribed to difference (2) conjectural hypothetical”; not “there product agency expertise.” view or the must be causal connection between the (quoting at 1090 Id. Motor Vehicle Mfrs. injury complained and the conduct of—the 2856). Ass’n, 463 U.S. at 103 S.Ct. injury fairly has to ... trace[able] defendant, challenged action of the

ANALYSIS ... independent the result [of] party action of some third not before the Standing A. (3) court”; likely, op “it must be by Appellants As delineated their merely inju posed speculative, that the Brief, Opening presented the “issue ry will be redressed a favorable deci review” herein is: Lujan Wildlife, sion.” v. Defenders of 555, 560-61, Interior’s method of account- U.S. Whether S.Ct. (“CVP”) (1992) (internal ing Valley Project for Central L.Ed.2d 351 citations and omitted); yield managed quotation dedicated and under sec- marks see also Sala 3406(b)(2) zar, during tion of the CVPIA 638 F.3d at 1169. The burden of June, 2004, arbitrary, capricious, establishing standing an is the elements falls discretion, upon party asserting jurisdic abuse of or otherwise not in federal it Lujan, accordance with law because excluded tion. 504 U.S. at S.Ct. managed Agencies water dedicated and to benefit 2130. The Water have Article fishery challenge III pursuant standing accounting resources and habitat employed by to numerical Delta Interior with re outflow San Joa- methods quin objectives spect River flow set forth in to the allocation of water re Quality Plan in 2004 account- 1995 Water Control sources because Interior’s arguably year, resulted in ing decision reduced allocations of CVP agricul- water deliveries them. tural service contractors south of the Delta (which would Agencies include the Water fact, injury in To establish its Westland here) were 65% of contracted amounts. that it a beneficial claims has interest response shortfall, to that Westlands water stored and delivered the CVP.24 purchase had to supplies alternative I: As stated Westlands Water Dist. its landowner customers had to pump into a Westlands entered contract with groundwater.25 recognized This court has the Bureau for water from the San Luis that “the loss of irrigation affordable CVP, Unit of the which diverts water ... agricultural lands” an injury from the Sacramento-San River fact, Interior, v. Dep’t Laub U.S. via 342 Delta the Delta-Mendota Canal. (9th 1080, Cir.2003), F.3d largest Westlands is the contractor for 1086 and that Unit, water from consequences the San Luis Fire- the adverse flowing from a States, baugh Canal Co. v. United 203 in delivery reduction are “concrete (9th 568, Cir.2000), F.3d with a con- particularized” and “actual or immi- 900,000 tractual purchase entitlement to Salazar, nent.” 638 F.3d at 1169-70. annually, acre feet of water O’Neill v. States, (9th

United 50 F.3d Agencies The Water also con Cir.1995). they tend that face the threat of future injury because Interior claims discretion 337 F.3d at 1097. The contract between refrain from recognizes counting prospective Westlands and the Bureau that: releases (that utilizing yield required by CVP are may during any There occur at times ESA) the 1995 or against the year a in the shortage quantity of water (b)(2) account. possibility “[T]he available for of future furnishing to District through injury may means of the Pro- be sufficient to standing confer ject. ... In in any year may which there plaintiffs; injury on threatened constitutes ” cause, shortage occur a from I, ‘injury in fact.’ Central Delta 306 F.3d Found, right United ap- States reserves at (citing Ecological Rights v. portion the available supply (9th Co., Pac. Lumber 230 F.3d among the District and others entitled Cir.2000)). Agencies The Water have under the then existing contracts to re- they demonstrated that a “significant face ceive water from the San Luis Unit.... risk” that their water allocations will be Id. at 1097-98. We have held that “an reduced in the future as a result of the unavailability resulting of water Appellees’ Federal accounting deci legislation mandates of valid constitutes a sions regarding pursuant releases to the ” shortage by ‘any reason of other causes.’ in operating ESA and/or 684). O’Neill, (citing Id. at 1101 50 F.3d at Id. at CVP. 948. Because the Water Agencies presented undisputed injury Westlands evi- have shown both an actual that, dence for most of the 2004 water a injury, threat of future we conclude O’Neill, ("CVP”) 24. Project part As noted in 50 F.3d at 680: in to furnish water to the Westlands Water District. the United States entered a into long-term water service contract with West- that, 2004, ground- 25. Westlands indicates in pursuant lands Water District to federal contract, pumping and other alternative sources had to reclamation statutes. Under this supply agreed over AF the United States of water in lieu of construct yield. San Luis Unit of the Federal Central unexpected of Article III stand- elusion that an and sizable re- that the first element in duction available CVP resulted ing is satisfied. decreased water deliveries to CVP con- spe do not Appellees The Federal plausible tractors is a natural and one. Agencies’ show cifically contest Water specifically provides “[i]f The CVPIA fact, injury in but instead ing as to their quantity of water dedicated under this (ie., the second factor primarily focus on thereof, paragraph, any portion is not causation). They contend that the Water section, needed for the of this proffered any evidence Agencies have finding by Secretary, based on “less than demand” alloca that the CVP’s Secretary is authorized to make such wa- tion to or the other south-of- Westlands purposes.” ter available for other project agricultural contractors was fact Delta CVPIA, 3406(b)(2)(D), § 106 Stat. accounting caused Interior’s actual de for the AF Had Interior accounted Agencies that the chal terminations question as water used service sec- lenge in this lawsuit. 3406(b)(2)’s primary purpose, tion more water would have been available for alloca- requires element The causation contractors, including tion to CVP those injury “fairly traceable to the that the be represented this lawsuit. challenged action of the defendant” and independent not “the result of the action Causation is also demonstrated the party of some third not before the court.” methodology that the Bureau uses (9th Cuomo, 1124, Tyler v. 236 F.3d delivery agree- of water allocations and its Cir.2000). court, addressing The district agricultural ments with contractors such Appellees’ argu the Federal causation Agencies as the Water herein. Under the ment, that, though noted even contracts, Water shortage when there is a of wa- Agencies specifically explain “do not how any ter “from cause” to deliver the full accounting Interior’s 2004 Year ac yield, Bu- specified amounts CVP deliveries,” tions resulted in reduced water permitted apportion reau is the avail- the Federal “ac Appellees themselves among parties able water all of the counted for these actions as reductions existing are entitled to the water under the yield....” hydrological CVP SL & DM Water contracts. While conditions I, rainfall, Auth. at F.Supp.2d temperature, pack, 787-88. such as snow levels, losses, challenging Appellants’ ability conveyance to demon reservoir causation, attempts strate Interior to char other factors will affect the amount of CVP observation, acterize the yield, by government district court’s actions bodies can impact quantity “[i]f this reduction of CVP annual also of water available yield did not recognized cause losses to CVP contrac for distribution. As West- tors, I, Federal Defendants have not ex at lands Water Dist. 337 F.3d plained why,” improper an legislation id. mandates of valid can cause a attempt shortage to shift the burden on the issue of which would fall within “from Thus, standing. argument, any provision. As noted at oral cause” the set aside however, the allocation of water is a of AF in the CVPIA reduces the Thus, game. Project yield delivery zero-sum if water for quantity available purpose, agricultural used for one it reduces the avail the south-of-Delta contrac- Additionally, able purposes. water for other The con- tors.26 the Federal Defen- only example, It is not the amount of water that is of is available. For as noted in Central I, timing concern but Delta 306 F.3d at 944: "Water that is used also of when (2) (b)(2) allocation, injunction pro- re- an particular to account for failure dants’ (b)(2) 800,000 being hibiting failing within the Federal Defendants from leases as cir- allow them to potentially against AF would count such actions alloca- in the legislative directive cumvent in the tion future —would redress the Wa- that, greatest degree prac- “to the CVPIA injury. is, Agencies’ alleged ter There ticable, dedi- specific quantities potentially, redressability concern about managed for fish and wildlife cated to and mootness, Agen- because the Water and/or credited under this title are seeking damages cies are not reme- obligations of the against any additional dy that would undo actions taken in the Project may im- which Central However, year. 2004 water their claims following of California posed the State “capable repetition yet fall within the ” the enactment of this title.... CVPIA evading exception review” to mootness. 3406(b)(1)(C), § at 4715. A fail- Stat. See, e.g., Fed. Election Comm’n v. Wis. properly account for the releases ure Inc., Life, Right to 551 U.S. of avail- cause additional shortfalls would (2007) L.Ed.2d 329 (noting S.Ct. yield, in turn would cause the able which exception established to mootness where reduce proportionally Bureau to “(1) challenged action inis its duration delivery agricul- amounts of water for fully litigated too short to be prior to tural contractors.27 (2) expiration, cessation or there is a expectation reasonable that the same com- Finally, Appellees also do not dis subject plaining party will be to the same pute sought that the relief this case— (1) Kemna, again.”) (quoting Spencer action e., v. a declaration that Federal Defen i 1, 17, refrain 523 U.S. 118 S.Ct. 140 L.Ed.2d dants do not have discretion to (1998)). If, indeed, taken Interior has misin- counting from fish-related actions the WQCP post terpreted scope to the 1995 or of its discretion not to pursuant requirements charge ESA toward the water it uses for CVPIA and/or fishery every year habitats is released into the Stanis- water in under their contracts. pointed primarily April, May out that the contracts and [Interior] laus River in and Octo- provisions the of the Barcellos contend that as more water is ber. Plaintiffs land Wolf sen, Dist., Inc. v. Water Westlands during period, for fish this less water released 1993)] (E.D.Cal. F.Supp. judgment ex during peri- is available for releases the drier pressly allow the to reduce [Bureau] deliv year....” ods of the shortage resulting eries because of a interprets cause. con [Interior] the basically point Interior conceded this allowing tract as it to reduce water deliver promulgation process. The Bu- the D-1641 required ies to its contractors when it is petitioned reau had the SWRCB to be allowed do so under federal laws. change places "to and consolidate of use per- purposes of of water under certain use argues ap- that SWRCB should [Interior] D-1641 at 115-30. mits of the CVP.” See prove petitioned changes the so that in sat- objected change arguing Westlands to the that law, isfying obligations under federal the injury it would cause to CVP contractors be- operates consistently wa- [Bureau] with its cause the Bureau would reduce the amount of effect, right permits. ter In [Interior] water delivered under the contracts and di- by saying required federal law to it is purposes meeting vert water for other such as way shortages operate in a causes requirements Endangered of the Federal contractors, and that water deliveries to its Species Act the CVPIA. Id. at 123. Inte- it will continued to do so whether or not the by asserting: rior countered approves petitioned changes SWRCB contractors, including purpose [West- The CVP of use. lands], (footnote omitted). supply a fixed Id. at 124-25 are not entitled to (b)(2) account, contractors,” and industrial the district against the purposes ESA then, correctly injury would court concluded that the Agencies the Water arguably, year injury every such fell “within the zone of interest of the sustain new 800,000 AF allotment or use exceeds the Id. CVPIA.” incorrectly agency accounts for uses of B. Whether Interior Abused (b)(2) yield the dedicated and Water Its Discretion receive less than their contractu- Agencies Thus, jurisdictionally it is al allotment. of them contention that support to review the latter June 2004 appropriate charge decision not to the latter Interior’s accounting decisions. against June 2004 releases ac discretion, count was an abuse of the Wa Agencies have met

Because the Water (1) Agencies argue ter that: “Section requirements Lujan, they three under 3406(b)(2) provides Interior with limited standing challenge III have Article regarding accounting discretion of water accounting employed methods Interior (2) WQCP purposes”; ‘pri- used for “The 2004(b)(2) year. for the mary purpose’ actions under section Agencies have also 3406(b)(2) serving include all actions statutory standing under the APA. Section and measures authorized 10(a) person of the APA “A provides: suf (3) CVPIA”; “Allowing Interior discretion fering legal wrong agency because of ac to exclude water dedicated to or tion, adversely aggrieved by affected or other uses from the account would agency meaning action within the of a eviscerate acre-feet limit and statute, judicial relevant is entitled to re provisions”; conflict with other CVPIA § view thereof.” 5 702. As to the U.S.C. (4) “Until it was faced with the 2004 element, first Interior’s decisions accounting problem, Interior understood 2004(b)(2) accounting year clearly are required that it was to count the ‘non-B2 “agency factor, actions.” As to the second 17, 2004, fishery actions’ taken from June “adversely order to be or ag affected through against June statute, grieved” meaning within the of a 3406(b)(2).” acre-feet limit of section plaintiff injury “the must establish that the arguments unavailing. These are complains he of ... falls within the ‘zone First, no party currently or court con- sought protected by interests’ to be the possesses tends that Interior unlimited statutory provision whose violation forms regarding accounting discretion of the legal the for complaint.” Lujan basis his 800,000 yield AF of it manages CVP which Fed’n, v. Nat’l 497 U.S. Wildlife 3406(b)(2) under section of the CVPIA. (1990). 110 S.Ct. 111 L.Ed.2d 695 Here, dispute the revolves around the noted, As the district court “one of the scope or limits of the discretion as set out purposes stated of the is to CVPIA in enabling legislation. the ‘achieve a reasonable balance com among peting Initially, demands for the use of Agencies [CVP] wa the Water ter, including requirements position the of fish and took the that the Federal Defen- wildlife, agricultural, municipal charge yield and indus dants had to all CVP used to trial power satisfy any requirements contractors.’ CVPIA under the 1995 3402(f).” I, § WQCP against SL & DM Water Auth. or AF ESA the F.Supp.2d at Characterizing agreed 792. the Wa allocation. The district court in its Agencies’ ter alleged injury as “reduced 2001 decision. reversed. held We We (b)(2) that, water deliveries to agricultural, municipal, may while water be used to Recognizing F.Supp.2d the ESA or 799-800. obligations under help meet overlaps in the 1995 between actions tak- potential standards quality water (b)(2) required pursuant primary to de en to a section WQCP, Interior were “[i]f it uses for under the purpose program or all of the water those duct some ESA, Act Endangered Species WQCP the district court quality water and/or (b)(2) dedication, from the that used to meet purposes concluded implementation WQCP needed to requirements ESA had and/or restoration mandate Improvement Act’s AF against be counted limits role, secondary a or relegated to could be they only “predominantly” when contribut- all. a scenario no role at Such perhaps (b)(2) specified ed as well to one of the man directly conflict with Interior’s would Id. at 802. purpose measures. primary hierarchy effect to the give date interpretation by That the district court is Section established purposes statutory language with the consistent Institute, 3406(b)(2).” Fed.Appx. court.28 prior decisions this at 640. an appropriate district court drew distinc- tion between actions taken under litigation, and further

Upon remand (which, WQCP generally ESA “primary pur- held that and/or district court could con- 3406(b)(2) acknowledged, the district court refers pose” language section objectives) “primary purpose” tribute to enumer- only programs specifically to the 3406(b) CVPIA, WQCP under and actions ESA be- ated section and/or doubling “predominantly contribute[ ] fish one of with anadromous ginning ”29 I, DM Auth. Id. purpose programs.’ measures. SL & Water 637 the by sets forth beneficial uses for wa- articulated the dis- In lieu of rule court, industrial, Agencies the fol- including municipal agri- the Water offer trict ter lowing cultural, uses, alternative: Appellants and fish and wildlife managed to any examples CVP water dedicated and If have not offered of releases of required by comply an a water with action water under the 1995 none come —and quality plan imposed under the central or provide to mind—that would not at least fish, wildlife, and habi- ESA also serves benefit for or wildlife or some minimal fish tat and measures au- restoration suggest would habitat. It be absurd CVPIA, then such CVP water thorized Congress intended that and all releases of 800,000 acre- must be credited toward the improve quality for mu- CVP water limit; however, CVP water feet if industrial, nicipal, agricultural purposes must comply'with managed an dedicated and charged against the account whenev- required a water control action benefitting an er it has incidental effect plan imposed ESA does not under the Third, species Appel- some of fish or wildlife. fish, wildlife, or habitat resto- serve such position essentially current the same lants' purpose, then has discretion ration Interior previously rejected as the one which we 800,000 towards the acre-feet not to credit Institute, Bay Fed.Appx. at 639-40. (b)(2) the of such CVP water. limit use Opening Appellants' Brief at 36. There See disagrees approval with our 29. The dissent problems the Water at least three with are standard, “predominantly the contributes” First, Agencies' proposed it is not rea- rule. high believing too a that the criterion "sets requiring as to construe the CVPIA sonable leaves too much discretion in the bar and generally that are that all uses of CVP water charge hands of Interior in how to the other wildlife must be intended to benefit fish and high It water that does not meet this bar.” (b)(2) purpose primary actions. deemed to be part that of this test that I “[t]he indicates respect Certainly with to "water con- troubling is that water allocation must find plan” requirements, a construction trol such (b)(2) only 'pre- if it as section water count practical nullifying have the effect of would primary dominantly one of the contributes to to effectuate the CVPIA’s Interior’s discretion Otherwise, Second, although purpose programs.’ Interior hierarchy purposes. the Second, Agencies’ Appellants’ concept the con effort to untether the (b)(2) fish, ‘primary purpose’ “primary purpose” actions of the tention that “the 3406(b)(2) wildlife, include all actions and habitat restoration measures under section actually au delineated in the serving purposes and measures CVPIA is incor- the 3406(b)(2) Further, vague rect. provides the CVPIA” is both and section thorized prior implementing primary pur- the statute and our that after the inconsistent with 3406(b)(2) pose, that the the AF ruling. Section states remainder can Secretary of the Interior is to “dedicate also be used “to assist the state of Califor- annually manage eight protect and hundred thou nia its efforts to the waters of Valley Project Bay/Sacramento-San acre-feet of Francisco sand Central San yield primary imple Estuary; Delta purpose help and to fish, wildlife, may res menting obligations legally habitat meet such as imposed upon Valley Project toration authorized purposes measures the Central ” Agencies’ po including this title.... The Water under State or Federal law ... statutory language obligations sition omits the that but not limited to additional (to primary purpose Endangered Species actions which under the federal dedicated) 800,000 AF are to be are limit Act.” The distinction in the statute itself fish, “implement] ed to those which purpose between the restorative (on wildlife, hand) purposes and habitat restoration the one pro- and those of water Thus, and measures” in the CVPIA. tection meeting legal obligations other it, it, purpose could to count not count consequential choose at its in a and non-inciden- whim.” However, nothing tal manner.” there is The dissent misconceives the context of the language suggest of the CVPIA to application. provides standard’s The CVPIA Congress desired Interior’s discretion on this greatest that Interior is to ensure that “to the contrary, matter to be more limited. To the degree practicable, specific quantities specifically the CVPIA leaves it to the Secre- yield managed dedicated for fish and tary manage” of the Interior to "dedicate and purposes wildlife this title are under credited (b)(2) AF of section {see against any obligations additional of the Cen- 3406(b)(2), 4715), and, 106 Stat. at if the Valley Project....” tral 3406(b)(1)(C), See section Secretary portion finds that there is a of that Thus, 106 Stat. at 4715. nor- purposes which is not needed for mally, against Interior can and will credit Secretary section "authorized” yield expended account CVP for benefi- (not ordered) fish, to make such water available pur- cial wildlife or habitat restoration poses project purposes pursuant for other {see to the 1995 or the section However, 3406(b)(2)(D), 4716). ESA. where the situation arises 106 Stat. at remaining there Moreover, is an insufficient amount of light of the fact that water (b)(2) yield dedicated or other conflict be- multiple purposes (espe- often releases serve WQCP/ESA usage tween control), cially regarding salinity it is unclear specified primary purpose pro- and for exactly "consequential how the dissent's grams, "Interior retains discretion not applied non-incidental” criterion would be actions, secondary long count other so prior consistent with our decision in In- doing necessary give so is to the hier- effect way and in stitute such that it removes the I, archy purposes." SL DM Water & Auth. (or much”) excess “too discretion from the added). F.Supp.2d (emphasis at 802 agency leaving just right while amount of Thus, the dissent’s fear that Interior could already discretion behind. We have held that count, count, choose to or not water used for it would be error to conclude “that Interior (b)(2) primary purpose program "at crediting lacks discretion to refrain from the whim” is unfounded. Project yield actually any amount used recognize "predominantly We that the con- 800,000 (b)(2) purpose against the acre feet of greater tributes” standard allows Interior a Institute, Project yield.” Bay degree Fed.Appx. at of discretion than the alterna- dissent's ”effectuat[ing] primary tive criterion of the 639. (on other) clearly by this title are developed imple- the ESA the and such as way in a mented that avoids inconsistent that an action taken to meet demonstrates duplicative obligations being or im- require- criteria ESA quality water and/or posed upon Valley Project Central water not, itself, does fall within the ments power and contractors. (b)(2)primary purpose. of a This category point previously we made precisely is the Clearly, 106 Stat. section Institute, 3406(b)(1)(C) Fed.Appx. at 639-40. recognize portions does that 800,000 (b)(2) AF pur- of the utilized for Third, again reject we also the poses (including increased flows and re- that Agencies’ argument “allowing Water exports) overlap post- duced could with Interior discretion to exclude water dedi quality 1992 water control measures im- cated to or other uses from the (such posed by California as the later- 800,000 account would eviscerate the However, WQCP). enacted 1995 pro- limit and conflict with other acre-feet particularly vision does not support already have provisions.” CVPIA We held Agencies’ case here. the face of required Interior were to deduct “[i]f overlap, require such the statute does not it some or all the uses for water any compulsory automatic or “one-for-one” Endangered Species Act quality pur deduction from AF ac- (b)(2) dedication, the water poses from Rather, count. Secretary of the Inte- Improve of the implementation needed rior “cooperate” is to with the State of mandate could be ment Act’s restoration that, “to ensure greatest California role, secondary relegated perhaps to a degree practicable,” specific quantities Appellants role at all.” Id. at 640. cite no yield of CVP used for fish and wildlife 3406(b)(1)(C) language in section purposes designated in the CVPIA are requires which that: CVPIA against “credited” the additional obli- Secretary cooperate shall with the that, gations; greatest degree “to the that, to ensure State of California the practicable,” programs developed that are practicable, greatest degree specific implemented imposing avoid “inconsis- quantities dedicated to and man- duplicative obligations” tent or on CVP aged for fish and wildlife under greatest degree contractors. The “to the against any this title are credited addi- practicable” language indicates that obligations tional of the Central crediting against the dedicated AF Project may imposed by which be yield stemming overlap from the following State of California enactment between actions taken for the title, including of this but not limited to (b)(2) purpose required by and actions export increased flow and reduced obli- post-1992 and ESA meas- may imposed by gations which would expertise ures be left Interior’s California State Water Resources Con- II, and discretion. Central Delta Cf implementing (“It trol Board in San Francis- F.3d at 1027 clear that the equally Bay/Sacramento-San Joaquin co Delta extremely Bureau’s is an difficult task: Estuary pursuant standards to the re- operate country’s largest federal water view ordered California Court management project in a manner so as to Appeals United States v. State Water many obligations. meet the Bureau’s Board, difficulty, Congress Resources Control 182 Cal. Recognizing this (1986), App.3d Cal.Rptr. the Bureau considerable discre- granted [227 161] that, greatest degree practi- determining to the tion in how to meet those cable, required obligations.”). programs plans 708 (that “un- Memo’s characteriza-

Fourth, argument The 2003 Guidance Appellants’ WQCP interpreta- tion of the 1995 and its accounting the 2004 it faced with til was language in “primary purpose” tion of the it understood was problem, Interior controlling not on this the CVPIA are fishery ac- the ‘non-B2 required to count Cnty., court. See Christensen v. Harris 17, 2004, through from June tions’ taken 576, 587, 1655, 120 146 529 U.S. S.Ct. 30, 2004, acre-feet against June (2000) (“[I]nterpretations 621 con- L.Ed.2d 3406(b)(2)”) actually raises limit of section statements, manu- policy agency tained (1) prior the Bureau’s whether two issues: als, guidelines, and enforcement all of circulated notices mandated guidelines and which lack the force of law—do not war- be clas- latter June 2004 releases that the See, Chevron-style e.g., rant deference. (b)(2) actions; primary purpose sified 50, 61, Koray, v. 515 115 Reno U.S. S.Ct. (2) whether, guidelines if those even (1995) (internal 2021, agen- L.Ed.2d controlling, notices were and/or cy guideline, ‘subject which is not to the any rational below fails to show record rigors of the Administrative Procedure connection between the facts before Act, comment,’ including public notice and not to treat Bureau and its decision (internal only entitled to ‘some deference’ predominantly 2004 releases as latter June omitted)).... Instead, quotation marks in- purpose. undertaken for a terpretations contained formats such as opinion respect’ letters are ‘entitled to un- Initially, Appellants rely on der our decision in Skidmore v. & Swift They specifically the 2003 Guidance Memo. Co., U.S. S.Ct. language therein which states: point to the (1944), only L.Ed. 124 but to the extent the 1995 pursuant taken [A]ctions interpretations ‘power that those have the Quality Plan and Control State ibid.”)', persuade,’ League accord Deci- Water Resources Control Board Wilderness Mts. Biodiver- Defenders/Blue (“the WQCP”) D-1641 sity Project sion involve Forsgren, v. 309 F.3d (9th Cir.2002). management the dedication and of Cen- 1189 Project long-term tral The 2003 Guidance Memo errs when its fishery protection. beneficial use and pursuant asserts that “actions taken to the help Such actions are not taken to meet Quality Plan 1995Water Control and State agricultural municipal or and industrial Water Resources Control Board Decision quality water standards that are set help D-1641.... are not taken to meet WQCP. forth the 1995 Most of the agricultural municipal and industrial fishery objectives un- beneficial uses and quality water standards that are set forth WQCP der the 1995 and in Reclama- WQCP.” example, the 1995 For rights permits help tion’s water fulfill prevention salinity of excessive intrusion is fish, wildlife, and habitat restoration objective for all three cate- and measures authorized industrial,” gories “municipal “agri- 3406(b). Section Consistent with the cultural,” and “fish and wildlife” beneficial decision, June 2003 Ninth Circuit uses. See 1995 at 14. The 1995 much of the water that is dedicat- WQCP specifically recognized that “[t]he ed and managed annually help meet objectives supply-related include fishery protection outflow, flows, beneficial use and ob- export those for Delta river jectives limits, gates, the 1995 serves Sec- the Delta Cross Channel 3406(b)(2)’s “primary purpose” salinity tion munic- protection control for the fish, wildlife, agricultural ipal supply, sup- and habitat restoration. and industrial

709 (b)(2) primary purpose ac- pro- be treated as salinity objectives for (excluding ply entirely ...), Though it was not evident tions. agriculture Delta of southern tection Memo was at the time the 2003 Guidance at It fur- Id. and wildlife.” and fish issued, it clear in the course of the became agri- Delta regarding Southern ther noted 2004(b)(2) our accounting year from re- salinity that: cultural in that vised decision Institute Del- salinity in the southern Elevated (b)(2) “primary purpose” is narrower than flows, imported salts by ta caused low is It suggests. Memo Guidance by the State irrigation fish, wildlife, consists not of and habitat discharges projects, federal water rather, only generally, restoration but salts, agri- primarily land-derived spe- those restoration measures which are drainage. Implementation cultural 3406(b)(2) cifically enumerated section accomplished objectives will be at Fed.Appx. of the CVPIA. See 87 adequate flows to the release of through (“Section 3406(b)(2) that provides ‘pri- Joaquin River and control the San mary purpose’ to which the acre drainage to San agricultural saline implemen- feet should be dedicated is the and its tributaries.... Joaquin River ‘fish, wildlife, tation of and habitat restora- objectives for flows plan’s This ”). purposes tion authorized this title.’ are ex- Joaquin River Vernalis San Also, recognized the USFWS achieving pected to contribute 2003 Guidance Memo was inconsistent with salinity objectives in the southern Delta. amount our view of the of discretion Inte- responsible Presently, [Bureau] enjoys regarding rior under the CVPIA salinity objectives meeting Vernalis the allocation of water. A USFWS water from the through the release of 3406(b)(2) § labeled document “CVPIA Reservoir, un- required Melones New Background,” April dated 1422. Addi- Right Decision der Water bearing the notation “For DOI Dis- tional releases from other reservoirs Purposes Only,” included the fol- cussion in the San protection fish and wildlife lowing observation: may be re- Joaquin River tributaries April [the Bureau] USFWS Ener- quired through ongoing [Federal met to resolve inconsistencies between proceed- gy Regulatory Commission] January Appellate ruling Court ings. and Interior’s December 2003 Guidance Likewise, the water Id. at 29. Memo. Inconsistencies identified Ser- incorporated in Table 3 of the objectives staff in- vice staff and DOI Solicitor’s protection for the reasonable clude: provide protection and wildlife also fish uses for some non-restorative beneficial give Memo does not 3. The Guidance (¿e., “uses of water for navigation

such as hierarchy of as man- effect to travel, transportation by or other shipping, by the Ninth Court and vessels”) dated Circuit private, military or commercial established CVPIA. fishing. Id. at sport and commercial and 12,15. Finally, in- as the 2003 Guidance Memo (but dicates, of)

Further, fact “most of’ not all “the explained, have as we objectives un- fishery not taken beneficial uses water releases were certain fulfill the WQCP” “help also agricultural municipal and der the help meet fish, wildlife, pur- and habitat restoration the 1995 industrial standards under by Section they necessarily poses and measures authorized mean that must does not 3406(b).” Counting It also states that “much of’ CVP water used for the 1995 (b)(2) (but actions, of) WQCP fishery “the water that is which not all further the fishery help primary purposes, ... to meet beneficial CVPIA’s restoration [used] (b)(2) objectives obligation of the 1995 toward Interior’s is con- protection uses and 3406(b)(2)’s WQCP ‘primary priority pre- serves section sistent with the of uses Thus, purposes’____” by even under the 2003 scribed the Act. Memo, there can be releases Guidance However, that language support fails to objectives fishery beneficial un-

made for Appellants’ arguments. The 2004 Joint WQCP which will der the 1995 not serve any Letter does not reach conclusion 3406(b)(2)’sprimary purpose section or be WQCP whether or all 1995 actions 3406(b). Hence, by authorized section against must be credited AF Memo, itself, does not 2003 Guidance (b)(2) ambiguity account.30 There is an necessarily require any particular account- quote. the last sentence of the It arises ing treatment of the latter June 2004 re- qualifying from whether the clause “which leases. primary further the CVPIA’s restoration (1) purposes” is meant to: denote that all also refer Appellants

The to a Novem- (“2004 WQCP fishery “CVP water used for 1995 joint ber letter Joint Let- actions” ter”) primary furthers the CVPIA’s Regional from the Bureau’s Director (2) purposes, restoration denote that Manager California-Nevada “counting WQCP CVP water used for 1995 Office of the to the USFWS California (when fishery actions” the water used ac- Departments of Water Resources and Fish tually furthers the CVPIA’s resto- particular, they and Game. In cite (b)(2) purposes) against ration Interior’s following language in the 2004 Joint Let- obligation is consistent with priority ter: reading uses. The latter is the correct There exists some confusion concerning Memo, one. As noted in its 2003 Guidance WQCP whether 1995 actions must be already Interior had indicated that not all (b)(2) against credited Interior’s obli- WQCP CVP water used for 1995 actions gation. groups Some interested have 3406(b)(2)’s primary serves section pur- observed that Interior has the discretion pose. count, count, or not to CVP water used for water Turning control actions to the issue of whether against acre-feet. The 1995 evidence and record below establishes a WQCP prescribes numerous actions that rational connection between the facts Interior, were developed action, agency’s found and the initially we working state, in consultation with the to note that the circumstances surrounding help fisheries, restore Delta including the latter largely June releases are undis- fact, anadromous fish. In fishery puted. WQCP objective these of maintain- WQCP actions were included in ing the 1995 appropriate salinity level at the X2 request of Interior and other Chicago location near Port in the Delta signatories Bay-Delta to the quickly unregulated high Accord. reacts storm (b)(2) 30. The 2004 fully against Joint Letter also indicates that credited Interior’s obli- However, above, implements obligations gation.” "Interior fully under as noted cred- [May iting described in the 2003 Deci- on an automatic basis all 1995 sion], decision, 800,- post-1992 against Under that ... CVP water ESA actions actions, post-1992 used for fish restoration 000 AF account would be in error and actions, Endangered Species Act and 1995 inconsistent with our decision in Insti- tute, Quality Fed.Appx. Control Plan ... actions are at 639-40. court, again appeal, on this that the triggered, the objective If that runoff. significantly may obligated “no action Bureau Bureau took a alternative” reservoirs and from CVP increase releases implement it continued to wherein April due exports. reduce objectives it and other measures had modified activity, the Bureau high storm (b)(2) categorized fishery as theretofore salinity X2 the operations to meet (and (b)(2) against actions counted the releases by greatly augmenting objective yield). According Appellants, dedicated reducing pump- and from CVP reservoirs merely “re-categorized the Bureau then The Bureau account- from the Delta.31 ing rationalized” the latter 2004 re- and June (b)(2) fish- WQCP actions as for those ed being fishery as “non-B2 actions” leases ery costs. purposes year accounting. end Bureau realized that April In the properly rejected court that The district operations would cause current characterization.32 (b)(2) 800,000 yield to be ex- AF limit on Additionally, record demonstrates Thus, at May early in late or June. ceeded agency’s that the decisions did not amount time, steps took to reduce the Bureau (b)(2) to an abuse of its discretion. As indicated as- and used available EWA actions Memo, “if May pro- 2004 was in the 2003 Guidance possible. to the extent sets (b)(2) heavy use of WQCP/ESA month of jected another realized costs and/or releases, upstream to a combination of due accounting year for the exceed the [initial- releases from implementation, VAMP (b)(2) 500,000 of ly targeted] acre-feet wa- the New Melones reservoir. ter, will [USFWS] [the Bureau] of confer to determine the best course subsequent actions taken

The Bureau’s will action. That conference address the problem disputed. to the are response (b)(2) remaining before the district most beneficial use of the Appellants asserted 31. As As noted in the district 32. sion: jected X2 feet in a AF the "no ternative.” WQCP benefits of this scenarios, Plaintiffs that it was Interior Plaintiffs let count an [T]he ous alternatives at CVP facilities Nimbus page 20: accounting go limit, recognized Appellants' during April approach incurred water costs of at 978 requirements had action” alternative is described as suggest for releases at single day, mostly reference a table they ...., going other anticipated.... TAF.” Id. ... It describes the [sic] approach charges up that would but support that after as ^[2004] primary purpose to overshoot AR 1216. In that considered a accumulated, chose a "no action al- relating and Keswick. meeting court’s initial deci- were Interior realized describing vari- being “[e]asy this The Opening to location of “[implement 35,000 higher than the 1995 variety assertion, (b)(2) now 800,000 actions, table, acre- Brief pro- ac- SL & DM n. 5. most purpose actions.” Id. The risks are de- implement” which this gest tani and Mr. Guiñee take issue with selected for no action alternative’s estimate of 978 TAF sense, scribed as: ers.” Id. Other alternatives are listed on that Interior took assertion that Interior decided to alternative, action alternative.” amount Fishery ing dence Deck at actions in the face of (First (b)(2) that, chart, but the record does not reveal likely response Guiñee Decl. at given WaterAuth. 637 Actions.” expended ¶ 15.) despite these, costs is closest "B2 to be implementation. Interior contrary. that, to the situation. costs if Plaintiffs "implements challenged by of the listed steps However, on any, I, actually chose the "no mounting expressly estimated at 978 (b)(2) This makes ¶ Interior to minimize 10; F.Supp.2d provide no evi- to the actual both Mr. and "Non-B2 Plaintiffs First choosing water costs. options, all stakehold- eventually Both state do primary Fujitani at 785 (b)(2) noth- some TAF, Fuji- sug- an management objectives) and wildlife flow against water for fish Vernalis year, they account, whether are for actions that especially given our instruction fish, habitat pur- wildlife and restoration required that it was not to deduct some help meet standards poses or all of the water utilized for water Here, obligations.” and ESA the USFWS ESA from the AF and/or Bureau did meet and estimated yield when the water is needed for the 775,000 AF approximately implementation specific CVPIA restora- May water had been used the end of tion mandates. They prioritized remaining then particular purpose AF to Appellants counter that

(b)(2) actions such as salmon restoration Delta outflow and Vernalis flow standards doubling and on Creek. Clear placed WQCP specifically were in the 1995 protect fish and wildlife beneficial uses. present dispute, Prior to the the Federal However, (1) previously: as noted not ev recognized “only Defendants had that ery measure taken to protect species some meeting post-1992 ESA automatically of fish or wildlife becomes a requirements may not be sufficient to meet (2) (b)(2); primary purpose under Interior doubling goal anadromous fish required is not to deduct some or all of the purposes other restoration and measures water it uses for or ESA CVPIA.” See SL & DM in the included (b)(2) purposes 800,000 I, from the AF ac Auth. Water F.Supp.2d 781 n. 1. (3) count; and Interior has discretion to In May Interior was with faced crediting Project refrain from yield actual prospect then-present that its use of the (b)(2) (b)(2) ly purpose used some doing when general WQCP dedicated help so will hierarchy effectuate the post-1992 purposes ESA would de- 3406(b)(2). plete by the account established Section Approxi- June 2004. Here, 25,000 mately the evidence satisfy AF was left to did not demonstrate specif- (b)(2) purposes ic that the latter June remaining for the four 2004 releases were actually months of the accounting year. implement any specifical In made to circumstances, ly such designated primary Interior did not purpose abuse measure (i.e. its discretion in deciding charge not to one fell within CVPIA (which (18) 3406(b)(1), (4), (5), (8), (9), § latter June 2004 (12), releases were tak- (19)).33 simply en to meet the Delta outflow and That especially was the case Plan, 33. The fact that the latter June 2004 releases to ensure that there would be suffi- specific were not made for a through cient flow that stretch of the San purpose exchange meet, was established in an at the River. And this was to August hearing again, before the district Quality the Water Control Plan re- identify court. When asked the court quirements ... specific justifications for those water ac- purpose of this release was not to assist tions, (counsel Shockey Charles R. fish, for the migrating apparently out which had Defendants) Federal stated that: already through system by moved then. Rather, meeting [T]he Nimbus releases into the American it was to assist in the salin- made]____ ity requirements to meet the Delta in the Delta.... Riverfwere Well, season, requirements outflow under the water con- earlier in the there had been Quality significant trol —Water problem point.... Control Plan.... [I]t with the X2 any specific fishery purpose, was not action taken for keep salinity— [T]he basic is to purpose[.] restoration point ... the X2 further downstream in the Delta. [The other] release was made to assist in When asked the district court if either the meeting requirements, Agencies the Vernalis flow or the Environmental Parties again, Quality "any interpretation under the Water Control had different or view of (1) to describe the latter June releases as stated that it did where: the USFWS latter that the June releas- follows: not recommend primary fish res- to effectuate es made (Nimbus —American River flows releas- (2) apparently there purposes, toration es) 1,800- ranged approximately amount of juvenile appreciable

were no 2,300 cfs with the base consistent case impacted waterways which salmon in the part flows. latter month from such increased could have benefitted approximate- releases were increased Thus, AF where releases.34 2,500 cfs ly to meet Delta demands. nearly limit exceeded with four was ... River flows were aug- —Stanislaus accounting year in the remaining months mented assets to with increase agreed and the Bureau and USFWS had flows in half of June to ap- the latter doubling fish specific anadromous proximately compared to cfs accomplished needed to be measures still base case flows of 450 cfs order to (such doubling restoration as salmon require- help meet Vernalis flow Creek), on Interior’s exercise of Clear ments. latter to treat June discretion “non-(b)(2)fishery Finally, though there is no actions” was even substan- releases as entirely concluding consistent with our tial basis for that Interior’s proper and ac- Institute. prior ruling counting of the latter June treatment 2004 releases was an after-the-fact simply ra- language further cite to from Appellants tionalization, that the we note district that purport- one of Interior’s summaries large rely court was forced to to extent edly the latter June releases describe testimony on after-the-fact declaration the anadromous fish dou- falling as within that explain other evidence to treatment. bling purpose: As the district court observed: in- maintained June 2004—UA—Interior Although judicial review is normally with con- stream flow conditions releases record, provide from to suitable fined to reservoirs the administrative there migration, egg justify incu- system may expand- habitat for be circumstances to bation, automigration for rearing ing permitting discovery. the or record fish, including runs of anadromous listed ... the exception The one broadest trout, steelhead salmon and Chinook permits expansion which record improve species conditions estuarine necessary explain agency when action. by WQCP objectives!.] meet helping to explain a failure to When there is “such to frustrate ju- administrative action as But, correctly as out pointed Appellees, review,” may dicial a court receive from only initial that refers the language agency, through the either affidavits or summary goes June actions. The on uses,” purposes releases] Nimbus and New Melones meet the of those Daniel J. O’Han- (counsel Agencies) fish, Water re- lon for the and habitat the wildlife resto- Shockey accurately sponded: think Mr. "I CVPIA.... Said ration another quantity and location of the re- WQCP, described way, were it not for Service they were leases and that intended to meet [the would not recommended that Bu- have standards.” O’Hanlon also 17, [on releases June reau] increase flow "designed added standards were that those 2004 in River or on June the American protect wildlife uses.” fish and beneficial on the 2004 above baseline flows Stan- primary fish islaus restoration River] explained As in the initial Guiñee Declara- 34. purposes pursuant to CVPIA.... paragraphs 12 and 13: tion at this flow did recommend [USFWS] latter June 2004 increased increase [i.e. testimony, explanations River), “such additional San the district court agency for the reasons decision as properly concluded that disputed Nim- Public Power may prove necessary.” bus and New Melones releases did not Johnson, Council v. 674 F.2d 793- predominantly have the effect of benefit- (9th Cir.1982) Pitts, (quoting Camp v. ting populations.36 anadromous fish 411 U.S. 93 S.Ct. work, and, Much possibly, this entire (1973) curiam)). (per L.Ed.2d 106 [ ] appeal, could have been avoided had Inte- I, SL & DM Auth. 637 F.Supp.2d (1) rior either implemented a more coher- Appellants n. 19. challenge do not ent set of accounting procedures after it district court’s decision to supplement became January aware of our 2004 amend- record, administrative they nor do chal- decision, (2) given ed a complete expla- lenge any of the declarations upon relied accounting nation of its for the 2004 Water by the district court.35 Based on that evi- Year at prior some time being chal- (e.g. dence Dr. testimony Swanson’s that lenged in court. Because we the releases find that the could not have benefitted explanations salmon because late June 2004 Interior most of has offered are not juvenile salmon gone were post rationalizations,37 the mere hoc however, do, however, Appellants correctly accounting year, assert argue that such one can Appellees' improperly rely part briefs agency realized using too late that it was testimony on declaration that was stricken too much CVP charged that had to be from evidence the district court. Our con- Rather, water. agency begins with clusion that Interior did not abuse its discre- certain updates forecasts and then the actual depend upon any tion does not of the stricken hydrology operations and CVP data each testimony. month, which it then utilizes to determine the appropriate steps future to be taken. More- regard 36. With to the require- Vernalis flow over, quality plan the water objectives control ments, it is noted that Attachment B to the contained in the 1995 and the D-1641 Bay-Delta along requiring with the Accord— (such levels) salinity as are sensitive to actual Bureau to maintain water conditions hydrological conditions that fully cannot be sufficient to achieve the narrative fish dou- anticipated or forecasted. bling goal provision to the of flows —refers "in biological accordance with opinion the for April In March and of storms and Smelt," Thus, Delta a non-anadromous fish. high required unanticipated runoffs increases it is clear reasonably that Interior concluded (b)(2) in the use of water to meet the X2 water that the June 2004 releases were made to Thereafter, quality objectives. Interior’s deci- variety species benefit a wildlife, of of fish and other (not sion to count the AF released from non-(b)(2) as well as for certain other the Nimbus and New Melones reservoirs in purposes, and did charged not have to be late June 2004 to meet the Delta out- (b)(2) against the account in the situation requirements flow and Vernalis flow when presented at that time. negligible there were salmon in their associat- rivers, ed but instead to save and dedicate argues 37. The dissent that Interior’s "re-cate- that particular gorization of the late June 2004 releases from purposes such as salmon restoration and dou- the Nimbus and New Melones reservoirs was Creek) bling in Clear post was not purely post-hoc a hoc a rationalization Interior” rationalization. Rather it because was an exercise "Interior realized too late that it was precise using the recognized too discretion which much water that it we believed had to (b)(2) water, charged agency had under the section CVPIA and back- "to refrain peddled crediting in order from year Project yield to make its tire end num- amount of actually bers match.” mis-per- That purposes against characterization used for undisputed designated ceives the facts and the manner in acre feet....” Institute, agency’s operations Indeed, which the Fed.Appx. are carried at 639. out. Interior does not set an virtually inflexible sched- dissent point concedes this in its ule of water beginning releases at the of the observation that "if the water release were to delicate, limits politically negotiated full on give contemporaneous its failure to clearly not amount to an abuse uses explanations does water envisioned certain or otherwise invalidate of discretion it Congress when enacted the CVPIA. actions. I reverse remand to the district would

court. CONCLUSION fight over “A man from West will that court found properly district The water, things: gold, women and usu- three challenge had standing the Appellants ally quote in that order.” This from regarding its treat- decisions Interior’s Barry Goldwater illustrates a late Senator ment the latter June 2004 releases that has been in California present conflict accounting respect with that Interior’s California, days. early since its “arbitrary, capri- was not those releases life, death, and its is at least is absence discretion, cious, or otherwise an abuse economically. Valley Project Central with 5 U.S.C. not in accordance law.” (CVP) particular a precious is 706(2)(A). judgment § the district The many competing resource interests. AFFIRMED. court is therefore fish, protecting

No one denies SMITH, concurring in Judge, wildlife, M. Circuit environment of Central part: part dissenting salmon, including Valley, Chinook Delta smelt, fish, and other is ex- anadromous join majority’s in the conclusion While I has so tremely important, Congress A the on as outlined in Part standing only But those inter- found. are not section, I respectfully, strong- but Analysis stake, up which what set ests ly, parts from the of the dissent other fight that led to the Congressional limits majority opinion. truth is (Interior) in the the other of the re- included CVPIA. On side Department Interior’s the late 2004 releas- June divide another inter- categorization political of the stands Melones es the Nimbus and New importance protecting of enormous est — purely post-hoc rationali- reservoirs was the livelihood farmers and workers Interior, when it that it by zation realized crops have harvested in the Central who 3406(b)(2) water run out of section would decades, com- Valley legions and the of ra- year. post-hoc to for the Such a use depend munities that on them. in the tionalization flies face of what produces The state of California more Project Act Valley Improvement Central fruits, nuts, vegetables than half of the (CVPIA Act), 102-575, Pub.L. or No. States, including in the United grown (1992),mandates, as well as Stat. 4600 that are many crops exclusively grown in requirements controlling case law. Joaquin Valley, The San California.1 Moreover, affirming court’s the district basket,” “America’s fruit is known as home to a “predominantly contributes does, industry dollar standard, crop to a 20 billion majority purpose” as the any more farm than oth- inevitably produces will lead to an evisceration sales run, Agricul- Department and the 1. California of Food and at the end of salmon occur ture, salinity adjustment Agricultural was to survival not crucial Direc- California Resources there, 17, still but would still the few salmon tory http://www.cdfa.ca.gov/ 2010-11 effect, marginally beneficial Interior have Statistics/PDFs/ResourceDirectory_2010- this re- have discretion not count should 2011.pdf. as section water.” lease view, in the country.2 plies. my guts er individual state Nine of that hard production of the ten coun- top agricultural won political compromise are about States are in by ties the United California.3 meaningless rendered well-intentioned counties, Fresno, Six of including colleagues, those who represent neither an af- Merced, Tulare, Kern, Stanislaus, and San constituency, fected nor have the technical counties, depend on CVP water expertise nor capacity, institutional crops.4 for their weigh the impact almost-certain of their on ruling those lives whose and fortunes The motto of agriculture- de facto this will be devastated them. For that rea- dependant region the nation “No wa- is son, I believe we faithfully should adhere ter, The no work.” economic devastation specifics political compromise to the Central that has resulted Act, contained and not undermine from type of water conflict represented compromise through legal sophistry. pervasive. this lawsuit One need 99, only take a drive down Highway History A. The of the CVPIA 5, Interstate from Sacramento down to CVPIA passed part was as profound Bakersfield to witness the effect Projects Reclamation Authorization a lack of has region. had on this Adjustment 102-575, Act of L. 1992. Pub Approximately once-pro- acres of 106 Stat. 4600. unproduc- ductive lies On June farmland fallow and passed unemployment original tive.5 The House bill rates in the af- that would Act, range fected become the percent Cong. communities H.R. 429. 137 Rec. up percent. Mendota, to 40 Id. D797-01. early one hard This version the Act did town, hit unemployment had a wildlife, 38% rate in not contain pertaining title 2009, all nearly fish, of those who lost their and habitat rehabilitation in the Cen- jobs were farm workers.6 Valley, tral including the acre foot (AF) generally limitation. See Cong. The reality is that water satisfy used to Rec. H4799-01. one necessarily away interest takes water Thus, from other always interests. April Senate, has On after its California, been true in allocation of water subcommittee meetings October of requires balance, bill, delicate with potential- passed an amended which included ly devastating implications. For that rea- other among provisions “Title XXXIV— son, the Congressional negotiations that CENTRAL VALLEY PROJECT FISH ultimately the passage led to of the CVPIA AND WILDLIFE Cong. ACT.” 138 Rec. bitter, were lengthy, highly charged. S5564-02. While this new addition set However, concluded, negotiations when the many goals forth of the same as the even- parties the had reached compromise a re- tual namely, CVPIA to “protect, re- does— garding the allocation of sup- store, certain water and enhance fish and wildlife habitat Paul, Vine, Newsweek, 2. Dying Katie on the ImageServer?imgName=Doc_ 1, Aug. http://www. at available at .pdf. newsweek.com/2009/08/23/dying-on-the-vine. Richardson, 5. Valerie the html. It's Farmers vs. Fish Water, Times, Washington The for California 20, 3. Agricultural 2009, California Directory Aug. http://www. Resources available at at 18-19. washingtontimes.com/news/2009/aug/20/its- farmers-vs-fish-for-california-water/. Reclamation, 4. See Map Bureau of of Central Valley Project, http://www.usbr.gOv/projects// Dying 6. on the Vine at 1. Act, of and Valley upon enactment this after of California”—then-

in the Central operational implementing changes the explic- did not contain the still section 3406 (b)(1)(B), in subsection make 800,000 Id. at S5596- authorized requirement. AF it water the Rather, project primary the available this called for section 5601. for fish, Project purpose implementing the wild- Valley aof Central establishment of purposes life, and habitat restoration Advisory and Committee Fish and Wildlife measures authorized this sec- carry the of and purposes to out Task Force tion, except that such water shall inbe at the title. Id. S5599-5600. implement to required addition to 1992, House the considered On June (b)(15)(A). and This subsections bill, H.R. separate enti- passed and a may assigned immediately water be Project Valley Improve- tled the Central The supplement instream flows. United This Cong. Rec. H4918-06. ment Act. 138 Fish States and Wildlife Service shall designate mil- aimed to 1.5 originally bill monitoring and conduct studies activities top off of AF taken the lion of water necessary may be to determine the as for the of fish purposes meeting such flows in effectiveness of mitigation. Id. wildlife enhancement (b)(1). goal the established subsection However, bill the version of the at H4921. year period, At the end the initial five of did being considered at this time that was adjust Secretary quantity shall water that must specify not an amount of assigned necessary meet of Id. at purposes. for such be allocated goal; Instead, bill stated that H4921. this added). (emphasis Id. at H5617-18 will: Secretary of the Interior point, At that the House and Senate did implement program Develop and agree proposed on the amendments. ade- acquisition supply of a water 800,000 Though the AF was not figure part require- quate to meet bill, joint of either House-Senate con- program of this section. Such a ments introduced compromise finally ference identify Secretary will how the should Cong. AF provision. 138 Rec. utilizing the supply, secure this water newly compromised H11493-01. The bill following options priority: in order language the relevant cur- mirrored of the improvements or modifications rent Act: conservation; operations project; of the upon enactment of this title dedicate use; transfers; conjunctive purchase of annually manage acre-feet water; idling purchase agricul- Project Central land; tural reductions deliveries purpose implementing the Valley Project contractors. Central wildlife, and habitat restoration fish, Id. H4926. measures authorized purposes and title; into H.R. to assist of Califor- incorporated was then this State bill protect in its Title nia efforts waters 429 on June XXXIV Bay/Sacramento-San Valley Re- the San Francisco bill became titled the Central Estuary; to help titled Delta and to and Section 3406 was form Act may “Fish, obligations legally such as be and Reformation.” meet Wildlife Habitat H5589-02, Valley Project imposed upon the Central Rec. H5615. Section Cong. 138 3406(b)(1) following or federal law the doubling with and sec- under state dealt fish title, 3406(b)(2) Secretary including of of specified that the date enactment this tion obligations not limited to additional the will: but of Interior Endangered Species by and measures authorized this title.” under the federal (b)(2) Next, Act. section allows the Interior to pro- “assist” the State of California in its (em- H11572-01, Cong. Rec. H11605 Estuary. tection efforts of Delta Fi- the added). phasis hearings The revealed that (b)(2) nally, section allows the Interior to negotiated down from figure this had been “help” obligations to meet other under 800,000 million AF down to AF. plus the 1 law, such Federal State as the Endan- S17289-01, Cong. Rec. S17303. gered Species Act. legislative history pro- was noted discussion, by years and ceeded of illus- by ruling the first the district court in that the terms of the final Act trates litigation, this on October the in passed Congress including the court held “Interior had ‘discretion to — “fish, AF limitation on water to be used for annually yield determine how much CVP wildlife, purposes” and habitat restoration or post-CVPIA devote to ESA (b)(2) carefully nego- section the requirements’ but had no discretion —were long political process. tiated results of a ‘whether or not to count yield CVP used intent, Congressional effect give To (i.e., for purposes’ such all such uses Act, plain the of meaning counted).” the we must must be San Luis & Delta- very so carefully, tread as not allow the Interior, Mendota Water Auth. v. 800,000 AF meaning- limitation to become (E.D.Cal.2006). F.R.D. The court Unfortunately, majority opinion less. explained: will, view, my very lead to that result. 3406(b)(2) unambiguously Section di- rects Interior to “dedicate manage B. The District Court Standard annually eight hundred thousand acre- 3406(b)(2) of Section the CVPIA states Valley Project yield feet of Central Secretary of the Interior shall: of purpose implementing upon enactment of this title dedicate fish, wildlife, and habitat restoration manage annually eight hundred purposes and measures authorized thousand Central acre-feet of this title.” has Interior no discretion Project yield the primary purpose annually provide whether more or implementing fish, wildlife, yield less than 800 TAF [] for purposes habitat restoration and meas- (b)(2) purposes, unless it certain makes title; ures authorized this to assist findings under CVPIA State California its efforts to 3406(b)(2)(C).... § Interior is also di- protect the waters of the San Francisco rected to annually manage dedicate and Bay/Sacramento-San Joaquin Delta Es- mandatory TAF of CVP tuary; help and to to meet such obli- “to assist the State of California gations may legally imposed as upon be protect efforts the waters San Valley Project the Central under State Bay/Sacramento-San Joaquin Francisco or Federal following law the date of Estuary [i.e., WQCP]; Delta and to title, including enactment of this but not help obligations may to meet such

limited to additional obligations under legally imposed upon the under [CVP] Endangered the Federal Species Act. State or Federal law following date face, title, On its section including allows of enactment of this but AF of CVP water to be “for obligations used limited to additional un- primary purpose fish, implementing der Endangered Species the Federal wildlife, law, habitat restoration Act.” As a language matter this 2004, Inst. January Bay on decision used to meet ambiguous is not of —water States, v. 66 Fed. San Francisco United WQCP require- ESA post-CVPIA or (9th Cir.2003); Bay Inst. Appx. (b)(2) purpose is an additional ments of States, 87 Francisco v. United Fed. San charged against the 800 be and must (9th Cir.2004), reversing the Appx. 637 (b)(2) used. mandate so TAF if holding: district court on this silent on what amount is not CVPIA concluding court erred in The district “sec- so-called used for these of water lacks that Interior discretion refrain to be credited ondary” purposes is Project crediting the amount from (b)(2) TAF mandate. against the 800 (b)(2) pur- yield actually used for (b)(2) TAF of water could all 800 (E.g., 800,000 pose against designated acre post-CVPIA-enactment to meet be used Project To yield. hold otherwise feet of Congress man- requirements?). ESA primary purpose defeat the for would yield exactly 800 TAF CVP dates 800,000 desig- feet which the acre were (b)(2) purposes, for dedicated [] be nated-fish, wildlife, and habitat restora- “secondary.” or To “primary” whether 3406(b)(2) provides tion. Section would render hold otherwise 800,- to which the “primary purpose” leaves to figure superfluous. TAF This is 000 acre feet should be dedicated Interior, annually de- the discretion to “fish, wildlife, implementation of yield to devote how much CVP termine purposes restoration authorized habitat require- post-CVPIA or ESA ” 3406(b)(2) by this title.... Section also However, it were Inte- ments. if left 800,000 provides may that the acre feet “discretion” whether or rior’s “help” obligations be used to meet under (b)(2) yield CVP used such count for Species Act and to Endangered “as- cap the annual 800 TAF purposes, meeting quality sist” in water standards. 800,000 TAF illusory. The would be required Interior to deduct some were If by Congress as an immutable intended or it all the water uses water for on annual reallocation ceiling floor and Species Endangered purposes Act (b)(2) yield pur- for from CVP water (b)(2) dedication, If than 800 poses. Interior uses more implementation the Im- needed for (b)(2) any year, purposes TAF but for provement Act’s restoration mandate all used for does not count role, secondary relegated to a could it purposes, violates CVPIA such no role at all. Such sce- perhaps 3406(b)(2). § directly would conflict with the nario (internal omitted) (emphasis Id. citations give effect to the Interior’s mandate to Thus, added). court ruled that the district hierarchy established has on how to allocate Interior discretion 3406(b)(2). Section (b)(2) purposes. For section within Inst., Fed.Appx. (emphasis at 637 to use AF example, it could decide added). view, previous merit my our 200,000 AF to assist primary purposes, for attempted to with a panel deal situation (via WQCP), the State California following: Assume, for exam such as the However, Interior AF for ESA. AF where 1 million was ple, a scenario charge, to not does not have discretion quality/outflow re needed for the water the water used example, year. WQCP every quirements under section water. Thus, charge this water if Interior had to regardless of non-precedential against section On we issued a appeal, water — that water furthers a and an amended whether decision on June or not—then Interior would have a purpose “primary purpose” program, effectuate 800,000 of AF such none the allocation left action must be counted toward the (b)(2) thus “primary purposes,” relegating the account. Environmental Plaintiffs “primary purposes” helpful the related to anadro- advance a definition of the term fish to role at our “primary,” ordinary mous “no all.” Under the meaning of if a non-precedential ruling, water alloca- which is of “predominant,” impor- “first WQCP tance,” the pursuant tion is made “principal.” or See Malat v. Riddell, achieving salinity the of a purpose serves 383 U.S. 86 S.Ct. (1966). agricultural purposes, margin- level for but Applying L.Ed.2d this ally, effect helps definition, and as side also salmon an action taken under the if might salinity WQCP who find the new level more the ESA predominantly and/or favorable, necessarily the water does not contributes to the primary pur- one of (b)(2) count as placed section water. We pose programs (e.g., doubling), it fish 800,000 the on focus whether used is “for must be counted toward the AF primary implementing of purpose limit. Interior retains the discretion fish, wildlife, pur- actions, and habitat restoration not to count other secondary so poses by authorized” long measures section doing so necessary give is (b)(2), rejected concept that water hierarchy purposes. effect of used for pur- other non-section San Luis & Delta-Mendota Water Auth. poses WQCP pur- as for or ESA —such Interior, v. 637 F.Supp.2d poses categorically must count as section — (E.D.Cal.2008) added). (emphasis (b)(2)water. part of I this test that find troubling is prior

Our do cases not detract from the that water allocation must count as section 800,000 fact that politically negotiated only if “predominantly it con- AF number was meant to be a hard limit. one primary tributes to of the purpose words, In other Interior go cannot above it Otherwise, programs.” Interior could and is not it within the Interior’s discretion it, it, choose to count or count at its However, to do inqui- so. the focus of the approve whim. No test we permit should ry on when water pri- allocated serves a AF negotiated, hard limit to be mary purpose open question leaves meaningless, rendered but I fear that the how if to determine an allocation of water district court’s “predominantly contrib- purpose “for of implement- test, majority utes” which the blesses in its fish, wildlife, ing the and habitat restora- opinion, exactly eventually yield will such a purposes tion and measures authorized result.

this title.” First, the district court’s test seems to

In answering question, this confuse “primary” the district the use the word applied court following previously test: the CVPIA. As we recog- have nized, 3406(b)(2) presents section a hierar- many practice, In actions taken to fulfill Inst., chy purposes. Bay Fed.Appx. fishery objectives beneficial uses at 637. actions taken and/or 3406(b)(2) comply may with the ESA serve Section provides “pri- that the primary purpose mary the CVPIA. purpose” to which the acre keeping general with the structure of feet imple- should be dedicated is the language, the CVPIA’s if the “primary” “fish, wildlife, mentation and habitat purpose any action taken under the restoration authorized this 3406(b)(2) to support ESA is pro- title----” Section also and/or test, Interior be contributes” would 800,000 may nantly acre feet be that the vides 0 AF of this water obligations charge under to “help” to meet able used (b)(2) water, Act to Species though pri- “as- a Endangered even the section releases, standards. meeting by in water the mary sist” is served purpose to because the water release contributes Thus, in the statute Id. “primary” as used (b)(2) purposes other non-section hierarchy several the of applies to logically most thus, words, “predominantly” does not primary as well and In other the purposes. would importance— primary purpose. first a This first serve purpose —of fish, 800,000 used for the water should be with its entire is that leave the Interior Next, wildlife, the and habitat restoration. top AF water allocation—on section obli- may used to meet other be water already AF spent of this 1 million —to quality standards. The and water gations purposes. While further aid the erroneously this hi- court confuses district at in case the allocation issue this is with when an action is erarchy purposes AF, standard, majority’s the under Stating that the primary purpose.” “for a easily much explain away Interior could a ordinary has an also “primary” word of water. larger allocation the district “predominant,” meaning may lead some on one side This scenario only an therefore opines that action court ask, what?” This of the issue to “so is if “predomi- it “primary purpose” a serves to simply help more water more anadro- Inst., Bay Fed.Appx. serves it. nantly” fish, only which can better the envi- mous However, in nothing is the there Valley. of the Central ronmental outlook single use indicates that Act that However, perspective such a obscures the that water alloca- “primary” means word way in “primary” for a fact water used this will neces- to be that “primarily” tion has for it to count under that sarily order subtract from water is allocated purpose (b)(2). Thus, that the I do find section various cities and residents of those by, mandated court’s test is district on same depend that cities with, language of the plain consistent and existence. this their livelihood Act. sense, pie given year in a is the size of

Second, person bigger district court test a fixed. A slice for one means must con- “predominantly impor- water allocation a smaller slice for another. Most likely (as will primary purpose noted), to a tribute” already adopting the tantly 800,000 AF limit. court, work eviscerate by set district standard (1) following hypothetical: Consider the inevitably will majority, blessed 500,000 AF water Interior allocates meaning AF eviscerate salinity WQCP, a under achieve beneficial number, limit change it from a hard purposes and agricultural furthers list. a wish and non-anadro- both anadromous helps Certainly, Interior has some discretion live the river where the mous fish that (b)(2) water. I charge on how to section (2) 500,- made; allocates Interior release accept Agencies’ position the Water do not help ESA to a 000 AF of water under the managed that CVP water dedicated animals, including both anadro- variety of required with action comply an fish. There is and non-anadromous mous wildlife, fish, WQCP that serves the also overlap of with each clearly purposes an purposes and habitat restoration release, go both and these releases toward (b)(2) way toward the must be credited non-primary section primary and (b)(2) limit. This rule draws However, AF “predomi- section under the purposes. Memo, line, we sharp too and like found cember Guidance Interior Institute, on limiting would too stated: (b)(2).

hierarchy in section [Ajctions pursuant taken to the 1995 Act, Under the Interior could consider how Quality Control Plan and State (b)(2) much section pri- benefit there is to Deci- Water Resources Control Board mary compared to other purposes benefits. sion D-1641 ... involve the dedication a example, For if water release coincided management of Central Pro- high with population a of salmon the ject yield fishery long-term for beneficial river, along species with a few other of protection. use and Such are actions fish, salinity and the non-anadromous level not taken or help agricultural to meet was to the of crucial ensure survival the municipal quality and industrial water salmon, then such water must count. standards that are in the set 1995 forth However, if the water release were to oc- WQCP. WQCP Most of the ... 1995 run, cur at the end of the salmon and the fish, wildlife, help fulfill the and habitat adjustment salinity was not crucial to sur- restoration au- measures there, vival of the few salmon still but 3406(b). thorizes Section Consistent marginally would still have a beneficial with June Ninth Circuit deci- effect, Interior should have discretion to sion, (b)(2) much water that (b)(2) not count this release as section managed annually dedicated and to go say water. I not far would so as to that help fishery meet use and beneficial a water allocation “predominantly must objections protection WQCP the 1995 primary purpose. contribute” to a This 3406(b)(2)’s serves “primary Section bar, high sets standard too and leaves fish, purpose” wildlife, and habitat too much discretion Interi- the hands of restoration. charge or in how to other water that Furthermore, in a joint November high my view, does not meet this In bar. Regional letter from the Director it is if sufficient a water release serves or Manager of California-Nevada Office effectuates the primary purpose in a con- Fish and Wildlife Service stated that: sequential and non-incidental manner. There concerning exists some confusion WQCP whether 1995 actions must C. The Late June 2004 Releases (b)(2) against credited Interior’s obli- Irrespective the erroneous standard gation. groups Some interested have district court set and that observed that Interior has the discretion affirms, majority majority additionally count, count, not CVP water ignores overwhelming evidence that used control actions shows that what Interior did in accounting against the acre-feet. The 1995 (to for the June 2004 Nimbus release meet WQCP prescribes numerous actions that objectives) Delta outflow and New Mel- Interior, developed were (to ones meet objec- release Vernalis flow working state, in consultation with the tives) nothing post-hoc was short of ration- fisheries, help including restore Delta alization we must find to be an abuse fact, fishery fish. In anadromous these of discretion. actions were included the 1995 Interior itself two telling released docu- request at the of the Interior and other policies ments on what its practices signatories Bay-Delta Accord. charge were in how to pur- Counting water released water used WQCP. First, actions, suant to the WQCP fishery in a De- which further (b)(2) water. It was until pur- section primary restoration the CVPIA’s (b)(2) running obli- that it was out of Interior’s Interior realized poses, towards it priority allocation that with the section gation is consistent to charge the Act. its mind about how prescribed by changed uses similarly in the late June allocated water documents, addition to these Interior release, which 2004 releases. Nimbus light why sheds on some itself objectives, outflow aimed maintain Delta in the first objectives were instituted of its to the ac- charged was not section objectives protection for the place. “The though count even water that was released es- uses are of fish and wildlife beneficial in objective April to this 2004 was so meet following parameters: the for tablished Likewise, the Melones re- charged. New (expressed oxygen, salinity as dissolved lease, the which aimed to maintain Vernal- outflow, riv- conductivity), Delta electrical release, charged not to the is flow was limits, flows, and Delta Cross export er (b)(2) though section account even water WQCP at gate operation.” 14. Channel objective in that to meet this was released objectives been have The Delta outflow April charged. of 2004 so May was protection “for the estuarine included and other for anadromous fishes habitat not a case present This situation does at species.” Id. 15. estuarine-dependent carefully where Interior considered and require- flow purpose The of the Vernalis meaningful exercised its in a discretion trans- attraction and provide ment is “to it way categorize to that water releases flows and suitable habitat for various port did not a truly primary believed further aquatic organisms, including stages life 3406(b)(2). purpose under section Such chinook salmon.” Id. Delta smelt and that to the discretion is afforded Interior (b)(2) documents, under section Institute. along These two with the Rather, is one Interior this situation where WQCP objectives, show unequivocally using too it was much realized late that too why April Interior in reasoning the behind charged water that it believed had to be designed to implement charged (b)(2) water, back-peddled in section VAMP, objec- to Delta outflow the meet year numbers to make its end tives, order objectives flow and to meet Vernalis (b)(2) Congress match. could not have intended They account. show the section the the give Interior discretion erode reasoning why behind Interior also manner, nor AF number in this WQCP require- to meet the charged water Act plain meaning permit does X2 as to the location of as section ment (b)(2) 2004, such a construction. Similarly, May they water. why charged Interior to the section explain majority to find solace appears The water that was used account that Interior sub- post-hoc declarations releases, implementation,

upstream VAMP started, only had litigation mitted after the from the New Melones Res- and releases arguing the 2003 Guidance Memo alloca- charge of these water ervoir. necessarily the 2004 Letter do not Joint wholly are consistent to Interior’s tions possibility that some foreclose the WQCP objectives. documents and the own (b)(2). may charged under section releases, majority points However, particular, subsequent to these (b)(2) wa- use “much of the daily accounting phrase June showed and what remaining in ter” in the 2003 Guidance Memo with still four months ambiguous year, wording it calls accounting section true, it if AF Letter. Even this were all Joint up Interior had used but gen- own does not detract Interior’s America, UNITED of’ STATES

eral that “much water used principle Plaintiff-Appellee, pursuant to the serves section (b)(2)’s purposes. If Interior v. that late June 2004 wanted show releas- Dwayne LEQUIRE, Defendant- must, exception, es fall into a narrow it Appellant. minimum, provide why a basis No. 11-10066. primary purpose. water does not further a this, In attempting to show Interior can United of Appeals, States Court only post-hoc turn to its declarations. Ninth Circuit. Supreme Court has “The forbidden dis- Argued and Submitted Feb. 2012. relying upon litigation trict courts from Filed March ‘post affidavits and hoc’ rationalizations for agency action.” Presidio Club v. Golf Serv., Nat’l Park 155 F.3d 1164-65

(9th Cir.1998) (citing Citizens to Preserve Park, Volpe,

Overton Inc. v. 401 U.S. (1971)). 91 S.Ct. 28 L.Ed.2d 136

Though exception an out is carved

situations findings where formal could be

prepared actions, explain agency’s an declarations submitted Interior do exception. meet this See id. What

was submitted were declarations that at-

tempted to explain why the water alloca- categorization

tion may have appro- been

priate in hindsight. The declarations do

not show that —at the crucial time that

Interior made those releases back June carefully 2004—Interior had considered

whether the pri- releases would serve

mary not, purpose properly counted

the water on that I agree basis. cannot

with majority’s conclusion that Interi-

or’s actions in accounting the late June

2004 releases was not an abuse of discre-

tion.

I respectfully dissent from all but the

standing analysis of majority opinion.

Case Details

Case Name: San Luis & Delta-Mendota Water Authority v. United States

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 2, 2012

Citation: 672 F.3d 676

Docket Number: 17-72955

Court Abbreviation: 9th Cir.