Case Information
*3
THOMAS, Circuit Judge:
The historian Donald Worster described the Columbia
River as the river that died and was reborn as money. The
Columbia River Basin was once home to one of the world’s
largest salmon runs, but over the course of the twentieth
century the mainstem Columbia and its tributaries were
radically re-engineered to become the most hydroelectrically
developed river system in the world, incorporating more than
one hundred and fifty dams.
Nw. Res. Info. Ctr., Inc. v. Nw.
Power Planning Council
,
This appeal concerns the control of water necessary to sustain native fish populations in Icicle Creek, a tributary of the Wenatchee River, which is itself a tributary of the Columbia. The Wild Fish Conservancy and Harriet S. Bullitt (collectively, “the Conservancy”) allege that the United States is improperly diverting water from Icicle Creek to the Leavenworth National Fish Hatchery (the “Hatchery”) and otherwise violating Washington state law. We conclude that the Conservancy lacks prudential standing to bring its claim that the Hatchery operation violates the Washington water code, and that we lack jurisdiction to consider the *4 Convervancy’s other claims because they either do not challenge final agency action or rest on provisions of [1] D ONALD W ORSTER , R IVERS OF E MPIRE 276 (1985). 5
Washington law that are not incorporated into federal reclamation law. Therefore, on de novo review, [2] we dismiss this action.
I Congress authorized construction of the Hatchery to mitigate the adverse impact of the Grand Coulee Dam on native fish in the Columbia River Basin. The Conservancy claims that the Hatchery is subject to section 8 of the Reclamation Act of 1902 (“section 8”), which requires that federal reclamation projects operate in compliance with state water law. 43 U.S.C. § 383. According to the Conservancy, the United States Secretary of the Interior and subordinate officials responsible for operating the Hatchery (collectively, the “Federal Defendants”) violate section 8 by diverting water from Icicle Creek without a permit required by the *5 6 W ILD F ISH C ONSERVANCY V . J EWELL Washington water code, Wash. Rev. Code § 90.03.250, and by failing to provide adequate fish ladders as required by Washington’s fishway law, Wash. Rev. Code. § 77.57.030.
When the Hatchery was completed in 1941, fish were initially reared in a one-mile segment of Icicle Creek—referred to by the parties as the “Historic Channel”—equipped with dams and weirs to create holding ponds. A four-thousand foot canal—the “Hatchery Canal”—was constructed adjacent to the Historic Channel. The Hatchery Canal splits off from the Historic Channel at “structure 2”—a dam with radial gates that control the amount of water flowing downstream through the Hatchery. The Canal runs roughly parallel to the Historic Channel for about one mile and then rejoins the Historic Channel immediately downstream of “structure 5.” When the gates at structure 2 are open, most of Icicle Creek’s flow travels down the Historic Channel. When the gates are closed, most of the creek’s flow travels down the Hatchery Canal. Thus, closing the gates at structure 2 significantly, and sometimes entirely, dewaters the one-mile segment of the Historic Channel between structures 2 and 5. When this occurs, fish cannot swim up the Historic Channel to spawning grounds above the Hatchery. Though fish-rearing operations at the Hatchery were moved to off-channel holding ponds in 1979, Hatchery officials continue to close the gates at structure 2 at various times during the year. The following illustration helps explain the operation:
*6 With this context in mind, we turn to the Conservancy’s claims.
II A The Conservancy’s first claim alleges that the Federal Defendants violate section 8 of the Reclamation Act, 43 U.S.C. § 383, by diverting water from Icicle Creek at structure 2 without a state permit. Washington law prohibits diversions without a permit from the Washington Department of Ecology (“Department of Ecology”). Wash. Rev. Code § 90.03.250. The Conservancy argues that this state law provision applies to the Hatchery by virtue of section 8 of the Reclamation Act, which provides that nothing in that Act
shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this *7 Act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any landowner, *8 10 W ILD F ISH C ONSERVANCY V . J EWELL 5 U.S.C. § 702. This provision requires that, in addition to demonstrating constitutional standing, a plaintiff “must assert an interest ‘arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.’” Nev. Land Action Ass’n v. U.S. Forest Serv. ,8 F.3d 713 , 716 (9th Cir. 1993) (quoting Ass’n of Data Processing Serv. Org., Inc. v. Camp ,397 U.S. 150 , 153 (1970)). The purpose of this prudential standing requirement is “‘to exclude those plaintiffs whose suits are more likely to frustrate rather than to further statutory objectives.’” Id. (quoting Clarke v. Sec. Indus. Ass’n ,479 U.S. 388 , 397 n.12 (1987)). The test “‘is not meant to be especially demanding.’” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak ,132 S. Ct. 2199 , 2210 (2012) (quoting Clarke ,479 U.S. at 399 ). “[T]he benefit of any doubt goes to the plaintiff.” Ibid. Still, the “zone of interests” standard forecloses suit “when a plaintiff’s ‘interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.’” Id. (quoting Clarke ,479 U.S. at 399 ).
The focal point of the prudential standing inquiry is “the
statute whose violation is the gravamen of the complaint.”
Air Courier Conference of Am. v. Am. Postal Workers Union,
AFL-CIO
,
At a high level of generality, the Conservancy’s interest
in ensuring the Hatchery’s compliance with the Washington
water code’s permit requirement aligns with section 8’s
mandate that federal reclamation projects follow state water
law. But as we have explained, the purpose of section 8 is to
protect the State’s sovereign authority to regulate the
appropriation and use of state waters.
California
,
federal reclamation projects shall not “in any way affect” the operation of state water law nor the rights of any entity thereunder. 43 U.S.C. § 383. Here, however, the Conservancy invokes § 8 expressly in order to “affect”—more specifically, to enlarge—its rights as a water user under state law.
It is undisputed that the Department of Ecology has exclusive authority to administer and enforce the Washington water code. See, e.g., Wash. Rev. Code §§ 43.21A.064 (granting the Department of Ecology plenary authority to regulate state water resources), 43.27A.190 (granting the *10 Department of Ecology authority to issue regulatory orders to compel compliance with water code), 90.03.605 (describing enforcement procedures). To be sure, parties holding perfected water rights under state law have an enforceable property interest in such rights. Rettkowski v. Dep’t of Ecology , 858 P.2d 232, 237 (Wash. 1993) (en banc). However, the Conservancy does not have any rights to water in Icicle Creek. Thus, as it rightly conceded, the Conservancy lacks the right to independently enforce the water code’s permit requirement or compel enforcement action by the Department of Ecology. [6] Cf. Wash. Rev. Code *11 concerns about the integrity of the physical environment). of the public, such as the Conservancy, the right to initiate enforcement action to protect instream flows. Instead, the Department of Ecology is responsible for protecting instream flows through its general enforcement authority and by limiting new water uses to ensure that instream flows are met. See , e.g. , Wash. Rev. Code § 90.03.290.
Our concern over federal court interference with the administration of state water law is not theoretical. The record reflects that the Department of Ecology is well aware that the Federal Defendants periodically divert water from Icicle Creek at structure 2 and of the effect of Hatchery operations on instream flows and native fish passage in Icicle Creek. The Department of Ecology has conditioned its grant of a water quality certification for the Hatchery under section 401 of the Clean Water Act, 33 U.S.C. § 1341, on the Hatchery’s adoption of a flow management plan designed to address these and other issues. The flow management plan describes the Hatchery’s existing state water rights, as well as the Federal Defendants’ practice of periodically closing the gates at structure 2 for flood control and groundwater recharge. Thus, the parties do not dispute that the Department of Ecology has actual notice of the Federal Defendants’ periodic closure of the gates at structure 2 and the resulting diversion of water into the Hatchery Canal. Yet the Department of Ecology has never determined that this practice violates section 90.03.250 of the Washington water code nor directed the Federal Defendants to apply for a permit. From this we must deduce that the Department of Ecology either deems a permit unnecessary as a matter of state law or has elected to address the underlying instream flow and fish passage issues by alternative means such as the flow management plan.
This context is significant. In effect, the Conservancy seeks to override the Department of Ecology’s interpretation of state law and exercise of enforcement discretion by securing a federal court order requiring the Federal Defendants to apply for a permit from the Department of
W ILD F ISH C ONSERVANCY V . J EWELL 15 Ecology to continue diverting water at structure 2. [7] Plainly, adjudicating the Conservancy’s water code claim would be “more likely to frustrate than to further [the] statutory objectives” of section 8, Nev. Land Action , 8 F.3d at 716 (internal quotation marks and citation omitted), by forcing the Department of Ecology to adjudicate the need for a permit and by deputizing the Conservancy to compel enforcement of the state water code in a manner not provided by state law.
As the Supreme Court has emphasized, “[t]he legislative
history of the Reclamation Act of 1902 makes it abundantly
clear that Congress intended to defer to the substance, as well
as the form, of state water law.”
California
,
*13 water code, however, it alleges underlying violations of Washington’s fishway law, Wash. Rev. Code Ch. 77.57. Specifically, the Conservancy alleges that the Federal Defendants violate the fishway law by failing to (1) submit fishway plans to the Washington Department of Fish and Wildlife (“Department of Fish & Wildlife”), (2) maintain durable and efficient fishways on Hatchery structures that obstruct fish passage, and (3) supply existing fishways with adequate water. The first two arguments fail because the relevant provisions of the fishway law are not incorporated into section 8 of the Reclamation Act. The third argument fails because it does not challenge final agency action as required by the APA.
A The Conservancy argues that the Federal Defendants violate Washington’s fishway law by, inter alia , failing to submit fishway plans for approval to the Department of Fish & Wildlife and by failing to provide “a durable and efficient fishway” across Hatchery structures that block fish passage. Wash. Rev. Code § 77.57.030(1). In the Conservancy’s view, these state-law violations also violate the Reclamation Act’s requirement that federal reclamation projects comply with state laws “relating to the control, appropriation, use, or 17 distribution of water used in irrigation . . . .” 43 U.S.C. § 383.
We disagree. A fair reading of section 8 does not support
the Conservancy’s argument, as the requirement to maintain
durable and efficient fishways approved by the Department
of Fish & Wildlife does not concern “the control,
appropriation, use, or distribution of water.”
Id.
As we have
discussed, the goal of section 8 is to ensure that all water
rights within a state, including those associated with federal
reclamation projects, are subject to a uniform set of state
laws.
California
,
B Even assuming section 8 incorporates the fishway law’s requirement that fishways continuously be supplied with sufficient water to freely pass fish, the Conservancy’s claim that the Federal Defendants violate this provision cannot *15 Conservancy correctly argues that the act of closing the gates at structure 2 has immediate physical consequences, such action is not fairly analogous to a “rule, order, license, sanction, [or] relief.” 5 U.S.C. § 551(13).
Our decision in
Siskiyou Reg’l Educ. Project v. United
States Forest Service
,
The second reason that the Conservancy’s claims do not
implicate a final agency action is that the individual acts of
*16
20
W ILD F ISH C ONSERVANCY V . J EWELL
closing the gates at structure 2 do not “mark the
consummation of the agency’s decisionmaking process,”
Bennett
,
In sum, because this claim does not challenge final agency action, we lack jurisdiction to consider it. *17 interests,” id. , but instead a more nuanced conflict between two entities seeking to repair the damage that dams have done to the Basin’s fisheries. Unlike the many cases we have decided concerning the fate of fish in the Columbia River Basin, the claims before us are not susceptible to federal judicial review. Because the Conservancy lacks prudential standing to bring an APA challenge alleging that the Federal Defendants violate section 8 of the Reclamation Act by failing to comply with the Washington water code’s permit requirement, we dismiss for lack of jurisdiction over that claim. We likewise lack jurisdiction over the Conservancy’s claim that the Federal Defendants violate Washington’s fishway law, Wash. Rev. Code § 77.57.030(1), by failing to submit fishway plans to the Department of Fish & Wildlife and by failing to maintain durable and efficient fishways across Hatchery structures, as these requirements are not incorporated into section 8. Finally, we lack jurisdiction over the Conservancy’s claim that the Secretary’s failure to supply Hatchery fishways with adequate water violates the Reclamation Act, because that claim does not challenge final agency action and consequently is not reviewable under the APA.
DISMISSED.
Notes
[2]
As always, we review de novo the district court’s jurisdictional
determination,
Atwood v. Fort Peck Tribal Court Assiniboine
, 513 F.3d
943, 946 (9th Cir. 2008), and its grant of summary judgment to the
Hatchery officials,
Native Ecosystems Council v. Dombeck
,
[3]
The district court granted summary judgment in favor of the Hatchery
officials, holding that the Conservancy’s claims are untimely.
Wild Fish
Conservancy v. Salazar
,
[4]
The Federal Defendants have secured permits from the Department of
Ecology to divert water for Hatchery operations at other locations along
Icicle Creek. However, under Washington law a water right is limited to
the point of diversion specified in the permit, and the holder of a water
right cannot change the diversion point without authorization from the
Department of Ecology. Wash. Rev. Code § 90.03.380(1). Thus, the fact
that the Federal Defendants have permits to divert water at other points
along Icicle Creek does not itself establish their right to divert water at
structure 2.
appropriator, or user of water in, to, or from
any interstate stream or the waters thereof.
43 U.S.C. § 383. Section 8 requires the federal government
to follow state law when acquiring water rights for federal
reclamation projects and distributing project water, unless the
relevant state law conflicts with an express congressional
enactment.
California v. United States
,
[5] To the extent it is incorporated into section 8, we may also consider the Washington water code provision that the Conservancy seeks to enforce, as it bears an “integral relationship” to section 8. See Air Courier Conference , 498 U.S. at 530. However, demonstrating that the Conservancy’s claims fall within the zone of interests of the state law
[6]
We do not question that the Conservancy has an
interest
in the waters
of Icicle Creek and in ensuring that sufficient water remains in the creek
to sustain fish and wildlife and maintain scenic values. That interest is
protected under state law by the minimum instream flow rules the
Department of Ecology established for Icicle Creek. Wash. Admin. Code
§§ 173-545-050 (1983), 173-545-060 (2001). Washington law protects
instream flows set by rule from impairment by junior users and
unpermitted diversions to the same extent as it protects all other vested
water rights. Wash. Rev. Code § 90.03.345;
Postema v. Pollution Control
Hearings Bd.
,
[7]
Context also distinguishes this case from
Natural Resources Defense
Council v. Patterson
,
[8]
Again, we need not and do not decide whether the Hatchery is a
“reclamation project” subject to section 8 of the Reclamation Act. Even
assuming that it is, the Conservancy’s fishway claims cannot proceed.
proceed under the APA because the suit does not target final
agency action.
To maintain a cause of action under the APA, a plaintiff
must challenge “agency action” that is “final.”
Norton v. S.
Utah Wilderness Alliance
,
[9]
The Conservancy obliquely argues that it in fact challenges the
Hatchery’s 2006 “operations plan,” which does constitute final agency
action. The Federal Defendants respond that this plan is documented in
the Hatchery’s 2006 Biological Assessment, which was invalidated when
we vacated the 2008 Biological Opinion for the Hatchery in
Wild Fish
Conservancy v. Salazar
,