By Susan Bruninga
The U.S. Bureau of Reclamation has no mandatory duty to provide a preferred amount of water from the Central Valley Project to California farmers for irrigation and therefore no final agency action took place that could be challenged under the Administrative Procedure Act, a federal appeals court ruled March 1 (San Luis Unit Food Producers v. United States, 9th Cir., No. 11-16122, 3/1/13).
The case before the U.S. Court of Appeals for the Ninth Circuit involved a number of California food producers that irrigate their land using water from the San Luis Unit of the Central Valley Project. The project, maintained and operated by the Bureau of Reclamation, an arm of the Interior Department, is a system of dams, reservoirs, canals, pumping stations, and other types of infrastructure that distribute water throughout California's Central Valley.
The farmers alleged in their lawsuit that “for decades” the bureau has delivered enough water to the irrigation districts, which sold sufficient amounts to the farmers to irrigate all of their land. In recent years, however, the farmers claimed the bureau has provided less water for irrigation, while more has gone for other purposes, most notably for fish and wildlife protection.
When Congress first authorized the Central Valley Project, the uses were prioritized as first, for river regulation, improved navigation, and flood control; second, for irrigation and domestic uses; and third, for power. In 1992, the law authorizing the project was amended through the Central Valley Project Improvement Act to revise how the uses were prioritized such that the second priority was for “irrigation and domestic uses and fish and wildlife mitigation, protection, and restoration purposes,” the opinion said.
When the Bureau of Reclamation reduced the amount of water dedicated to irrigation, the farmers sued in the U.S. District Court for the Eastern District of California, accusing the agency of “unlawfully” transmuting the San Luis Unit from an irrigation unit “into a fish and wildlife enterprise.”
They argued that the bureau “is required by federal law to deliver more water for irrigation and less water for non-irrigation purposes such as fish and wildlife,” the opinion said.
The district court granted the bureau's motion for summary judgment, saying the agency does not have a mandatory duty to provide a certain amount of water for irrigation. Because the Bureau of Reclamation has no statutory obligation to provide a set amount of water, the court found no final action that could be challenged under the Administrative Procedure Act.
According to the appeals court ruling, the farmers have no contractual rights with the bureau for irrigation water.
“Rather than basing their claims in contract, the Farmers argue that various reclamation statutes independently impose mandatory obligations upon the Bureau to distribute more water to the irrigation districts,” the court said. “The Farmers contend they are entitled to whatever amount of water they historically put to beneficial use and that the Bureau may use only 'surplus' water for any purpose other than irrigation.”
None of the reclamation statutes cited by the farmers compels the bureau to take a “discrete nondiscretionary action,” the opinion said.
The court relied on the 2004 U.S. Supreme Court decision in Norton v. Southern Utah Wilderness Alliance (542 U.S. 55 (2004)) to conclude that the Bureau of Reclamation is not legally required to “take a discrete action to deliver the Farmers' preferred amount of San Luis Unit water for irrigation for it provides water for other purposes.” In the 2004 decision, the high court ruled unanimously that judicial review of a “failure to act” under the APA “ 'is properly understood to be limited … to a discrete action'.”
The appeals court then went through each of the statutes upon which the farmers based their claims that the bureau was obligated to provide them more water, and said none “requires the discrete agency action the Farmers seek.”
In affirming the district court decision, the three-judge appeals court panel said the farmers' claims “boil down to a broad, programmatic challenge to the Bureau's operation and management of the CVP and, as such, are not cognizable under the APA.”
While the farmers said irrigation was a primary purpose of the Central Valley Project, the appeals court said that Congress decided otherwise.
“The Bureau is tasked with 'operat[ing] the Central Valley Project to meet all obligations under State and Federal law, including but not limited to the Federal Endangered Species Act.' ”
Theodore A. Chester Jr., of Smiland & Chester in Los Angeles, represented the plaintiffs.
The defendant-appellees were represented by Peter Krzywicki and Michael T. Gray, of the Justice Department.