Friant Water Auth. v. Jewell

23 F.Supp.3d 1130

FRIANT WATER AUTHORITY, et al., Plaintiffs

v. Sally JEWELL, as Secretary of the United States Department of the Interior, et al., DefendantsSan Joaquin River Exchange Contractors Water Authority, et al., IntervenorsSan Luis & Delta–Mendota Water Authority, et al., Defendant–Intervenors.

Case No. 1:14–CV–000765–LJO–BAM.

United States District Court, E.D. California.

Signed May 27, 2014.

Alex Reese, Alexander M. Porcaro, Ashley Evans Breakfield, Paul P. Spaulding, III, Thomas B. Mayhew, Farella Braun Martel LLP, San Francisco, CA, Jennifer Thompson Buckman, Friant Water Authority, Sacramento, CA, Alex M. Peltzer, Kenneth J. Richardson, Peltzer & Richardson, LC, Visalia, CA, Allison Katherine Pierce, Ruddell Cochran Stanton Smith and Bixler LLP, Visalia, CA, Danial Zackary Smith, Law Office of Danial Zackary Smith, Visalia, CA, for Plaintiffs.

Anna K. Stimmel, Govt., Sara Christi Porsia, Govt., US Department of Justice, Washington, DC, Ellen L. Trescott, Adams Broadwell Joseph & Cardozo, Sacramento, CA, Hamilton Candee, Altshuler Berzon, San Francisco, CA, for Defendants.

MEMORANDUM DECISION AND ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER (DOC. 3)

LAWRENCE J. O'NEILL, District Judge.

I. INTRODUCTION

Plaintiff Friant Water Authority (“Friant”) is a California joint powers authority that consists of twenty-one member water, water conservation, water storage and irrigation districts, as well as the City of Fresno, all located on the east side of the southern San Joaquin Valley. Friant and its member agencies¹ (collectively, “Plaintiffs”) bring this lawsuit against the United States Department of the Interior (“Interior”), Interior's member agency, the United States Bureau of Reclamation (“Reclamation” or “the Bureau”), as well as various federal officers² (collectively, “Federal Defendants”). Also named as defendants are Grassland Water District (“GWD”) and Grassland Resource Conservation District (“GRCD”) (collectively, “Grasslands”). See generally Doc. 1 (“Compl.”).

Friant's members contract with Reclamation for the delivery of water from the Friant Unit of the Central Valley Project (“CVP”). One of the principal features of the Fri ant Unit is Fri ant Dam, located in the foothills northeast of the City of Fresno, which impounds the waters of the upper San Joaquin River in Millerton Lake. Before the Court for decision is Friant's motion for a temporary restraining order (“TRO”), seeking to enjoin Federal Defendants, from continuing to release water from Millerton to satisfy the demands of downstream “Exchange Contractors.” Doc. 4. The Exchange Contractors hold priority “Exchange Contracts” with Reclamation, reflecting the fact that the Exchange Contractors held rights to the waters of the San Joaquin River that pre-date Reclamation's construction of the Fri ant Unit. See Compl. at ¶¶ 2, 3.

Reclamation normally satisfies the demands of the Exchange Contractors by providing them with “substitute water” transported from Northern California through facilities in the Sacramento–San Joaquin Delta, thereby freeing up much of the water stored at Millerton for use by Fri ant's members. In recent weeks, however, Reclamation began releasing water from Millerton to satisfy the Exchange Contractors' demands. According to Plaintiffs, Reclamation is doing so because it has decided to allocate some of the water that normally would serve as “substitute water” to wildlife refuges and the State Water Project (“SWP”). Compl. at ¶ 10. As a result, Reclamation has allocated no water to the Fri ant member agencies in 2014. Id. at ¶ 9. According to Plaintiffs, this “means nothing less than the collapse of the agriculture-dependent economies of Madera, Fresno, Tulare, and Kings Counties.” Doc. 4 at 6. Plaintiffs argue Reclamation's actions violate the terms of the Fri ant users' contracts with Reclamation; the Central Valley Project Improvement Act (“CVPIA”), Pub.L. No. 102–575, 106 Stat. 4600 ; and Section 8 of the 1902 Reclamation Act, 43 U.S.C. § 383.³

Oppositions to the TRO motion were filed by Federal Defendants, Doc. 34; and Grasslands, Doc. 30. The Court granted motions to intervene filed by the Exchange Contractors, and by San Luis & Delta Mendota Water Authority and one of its member agencies, Westlands Water District. Docs. 43 & 44. Both sets of intervenors also filed oppositions. Doc. 29 & 36.

II. STANDARD OF DECISION

In order to secure injunctive relief⁴ prior to a full adjudication on the merits, a plaintiff must show “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. at 22, 129 S.Ct. 365.

The Ninth Circuit follows a “sliding scale” approach to preliminary injunctions. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.2011). Under this approach, a weaker showing as to the likelihood of success on the merits may be offset by a stronger showing with respect to the balance of the equities. Id. at 1131–32. For example, if the moving party is unable to establish a likelihood of success on the merits, preliminary injunctive relief may still be had if the party can show that (1) there are at least “serious questions” going to the merits; (2) the balance of the hardships tips “sharply” in its favor; and (3) the other factors listed in Winter (i.e., irreparable harm and in the public interest) are satisfied. Id. at 1135. “Serious questions” in the context of preliminary injunctive relief are those that are “substantial, difficult, and doubtful, as to make them a fair ground for litigation and thus for more deliberative investigation.” Republic of Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir.1988) (citation and internal quotation marks omitted). They do not need to “promise a certainty of success, nor even present a probability of success, but must involve a fair chance of success on the merits.” Id. (citation and internal quotation marks omitted).

III. FACTUAL BACKGROUND

A. The CVP.

In Westlands Water District v. United States, 337 F.3d 1092 (Westlands VII )⁵ , the Ninth Circuit succinctly summarized the history of relevant aspects of the CVP:

A. Central Valley Project

The Central Valley Project (“CVP”) is “the largest federal water management project in the United States.” Central Delta Water Agency v. United States, 306 F.3d 938, 943 (9th Cir.2002). “[L]ocated in the Central Valley Basin of California, which is roughly 400 miles long by 120 miles wide, [it] includes the major watersheds of the Sacramento and San Joaquin river systems.” Id. These two river valleys merge at the Sacramento San Joaquin Delta, where the waters mix and then flow through the Carquinez Strait into the San Francisco Bay, continuing to the Pacific Ocean. Id.; United States v. Gerlach Live Stock Co., 339 U.S. 725, 728, 70 S.Ct. 955, 94 L.Ed. 1231 (1950). The Sacramento River has almost twice as much water as the San Joaquin River but the Sacramento Valley has very little tillable soil, while about “three-fifths of the [San Joaquin] valley lies in the domain of the less affluent San Joaquin.” Gerlach Live Stock, 339 U.S. at 728, 70 S.Ct. 955 ; see also Dugan v. Rank, 372 U.S. 609, 612, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963). To alter this imbalance and to make water available to the San Joaquin Valley, the state of California embarked on re-engineering its natural water distribution through the authorization of the Central Valley Project (“CVP”). [The] United States took over administration of this project in 1935. Gerlach Live Stock, 339 U.S. at 728, 70 S.Ct. 955.

The CVP's purpose is to “improv[e] navigation, regulat[e] the flow of the San Joaquin River and the Sacramento River, control[ ] floods, provid[e] for storage and for the delivery of the stored waters thereof, for the reclamation of arid and semiarid lands and lands of Indian reservations, and other beneficial uses, and for the generation and sale of electric energy.” Act of August 26, 1937, Pub.L. No. 75 392, 50 Stat. 844, 850. To accomplish the project's purposes, CVP's construction includes a series of many dams, reservoirs, hydropower generating stations, canals, electrical transmission lines, and other infrastructure. Gerlach Live Stock, 339 U.S. at 733, 70 S.Ct. 955.

The United States Bureau of Reclamation (“Bureau”), a division of the Department of the Interior, operates the CVP. The California State Water Resources Control Board grants permits for water appropriation from the CVP. The Bureau appropriates water from various sources and delivers it to permit holders for beneficial uses. Central Delta Water, 306 F.3d at 943.

1. San Luis Unit of the CVP

The San Luis Unit, one of the many water management units of the CVP, was authorized by the San Luis Act of 1960. Pub.L. No. 86–488, 74 Stat. 156 (June 3, 1960). The San Luis Unit, an integral part of the CVP, consists of the San Luis Dam and the San Luis Reservoir.

The San Luis Reservoir was constructed to provide water to Merced, Fresno and King Counties, and is used to store surplus water from the Sacramento–San Joaquin Delta, for delivery to contractors such as Westlands and San Benito. The Tracy Pumping Plant pumps water from the Sacramento–San Joaquin Delta into the Delta–Mendota Canal. The Delta–Mendota Canal, located south of the Sacramento–San Joaquin Delta, channels water along the west side of the San Joaquin Valley for use in the San Luis Unit and Reservoir. Westlands Water Dist. v. Patterson, 864 F.Supp. 1536, 1539 (E.D.Cal.1994) (Westlands III ).

2. Friant Unit of the CVP

Around 1939, the Bureau took over construction of a dam on the San Joaquin River that eventually created

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