United States v. State Water Res. Control Bd.

1

UNITED STATES OF AMERICA, Plaintiffs, v. STATE WATER RESOURCES CONTROL BOARD & STATE WATER RESOURCES CONTROL BOARD CHAIR E. JOAQUIN ESOUIVEL, in his official capacity, Defendants.

No. 2:19-cv-000547-JLT-EPG

United States District Court, E.D. California

August 30, 2023

ORDER GRANTING MOTION TO DISMISS INTERGOVERNMENTAL IMMUNITY CLAIM; REQUIRING SUPPLEMENTAL BRIEFING CONCERNING REMAINING STATE LAW CLAIMS (DOC. 17, 60, 61)

30 DAY DEADLINE

I. INTRODUCTION

The United States of America, on behalf of the United States Department of the Interior through its Bureau of Reclamation filed two similar lawsuits, one in Sacramento County Superior Court, the other in this Court, concerning amendments adopted by Defendant State Water Resources Control Board (“State Board” or “the Board”) to the Water Quality Control Plan for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary (“Bay-Delta Plan Amendments,” “Amendments,” or “Amended Plan”)^[1]. (See Docs. 1; 18-6.) The operative First Amended Complaint in this action raised three causes of action under the California Environmental Quality Act (“CEQA”), Cal. Pub. Res. Code §§ 21000 et seq., along with a cause of action based upon the federal constitutional intergovernmental immunity (“IGI”) doctrine. (Doc. 14.) The United States' state court complaint alleges the same three causes of action under CEQA but omits the IGI claim. (Doc. 18-6.)

In July 2019, the State Board moved to dismiss the FAC, arguing the entire case should be dismissed pursuant to various abstention doctrines and that the IGI claim was both unripe and failed to state a claim. (See Doc. 17.) On December 2, 2019, a previously assigned district judge applied Colorado River abstention to stay the state law (CEQA) claims, while allowing the federal IGI claim to proceed. (Doc. 28.) The United States appealed, and the Ninth Circuit reversed, clarifying that imposing a partial Colorado River stay would only be appropriate in very narrow circumstances not applicable in this case and remanding the case to “allow all of the United States' claims to proceed, subject to regular issues of justiciability.” (Doc. 49.) As mentioned, the ripeness of the IGI claim was raised in the initial motion to dismiss briefing (see Docs. 17, 20, 21), and was the subject of supplemental briefing (Docs. 28, 31, 40, 47, 48), but that issue has yet to be addressed.

Following the issuance of the mandate on April 19, 2021, the Court stayed the case at the request of the parties for more than ten months to permit settlement discussions to proceed. (See Docs. 51-59.) When it became clear that the case would not resolve, the Court ordered the parties to file another round of supplemental briefs to update the Court on any recent developments bearing on ripeness. (See Docs. 52, 53, 59.) Shortly thereafter, on April 13, 2022, the matter was reassigned to the undersigned. (Doc. 62.) The supplemental briefing was complete as of April 21, 2022. (Doc. 64.)

For the reasons set forth below, the Court finds that the IGI claim as presently articulated is not ripe for judicial review at this time and dismisses that claim. In addition, the Court calls for supplemental concerning the Court's exercise of jurisdiction over the remaining state law claims.

II. BACKGROUND

The originally assigned district judge's summary of the factual background provides a concise foundation for the analysis in this order:

The history of regulation and litigation of issues related to the San Francisco Bay/Sacramento-San Joaquin Delta Estuary (“Bay-Delta”) is long, wide, and deep. Without question, the Bay-Delta itself is a critically important natural resource that is both the hub of California's water supply and a vital estuary and wetland supporting numerous beneficial uses. Central to the present dispute is the fact that the State Water Board holds authority under California's Porter-Cologne Water Quality Control Act, Cal. Water Code § 13000, et seq., to adopt water quality control plans to protect the waters of California. The Board adopted its original Water Quality Control Plan for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary (“Bay-Delta Plan”) in 1978, and amended that plan in 1991, 1995, and 2006. The most recent effort to amend the Bay-Delta Plan began in 2009, and, over a nine-year period, the Board considered various amendments and prepared environmental documentation analyzing the potential environmental impacts of the Bay Delta Plan Amendments under [the California Environmental Quality Act (“CEQA”)].

The Board held numerous publicly noticed meetings and reviewed thousands of comments regarding the proposed Amendments and related drafts of the Substitute Environmental Document (“SED”) prepared in accordance with CEQA. On December 12, 2018, the Board adopted the SED and Amended Plan.

In general, the Amendments are designed to accomplish several goals relevant to this case. First, they increase the flows required to be left in the three main salmon-bearing tributaries to the San Joaquin River (the Stanislaus, Tuolumne, and Merced Rivers) during critical months (February through June). These flow increases are designed to improve spawning, rearing, and migratory habitat conditions in the Lower San Joaquin River. The Board plans to implement the flow objectives “adaptively,” within broad constraints, to adjust timing and flow patterns to better balance multiple beneficial uses when scientific information indicates doing so is appropriate.

Second, the Amendments provide that the Board will include minimum reservoir carryover storage targets or other requirements to ensure that providing the flows to meet the objectives will not have adverse temperature or other impacts on fish and wildlife.

Third, the Amendments revise southern Delta salinity objectives for agriculture by adjusting the salinity requirements/restrictions to a slightly higher level, ostensibly to reflect updated scientific knowledge of southern Delta salt levels that reasonably protect agriculture. More specifically, the Amended Plan revises the salinity objective for agricultural beneficial uses by increasing the April through August salinity objective from a mean daily electrical conductivity (“EC”) of 0.7 deciSiemens per meter (“dS/m”) to 1.0 dS/m, resulting in a 1.0 dS/m salinity objective for the four compliance locations year-round.

Reclamation's existing [state-issued] water rights [permits] to operate the federal Central Valley Project (“CVP”), including its permits to operate the New Melones Project, a component of the CVP, currently require Reclamation to meet the [pre-]existing salinity objective of 0.7 dS/m at these locations. The Amended Plan proposes to implement the [revised] salinity objective for the interior southern Delta by requiring Reclamation to continue operating to meet the 0.7 dS/m salinity limit at Vernalis as required by its existing water rights. The Amended Plan also proposes to implement the salinity objective through increased inflows provided by application of flow-based (as opposed to salinity-based) objectives for the Lower San Joaquin River.

(Doc. 28 at 2-4) (citations omitted) (emphasis in original). In sum, the Amended Plan relaxes the salinity limits in the southern Delta, but nonetheless indicates that Reclamation must operate as though the salinity limits have not been relaxed. The United States' IGI claim asserts “[b]y imposing on Reclamation, in its operation of a federal reclamation project authorized by Congress, a more stringent salinity requirement at Vernalis than all others, the Board Amendments discriminate against the Federal Government.” (FAC, ¶ 88.)

III. STANDARD OF DECISION^[2]

The district court is a court of limited jurisdiction and is empowered only to hear disputes “authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Exxon Mobil Corp v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). The federal courts are “presumed to lack jurisdiction in a particular case, unless the contrary affirmatively appears.” A-Z Int'l. v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003). Thus, a plaintiff carries the burden of demonstrating the Court has subject matter jurisdiction. Kokkonen, 511 U.S. at 377; Vacek v. United States Postal Serv., 447 F.3d 1248, 1250 (9th Cir. 2006).

Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may challenge a claim for relief for lack of subject matter jurisdiction. A motion to dismiss under Rule 12(b)(1) “may either attack the allegations of the complaint or may be made as a ‘speaking motion' attacking the existence of subject matter jurisdiction in fact.” Thornhill Pub. Co., Inc. v. Gen. Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979) (citing Landv. Dollar, 330 U.S. 731, 735 (1947)). Thus, “[a] jurisdictional challenge under Rule 12(b)(1) may be made either on the face of the pleadings or by presenting extrinsic evidence.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). The Ninth Circuit explained:

In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.

Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1038 (9th Cir. 2004). On a motion to dismiss under Rule 12(b)(1), the standards that must be applied by the Court vary according to the nature of the jurisdictiona challenge.

If a defendant presents a facial challenge to jurisdiction, the Court must presume the truth of the plaintiff's...