San Luis & Delta-Mendota Water Authority; Westlands Water District, Plaintiffs-Appellees,
Kevin Haugrud, [*] as Acting Secretary of the U.S. Department of the Interior; U.S. Department of the Interior; U.S. Bureau of Reclamation; David Murillo, as Acting Commissioner, Bureau of Reclamation, U.S. Department of the Interior; David Murillo, as Regional Director, Mid-Pacific Region, Bureau of Reclamation, U.S. Department of the Interior, Defendants, Pacific Coast Federation of Fishermen's Associations; Institute for Fisheries Resources; Yurok Tribe, Intervenor-Defendants, and Hoopa Valley Tribe, Intervenor-Defendant-Appellant. SAN LUIS & DELTA-MENDOTA WATER AUTHORITY; WESTLANDS WATER DISTRICT, Plaintiffs-Appellees,
KEVIN HAUGRUD, as Acting Secretary of the U.S. Department of the Interior; U.S. DEPARTMENT OF THE INTERIOR; U.S. BUREAU OF RECLAMATION; DAVID MURILLO, as Acting Commissioner, Bureau of Reclamation, U.S. Department of the Interior; DAVID MURILLO, as Regional Director, Mid-Pacific Region, Bureau of Reclamation, U.S. Department of the Interior, Defendants-Appellants, and HOOPA VALLEY TRIBE; PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS; INSTITUTE FOR FISHERIES RESOURCES; YUROK TRIBE, Intervenor-Defendants. SAN LUIS & DELTA-MENDOTA WATER AUTHORITY; WESTLANDS WATER DISTRICT, Plaintiffs-Appellees,
KEVIN HAUGRUD, as Acting Secretary of the U.S. Department of the Interior; U.S. DEPARTMENT OF THE INTERIOR; U.S. BUREAU OF RECLAMATION; DAVID MURILLO, as Acting Commissioner, Bureau of Reclamation, U.S. Department of the Interior; DAVID MURILLO, as Regional Director, Mid-Pacific Region, Bureau of Reclamation, U.S. Department of the Interior, Defendants, HOOPA VALLEY TRIBE; PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS; INSTITUTE FOR FISHERIES RESOURCES, Intervenor-Defendants, and YUROK TRIBE, Intervenor-Defendant-Appellant. SAN LUIS & DELTA-MENDOTA WATER AUTHORITY; WESTLANDS WATER DISTRICT, Plaintiffs-Appellants,
KEVIN HAUGRUD, as Acting Secretary of the U.S. Department of the Interior; U.S. DEPARTMENT OF THE INTERIOR; U.S. BUREAU OF RECLAMATION; DAVID MURILLO, as Acting Commissioner, Bureau of Reclamation, U.S. Department of the Interior; DAVID MURILLO, as Regional Director, Mid-Pacific Region, Bureau of Reclamation, U.S. Department of the Interior, Defendants-Appellees, HOOPA VALLEY TRIBE; YUROK TRIBE; PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS; INSTITUTE FOR FISHERIES RESOURCES, Intervenor-Defendants-Appellees.
and Submitted December 12, 2016 San Francisco, California
from the United States District Court for the Eastern
District No. 1:13-cv-01232- LJO-GSA of California Lawrence J.
O'Neill, Chief Judge, Presiding
J. O'Hanlon (argued), Rebecca R. Akroyd, and Elizabeth L.
Leeper, Kronick Moskovitz Tiedemann & Girard, Sacramento,
California; Steven O. Sims and Dulcinea Z. Hanuschak,
Brownstein Hyatt Farber Schreck LLP, Denver, Colorado; for
Plaintiffs-Appellees/Cross-Appellants San Luis &
Delta-Mendota Water Authority and Westlands Water District.
J. Durkee (argued), Bradley H. Oliphant, and Anna K. Stimmel,
Attorneys; John C. Cruden, Assistant Attorney General;
Environment and Natural Resources Division, United States
Department of Justice, Washington, D.C.; Stephen Palmer,
Office of the Regional Solicitor, Department of the Interior,
Sacramento, California; Carter Brown, Office of the
Solicitor, Department of the Interior, Washington, D.C.; for
Defendants-Appellants/Cross-Appellees Kevin Haugrud, U.S.
Department of the Interior, U.S. Bureau of Reclamation, and
P. Schlosser (argued) and Thane D. Somerville, Morisset
Schlosser Jozwiak & Somerville APC, Seattle, Washington,
for Intervenor-Defendant-Appellant/Cross-Appellee Hoopa
Cordalis and Nathan Voegeli, General Counsel, Yurok Tribe,
Klamath, California; Daniel I.S.J. Rey-Bear, Nordhaus Law
Firm LLP, Spokane, Washington; for
Intervenor-Defendant-Appellant/Cross-Appellee Yurok Tribe.
Before: Alex Kozinski and N. Randy Smith, Circuit Judges, and
Sharon L. Gleason, [**] District Judge.
Law / Water Rights
panel affirmed in part and reversed in part the district
court's judgment, and held that the Bureau of Reclamation
had the authority to implement the 2013 release of Trinity
River water from the Lewiston Dam, above and beyond the
amount designated in the applicable water release schedule.
the district court, the panel held that the Act of August 12,
1955, gave the Bureau the authority to implement the 2013
flow augmentation release to protect fish in the lower
Klamath River. Affirming the district court, the panel also
held that the 2013 flow augmentation release did not violate
Central Valley Project Improvement Act ("CVPIA")
section 3406(b)(23), which called for a permanent water
release that would serve only the Trinity River basin. The
panel further held that the 2013 flow augmentation release
did not violate California water law and, in turn, did not
violate the Reclamation Act of 1902 or CVPIA section 3411(a),
both of which require the Bureau to comply with state water
panel did not reach the merits of an Endangered Species Act
claim because the plaintiff water contractors did not have
standing to pursue that claim. The panel held that the water
contractors lacked standing because they did not demonstrate
that the Bureau's alleged failure to conduct a Section 7
consultation for Endangered Species Act-listed fish species
would threaten their economic interests.
SMITH, Circuit Judge.
summer 2013, the Bureau of Reclamation ("BOR")
released Trinity River water from the Lewiston Dam, above and
beyond the amount designated in the applicable water release
schedule (a schedule that was devised to benefit only the
Trinity River basin). That water flowed down the Trinity
River and into the lower Klamath River, where winter-run
salmon were beginning their migration upriver to their
spawning grounds. BOR released the water to help prevent a
mass die-off of these salmon in the lower Klamath, which are
threatened when the Klamath River runs low. BOR asserted that
the Act of August 12, 1955, ("1955 Act") gave it
the power to release this extra water. The 1955 Act
"authorized and directed" the Secretary of the
United States Department of the Interior ("DOI")
"to adopt appropriate measures to insure the
preservation and propagation of fish and wildlife." We
agree with BOR. The broad language of this clause gave BOR
the authority to implement the 2013 water release.
implementing the 2013 water release, BOR also did not violate
the Central Valley Project Improvement Act or California
water law (and correspondingly the Reclamation Act of 1902,
which requires agencies to comply with state water law), as
alleged by Cross-Appellants San Luis & Delta-Mendota
Water Authority and Westlands Water District. Finally,
Cross-Appellants lack standing to pursue their Endangered
Species Act claim.
Trinity River begins in the Trinity Alps of Northern
California. The river runs south and then wends its way
northwest, picking up tributaries along the way. It
eventually flows into the Klamath River at the town of
Weitchpec. The water then flows forty additional miles down
the lower Klamath before entering the Pacific Ocean.
Trinity River was once known for its abundant populations of
salmon and steelhead. Before the construction of dams on the
Trinity, up to 75, 000 fall-run Chinook salmon are estimated
to have migrated from the Pacific Ocean to the North Fork of
the Trinity River each year. The Yurok and Hoopa Valley
Indian Tribes (living along the Klamath and Trinity Rivers)
have relied on the fish as their primary dietary staple. In
recognition of the Tribes' rights to harvest these fish,
the federal government established reservations for the
Tribes in the mid-1800s that endure to this day. The Trinity
River bisects the Hoopa Valley Reservation, and the lower
Klamath River bisects the Yurok Reservation.
same time, water management has always been a central concern
for the state of California. For as long as it has been a
state, California has adopted laws to manage its water
resources. In the early 1920s, California began drafting a
comprehensive, statewide water plan. California recognized
that, while most of its water resources were located in the
northern part of the state, the majority of the demand came
from the state's southern regions. In addition, the
population's demand for water did not align with the
seasonal rainfalls and snow melt. With its statewide plan,
California hoped to control salinity and flooding, while
managing the storage and distribution of water. One of the
primary goals of the plan was to transfer water from the
Sacramento River to the San Joaquin Valley and from the San
Joaquin River to the southern regions of the Central Valley,
the heart of California's farmland. In 1933, the
California Legislature authorized this statewide plan, known
as the Central Valley Project ("CVP"). Because the
state was unable to fully fund the plan, the United States
took over in 1935. Construction of what would become the
largest federally managed water project began in 1937.
See generally San Luis & Delta-Mendota Water Auth. v.
Jewell, 747 F.3d 581, 594 (9th Cir. 2014); Cent.
Delta Water Agency v. United States, 306 F.3d 938, 943
(9th Cir. 2002); United States v. State Water Res.
Control Bd., 227 Cal.Rptr. 161, 166 (Cal.Ct.App. 1986);
Eric A. Stene, The Central Valley Project,
Bureau of Reclamation (last updated Aug. 4, 2015),
statewide water plan originally included plans to divert
water from the Trinity River to the Central Valley. Although
these initial plans were abandoned before the CVP was
authorized, Congress began re-investigating the possibility
in the 1940s. During this investigation, DOI estimated that
more than 1.1 million acre-feet of water flowed from the
upper Trinity River basin each year. Reports suggested that only
120, 500 acre-feet of water were needed to maintain the
fishery resources of the Trinity and Lewiston Rivers. These
reports also suggested that the construction of dams on the
Trinity would actually help the fishery resources. Congress
ultimately concluded that 700, 000 acre-feet of the
Trinity's annual flow was being lost to the Pacific Ocean
and could be diverted to the Central Valley without harming
the Trinity or lower Klamath Rivers. Accordingly, in 1955,
Congress authorized the construction of the Trinity River
division ("TRD"), an addition to the CVP in
Northern California. Act of Aug. 12, 1955, Pub. L. No. 84-386
§ 1, 69 Stat. 719, 719 (1955). The purpose of the TRD
was to divert water from the Trinity River to the Sacramento
River "for irrigation and other beneficial uses in the
Central Valley." Id. Nevertheless, Congress
designed the TRD "with a view to maintaining and
improving fishery conditions, " which were an important
asset to "the whole north coastal area." H.R. Rep.
No. 84-602, at 4 (1955). Accordingly, in the 1955 Act,
Congress specifically directed the Secretary of DOI to
preserve and propagate fish and wildlife. § 2, 69 Stat.
the authority granted by the 1955 Act, BOR constructed two
dams along the Trinity River: the Trinity and the Lewiston.
The Trinity Dam blocks water flowing from the upper Trinity
River, and several other tributaries, and forms Trinity
Reservoir. After passing through Trinity Dam, water
flows approximately eight miles downstream before reaching
Lewiston Dam, which forms Lewiston Reservoir. At Lewiston
Dam, the water either continues flowing down the Trinity
River, or BOR diverts it toward the Sacramento River (via the
Clear Creek Tunnel) for use in the CVP. If diverted, the
water passes through several additional dams before reaching
the Sacramento River. Water that is not diverted at the
Lewiston Dam continues to flow down the Trinity River. As it
did before the dams were constructed, the water eventually
passes through the Hoopa Valley Indian Reservation and into
the Klamath River at the town of Weitchpec. The water then
flows forty miles down the lower Klamath and through the
Yurok Indian Reservation until it reaches the Pacific Ocean.
became fully operational in 1964. For the next ten years, BOR
diverted an average of 88 percent of Trinity River annual
inflow to the Sacramento River basin.
construction and operation of the TRD had devastating effects
on the Trinity River environment and fish populations.
Westlands Water Dist. v. U.S. Dep't of Interior,
376 F.3d 853, 862 (9th Cir. 2004). The dams blocked
significant upstream fish habitat. Id. The low flows
caused the Trinity River to narrow and the banks to steepen,
resulting in increasingly fast and uniform water velocities.
Id. These effects destroyed resting pools and vital
spawning grounds. Id. Within a decade, the TRD had
significantly diminished the salmon and steelhead populations
in the Trinity River. Id. at 861-62.
Trinity River Basin Fish and Wildlife Task Force
response to the effects of the TRD, the Trinity River Basin
Fish and Wildlife Task Force ("TRBFW Task Force" or
"Task Force") formed in the early 1970s. The Task
Force was comprised of federal, state, and local agencies. It
studied the impact of the TRD and it worked to develop a plan
for the long-term management of the fish population and
habitat in the Trinity River basin.
Secretarial Decision of 1981
late 1970s and early 1980s, in recognition and support of the
Task Force, the Fish and Wildlife Service ("FWS"),
the Bureau of Indian Affairs, and the Water and Power
Resources Service studied the effects of increased water
releases from the Lewiston Dam into the Trinity River. The
agencies drafted an Environmental Impact Statement
("EIS") that considered eight alternative water
release schedules. The agencies agreed that the best
alternative was to begin water releases from the Lewiston Dam
at 287, 000 acre-feet annually, and incrementally increase
this flow to 340, 000 acre-feet annually in normal years. BOR
would release less water in dry years. The agencies also
agreed to study and draft a report on the effect of
restoration flows during the first twelve years of the
revised flow releases ("Trinity River Flow Evaluation
Study"). In 1981, then-Secretary of the Interior, Cecil
Andrus, gave legal effect to this agreement in a Secretarial
Trinity River Basin Fish and Wildlife Management Act
1984, Congress passed the Trinity River Basin Fish and
Wildlife Management Act ("1984 Act"). Pub. L. No.
98-541, 98 Stat. 2721 (1984). The 1984 Act directed the
Secretary to "formulate and implement a fish and
wildlife management program for the Trinity River Basin
designed to restore the fish and wildlife populations"
to pre-TRD levels. Id. § 2, 98 Stat. at 2722.
The 1984 Act also officially recognized the TRBFW Task Force.
Id. § 3, 98 Stat. at 2722-23.
Central Valley Project Improvement Act
1992, Congress enacted the Central Valley Project Improvement
Act ("CVPIA"). Pub. L. No. 102-575 §§
3401-12, 106 Stat. 4600, 4706-31 (1992). Among other things,
the CVPIA sought "to protect, restore, and enhance fish,
wildlife, and associated habitats in the Central Valley and
Trinity River basins, " while also seeking "to
achieve a reasonable balance among competing demands for ...