Opinion
1:06-CV-00245 OWW LJO.
June 15, 2007
MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
1. INTRODUCTION
This case concerns the coordinated operation of the federally-managed Central Valley Project ("CVP") and the State of California's State Water Project ("SWP") (collectively "the Projects".) Both projects divert large volumes of water from the California Bay Delta ("Delta") and use the Delta to store water. Over the past few decades, the Projects have been operated pursuant to a series of cooperation agreements. Before the court is Defendants' motion to dismiss Plaintiff's Seventh Claim for relief under the National Environmental Policy Act ("NEPA") for lack of jurisdiction.
2. PROCEDURAL BACKGROUND
Plaintiffs filed their first amended complaint on September 11, 2006. (Doc. 69, First Amended Complaint, September 11, 2006.) On February 2, 2007, Federal Defendants and Defendant-Intervenors all filed Motions to Dismiss. (Doc. 107, Motion to Dismiss by State Water Contractors and California Farm Bureau Federation, Filed February 2, 2007.; Doc. 111, Motion to Dismiss by San Luis Delta-Mendota Water Authority, Westlands Water District, Filed February 2, 2007; Doc. 114, Motion to Dismiss for Lack of Jurisdiction by Carlos M. Gutierrez, William T Hogarth, Gale A. Norton, John W. Keyes, Filed February 2, 2007.) Several Defendants also joined in the motion to dismiss on that day. (Doc. 116, Joinder re Doc. 107 by Glenn-Colusa Irrigation District, Natomas Central Mutual Water Co., Pelger Mutual Water Co., Pleasant Grove Verona Mutual Water Company, Princeton-Codora-Glenn Irrigation District, Provident Irrigation District, Reclamation District 108, River Garden Farms, Filed February 2, 2007.; Doc. 117, Joinder re. Doc. 110-111, by Glenn-Colusa Irrigation District, Natomas Central Mutual Water Co., Pelger Mutual Water Co., Pleasant Grove Verona Mutual Water Company, Princeton-Codora-Glenn Irrigation District, Provident Irrigation District, Reclamation District 108, River Garden Farms, Filed February 2, 2007.)
On March 2, 2007 Plaintiffs filed their opposition to all motions to dismiss. (Doc. 125, Opposition to Motions to Dismiss, Filed March 2, 2007.). Defendants filed their respective replies. (Doc. 126, Reply to Opposition by Intervenor California Farm Bureau Federation, Filed March 8, 2007.; Doc. 129, Reply to Response to Motion by Intervenors San Luis Delta-Mendota Water Authority and Westlands Water District, Filed March 9, 2007.; Doc. 130, Reply to Response to Motion by Intervenor Defendants Glenn-Colusa Irrigation District to California Farm Bureau Federation's Reply, Filed March 9, 2007.; Doc. 131, Reply to Response to Motion by Intervenor Defendants Glenn-Colusa Irrigation District to San Luis Delta-Mendota Water Authority and Westlands Water District's Reply, Filed March 9, 2007.)
3. FACTUAL BACKGROUND
Over the past several decades, the state and federal agencies charged with management of the CVP and SWP have operated the Projects in an increasingly coordinated manner pursuant to a Coordinated Operating Agreement ("COA"). The COA, which dates to in 1986, has evolved over time to reflect, among other things, changing facilities, delivery requirements, and regulatory restrictions. The most recent document surveying how the COA is implemented in light of these evolving circumstances is the 2004 Operating Criteria and Plan ("2004 OCAP" or "OCAP").
A. Overview of the 2004 OCAP
The OCAP begins with a "Purpose of Document" section which states:
This document has been prepared to serve as a baseline description of the facilities and operating environment of the Central Valley Project (CVP) and State Water Project (SWP). The Central Valley Project — Operations and Criteria Plan (CVP-OCAP) identifies the many factors influencing the physical and institutional conditions and decision-making process under which the project currently operates. Regulatory and legal instruments are explained, alternative operating models and strategies described.
The immediate objective is to provide operations information for the Endangered Species Act, Section 7, consultation. The long range objective is to integrate CVP-OCAP into the proposed Central Valley document.
It is envisioned that CVP-OCAP will be used as a reference by technical specialists and policymakers in and outside the Bureau of Reclamation (Reclamation) in understanding how the CVP is operated. The CVP-OCAP includes numeric and nonnumeric criteria and operating strategies. Emphasis is given to explaining the analyses used to develop typical operating plans for simulated hydrologic conditions.
All divisions of CVP are covered by this document, including the Trinity River Division, Shasta and Sacramento Divisions, American River Division and Friant Division.
(AR 506.)
The introductory chapter provides an overview of all of the physical components of the CVP and SWP (AR 507-520), as well as all of the relevant legal authorities affecting CVP operations (508-512).
Chapter 2, explains, among other things, that water needs assessments have been performed for each CVP water contractor, to confirm each contractor's past beneficial use in order to anticipate future demands. (AR 521.) Chapter 2 also reviews the 1986 COA and how it is implemented on a daily basis by Reclamation and DWR. (AR 523-25.) Also provided is a detailed overview of the "changes in [the] operations coordination environment since 1986," which include:
• Changes due to temperature control operations on the Sacramento River;
• Increases in the minimum release requirements on the Trinity River;
• Implementation of CVPIA 3406(b)(2) and Refuge Water Supply contracts;
• Commitments made by the CVP and SWP pursuant to the Bay-Delta Accord and the subsequent implementation of State Water Resources Control Board ("SWRCB") Decision-1641;
• The Monterey Agreement;
• The Operation of the North Bay Aqueduct (which was not included in the 1986 COA).
• The SWP's commitment to make up for 195,000 acre-feet of pumping lost to the CVP due to SWRCB Decision 1485;
• Implementation of the Environmental Water Account; and
• Constraints imposed by various endangered species act listings, including that of the Sacramento River Winter-Run Chinook Salmon, the Sacramento River Spring-Run Chinook Salmon, the Steelhead Trout, and the Delta Smelt (which resulted in the issuance of biological opinions in 1993, 1994, and 1995 concerning CVP/SWP operations and the South Delta Temporary Barriers Biological Opinion in 2001)
(AR 525-28.) The OCAP also reviews the regulatory standards imposed by SWRCB D-1641, which include water quality standards based on the geographic position of the 2-parts-per-thousand isohale (otherwise known as "X2"), a Delta export restriction standard known as the export/inflow (E/I) ratio, minimum Delta outflow requirements, and Sacramento River and San Joaquin River flow standards. (AR 530-537.) In addition to imposing requirements, D-1641 granted the Bureau and DWR permission to use each project's capabilities in a coordinated manner. (AR 537-37.)
This is not meant to be a complete overview of the material covered in the OCAP. Numerous regulatory and operational changes have taken place in recent years. As the OCAP's "Purpose of Document" section explains, the immediate objective of the OCAP is to describe and document all such regulatory and other operational information so that ESA Section 7 consultation can proceed to evaluate how project operations will affect the Delta smelt under various projected future conditions.
B. 2004 OCAP Biological Assessment
Because endangered and/or threatened species, including the Winter Run Chinook salmon, Spring Run Chinook salmon, and Steelhead Trout at issue in this case, reside in the area affected by the CVP and SWP, the 2004 OCAP, administered on behalf of the federal government by the Bureau of Reclamation ("Bureau") must comply with various provisions of the ESA. Specifically, prior to authorizing, funding, or carrying out any action, the acting federal agency (in this case, the Bureau) must first consult with FWS and/or NMFS to "insure that [the] action . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined . . . to be critical. . . ." 16 U.S.C. § 1536(a)(2) [ESA § 7(a)(2)]. This form of consultation is called "formal consultation.," and concludes with the issuance of a biological opinion. 50 C.F.R. § 402.02.
Alternatively, under certain circumstances, a federal agency may pursue "early consultation," on behalf of an agency or private party (referred to as a "prospective applicant") who will require formal approval or authorization to undertake a project. 16 U.S.C. § 1536(a)(3). Early consultation may be requested when the prospective applicant "has reason to believe that an endangered species or a threatened species may be present in the area affected by this project and that implementation of such action will likely affect such species." 50 C.F.R. § 402.11(b). The result of early consultation is a "preliminary biological opinion," the contents of which are "the same as for a biological opinion issued after formal consultation except that the incidental take statement provided with a preliminary biological opinion does not constitute authority to take listed species." § 402.11(e). Subsequently, the preliminary biological opinion may be "confirmed" after the prospective applicant applies to the federal agency for a permit or licence. Once a request for confirmation is received, the FWS must either confirm that the preliminary biological opinion stands as the final biological opinion or must request that the federal agency initiate formal consultation. § 402.11(f).
In order to fulfill its obligations under the ESA, Reclamation prepared a biological assessment and initiated both formal and early consultation with the United States Fish and Wildlife Service (FWS) and NMFS. See Court Order, dated Jan. 3, 2007 at 5. NMFS issued a biological opinion on October 22, 2004 (the NMFS 2004 OCAP BiOP), and the FWS issued an amended biological opinion on February 16, 2005.
After issuance of the NMFS 2004 OCAP BiOp, the National Oceanic and Atmospheric Administration (NOAA) listed as threatened a population segment of the North American Green Sturgeon located in the Sacramento Delta region and designated critical habitat for several species, including Central Valley spring-run Chinook salmon, Central Valley steelhead and Central California Coast Steelhead. Following the listing and critical habitat designation, Reclamation requested reinitiation of ESA § 7 consultation on the NMFS 2004 OCAP BiOp. Despite the fact that Defendants have reinitiated consultation on the NMFS 2004 OCAP BiOp, Plaintiffs are challenging the NMFS 2004 BiOp and the FWS 2005 BiOp under the APA. Those claims are pending in this case (challenging the 2004 NMFS OCAP BiOp) and the companion case NRDC v. Kempthorne, 1:05-CV-01207 (E.D. Cal.) (challenging the 2004 FWS OCAP BiOP as to the Delta Smelt).
Plaintiffs' Seventh Claim for Relief, titled "Failure to Prepare an Environmental Impact Statement ("EIS") on the 2004 OCAP," alleges a violation of NEPA and the APA. (Doc. 69 FAC, ¶¶ 113-115.) In their amended complaint, Plaintiffs allege that Reclamation's "approval and implementation of the 2004 OCAP, including the approval and implementation of changes to project operations included in the 2004 OCAP, constitutes a major Federal action," which triggers Section 102(2)(C) of NEPA. Id. ¶ 114. According to Plaintiffs, "the Bureau was obligated to prepare an EIS on the 2004 OCAP," and Reclamation's decision to not prepare such an EIS was "arbitrary, capricious, an abuse of discretion, not in accordance with law, and without observance of procedure required by law, contrary to the APA, 5 U.S.C. § 706(2)." Id. ¶ 115.
This motion is limited to Plaintiffs' Seventh Claim for Relief.
C. Plaintiff's Seventh Claim for Relief under NEPA
In their First Amended Complaint, Plaintiffs allege the following:
The Bureau's approval and implementation of the 2004 OCAP, including the approval and implementation of changes to project operations included in the 2004 OCAP, constitutes a major Federal action significantly affecting the quality of the human environment within the meaning of Section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C). Under NEPA the Bureau was required to prepare an EIS, for at least the following reasons:
a. The San Joaquin River/Sacramento River Delta area has "[u]nique characteristics . . . such as proximity to . . . wetlands, wild and scenic rivers, or ecologically critical areas" within the meaning of 40 C.F.R. § 1508.27(b)(3);
b. The effects of the action on the quality of the human environment are likely to be "highly controversial" within the meaning of 40 C.F.R. § 1508.27(b)(4);
c. The possible effects on the human environment are "highly uncertain" and involve "unique [and] unknown risks" within the meaning of 40 C.F.R. § 1508.27(b)(5);
d. The action is "related to other actions with individually insignificant but cumulatively significant impacts" within the meaning of 40 C.F.R. § 1508.27(b)(7); and
e. The action "may adversely affect an endangered or threatened species or its [critical] habitat" within the meaning of 40 C.F.R. § 1508(b)(9).
Consequently, the Bureau was obligated to prepare an EIS on the 2004 OCAP. The Bureau's failure to prepare an EIS or even an EA before approving and implementing the 2004 OCAP, including the changes to project operations contained in the 2004 OCAP, violated and continues to violate Section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C). (Doc. 69-1, First Amended Complaint, ¶ 114.) The Bureau's decision not to prepare an EIS for the 2004 OCAP was arbitrary, capricious, an abuse of discretion, not in accordance with law, and without observance of procedure required by law, contrary to the APA, 5 U.S.C. § 706(2). (Doc. 69-1, First Amended Complaint, ¶ 115.)
Federal Defendants reply that the OCAP and OCAP BiOp are not the result of the Bureau's decision-making process and neither is an "action" from which legal consequences will flow.
4. STANDARD OF REVIEW
"Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute. . . . It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted); see also Tosco Corp. v. Communities for a Better Environment, 236 F.3d 495, 499 (9th Cir. 2001) (plaintiff bears the burden of proving subject matter jurisdiction).
A motion to dismiss on jurisdictional grounds can be "either facial or factual." White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a facial attack, a court must "take all of the allegations of material fact stated in the complaint as true and construe them in the light most favorable to the nonmoving party." See Rodriguez v. Panayiotou, 314 F.3d 979, 983 (9th Cir. 2002). In a factual challenge, "a court may look beyond the complaint to matters of public record without having to convert the motion into one for summary judgment . . . It also need not presume the truthfulness of the plaintiffs' allegations." White, 227 F.3d at 1243. In this case, Defendants jurisdictional challenge is facial against Plaintiff's seventh claim for failure to prepare an EIS under NEPA 42 U.S.C. § 4332(2)(C).
5. DISCUSSION
A. Request for Judicial Notice
"A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b) (1984). "A court shall take judicial notice if requested by a party and supplied with the necessary information." Fed.R.Evid. 201(d) (1984). Judicially noticed facts often consist of matters of public record, such as prior court proceedings, see, e.g., Emrich v. Touche Ross Co., 846 F.2d 1190, 1198 (9th Cir. 1988); administrative materials, see, e.g., Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994); city ordinances, see, e.g., Toney v. Burris, 829 F.2d 622, 626-27 (7th Cir. 1987) (holding that federal courts may take judicial notice of city ordinances); official maps, see, e.g., Aiello v. Town of Brookhaven, 136 F. Supp. 2d 81, 86 n. 8 (E.D.N.Y. 2001) (taking judicial notice of geological surveys and existing land use maps); or other court documents, see, e.g., Rothman v. Gregor, 220 F.3d 81, 92 (2d Cir. 2000) (taking judicial notice of a filed complaint as a public record). Federal courts may "take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to the matters at issue." U.S. ex rel Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).
Defendant-Intervenors San Luis Delta-Mendota Water Authority and Westlands Water District request judicial notice of the CVP OCAP, June 30, 2004. (Doc. 113, Request for Judicial Notice by San Luis Delta-Mendota Water Authority, Westlands Water District, Filed February 2, 2007.)
Defendant-Intervenors California Farm Bureau Federation ("California Farm Bureau") also filed a request for judicial notice. California Farm Bureau Requests that the court take Notice of a January 11, 2007 letter from Rodney R. McInnis, Regional Administrator of NMFS to Alan R. Candlish, Regional Planning Officer of the Bureau of Reclamation. (Doc. 127, Request for Judicial Notice by State Water Contractors, California Farm Bureau Federation, re Doc. 126 Reply to Response to Motion, Filed March 8, 2007.)
Defendants do not object to judicial notice of these documents. The documents are matters of public record.
Defendant-Intervenors' requests for Judicial Notice are GRANTED.
B. Nepa and the APA
The National Environmental Policy Act ("NEPA") is the basic "national charter for protection of the environment." 40 C.F.R. § 1500.1. Its purposes include: "To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; [and] to enrich the understanding of the ecological systems and natural resources important to the Nation." 42 U.S.C. § 4321." To accomplish these purposes, NEPA requires all agencies of the federal government, including the Bureau, to prepare a "detailed statement" that discusses the environmental impacts of, and reasonable alternatives to, all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). This statement is commonly known as an environmental impact statement ("EIS").
However NEPA does not provide for a private right of action. Gros Ventre Tribe v. United States, 469 F.3d 801, 814 (9th Cir. 2006). Therefore Plaintiffs may obtain relief only by properly invoking the judicial review provisions of the APA, 5 U.S.C. §§ 701- 706. See Nat'l Wildlife Fed'n, 497 U.S. at 882-83 (NEPA claims must satisfy APA requirements). The APA waives sovereign immunity and prescribes standards for judicial review of certain agency actions. See 5 U.S.C. § 702 (granting standing to plaintiffs "suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute").
The APA's waiver of sovereign immunity contains several limitations. See Gallo Cattle Co. v. United States Dep't of Agriculture, 159 F.3d 1194, 1198 (9th Cir. 1998). One of those limitations is the requirement that the challenged decision be a "final agency action for which there is no other adequate remedy in a court. . . ." 5 U.S.C. § 704 (emphasis added); accord., Lujan v. National Wildlife Federation, 497 U.S. 871, 882 (1990). Conversely, where a plaintiff challenges something other than a final agency action, judicial review is not authorized. These requirements have been considered jurisdictional in nature and absent these elements a reviewing court cannot reach the merits of a claim. See DRG Funding Corp. v. Secretary of Housing Urban Development, 76 F.3d 1212, 1214 (D.C. Cir. 1996), reh'g denied, 83 F.3d 1482 (D.C. Cir. 1996). Plaintiff's bear the burden of proving the existence of subject matter jurisdiction which here includes "identifying specific federal conduct and explaining how it is final agency action within the meaning of [ 5 U.S.C. § 551(13).] Colorado Farm Bureau Federation v. United States Forest Service, 220 F.3d 1171, 1173 (10th Cir. 2000.)
The first issue is whether the OCAP is an agency "action" by Defendants under the APA to trigger NEPA jurisdiction.
i. "Action" under the APA
The APA authorizes suit by "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute." 5 U.S.C. § 702.; Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 61 (2004). Where no other statute provides a private right of action, the "agency action" complained of must be "final agency action." 5 U.S.C. § 704l; Norton, 542 U.S. at 62. "Agency action" is defined in 5 U.S.C. § 551(13) to include "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act."
An "agency action" falls under one of "five categories of decisions made or outcomes implemented by an agency — `agency rule, order, license, sanction [or] relief.'" Norton, 542 U.S. at 62.; 5 U.S.C. § 551(13). All of those categories involve circumscribed, discrete agency actions, as their definitions make clear:
1. "[a rule is] an agency statement of . . . future effect designed to implement, interpret, or prescribe law or policy;
2. [an order is] a final disposition . . . in a matter other than rule making;
3. [a license is] a permit . . . or other form of permission;
4. [a sanction is] a prohibition . . . or taking [of] other compulsory or restrictive action; and
5. [a relief is] (a) a grant of money, assistance, license, authority, etc., or (b) recognition of a claim, right, immunity, etc., or (c) a taking of other action on the application or petition of, and beneficial to, a person."5 U.S.C. §§ 551(4), (6), (8), (10), (11); see also, Norton, 542 U.S. at 62.
In Oregon Desert the United States Forest Service ("Forest Service") issued annual operating instructions ("AOI") to permittees who graze livestock on national forest land. Oregon Natural Desert Association v. United States Forest Service, 465 F.3d 977, 979 (9th Cir. 2006). One of the issues in Oregon Desert was whether issuance of AOI's constituted an agency action. The administrative record showed that prior to the beginning of a grazing season, the Forest Service issued an AOI to grazing permit holders. Id. at 980. As with NEPA, the applicable substantive statute in Oregon Desert did not provide for a private right of action, requiring the challenge to the AOI under the APA judicial review provisions. Id. 982. The Forest Service contested the court's subject matter jurisdiction by arguing that the AOI lacked finality and did not constitute an "agency action" under the APA as interpreted by Norton. Id. at 982. The Ninth Circuit rejected the Forest Service's argument, finding that a grazing permit is a license and the issuance of a grazing permit is an agency action under 5 U.S.C. § 551(13) of the APA. Id. at 983. Under the APA a license "includes the whole or a part of an agency permit . . . or other form of permission." Id.; see also, 5 U.S.C. § 551(8).
Plaintiffs claim that the 2004 OCAP and OCAP BiOp are more than descriptive documents. Plaintiffs allege that when biologists first reviewed the 2004 OCAP, their draft BiOp found that CVP operations would jeopardize the continued survival of some of the salmon species. (Doc. 69-1, FAC, ¶ 2, Filed September 11, 2006.) Plaintiffs also allege that, under 2004 OCAP, the Bureau and DWR plan to substantially revise and expand the existing operations of the CVP and SWP. According to Plaintiffs the revisions will have a significant impact on the Sacramento River and San Joaquin River watersheds in general, and, in particular, on the following five salmon and steelhead evolutionary significant units ("ESUs") listed under the Endangered Species Act ("ESA"):
1. winter run Chinook salmon
2. spring run Chinook salmon
3. threatened Central Valley steelhead
4. threatened Southern Oregon/Northern California Coast coho salmon ("SONCC coho");
5. threatened Central California Coast steelhead ("Central Coast steelhead")
(Doc. 69-1, FAC, ¶ 73.) Plaintiffs therefore argue that the proposed actions should be subject to NEPA review.
Before NEPA review of the OCAP and OCAP BiOp is required, they must constitute final agency action under the APA. Plaintiff alleges that the BiOp provides for an "adaptive management" process under which the Bureau, NMFS and the FWS will discuss potential changes in water storage and release to benefit the five salmon and steelhead ESUs. (Doc. 69-1, FAC, ¶ 73.) Plaintiffs argue that the BiOp does not provide any assurances of any particular level of protection for the ESU's as a result of this promise of future adaptive management. (Id.). The BiOp also does not identify reasonably certain, enforceable measures that will be implemented if changes in operations are necessary to protect the species. ( Id.) According to Plaintiff, the BiOp assumes that only a fraction of the amount of water authorized for delivery under the long-term renewal contracts will actually be delivered. (Doc. 69-1, FAC, ¶ 74.) However, Plaintiffs' argue the Bureau has stated that it intends to deliver the full amount of water authorized in the contracts. ( Id.) By significantly underestimating the amount of water to be diverted and exported under contract, the BiOp likewise significantly underestimates the effects of the 2004 OCAP on listed species and their habitat. ( Id.)
Plaintiff's therefore contend that the documents incorporate substantial changes to the CVP and SWP. Plaintiffs, however, do not dispute that the proposed changes that would allegedly harm the salmon have not yet to been adopted. Plaintiffs also complaint does not allege any proposed changes are imminent or that their adoption is imminent. In their pleadings, Plaintiffs specifically point to the following proposed actions to support their argument that the OCAP and OCAP BiOp are final agency action:
1. The Bureau proposed to move the temperature compliance point on the Sacramento River 19 miles downstream,
2. The Bureau proposed to modify project operations in "numerous interrelated ways" so as to further impair the ability to meet the 1.9 million acrefeet Shasta Reservoir carryover storage requirement established for fish protection,
3. The proposed increase of the amount of export pumping from the Delta to 8,500 cfs.
There is no dispute that the OCAP BiOp covers the effects of the proposed OCAP for the CVP and SWP. There is also no dispute that the OCAP BiOp is considered to be the primary informational basis for the biological opinion prepared by NMFS. The opinion itself states, "This document is the biological opinion on [CVP] and [SWP] long-term operations as described in the Long-Term CVP and SWP OCAP BiOp." However, Plaintiffs do not allege in the complaint that either the 2004 OCAP or OCAP BiOp constitute a "rule, order, license, permit, sanction, or relief" or taking of other action such that either document would be considered an "agency action" for purposes of the APA.
Because NEPA does not have a citizen suit provision, an action must be considered an "agency action" under the APA before triggering a NEPA analysis. That the OCAP or OCAP BiOp is the informational basis for the NMFS biological opinion is not sufficient to show that either document is a "rule, order, license, permit, sanction, or relief" or taking of other action. Also, contrary to Plaintiff's arguments, the proposed actions in the OCAP or OCAP BiOp cannot result in harm to the salmon, because the actions have not yet been adopted or implemented by the Bureau.
Plaintiffs also refer to the language of the OCAP BA:
The OCAP BiOp states, for example, that "[i]n addition to current-day operations, several future actions are to be included in the consultation.
These actions are:
1. Increased flows in the Trinity River,
2. Increased pumping at Banks Pumping Plant
3. Permanent barriers operated in the South Delta,
4. An intertie between California Aqueduct (CA) and the Delta-Mendota Canal (DMC),
5. A long term environmental Water Account
6. Freeport Regional Water Project and
7. Various operational changes that are identified in this project description.
Some of these items will be part of early consultation including increased Banks Pumping to 8500 cubic feet per second (cfs), permanent barriers and the long-term EWA. These proposed actions will come online at various times in the future. The status quo is that the OCAP and OCAP BA describe operation of the CVP and SWP. The proposed actions and operations are in the future. see, Bureau of Reclamation, U.S. Department of the Interior, Long-Term Central Valley Project and State Water Project Operations Criteria and Plan Biological Assessment (2004), available at www.usbr.gov/mp/cvo/ocap/OCAP_BA_6_30_04.pdf.
However, Plaintiff fails to point out that the OCAP BiOp specifically states, "The actions listed in the preceding paragraph are not being implemented at present; however, they are part of the future proposed action on which Reclamation is consulting." (Id.) The BiOp also states that for each proposed action, the ESA § 7 consultation will be reinitiated. Defendants have also stated that some of the proposed actions will qualify as agency action and they will undertake NEPA review for all such actions.
Plaintiffs in this case have failed to show how the 2004 OCAP or the OCAP BiOp's proposed future actions, that may or may not be implemented, constitute an "action" as defined in 5 U.S.C. § 551(13) of the APA.
Although Plaintiffs seek to have the 2004 OCAP or the OCAP BiOp treated as "rules" they offer no legal or factual support that 2004 OCAP or the OCAP BiOp qualifies as "an agency statement of future effect designed to implement, interpret, or prescribe law or policy." Neither is the 2004 OCAP or the OCAP BiOp an "order." Plaintiffs have not sufficiently alleged nor does it appear that they can establish that either the OCAP or BiOP is "a final disposition . . . in a matter other than rule making."
The OCAP and OCAP BiOp serve the function of an environmental consultation on proposed projects rather than implementing or prescribing law or policy. According to the purpose statement of the 2004 OCAP:
"This document has been prepared to serve as a baseline description of the facilities and operating environment of the CVP and SWP. The Central Valley Project — Operations Criteria and Plan (CVP-OCAP) identifies the many factors influencing the physical and institutional conditions and decision-making process under which the project currently operates. Regulatory and legal requirements are explained, alternative operating models and strategies described. The immediate objective is to provide operations information for the Endangered Species Act, Section 7, consultation. The long range objective is to integrate CVP-OCAP into the proposed Central Valley document. It is envisioned that CVP-OCAP will be used as a reference by technical specialists and policymakers in and outside the Bureau of Reclamation (Reclamation) in understanding how the CVP is operated. The CVP-OCAP includes numeric and nonnumeric criteria and operating strategies. Emphasis is given to explaining the analyses used to develop typical operating plans for simulated hydrologic conditions."
Nothing in this statement of purpose indicates that the 2004 OCAP is intended to control or govern project operations or to dictate any activity or action. Unlike the action in Oregon Desert, the 2004 OCAP or the OCAP BiOp in this case is purely informational and has the purpose of imparting information and knowledge to technical specialists and policy makers who seek to understand how the CVP is operated. Neither the 2004 OCAP or the OCAP BiOp qualifies as an "action" as contemplated by 5 U.S.C. § 551(13) of the APA.
ii. "Final Agency Action" under the APA
For an action to be final under the APA, two conditions must be met:
1. The action must mark the `consummation' of the agency's decision making process and must not be of a merely tentative or interlocutory nature, and
2. The action must be (a) "one by which rights or obligations have been determined," or (b) "from which legal consequences flow."Bennett v. Spear, 520 U.S. 154, 178 (1997).
Bennett involved the Klamath Project, a federal reclamation scheme consisting of a series of lakes, rivers, dams, and irrigation canals in northern California and southern Oregon. Bennett, 520 U.S. at 158. One of the issues addressed in Bennett was whether petitioners, two Oregon irrigation districts, had standing to seek judicial review of a biological opinion under the APA. Id. at 157. The court in Bennett ultimately concluded that the Biological Opinion was "final" because the Biological Opinion and accompanying Incidental Take Statement altered the legal regime to which the action agency is subject, authorizing it to take the endangered species if (but only if) it complies with the prescribed conditions. Id. at 178.
Whether an action constitutes a final agency action is premised on the observation that the action has "no direct consequences" and serves "more like a tentative recommendation than a final binding determination." Id. In other words, if the agency action is purely advisory and in no way affects the legal rights of the relevant actors it is not a "final agency action" under the APA. see, Id.
In the Ninth Circuit, the core question is whether the agency has completed its decision making process and whether the result of that process is one that will directly affect the parties. Oregon Desert, 465 F.3d at 982. The Oregon Desert court articulated three ways in which an agency's action is deemed final:
1. If the action "amounts to a definitive statement of the agency's position" or
2. If the action "has a direct and immediate effect on the day-to-day operations" of the subject party, or
3. If, based on the action, "immediate compliance with the terms is expected."Id. The focus of the "final agency action" inquiry is on the practical and legal effects of the agency action: "The finality element must be interpreted in a pragmatic and flexible manner." Id.
a. Definitive Statement of Position
The Oregon Desert court looked to see whether the agency "has rendered its last word on the matter" to determine whether an action is final and is ripe for judicial review. Oregon Desert, 465 F.3d at 984. The administrative record established the following:
1. An AOI is the Forest Service's "last word" authorizing an individual permit holder to graze each season. Id.
2. The Forest Service considers such matters as changes in pasture conditions, new scientific information, new rule that have been adopted during the previous season, or the extent of the permit holder's compliance with the previous year's AOI. Id.
3. While grazing permits allow grazing on federal land, the AOI gives the Forest Service the right to impose additional terms and conditions in light of its annual assessment of changed pasture conditions, new scientific information, new rules, and past compliance by permit holders. Id. at 985. When viewed in this context, the AOI represents the consummation of the Forest Service's annual decision making process regarding management of grazing allotments.
4. Also, after the Forest Services issues an AOI, the grazing permit holder is authorized to begin the new grazing season. Id. The AOI is the only substantive document in the annual application process and pragmatically functions to start the grazing season. Id.
Every spring, the Forest Service initiates consultation with the permit holder regarding the issuance of the AOI for the forthcoming grazing season. Oregon Desert, 465 F.3d at 985, n. 11. At the end of this consultation process, the Forest Service sets the terms and conditions for grazing in any particular allotment. Id. Without the AOI, the permit holder would not know where within the allotment to graze, when, or any specific conservation measures that the Forest Service deemed warranted for the upcoming season. Id.
Based on the administrative record, the Ninth Circuit determined the AOI was a critical instrument in the Forest Service's regulation of grazing on national forest lands. Id. at 984. The Oregon Desert court found that the AOI was a consummation of an agency action because it served as a final decision that set the annual parameters of the grazing program and which imposes legal consequences on permittees. Id. at 986, n. 12.
The OCAP and OCAP BiOp are not the "last word" in authorizing any action or inaction by the Bureau. They do not implement any actions or inactions. They are informational. If any proposed changes are initiated that will have the requisite effect on the environment, such changes will be agency action subject to NEPA review. The purpose of the OCAP is "to serve as a baseline description of the facilities and operating environment of the CVP and SWP." It "identifies the many factors influencing the physical and institutional conditions and decision-making process under which the project currently operates." The OCAP BiOp includes an analysis of the actions proposed in the OCAP. The OCAP BiOp specifically states that the proposed actions "are not being implemented at present . . . [but rather] a part of the future proposed action on which [the Bureau] is consulting." Unlike the AOI in Bennett, neither the OCAP or the OCAP BiOp give the Bureau the right to implement the contemplated changes. Neither document consummates the Bureau's decision making process regarding proposed changes to the operation of the CVP and SWP. The documents merely outline proposed actions and their potential effects if implemented. Plaintiff's concede that both documents outline only proposed changes but claim that such changes will harm the salmon.
In their complaint Plaintiffs assert that the Bureau intends to move ahead with implementing operational changes which threaten to jeopardize the five salmon and steelhead ESU's. (Doc. 69-1, FAC, ¶ 78.) These assertions are in futuro. Plaintiff's also allege that the Bureau's "approval and implementation of the 2004 OCAP, including approval and implementation of changes to project operations included in the 2004 OCAP, constitute a major federal action significantly affecting the quality of the human environment within the meaning of NEPA." (Doc. 69-1, FAC, ¶ 114.) Plaintiffs argue that the 2004 OCAP makes two changes to project operations:
1. The 2004 OCAP moves the Sacramento River temperature compliance point contained in earlier OCAPs 10 miles upstream from Bend Bridge to Ball's Ferry.
2. The 2004 OCAP eliminates the carryover storage requirement for Shasta Reservoir contained in earlier OCAPs.
However, on May 11, 2007 at the hearing on this matter Plaintiffs acknowledged that the 2004 OCAP has not been approved or implemented, nor is there any real probability that such actions will be taken.
In response Defendants argue:
1. The 2004 OCAP does not move the Sacramento River Temperature Compliance
2. The 2004 OCAP does not eliminate the carryover storage requirement for Shasta Reservoir as Plaintiffs allege in paragraph 54 of the FAC. It merely describes the operational criteria under the NMFS 1993 BiOP. Def's Ex. 1 at 3-14-15.
3. The 2004 OCAP neither impacts the current Red Bluff Diversion Dam operations nor proposes or authorizes the SDOP as Plaintiff's appear to allege at paragraphs 58-60 of the FAC.
4. The 2004 OCAP does not discuss, propose, or mandate any operational change. In addition, the 2004 OCAP does not discuss authorize or implement SDIP which is proposed for the future.
After a biological opinion is issued, the action agency may decide to take certain actions and, if those actions arise to the level of a "final agency action" under the APA, steps could be reviewable. While Defendants admit that the 2004 OCAP was the result of much agency effort, it serves merely as a description of operational limitations, criteria, and procedures and does not change any existing legal rights, nor require any action or inaction.
The Bureau clearly recognizes that any proposed changes will be submitted for new § 7 consultation and any NEPA review. Under these facts the 2004 OCAP or OCAP BiOp is not a "consummation of an agency action that serves as a final decision setting the parameters" of the CVP or SWP or resulting in any legal consequences. See, Oregon Desert, 465 F.3d at 986, n. 12.
b. Legal Effects
Even if it is assumed arguendo, that the 2004 OCAP or OCAP BiOp qualify as "consummation of an agency's decision making process," it must be shown that the action is (a) "one by which rights or obligations have been determined," or (b) "from which legal consequences flow." Bennett, 520 U.S. at 178. In Bennett the Court reasoned that the Biological Opinion ("BiOp") issued by the Fish and Wildlife Service ("FWS") was a consummation of FWS's decision making process and resulted in legal consequences that were fairly traceable to the BiOp. Id. at 178. After a formal consultation with the Bureau, the FWS issued a BiOp which concluded that the "long-term operation of the Klamath Project was likely to jeopardize the continued existence of the Lost River and Shortnose Sucker fish." Id. at 159.
First, while the BiOp served as an "advisory function" in the case, the accompanying Incidental Take Statement ("ITS") had a powerful coercive effect on any agency seeking to "take" the endangered species by operation of the Klamath Project. Id. The ITS was a written statement specifying the measures that the FWS considered necessary and appropriate to minimize an actions impact on the affected species and the terms and conditions that must be complied with by the agency to implement such measures. Id. at 170. The Court reasoned that the ITS constituted a permit authorizing the Bureau of Reclamation to "take" the endangered or threatened species so long as it respected the FWS's terms and conditions. Id. Legal consequences flowed from the BO and the ITS because, while an agency was technically free to disregard the BO and proceed with its proposed action, "any person who knowingly ["took"] an endangered or threatened species [would be] subject to civil and criminal penalties including imprisonment." Id. at 170. The BiOp and the ITS at issue in Bennett instructed that any taking of a listed species [was] prohibited unless "such taking [was] in compliance with the ITS" and warned that "the measures described were non discretionary, and must be taken by the Bureau of Reclamation." Id. at 170.
Courts have consistently interpreted Bennett to provide several avenues for meeting the second finality requirement. Oregon Desert, 465 F.3d at 986-987. "[T]he general rule is that administrative orders are not final and reviewable `unless and until they impose an obligation, deny a right, or fix some legal relationship as a consummation of the administrative process.'" Id.; see also, Ukiah Valley Med. Ctr. v. FTC, 911 F.2d 261, 264 (9th Cir. 1990) (quoting Chi. S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S. Ct. 431, 92 L. Ed. 568 (1948)) (emphasis added). The legal relationship need not alter the legal regime to which the involved federal agency is subject. See, e.g., Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461, 482-83, 124 S. Ct. 983, 157 L. Ed. 2d 967 (2004) (holding that EPA's order under the Clean Air Act prohibiting the Alaskan Department of Environment from issuing permits to a zinc mining company was a final agency action because the order effectively halted construction of the mine through the threat of civil and criminal penalties, despite lack of alteration of EPA's legal regime); Cal. Dep't of Educ. v. Bennett, 833 F.2d 827, 833 (9th Cir. 1987) (holding that the Department of Education's letter informing state that interest would accrue was a final agency action despite lack of alteration of the Department's legal regime); Idaho Watersheds Project v. Hahn, 307 F.3d 815, 828 (9th Cir. 2002) (holding that BLM's issuance of grazing permits constituted final agency action despite lack of alteration of BLM's legal regime). These cases demonstrate that Bennett's second requirement can be met through different kinds of agency actions, not only one that alters an agency's legal regime. Oregon Desert, 465 F.3d at 987.
In the Ninth Circuit an agency action may be final if it has a "`direct and immediate . . . effect on the day-to-day business' of the subject party." Id.; see also, Ukiah Valley Med. Ctr., 911 F.2d at 264 (quoting FTC v. Standard Oil, 449 U.S. 232, 239). The issue is "whether the [action] has the status of law or comparable legal force, and whether immediate compliance with its terms is expected." Oregon Desert, 465 F.3d at 987. In light of these rules, the issue is whether the 2004 OCAP and the OCAP BiOp have any legal effect that qualify as final agency action under Bennett's second finality requirement. see, Id.
The Ninth Circuit found that the AOI had legal force because if a permittee did not comply with its directives, the Forest Service can issue a Notice of Non-Compliance. Oregon Desert, 465 F.3d at 987. Specifically, in Oregon Desert, the Forest Service's notification to Defendant Howard Ranch identified violations of the AOI and imposed a modification of the underlying grazing permit as the appropriate sanction for the violation. Id. at 987. Also, the legal effect of an AOI was demonstrated by the Forest Service's use using the AOI to restrict the rights of and confer duties on a grazing permit holder to standards and habitat objectives for an endangered species of bull trout. Id. at 989.
The 2004 OCAP BiOp does contain a description of a take limit for the salmon. Exceeding the take limits could result in potential criminal consequences. However, in the companion case of NRDC v. Kempthorne, 1:05-CV-01207 (E.D. Cal.), concerning the Delta Smelt, the BiOp's approach to setting incidental take limits was found to be arbitrary and capricious because, inter alia, it failed to fully consider the best available scientific information, did not prescribe enforceable and certain mitigation measures, and failed to impose take limits that reasonably assured the survival of the species and its habitat.
Unlike the biological opinion in Bennett, the 2004 OCAP or OCAP BiOp does not issue a permit or any other "agency action" as contemplated in 5 U.S.C. § 551(13) that prescribes standards, performance, or other action or inaction that result in "effect" on the environment. Rather, bot the OCAP and OCAP BiOp describe operations, means, goals, and voluminous data about what must be considered to operate the CVP. The agency does not prescribe measures that must be taken by the Bureau which will adversely affect the salmon species. Neither document imposes an obligation, denies a right, or fixes some legal relationship as a consummation of an administrative process. See, Oregon Desert, 465 F.3d at 986-987. Neither document has the status of law, a comparable legal effect, does not prescribe standards or require immediate compliance with any of its terms, nor do they prescribe remedies or penalties for any non compliance. Plaintiffs do not allege in their complaint that there are legal consequences referable to either the 2004 OCAP or OCAP BiOp. Plaintiffs do not allege that either document has a "powerful coercive effect" or that there were "direct and immediate effects on the day to day business" of the Bureau. Neither document requires or expects immediate compliance with any of its terms. The OCAP was prepared to merely serve as a baseline description of current CVP and SWP operations. The OCAP BiOp also includes reference to proposed changes which could have potential effects on the endangered salmon. This is insufficient to establish that either document result in legal consequences for the Bureau.
Plaintiffs rely on Animal Legal Defense Fund v. Veneman, 469 F.3d 826 (9th Cir. 2006.) and argue that the 2004 OCAP OR OCAP BiOp constitute an "interpretive rule" deemed to be a final agency action under the APA. However that opinion has been vacated.
iii. Failure to Conduct a NEPA Analysis as a Final Agency Action Under the APA.
Plaintiffs also argue that the Bureau's decision to not implement a NEPA analysis is, in itself, a final agency action under the APA. According to Plaintiffs, the cumulative and interrelated effects of the proposed 2004 OCAP and OCAP BiOp actions "may affect and are likely to adversely affect winter run and spring run Chinook salmon as well as the steelhead." First, Plaintiff's claim that the Bureau must balance its obligations under water contract provisions, CVPIA, ESA, the CALFED Record of Decision, the EWA, and the Coordinated Operations Agreement between the Bureau and DWR. USBR SAR 4892-4901. According to Plaintiff, the Bureau's interpretation of those obligations, as well as its decisions regarding how it will carry out CVP and SWP operations in order to meet them, is presented in the 2004 OCAP and OCAP BiOp. USBR SAR 4481-4507 (2004 OCAP description of project constraints and objectives), 4892-4905. Plaintiffs argue that the interpretations are so basic to determining the nature of the CVP and SWP operations that they are included in the modeling assumptions the Bureau used to analyze the effects of the CVP and SWP operations in the OCAP BiOp. USBR SAR 5144-98 (OCAP BiOp Chapt. 8, "Hydrologic and Temperature Modeling assumptions with [CVPIA] 3406(b)(2) and EWA Analyses")
Plaintiffs' concede that the alleged changes to operations are found in the OCAP BiOp rather than the 2004 OCAP. Plaintiffs accuse the Bureau of choosing to bifurcate the presentation of the long-term CVP and SWP operations in order to avoid its obligation to conduct a NEPA analysis. Plaintiffs also argue that Defendants cannot show how the 2004 OCAP and OCAP BiOp constitute an "action" for purposes of the ESA but not for purposes of NEPA.
Plaintiffs' arguments confuse the legal requirements of what constitutes a "final agency action" under the APA that triggers the application of NEPA. Plaintiffs argue that the Bureau clearly understood that the 2004 OCAP was an "action" with environmental impacts that required consultation under the ESA. According to Plaintiffs, no principled reason exists as to why the 2004 OCAP is an "action" for purposes of ESA environmental review but not for NEPA environmental review. However, it is the APA's requirement of a "final agency action," not the ESA, which protects against jeopardy to species, that determines whether NEPA applies. Once jurisdiction is established under NEPA via the APA, an EIS is required whenever an action constitutes a "major federal action significantly affecting the quality of the human environment." The ESA contains its own standard for determining what is an "action." An "action" under the ESA does not necessarily qualify as an "action" under the APA for the purposes of NEPA and Plaintiffs have not provided legal authority to support for their contention that these terms are synonymous under these two laws.
As defined in the ESA regulations, "action" means "all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas." ( 50 C.F.R. § 402.02.) This is much broader than the definition of "final agency action" under the APA. Under the APA an action falls under one of "five categories of decisions made or outcomes implemented by an agency — `agency rule, order, license, sanction [or] relief.'" Norton, 542 U.S. at 62.; 5 U.S.C. § 551(13).
Plaintiffs argue that the very fact that both NMFS and FWS agreed to the Bureau's request for initiation of consultation demonstrates that those agencies believed that the 2004 OCAP was much more than merely a "descriptive" document but rather constituted an action with legal and environmental consequences that triggered the need for consultation.
Plaintiffs almost entirely rely on Kandra v. United States of America, 145 F. Supp. 2d 1192 (Or. 2001.). Kandra is distinguishable. In Kandra there was no dispute that the 2001 annual operation plan at issue was a final agency action under the APA. There was also no dispute that the plan was adopted and to be implemented. Id. at 1196. In this case, the 2004 OCAP and OCAP BiOp has not been formally adopted and its implementation is not imminent. The 2004 OCAP merely describes ongoing operations and the OCAP BiOp outlines proposed actions. NEPA does not apply retroactively and an EIS is not necessary where a proposed federal action would not change the status quo. see, Upper Snake River Chapter of Trout Unlimited v. Hodel, 921 F.2d 232, 234 (9th Cir. 1990).
However, "action" under the ESA has a different, broader definition, not focused on effects. That an activity or program is authorized, funded, or carried out for which a biological assessment under the ESA is required, does not mean such activities are NEPA reviewable agency actions. A biological assessment is a condition precedent for the eventual issuance of a biological opinion, if a biological opinion is needed. See 50 C.F.R. § 402.12(k)(2) (2006) (stating, inter alia, that a biological assessment may be used in "(I) determining whether to request the Federal agency to initiate formal consultation or a conference, (ii) formulating a biological opinion, or (iii) formulating a preliminary biological opinion"). If, as a result of preparing a biological assessment, the action agency concludes that the proposed action is likely to adversely affect listed species or adversely destroy or modify critical habitat, then formal consultation under the ESA is required. See 50 C.F.R. § 402.14 (2006). If listed species are present and likely to be affected by the described action, the consulting agency must prepare a formal biological opinion, which details how the action will affect the listed species and whether the proposed action is likely to "jeopardize" the species or adversely destroy or modify critical habitat. 50 C.F.R. § 402.14(h) (2006).
The several cases upon which Plaintiffs rely that address either the timing of preparation of NEPA documents or whether an EA or an EIS is required under NEPA are distinguishable. Each of the cases involved an undisputed final agency action and the courts in those cases had no cause to question the jurisdictional issue presented here. Plaintiffs' Opposition Brief cites the same cases to support a lengthy argument that NEPA review is required for " proposed actions that may impact the environment." The entire discussion presupposes that there is some final agency action to be implemented and is therefore based on the premise that the 2004 OCAP and the OCAP BiOp are final agency actions under the APA. They are not.
Since there was a final agency action in the cases cited by Plaintiffs, the court's jurisdiction under the APA was never in question. e.g, Save the Yaak Comm. v. J.R. Block, 840 F.2d 714 (9th Cir. 1988) (reconstruction of road); Churchill County v. Norton, 276 F.3d 1060 (9th Cir. 2001) (approval of certain land and water right purchases); Metcalf v. Daley, 214 F.3d 1135 (9th Cir. 2000) (authorization and promotion of Makah whaling proposal); High Sierra Hikers Ass'n v. Blackwell, 390 F.3d 630 (9th Cir. 2004) (issuance of multi-year special-use permits to commercial packstock operators); Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549, 560 (9th Cir. 2006) (amendments to a comprehensive forest management plan, which "changed the resource management plans substantially"); Pitt River Tribe v. USFS, 469 F.3d 768 (9th Cir. 2006) (extension of leases and approval of a geothermal plant).
According to the record, the Bureau noted that NEPA was not implicated in the absence of a final agency action:
Development of an OCAP which describes operation of the CVP, development of an associated biological assessment to identify species effects of the operation, and the subsequent ESA consultations are not decision-making processes and thus are not subject to NEPA. Completion of the OCAP ESA consultation does not authorize implementation or make decisions on any new projects/action.
USBR AR 02660-02661.
The Bureau also recognized in the 2004 OCAP that implementation of any new actions would be accomplished through two processes:
The first of these is the programmatic documents developed by Reclamation for the CVPIA, and by Reclamation and others for the CALFED program. The second is that NEPA compliance is being accomplished on all new projects or actions that may change CVP/State Water Project operations such that there is a significant effect on the environment.
Id. at 02661. It is explicit that if and when Reclamation ultimately decides to take a new action that is not within the scope of historical operations that could have a significant impact on the environment, Reclamation will undertake NEPA analysis. Accord USBR AR 02649 (email regarding OCAP and NEPA, dated October 7, 2004).
Defendants motion to dismiss Plaintiff's seventh claim for relief under NEPA is GRANTED WITH LEAVE TO AMEND.
C. Challenge to Early Consultation On The OCAP BiOp
The California Farm Bureau also argues that Plaintiffs are bringing a challenge to the early consultation aspects of the NMFS 2004 BiOp.
Early consultation is "designed to reduce the likelihood of conflicts between listed species or critical habitat and proposed action." 50 C.F.R. § 402.11(a) Early consultation by the Fish and Wildlife Service usually results in a preliminary opinion, the contents of which are the same as for biological opinion issued after formal consultation. In either event, early consultation and a preliminary opinion do not, without more, carry the weight of final agency action, as they do not fix any rights or obligations under the law. 50 C.F.R. § 402.11(f)
According to the California Farm Bureau, the complaint specifically alleges that the results of the 2004 OCAP and OCAP BiOp's early consultation are arbitrary and capricious and generally states causes of action that allege that all conclusions in the NMFS 2004 BiOp, whether the product of formal or early consultation are arbitrary and capricious. (Doc. 69, First Amended Complaint, Filed September 11, 2006.) The California Farm Bureau therefore request that the Court narrow this case to focus only on claims subject to judicial review by issuing an order which states that Plaintiffs' claims will not be reviewed with respect to the preliminary opinion and early consultation aspects of the 2004 OCAP and OCAP BiOp.
According to Defendants, it bears emphasis that, under the regulation, the only options following an early consultation are either 1. rejection of the preliminary opinion and initiation of formal consultation, or 2. follow-on agency action to confirm the preliminary biological opinion as a final biological opinion. In either event, early consultation and a preliminary opinion do not, without more, carry the weight of final agency action, as they do not fix any rights or obligations under the law.
This issue was clarified at the May 11, 2007 hearing on this matter. Plaintiffs informed the court that they do not intend to bring a challenge to the early consultation of the OCAP BiOp.
Defendants motion to dismiss any challenges to the early consultation portion of the 2004 OCAP BiOp is GRANTED.
6. CONCLUSION
Defendants' motion to dismiss Plaintiffs' seventh claim for relief under NEPA is GRANTED. Any amendment shall be filed within 10 days following the service of this decision.IT IS SO ORDERED.