7 UNITED STATES DISTRICT COURT 8 9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10 NORTH COAST RIVERS ALLIANCE, et al., No. 1:16-cv-00307-DAD-SKO 11 Plaintiffs, ORDER RE STATUS OF PENDING
12 MOTIONS v. 13 (Doc. Nos. 85, 90, 92) UNITED STATES DEPARTMENT OF THE 14 INTERIOR, et al., 15 Defendants,
16 WESTLANDS WATER DISTRICT, et al., 17 Intervenor-Defendants. 18
20 This case concerns approval by the United States Department of the Interior and its member
21 agency, the United States Bureau of Reclamation (collectively, Federal Defendants or Reclamation), of
22 six interim renewal contracts that authorized delivery of water from March 1, 2016, through February
23 28, 2018, from federal reclamation facilities to certain water districts served by the Federal Central
24 Valley Project (CVP) (2016–18 Interim Contracts). (Doc. No. 64, First Amended and Supplemental 25 Complaint (FASC).) The 2016–18 Interim Contracts at issue in this case provided water service to 26 Westlands Water District (Westlands), Santa Clara Valley Water District (Santa Clara), and Pajaro 27 Valley Water Management Agency (Pajaro) (collectively, Interim Contractors). See FASC at ¶ 2. The 28 2016–18 Interim Contracts are part of a long line of two-year interim contracts executed in recent years 1 to provide CVP water to contractors with expired long-term water service contracts, pending the
2 anticipated execution of new long-term water service contracts after the completion of appropriate
3 environmental review. See Central Valley Project Improvement Act (CVPIA), Pub. L. No. 102-575,
4 106 Stat. 4600 (1992), §§ 3402, 3404.
5 Plaintiffs, a coalition of environmental organizations led by the North Coast Rivers Alliance,
6 allege in the FASC’s first claim for relief that Federal Defendants issued a deficient Revised
7 Environmental Assessment (EA) and associated Finding of No Significant Impact (FONSI) prior to
8 approval of the 2016–18 Interim Contracts, in violation of the National Environmental Policy Act
9 (NEPA), 42 U.S.C. § 4321 et seq., and Administrative Procedure Act (APA), 5 U.S.C. §§ 701–706.
10 (FASC at ¶¶ 45–65.) Plaintiffs’ second claim for relief asserts that Reclamation violated NEPA by
11 failing to prepare an Environmental Impact Statement (“EIS”) for the 2016–18 Interim Contracts. (Id. at
12 ¶¶ 56–59.) The latter claim was dismissed on March 9, 2018. (Doc. No. 78.) Currently pending before
13 this court are cross-motions for summary judgment on the merits of certain aspects of the remaining
14 claims in this case.1 (Doc. Nos. 85, 90, 92.)
15 In late February 2019, the court requested input from the parties addressing the issue of
16 mootness. Doc. Nos. 99 & 101. The backdrop for the court’s mootness inquiry included the Ninth
17 Circuit’s ruling in Pacific Coast Fed’n of Fishermen’s Associations v. U.S. Department of the Interior,
18 655 F. App’x 595, 597 (9th Cir. 2016), in which that court held that challenges to interim contracts like
19 those at issue in this case are not moot, even though the relevant contract period has expired, because
20 “[t]he short duration and serial nature of Reclamation’s interim water contracts place plaintiffs’ claims
21 within the mootness exception for disputes capable of repetition yet evading review.” Id. However, on
22 March 12, 2019, in response to the court’s request for supplemental briefing, the United States revealed
23 that Reclamation “no longer intends to pursue the issuance of new long-term water service contracts to
24 Westlands under the authority of CVPIA § 3404. Rather, based on the authority and direction provided 25
26 1 As mentioned in previous orders and as Reclamation points out (see Doc. No. 102 at 2), plaintiffs do not address the adequacy of the Santa Clara and Pajaro contracts in their motion for summary judgment 27 (Doc. No. 85-1), which, given that the remaining APA claim in this case is to be decided on cross- motions for summary judgment, renders any such claim abandoned as to the Santa Clara and Pajaro 28 1 in the 2016 Water Infrastructure Improvements of the Nation (WIIN) Act, Pub. L. 114-322, § 4011,
2 Reclamation intends to convert Westlands’ existing water service contracts into repayment contracts,”
3 which, according to Reclamation, will not be “subject to the requirements of NEPA.” (Doc. No. 100 at
4 ¶¶ 3–4.) As of March 12, 2019, Reclamation indicated it could not be “certain when the WIIN Act
5 conversion of any of Westlands’ contracts might be completed, except that Reclamation would need to
6 complete any such conversion before the authority provided by the WIIN Act expires on December 16,
7 2021.” (Id. at ¶ 5 (citing WIIN Act, § 4013).)
8 On March 19, 2019, pointing out that it has a sua sponte obligation to determine whether a case
9 is moot, the court again requested additional information from Reclamation:
10 [Reclamation’s filing] raises more questions than it answers. The Court cannot tell whether Federal Defendants are being deliberately cryptic or 11 whether the Court simply failed to make clear the underlying threshold jurisdictional question(s) that must be answered. This case already is 12 technically moot because the 2016–18 Interim Contracts have expired. However, pursuant to the Ninth Circuit’s ruling in Pacific Coast 13 Federation of Fishermen’s Associations v. U.S. Dep’t of the Interior, 655 F. App’x 595, 597 (9th Cir. 2016), “[t]he short duration and serial nature 14 of Reclamation’s interim water contracts place plaintiffs’ claims within the mootness exception for disputes capable of repetition yet evading 15 review.” What the Court needs information on now is whether this mootness exception still applies to the contracts at issue in this case. Even 16 though Federal Defendants do not appear to be encouraging the Court to revisit the matter, mootness is a jurisdictional issue the Court must 17 nonetheless address sua sponte. Bernhardt v. County of Los Angeles, 279 F.3d 862, 871 (9th Cir. 2002) (raising sua sponte mootness and the 18 capable of repetition yet evading review exception because it is a question of subject matter jurisdiction); see also Ackley v. W. Conference of 19 Teamsters, 958 F.2d 1463, 1469 (9th Cir. 1992) (“It is the defendant, not the plaintiff, who must demonstrate that the alleged wrong will not 20 recur.”). “A mere speculative possibility of repetition is not sufficient. There must be a cognizable danger, a reasonable expectation, of 21 recurrence for the repetition branch of the mootness exception to be satisfied.” Williams v. Alioto, 549 F.2d 136, 143 (9th Cir. 1977). 22
23 (Doc. No. 101 at 3 (emphasis in original).)
24 In response, in April 2019, the United States outlined the anticipated process under the WIIN Act 25 for converting long-term water service contracts (pursuant to which a contractor pays service charges to 26 Reclamation every year over a fixed term) into repayment contracts (pursuant to which the contractor 27 will repay remaining construction costs associated with water deliveries either in a lump sum or in equal 28 installments over a period not to exceed three years). (Doc. No.
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7 UNITED STATES DISTRICT COURT 8 9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10 NORTH COAST RIVERS ALLIANCE, et al., No. 1:16-cv-00307-DAD-SKO 11 Plaintiffs, ORDER RE STATUS OF PENDING
12 MOTIONS v. 13 (Doc. Nos. 85, 90, 92) UNITED STATES DEPARTMENT OF THE 14 INTERIOR, et al., 15 Defendants,
16 WESTLANDS WATER DISTRICT, et al., 17 Intervenor-Defendants. 18
20 This case concerns approval by the United States Department of the Interior and its member
21 agency, the United States Bureau of Reclamation (collectively, Federal Defendants or Reclamation), of
22 six interim renewal contracts that authorized delivery of water from March 1, 2016, through February
23 28, 2018, from federal reclamation facilities to certain water districts served by the Federal Central
24 Valley Project (CVP) (2016–18 Interim Contracts). (Doc. No. 64, First Amended and Supplemental 25 Complaint (FASC).) The 2016–18 Interim Contracts at issue in this case provided water service to 26 Westlands Water District (Westlands), Santa Clara Valley Water District (Santa Clara), and Pajaro 27 Valley Water Management Agency (Pajaro) (collectively, Interim Contractors). See FASC at ¶ 2. The 28 2016–18 Interim Contracts are part of a long line of two-year interim contracts executed in recent years 1 to provide CVP water to contractors with expired long-term water service contracts, pending the
2 anticipated execution of new long-term water service contracts after the completion of appropriate
3 environmental review. See Central Valley Project Improvement Act (CVPIA), Pub. L. No. 102-575,
4 106 Stat. 4600 (1992), §§ 3402, 3404.
5 Plaintiffs, a coalition of environmental organizations led by the North Coast Rivers Alliance,
6 allege in the FASC’s first claim for relief that Federal Defendants issued a deficient Revised
7 Environmental Assessment (EA) and associated Finding of No Significant Impact (FONSI) prior to
8 approval of the 2016–18 Interim Contracts, in violation of the National Environmental Policy Act
9 (NEPA), 42 U.S.C. § 4321 et seq., and Administrative Procedure Act (APA), 5 U.S.C. §§ 701–706.
10 (FASC at ¶¶ 45–65.) Plaintiffs’ second claim for relief asserts that Reclamation violated NEPA by
11 failing to prepare an Environmental Impact Statement (“EIS”) for the 2016–18 Interim Contracts. (Id. at
12 ¶¶ 56–59.) The latter claim was dismissed on March 9, 2018. (Doc. No. 78.) Currently pending before
13 this court are cross-motions for summary judgment on the merits of certain aspects of the remaining
14 claims in this case.1 (Doc. Nos. 85, 90, 92.)
15 In late February 2019, the court requested input from the parties addressing the issue of
16 mootness. Doc. Nos. 99 & 101. The backdrop for the court’s mootness inquiry included the Ninth
17 Circuit’s ruling in Pacific Coast Fed’n of Fishermen’s Associations v. U.S. Department of the Interior,
18 655 F. App’x 595, 597 (9th Cir. 2016), in which that court held that challenges to interim contracts like
19 those at issue in this case are not moot, even though the relevant contract period has expired, because
20 “[t]he short duration and serial nature of Reclamation’s interim water contracts place plaintiffs’ claims
21 within the mootness exception for disputes capable of repetition yet evading review.” Id. However, on
22 March 12, 2019, in response to the court’s request for supplemental briefing, the United States revealed
23 that Reclamation “no longer intends to pursue the issuance of new long-term water service contracts to
24 Westlands under the authority of CVPIA § 3404. Rather, based on the authority and direction provided 25
26 1 As mentioned in previous orders and as Reclamation points out (see Doc. No. 102 at 2), plaintiffs do not address the adequacy of the Santa Clara and Pajaro contracts in their motion for summary judgment 27 (Doc. No. 85-1), which, given that the remaining APA claim in this case is to be decided on cross- motions for summary judgment, renders any such claim abandoned as to the Santa Clara and Pajaro 28 1 in the 2016 Water Infrastructure Improvements of the Nation (WIIN) Act, Pub. L. 114-322, § 4011,
2 Reclamation intends to convert Westlands’ existing water service contracts into repayment contracts,”
3 which, according to Reclamation, will not be “subject to the requirements of NEPA.” (Doc. No. 100 at
4 ¶¶ 3–4.) As of March 12, 2019, Reclamation indicated it could not be “certain when the WIIN Act
5 conversion of any of Westlands’ contracts might be completed, except that Reclamation would need to
6 complete any such conversion before the authority provided by the WIIN Act expires on December 16,
7 2021.” (Id. at ¶ 5 (citing WIIN Act, § 4013).)
8 On March 19, 2019, pointing out that it has a sua sponte obligation to determine whether a case
9 is moot, the court again requested additional information from Reclamation:
10 [Reclamation’s filing] raises more questions than it answers. The Court cannot tell whether Federal Defendants are being deliberately cryptic or 11 whether the Court simply failed to make clear the underlying threshold jurisdictional question(s) that must be answered. This case already is 12 technically moot because the 2016–18 Interim Contracts have expired. However, pursuant to the Ninth Circuit’s ruling in Pacific Coast 13 Federation of Fishermen’s Associations v. U.S. Dep’t of the Interior, 655 F. App’x 595, 597 (9th Cir. 2016), “[t]he short duration and serial nature 14 of Reclamation’s interim water contracts place plaintiffs’ claims within the mootness exception for disputes capable of repetition yet evading 15 review.” What the Court needs information on now is whether this mootness exception still applies to the contracts at issue in this case. Even 16 though Federal Defendants do not appear to be encouraging the Court to revisit the matter, mootness is a jurisdictional issue the Court must 17 nonetheless address sua sponte. Bernhardt v. County of Los Angeles, 279 F.3d 862, 871 (9th Cir. 2002) (raising sua sponte mootness and the 18 capable of repetition yet evading review exception because it is a question of subject matter jurisdiction); see also Ackley v. W. Conference of 19 Teamsters, 958 F.2d 1463, 1469 (9th Cir. 1992) (“It is the defendant, not the plaintiff, who must demonstrate that the alleged wrong will not 20 recur.”). “A mere speculative possibility of repetition is not sufficient. There must be a cognizable danger, a reasonable expectation, of 21 recurrence for the repetition branch of the mootness exception to be satisfied.” Williams v. Alioto, 549 F.2d 136, 143 (9th Cir. 1977). 22
23 (Doc. No. 101 at 3 (emphasis in original).)
24 In response, in April 2019, the United States outlined the anticipated process under the WIIN Act 25 for converting long-term water service contracts (pursuant to which a contractor pays service charges to 26 Reclamation every year over a fixed term) into repayment contracts (pursuant to which the contractor 27 will repay remaining construction costs associated with water deliveries either in a lump sum or in equal 28 installments over a period not to exceed three years). (Doc. No. 102 at ¶ 7.) Since that time, the court 1 | has received several additional updates from the parties, the latest of which indicates that Reclamation 2 | and Westlands signed a primary water service contract under the WIIN Act on February 28, 2020. (Doc. 3 116-1 at 98.) Five other Westlands’ WIIN Act contracts are being prepared for signature but, as of 4 | early March 2020, had not yet been executed. (/d.) Because of these outstanding contracts and because 5 | the primary contract does not take effect until June 1, 2020, Reclamation issued a NEPA document 6 | related to the 2020-2022 interim renewal contract. (/d.) However, once Westlands’ WIIN Act contracts 7 into effect, according to Reclamation, that NEPA document will no longer be applicable. (/d.) 8 As the court has previously noted, it now faces a difficult dilemma. Plaintiffs’ claim, which 9 | concerns a significant federal water service contract, is not yet technically moot. However, all signs 10 || continue to lead the court to believe that the issues to be adjudicated here may well be rendered moot in 11 | the very near future. At the same time, this court is facing an extraordinary shortage of resources, made 12 | worse by the current public health crisis gripping our nation and seriously impacting the operation of the 13 | courts. See U.S. District Court for the Eastern District of California, General Orders 611 and 612. In 14 | light of these factors, the court will continue to hold the pending cross motions for summary judgment in 15 || abeyance. 16 To ease the resource burden on the parties, the court’s prior order (Doc. No. 110) requiring status 17 || reports every thirty (30) days is modified as follows: The United States shall file a brief status report 18 | every sixty (60) days, or within fourteen (14) days of any party believing the current trajectory of WIIN 19 | act conversions has materially changed. Upon receipt of each status report, the court will sua sponte 20 | reconsider its position on the pending cross motions for summary judgment. Meanwhile, the Clerk of 21 | Court is directed to administratively terminate the pending motions (Doc. Nos. 85, 90 and 92). The 22 || court will notify the parties if and when it determines that it is appropriate to rule on those motions or 23 || whether it will require further briefing from the parties addressing the issue of mootness. 24 IT IS SO ORDERED. ~ sie 26 Dated: _ March 29, 2020 Ae 1" Sage 37 UNITED STATES DISTRICT JUDGE