Tehama-Colusa Canal Authority v. United States Department of the Interior

721 F.3d 1086, 2013 WL 3285795, 2013 U.S. App. LEXIS 13417
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 1, 2013
DocketNo. 11-17199
StatusPublished
Cited by8 cases

This text of 721 F.3d 1086 (Tehama-Colusa Canal Authority v. United States Department of the Interior) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tehama-Colusa Canal Authority v. United States Department of the Interior, 721 F.3d 1086, 2013 WL 3285795, 2013 U.S. App. LEXIS 13417 (9th Cir. 2013).

Opinion

OPINION

RAWLINSON, Circuit Judge:

The Tehama-Colusa Canal Authority (Canal Authority) appeals the district court’s decision to grant summary judgment to the Department of Interior (Interior), Bureau of Reclamation (Bureau), San Luis & Delta-Mendota Water Authority (San Luis), and Westlands Water Authority (W estlands).

We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the district court’s decision on the alternate basis that California Water Code § 11460 does not require the Bureau to provide Central Valley Project contractors priority water rights, because contracts between the Canal Authority and the Bureau contain provisions that specifically address allocation of water during shortage periods.

I. BACKGROUND

A. Procedural History1

Canal Authority is a joint powers authority comprised of sixteen water agency members. Canal Authority initiated this action against Interior; the Secretary of Interior (Secretary); the Bureau; the Bureau’s regional director of the Mid-Pacific Region; and intervenors, San Luis and Westlands, to establish priority water rights under Central Valley Project (CVP) water service contracts in the Sacramento Valley. Specifically, Canal Authority requested a ruling limiting the export of water south of the Sacramento-San Joaquin Delta (Delta) until Canal Authority and its members received 100% of the water supply referenced in their CVP contracts. Canal Authority sought injunctive and declaratory relief.

Canal Authority maintained that the Bureau’s water shortage allocations failed to adhere to area of origin protections as provided in California Water Code (CWC) [1089]*1089§§ 11460, 11463, and 11128; Reclamation Law; the Fifth Amendment; and state law water rights articulated by the United States Supreme Court in California v. United States, 438 U.S. 645, 98 S.Ct. 2985, 57 L.Ed.2d 1018 (1978).

The defendants sought summary judgment on the bases that Canal Authority’s Administrative Procedure Act claims were subject to the six-year statute of limitations, and that the Canal Authority’s interpretation of § 11460 did not grant water allocation priority to the Canal Authority or its members. The district court granted summary judgment for the defendants, holding that all claims arising before February 11, 2004 were time-barred, and that Canal Authority was not entitled to priority water allocation under the CVP contracts. Canal Authority filed this timely appeal.

B.CVP Operations and Allocation of Water

The CVP operates under a Coordinated Operating Agreement between the Bureau and the California State Department of Water Resources (DWR) as an integrated unit. Contractors receiving water from the CVP do not apply for appropriative water rights from the State Water Resources Control Board (SWRCB), as would be required to perfect a water right from a California water source. Rather, water users contract directly with the Bureau for water allocations. Indeed, not one of the Canal Authority’s members has ever applied for or received a water rights permit from the SWRCB.

The Bureau normally allocates CVP water on a pro rata basis, except when operational constraints or contract provisions dictate priority allocation. In dry water years, all CVP contractors have received less than their full contractual complement of water. When water shortages occur, contractors south of the Delta usually bear an increased burden of the shortages.

The two drought years at issue in this case are 2008 and 2009. In 2008, Canal Authority and other north-of-Delta water service contractors received 100% of their contractual water allocations from the Bureau. South-of-Delta contractors only received 50% of their allocations. In 2009, the Governor of California declared a state of emergency because of the drought. During that year, Canal Authority and other north-of-Delta contractors received 40% of their allocations, while south-of-Delta contractors received 10%.

C. State Law Area of Origin Statutes

The area of origin statutes, CWC §§ 11460-11465, were enacted to alleviate the concern that construction of the CVP would result in inadequate water supplies for local users. It is undisputed that the Bureau’s appropriation of water for the CVP is subject to the area of origin statutes. However, an important distinction is that while the area of origin statutes help to determine the total quantity of water available to the Bureau for allocation, those statutes in no way control how the water is allocated by the Bureau once acquired.

D. The Bureau’s Permits for CVP Water Supply

In 1961, the SWRCB approved the United States’ application to appropriate Sacramento River water for the CVP. This approval, known as Decision 990 (D-990), recognized that one of the CVP’s principal functions was to export water from the Sacramento River watershed into the San Joaquin Valley.

D-990 incorporated the SWRCB’s interpretation of the area of origin statutes by acknowledging that the public interest required that water originating in the Sacra-[1090]*1090mentó Valley Basin be made available for use within the Basin and the Delta before it was exported to more distant areas. Protection of the articulated public interest was manifested by the condition set forth in Term 22,2 which conditioned the Bureau’s water rights permits. Term 22 established that the Bureau’s water permits were “subject to rights initiated by applications for use within said watershed and Delta regardless of the date of filing said applications.” Term 22 was designed to protect appropriators of water with permits, not contractors who obtained water through CVP contracts.

The condition reflected in Term 233 addressed the use of CVP water by water users within an area of origin. Rather than requiring CVP water to be allocated for the benefit of areas of origin, Term 23 granted then-current water users a three-year window to request water service contracts from the Bureau, which contracts would be preferred over requests from users outside the watershed. Also included in Term 23 was a ten-year preference for then-water users to obtain a water service contract.

In 1978, the SWRCB modified the Bureau’s CVP permits to require the Bureau to meet water quality standards in the Delta and Suisun Marsh by either releasing water from storage or curtailing diversions, so that outflow from the Delta would be sufficient to prevent sea water from intruding into the Delta. The California Court of Appeal affirmed the SWRCB decision (Decision 1485), and recognized the SWRCB’s authority to modify the Bureau’s water right permits.

E. Application of the Area of Origin Statutes by SWRCB

Two Canal Authority member agencies filed a complaint with the SWRCB in 1991 claiming preferential access to CVP water supply under the area of origin statutes. The SWRCB rejected the claim, finding that Canal Authority members had no preferential access to CVP water supply under area of origin statutes.

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Bluebook (online)
721 F.3d 1086, 2013 WL 3285795, 2013 U.S. App. LEXIS 13417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tehama-colusa-canal-authority-v-united-states-department-of-the-interior-ca9-2013.