San Luis & Delta-Mendota Water Authority v. United States

Opinion by Judge WU; Partial Concurrence and Partial Dissent by Judge MILAN D. SMITH, JR.

OPINION

“One of the most contentious issues in the western United States is the management of water resources.” Westlands Water Dist. v. U.S. Dep’t of Interior, 337 F.3d 1092, 1100 (9th Cir.2003) (“Westlands Water Dist. I ”).

This appeal arises from a long-running conflict which has devolved to the present remaining dispute as to the classification of approximately 9,000 acre feet (“AF”) of water released between June 17 through 24 of 2004 from the Nimbus and New Melones reservoirs (“latter June 2004 releases”) within California’s Central Valley Project (the “CVP” or “Project”) by Defendant-Appellee United States Department of the Interior (“Interior”), acting through the United States Bureau of Reclamation (the “Bureau”) (collectively, “Federal Defendants” or “Federal Appellees”). Plaintiff-Appellants San Luis & Delta-Mendota Water Authority (“San Luis”) and Westlands Water District (“Westlands”) (collectively, “Water Agencies” or “Appellants”) contend that Interi- or abused its discretion in failing to apply the latter June 2004 releases against the 800,000 AF of CVP yield especially…

concurring in part and dissenting in part:

While I join in the majority’s conclusion on standing as outlined in Part A of the Analysis section, I respectfully, but strongly, dissent from the other parts of the majority opinion. The truth is that the Department of the Interior’s (Interior) re-categorization of the late June 2004 releases from the Nimbus and New Melones reservoirs was a purely post-hoc rationalization by Interior, when it realized that it would run out of section 3406(b)(2) water to use for the year. Such a post-hoc rationalization flies in the face of what the Central Valley Project Improvement Act (CVPIA or Act), Pub.L. No. 102-575, 106 Stat. 4600 (1992), mandates, as well as the requirements of controlling case law. Moreover, affirming the district court’s “predominantly contributes to a primary purpose” standard, as the majority does, will inevitably lead to an evisceration of the politically delicate, negotiated limits on certain water uses clearly envisioned by the Congress when it enacted the CVPIA. I would reverse and remand to the district court.

“A man from the West will fight over three things: water, women and gold, usually in that order.” This quote…

Thomas W. Birmingham, Fresno, CA; and Daniel J. O'Hanlon and Andrew P. Tauriainen, Kronick, Moskovitz, Tiedemann & Girard, Sacramento, CA, for the plaintiffs-appellants.

Cynthia L. Koehler, Environmental Defense Fund, San Francisco, CA; and Paul A. Peters, Hines & Thomas, San Francisco, CA; and Katherine S. Poole and Jason Malinsky, Natural Resources Defense Counsel, San Francisco, CA, for the plaintiffs-appellees.

Kevin Tanaka, Department of the Interior, Office of Regional Solicitor, Sacramento, CA; and Ignacia S. Moreno, Assistant Attorney General, Environmental & Natural Resources Division, and Charles Shockey, Andrew C. Mergen and David S. Shilton, Department of Justice, Washington, D.C., for the defendants-appellees.

Before: WILLIAM A. FLETCHER and MILAN D. SMITH, JR., Circuit Judges, and GEORGE H. WU, District Judge. [*]

Opinion by Judge WU; Partial Concurrence and Partial Dissent by Judge MILAN D. SMITH, JR.

WU, District Judge:

"One of the most contentious issues in the western United States is the management of water resources." Westlands Water Dist. v. U.S. Dep't of Interior, 337 F.3d 1092, 1100 (9th Cir.2003) ( "Westlands Water Dist. I" ).

This appeal arises from…