Bay Institute v. United States

MEMORANDUM *

This case involves the administration by the Department of the Interior (“Interior”) *735 of water in California’s Central Valley Project (the “Project”). Appellants San Luis & Delta-Mendota Water Authority, et al., and Bay Institute of San Francisco, et al., appeal from a final partial judgment issued by the district court pursuant to Fed. R.Civ.P. 54(b).

The parties filed cross-motions for summary judgment challenging the accounting methodology used by Interior in implementing Section 3406(b)(2) of the Central Valley Project Improvement Act (“Improvement Act”). The district court severed the accounting issues from the rest of the case and issued a final partial judgment on the accounting issues pursuant to Rule 54(b).

The district court’s partial judgment is final for purposes of appeal. See Franklin v. Fox, 312 F.3d 423 , 429 n. 2 (9th Cir.2002).

1. The district court correctly concluded that Section 3406(b)(2) does not require Interior to calculate the cost of water actions taken pursuant to § 3406(b)(2) against a hypothetical model of Project operations during the 1928-1934 drought period. Section 3406(b)(2) unambiguously requires only calculation of Project…

CANBY, Circuit Judge, concurring in part and dissenting in part.

I entirely agree with all parts of this memorandum with the sole exception of the paragraph numbered 3. Unlike the majority and the district court, I do not view § 3406(b) of the Act as imposing an annual maximum of 800,000 acre feet of water that the Secretary of the Interior may manage for the conservation purposes specified by that section. Section 3406(b) requires the Secretary to dedicate and manage annually 800,000 acre feet of the “yield” of the project for those purposes. In my view, it was within the discretion of the Secretary to determine that particular releases of water for conservation purposes were subject to offset or reset because they did not cause a diminution of the yield available to other users, even if the effect of such offsets or resets may result in more than 800,000 acre feet being used in a given year for the conservation purposes of § 3406(b). In all other respects I concur in this memorandum.