March 14, 2013

Farmers lose another water battle

By Damien M. Schiff Senior Attorney

Earlier this month, the Ninth Circuit Court of Appeals rejected an attempt by water users within the San Luis Unit of the Central Valley Project to require the Bureau of Reclamation to provide them more water.  In San Luis Unit Food Producers v. United States, the appellate court, in an opinion authored by Judge Trott, upheld the lower court’s dismissal of the lawsuit, reasoning that the farmers had failed to identify a discrete action that the Bureau was legally required to perform to the benefit of the farmers.  That failure was important because under the Administrative Procedure Act, a private party can sue to force agency action only if that action is both discrete and legally mandated.  In other words, the APA does not allow a private party to seek “programmatic change” in how an agency uses its discretion to administer a statute or program.  Here, the farmers conceded that they had no contractual right to more water (those contractual rights are held by water districts such as the San Luis & Delta-Mendota Water Authority which, interestingly, was not among the plaintiffs).  Nevertheless, they argued that a number of federal and state statutes required the Bureau to operate the San Luis Unit of the CVP to privilege water deliveries for irrigation over other deliveries for other concerns, such as environmental improvements, habitat restoration, etc.  The Ninth Circuit held, however, that the Bureau was not required categorically to prefer irrigation to environmental improvements.  Hence, what the farmers were asking for, reasoned the court, amounted to “programmatic change” in how the Bureau administers the Central Valley Project.  Yet that desire runs up against Norton v. Southern Utah Wilderness Alliance, in which the Supreme Court held that the APA forecloses such programmatic attacks.

This was a tough case for the farmers for a number of reasons, not least because, under current law, the Bureau is required to provide a certain amount of water for the protection of a number of species protected under the Endangered Species Act.  Moreover, since 1992, environmental protection is an explicit goal of the CVP.  I would be surprised if the farmers were to seek further review.

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