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California ex rel. Imperial County Air Pollution Control Dist. v. U.S. Department of Interior

United States Court of Appeals, Ninth Circuit

August 1, 2014

PEOPLE OF THE STATE OF CALIFORNIA EX REL. IMPERIAL COUNTY AIR POLLUTION CONTROL DISTRICT; IMPERIAL COUNTY AIR POLLUTION CONTROL DISTRICT; COUNTY OF IMPERIAL, Plaintiffs-Appellants,
v.
U.S. DEPARTMENT OF THE INTERIOR; SALLY JEWELL, Secretary of the United States Department of Interior; UNITED STATES BUREAU OF RECLAMATION; MICHAEL L. CONNOR, Commissioner, Bureau of Reclamation, Defendants-Appellees, IMPERIAL IRRIGATION DISTRICT; SAN DIEGO COUNTY WATER AUTHORITY; COACHELLA VALLEY WATER DISTRICT; METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA, Intervenor-Defendants--Appellees. PEOPLE OF THE STATE OF CALIFORNIA EX REL. IMPERIAL COUNTY AIR POLLUTION CONTROL DISTRICT; IMPERIAL COUNTY AIR POLLUTION CONTROL DISTRICT; COUNTY OF IMPERIAL, Plaintiffs-Appellees,
v.
U.S. DEPARTMENT OF THE INTERIOR; SALLY JEWELL, Secretary of the United States Department of Interior; UNITED STATES BUREAU OF RECLAMATION; MICHAEL L. CONNOR, Commissioner, Bureau of Reclamation, Defendants, And IMPERIAL IRRIGATION DISTRICT; SAN DIEGO COUNTY WATER AUTHORITY; COACHELLA VALLEY WATER DISTRICT; METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA, Intervenor-Defendants--Appellants

Argued and Submitted, Pasadena, California December 4, 2013.

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Appeal from the United States District Court for the Southern District of California. D.C. No. 3:09-cv-02233-AJB-PCL. D.C. No. 3:09-cv-02233-AJB-PCL. Anthony J. Battaglia, District Judge, Presiding.

SUMMARY[**]

Environmental Law

The panel amended its opinion, filed May 19, 2014, and affirmed the district court's summary judgment in favor of federal defendants and intervenor water districts in an action challenging an environmental impact statement prepared by the Secretary of the Interior that analyzed the effects of water transfer agreements on the Salton Sea in southern California.

The panel disagreed with the district court and held that the plaintiffs, Imperial County and the Imperial County Air Pollution Control District, had standing to sue. The panel nonetheless affirmed the judgment because the district court correctly held in the alternative that the Secretary of the Interior did not violate the National Environmental Policy Act. The panel also held that the record below made plain that the Secretary did not violate the Clean Air Act.

Michael L. Rood and Katherine Turner, County of Imperial, County Counsel, El Centro, California, for Plaintiffs-Appellants--Cross-Appellees.

Alene M. Taber (argued), Michael L. Tidus, Kathryn M. Casey, and Jonathan E. Shardlow, Jackson, DeMarco, Tidus, Peckenpaugh, Irvine, California, for Plaintiffs-Appellant--Cross-Appellee People of the State of California ex rel. Imperial County Air Pollution Control District, and Imperial County Air Pollution Control District.

Antonio Rossmann, Roger B. Moore, and Barton Lounsbury, Rossmann and Moore, LLP, San Francisco, California, for Plaintiffs-Appellants--Cross-Appellees County of Imperial.

Ignacia S. Moreno, Assistant Attorney General, David C. Shilton, Stephen M. Macfarlane, Norman L. Rave, Jr., and Peter J. McVeigh (argued), United States Department of Justice, Environment & Natural Resources Division, Washington, D.C.; Robert Snow, M. Rodney Smith, Jr., Office of the Solicitor, United States Department of the Interior, Washington, D.C., for Defendants-Appellees.

Kurt R. Wiese, General Counsel, and Barbara Baird, District Counsel, Diamond Bar, California, for Amicus Curiae South Coast Air Quality Management District.

Catherine Redmond, District Counsel, Fresno, California, for Amicus Curiae San Joaquin Valley Unified Air Pollution Control District.

Katherine C. Pittard, District Counsel, Sacramento, California, for Amicus Curiae Sacramento Metropolitan Air Quality Management District.

Dennis Marshall, County Counsel, and William M. Dillon, Senior Deputy, Santa Barbara, California, for Amicus Curiae Santa Barbara County Air Pollution Control District.

Nancy Diamond, District Counsel, Law Offices of Nancy Diamond, Arcata, California, for Amicus Curiae North Coast Unified Air Quality Management District.

David D. Cooke, Allen Matkins Leck Gamble Mallory & Natsis LLP, San Francisco, California; David L. Osias and Mark J. Hattam, Allen Matkins Leck Gamble Mallory & Natsis LLP, San Diego, California; Jeffrey M. Garber, General Counsel, Imperial Irrigation District, Imperial, California, for Intervenor-Defendant--Appellee--Cross-Appellant Imperial Irrigation District.

Marcia L. Scully, General Counsel, John D. Schlotterbeck, Senior Deputy General Counsel, Adam C. Kear, Senior Deputy General Counsel, Los Angeles, California; Linus Masouredis, Chief Deputy General Counsel, Sacramento, California, for Intervenor-Defendant--Appellee--Cross-Appellant The Metropolitan Water District of Southern California.

Steven B. Abbott and Julianna Strong, Redwine and Sherrill, Riverside, California; Michelle Ouellette and Melissa R. Cushman, Best Best & Krieger LLP, Riverside California, for Intervenor-Defendant--Appellee--Cross-Appellant Coachella Valley Water District.

Lisabeth D. Rothman and Amy M. Steinfeld, Brownstein Hyatt Farber Schreck, LLP, Los Angeles, California; Daniel S. Hentschke, General Counsel, San Diego County Water Authority, San Diego, California, for Intervenor-Defendant--Appellee--Cross-Appellant San Diego County Water Authority.

Before: Paul J. Watford and Andrew D. Hurwitz, Circuit Judges, and William E. Smith, Chief District Judge.[*]

OPINION

AMENDED OPINION

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HURWITZ, Circuit Judge:

The Salton Sea--the largest inland body of water in California--is a creature of

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accident. In 1905, water from the Colorado River breached an irrigation canal and flooded the then-dry Salton Basin. After the initial flood, irrigation runoff from the Imperial and Coachella Valleys--supplied by the Colorado River--sustained the Sea for more than a century. The Sea has become a unique attraction for water-based recreation in the harsh southern California desert.

The Sea's continued access to Colorado River water is in jeopardy. Over the last few decades Arizona and Nevada began to claim their full entitlements to the stream. California, which has long used more than its share, has been required to conserve. The affected California water districts ultimately agreed to transfer some Colorado River water from the Imperial Valley to urban areas in southern California. The Secretary of the Interior--who controls the delivery of River water--prepared an environmental impact statement (" EIS" ), which, among other things, analyzed the effect of these agreements on the Salton Sea. Despite noting some potentially serious environmental consequences, the Secretary eventually approved the agreements and implemented a new water delivery schedule.

Plaintiffs Imperial County and the Imperial County Air Pollution Control District (the " Air District" ) then sued the Secretary, claiming that the EIS did not comply with either the National Environmental Policy Act (" NEPA" ) or the Clean Air Act (" CAA" ). The Imperial Irrigation District (" Imperial Irrigation" ), San Diego County Water Authority PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I. 9 (" San Diego Water" ), Coachella Valley Water District (" Coachella" ), and Metropolitan Water District of Southern California (" Metropolitan" ), parties to the transfer agreements, intervened as defendants. The district court granted summary judgment to the defendants, finding that neither plaintiff had standing to sue. We disagree as to standing, but nonetheless affirm the judgment, because the district court correctly found in the alternative that the Secretary did not violate NEPA; the record below also makes plain that the Secretary did not violate the CAA.

I. Background

In 1922, the Colorado River basin states agreed to divide the River's waters among upper- and lower-basin states. Colorado River Compact, 70 Cong. Rec. 324 (1928). In 1928, Congress ratified the compact in the Boulder Canyon Project Act, Pub. L. No. 70-642, 45 Stat. 1057 (codified as amended at 43 U.S.C. § § 617-619b). California, Arizona, and Nevada are the lower-basin states.

In 1931, various southern California irrigation and water districts agreed to a framework for distributing the State's share of Colorado River water. This " Seven Party Agreement" created seven priorities and--unrealistically assuming an everlasting surplus of river water--divided 5.362 million acre feet per year (" mafy" )[1] among the contracting districts. Priorities 1, 2, 3(a), 3(b), 6(a), and 6(b) in the Seven Party Agreement were either unquantified or shared among the districts. Agreement Requesting Apportionment of California's Share of the Waters of the Colorado River Among the Applicants in the State (Aug. 18, 1931), available at http://www.usbr.gov/lc/region/pao/pdfiles/ca7pty.pdf. The Secretary and the California districts then incorporated the terms of the Agreement into water delivery contracts. See 43 U.S.C. § 617d.

In 1963, the Supreme Court held that the Boulder Canyon Project Act limited California's ...


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