OWW Intervenors,  ORDER v. Stockton East Water District

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 CENTRAL DELTA WATER AGENCY;
SOUTH DELTA WATER AGENCY;
ALEXANDER HILDEBRAND; R. C.
FARMS, INC.,
Plaintiffs-Appellants,
and
SAVE SAN FRANCISCO BAY
ASSOCIATION; NATURAL RESOURCES
DEFENSE COUNCIL; ENVIRONMENTAL
DEFENSE FUND; BAY INSTITUTE OF
SAN FRANCISCO; PACIFIC COAST
FEDERATION OF FISHERMEN’S No. 04-16632
ASSOCIATIONS; UNITED ANGLERS OF D.C. No.
CALIFORNIA, CV-99-05650-OWW
Intervenors,  ORDER AND
v. AMENDED
BUREAU OF RECLAMATION, UNITED OPINION
STATES DEPARTMENT OF INTERIOR;
GALE A. NORTON, Secretary of the
Interior; MICHAEL J. SPEARS,
Regional Director, US Dept. of
Interior, Fish and Wildlife Service,
Region 1; KIRK RODGERS, Acting
Regional Director, Dept. of
Interior, Bureau of Reclamation,
Mid-Pacific Region; DEPARTMENT
OF FISH AND GAME, STATE OF
CALIFORNIA; ROBERT C. HIGHT,
Defendants-Appellees, 
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 SAN JOAQUIN RIVER GROUP
AUTHORITY; OAKDALE IRRIGATION
DISTRICT; SOUTH SAN JOAQUIN
IRRIGATION DISTRICT; MERCED
IRRIGATION DISTRICT; MODESTO
IRRIGATION DISTRICT (MID);
TURLOCK IRRIGATION DISTRICT; SAN
 JOAQUIN RIVER EXCHANGE
CONTRACTORS WATER AUTHORITY,
Defendants-Intervenors-
Appellees,
v.
STOCKTON EAST WATER DISTRICT,
Plaintiff-Intervenor. 
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Argued and Submitted
April 3, 2006—San Francisco, California
Filed May 22, 2006
Amended June 23, 2006
Before: Warren J. Ferguson, Stephen S. Trott, and
Andrew J. Kleinfeld, Circuit Judges.
Opinion by Judge Trott
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COUNSEL
Daniel A. McDaniel, Nomellini, Grilli & McDaniel Profes-
sional Law Corporations, Stockton, California, for the
plaintiffs-appellants.
David C. Shilton, Assistant United States Attorney, Washing-
ton, D.C., for the defendants-appellees.
Tim O’Laughlin and William C. Paris, III, O’Laughlin &
Paris LLP, Chico, California, for the defendants-intervenors-
appellees.
ORDER
The Opinion filed May 22, 2006 is amended as follows:
1. At page *2 of the Opinion, found at ___ F.3d ___,
2006 WL 1377447 (9th Cir. 2006), in the third full paragraph
in the left-hand column, the sentence “The gauging station at
Vernalis is located close to the ocean, below the confluence
of the two major rivers.” is replaced with:
“The gauging station at Vernalis is located below the
confluence of the Stanislaus River and the San Joa-
quin River.”
2. At page *2 of 2006 WL 1377447, in the fourth full
paragraph that spans both the left-hand and right-hand col-
umns, the sentence “While nothing in the Act requires that the
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Bureau use New Melones water for its § 3406(b)(2) releases,
the State Board exercised its discretion to use that water.” is
replaced with:
“While nothing in the Act requires that the Bureau
use New Melones water for its § 3406(b)(2) releases,
the Bureau exercised its discretion to use that water.”
3. In the listing of counsel for Plaintiffs-Appellants,
before page *1 of 2006 WL 1377447 (9th Cir. 2006), in the
left hand column, counsel’s listing as “Daniel A. McDaniel,
Nomellini, Grilli & McDaniel Professional Law Corporation,
Stockton, California, for the plaintiffs-appellants.” is replaced
with:
“Daniel A. McDaniel, Nomellini, Grilli & McDaniel
Professional Law Corporations, Stockton, California,
for the plaintiffs-appellants.”
OPINION
TROTT, Circuit Judge:
Plaintiffs Central Delta Water Agency, South Delta Water
Agency, Alexander Hildebrand, and R. C. Farms, Inc. (“Delta
parties”) appeal the district court’s denial of their motion for
summary judgment and grant of defendant the United States
Bureau of Reclamation’s (“Bureau”) motion for summary
judgment. The Delta parties sued the Bureau and several
administrative officials, claiming that the Bureau was violat-
ing the Central Valley Improvement Act because it was oper-
ating the Central Valley Project (“CVP or Project”) in a
manner that would at some point in the future violate the Ver-
nalis Salinity Standard, a state standard with which the
Bureau must comply in its operation of the CVP.1 The district
1Various parties intervened in the lawsuit, but we discuss only the Delta
parties and the Bureau.
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court cited several grounds for its decision, but we find dispo-
sitive the absence of a genuine issue of material fact as to
whether the Bureau will comply with the Vernalis Salinity
Standard in the foreseeable future. Therefore, we affirm the
district court’s denial of the Delta parties’ motion and grant
of the Bureau’s motion for summary judgment.
I
The CVP is the largest federal water management project
in the country. It includes two of California’s major rivers, the
Sacramento and the San Joaquin, which meet at the
Sacramento-San Joaquin Delta. The rivers mix at the delta
and then flow into San Francisco Bay and ultimately out to
the Pacific Ocean. The Bureau, a division of the Department
of the Interior, operates the Project and holds permits from the
California State Water Resources Control Board (“State
Board”) to appropriate water and distribute it for various ben-
eficial uses. One of the reservoirs operated by the Bureau is
the New Melones Unit, located on the San Joaquin River sys-
tem.
In 1992, Congress passed the Central Valley Project
Improvement Act (“CVPIA” or “Act”). The purposes of the
Act are
(a) to protect, restore, and enhance fish, wildlife,
and associated habitats in the Central Valley and
Trinity River basins of California;
(b) to address impacts of the Central Valley Proj-
ect on fish, wildlife and associated habitats;
(c) to improve the operational flexibility of the
Central Valley Project;
(d) to increase water-related benefits provided by
the Central Valley Project to the State of California
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through expanded use of voluntary water transfers
and improved water conservation;
(e) to contribute to the State of California’s
interim and long-term efforts to protect the San Fran-
cisco Bay/Sacramento-San Joaquin Delta Estuary;
(f) to achieve a reasonable balance among com-
peting demands for use of Central Valley Project
water, including the requirements of fish and wild-
life, agricultural, municipal and industrial and power
contractors.
CVPIA § 3402, Title XXXIV of the Reclamation Projects
Authorization and Adjustment Act of 1992, Pub. L. 102-575,
106 Stat. 4600, 4706 (1992).
The Act requires that the Secretary
dedicate and manage annually eight hundred thou-
sand acre-feet of Central Valley Project yield for the
primary purpose of implementing the fish, wildlife,
and habitat restoration purposes and measures autho-
rized by this title; to assist the State of California in
its efforts to protect the waters of the San Francisco
Bay/Sacramento-San Joaquin Delta Estuary; and to
help to meet such obligations as may be legally
imposed upon the Central Valley Project under State
or Federal law following the date of enactment of
this title . . . .
CVPIA § 3406(b)(2). In addition, the CVPIA requires the
Secretary of the Interior to “develop and implement a pro-
gram . . . for the acquisition of a water supply to supplement
the quantity of water dedicated to fish and wildlife purposes
under” § 3406(b)(2). CVPIA § 3406(b)(3).
The Act states that the Secretary of the Interior “immedi-
ately upon the enactment of this title, shall operate the Central
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Valley Project to meet all obligations under State and Federal
law,” including the decisions of the State Board. CVPIA
§ 3406(b). “In short, the Act demands that the Project imple-
ment a significant fish habitat protection program, but that it
do so in accordance with the applicable state water use per-
mits.” Cent. Delta Water Agency v. United States (Central
Delta I), 306 F.3d 938, 945 (9th Cir. 2002).
One such state permit standard is known as the Vernalis
Salinity Standard. The gauging station at Vernalis is located
below the confluence of the Stanislaus River and the San Joa-
quin River. The Vernalis Salinity Standard, initially set by the
State Board at 500 parts per million total dissolved solids, is
now set at an electrical conductivity measurement of 1.0
mmhos/cm during the period of September through March
and 0.7 mmhos/cm during the irrigation months of April
through August. The Bureau is required, both by the terms of
its water permits and by the CVPIA, to operate the CVP so
as not to exceed the 0.7-1.0 mmhos/cm salinity standard. All
parties agree that the Bureau has not violated the Vernalis
Salinity Standard since 1994.
The Bureau periodically releases water from the New Mel-
ones Unit, pursuant to § 3406(b)(2) of the Act, to create flows
sufficient to maintain wildlife habitats. While nothing in the
Act requires that the Bureau use New Melones water for its
§ 3406(b)(2) releases, the Bureau exercised its discretion to
use that water. Central Delta I, 306 F.3d at 945. In 1997, the
Bureau adopted the New Melones Interim Operations Plan
(“Plan”). The Plan provides for (b)(2) water releases from
New Melones, as well as the purchase of water, under
§ 3406(b)(3), from other water users. The Plan was initially
intended to be temporary, but, for lack of a better program,
the Bureau has continued to operate the CVP under the Plan
since its adoption.
The Plan includes a model showing a possibility that the
Vernalis Salinity Standard might be violated in the future. The
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model consists of a 71-year projected study of the operation
of the CVP under the Plan. That model showed that in 37 of
the 71 years there would be at least one violation of the stan-
dard, and that violations would occur in 88 of the 852 months
covered by the study (approximately 10%). Although the
Bureau operates the Project pursuant to this Plan, the Bureau
does not blindly adhere to it: the Bureau deviates from the
Plan when necessary in order to meet its various obligations,
including compliance with the Vernalis Salinity Standard.
The Delta parties sued the Bureau for injunctive relief,
claiming that the Bureau may not release any water from New
Melones under § 3406(b)(2) or purchase water under
§ 3406(b)(3) unless it first dedicates a sufficient amount of
water to ensure that the Vernalis Salinity Standard is satisfied.
The Delta parties asserted that the (b)(2) releases and the
(b)(3) purchases decrease the amount of water that will flow
down to Vernalis during irrigation months, thus resulting in
a higher salinity content of the water. The Delta parties
alleged that a higher salinity content will injure the crops irri-
gated by the water. Relying on the Bureau’s modeling, the
Delta parties contended that the Bureau’s operation of the
Project under the Plan threatened a violation of the Vernalis
Salinity Standard.
The district court initially held that the Delta parties lacked
standing to challenge the Bureau’s Plan because there had
been no violation of the standard since 1994. We reversed,
holding that the Bureau’s modeling created a risk of harm to
the Delta parties sufficient to confer standing: “a credible
threat of harm is sufficient to constitute actual injury for
standing purposes, whether or not a statutory violation has
occurred.” Central Delta I, 306 F.3d at 950.
On remand, the Delta parties and the Bureau moved for
summary judgment. The district court denied the Delta par-
ties’ motion and granted the Bureau’s motion. See Fed. R.
Civ. P. 56(c). Among other grounds, the district court held
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that the Delta parties could not show, “within reasonable sci-
entific certainty,” that the Bureau would violate the Vernalis
Salinity Standard in the future. Cent. Valley Water Agency v.
United States, 327 F. Supp. 2d 1180, 1218 (E.D. Cal. 2004).
II
We review de novo a district court’s decision on cross-
motions for summary judgment. Magana v. Northern Mari-
ana Islands, 107 F.3d 1436, 1438 (9th Cir. 1997). “We must
determine, viewing the evidence in the light most favorable to
. . . the non-moving party, whether there are any genuine
issues of material fact and whether the district court correctly
applied the substantive law.” Olsen v. Idaho State Bd. of
Med., 363 F.3d 916, 922 (9th Cir. 2004).
III
[1] As an initial matter, the Delta parties argue that they
need not show an actual violation of the CVPIA because our
prior decision in Central Delta I is the “law of the case.”
There is no such law of the case, however, because our deci-
sion on standing does not obviate the need to address the mer-
its of the litigation. See Cardenas v. Anzai, 311 F.3d 929, 933
(9th Cir. 2002) (meaning of statute is a question of law that
does not affect standing); Davis v. Passman, 442 U.S. 228,
239 n.18 (1979) (court of appeals improperly confused the
question of standing with the question of whether plaintiff had
a cause of action). The Delta parties cannot stand on our prior
decision to avoid the need to demonstrate an imminent statu-
tory violation.
The Delta parties have failed to show that the Bureau has
committed such a violation. We find meritless the Delta par-
ties’ contention that § 3406(b)(2) requires that the Bureau
dedicate and allocate a specific amount of water to meet the
Vernalis Salinity Standard before it may do anything else.
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After directing the Secretary to manage 800,000 acre-feet of
“Central Valley Project yield,” the statute continues:
For the purpose of this section, the term “Central
Valley Project yield” means the delivery capability
of the Central Valley Project during the 1928-1934
drought period after fishery, water quality, and other
flow and operational requirements imposed by terms
and conditions existing in licenses, permits, and
other agreements pertaining to the Central Valley
Project under applicable State or Federal law exist-
ing at the time of enactment of this title have been
met.
CVPIA § 3406(b)(2) (emphasis added). The Delta parties
seize on the word “after,” claiming that it unambiguously
requires an allocation of water for all pre-CVPIA require-
ments prior to any releases for fishery purposes.
[2] However, this portion of the statute is merely a defini-
tion. The clear language of § 3406(b)(2) first requires the
Bureau to dedicate and manage 800,000 acre-feet of “Central
Valley Project yield.” It then goes on to define “Central Val-
ley Project yield” as the amount of water, assuming hydrolog-
ical conditions of the period of 1928-1934, after pre-CVPIA
requirements are met. The statute does not direct the Bureau
to allocate a specific amount of water to pre-CVPIA purposes
prior to exercising its discretion to achieve its other purposes.
[3] The Delta parties are correct that the Bureau lacks the
discretion to violate the Vernalis Salinity Standard. However,
the Act leaves to the agency’s discretion the decision of how
to comply with those standards. The Bureau has consistently
met the Vernalis Salinity Standard under its current Plan, even
though the Plan’s model showed that it would violate the stan-
dard 10% of the time. The Bureau’s discretion to modify the
Plan to account for changes in conditions, therefore, seems to
be working just fine.
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[4] Not only has there been no violation of the Vernalis
Salinity Standard in over a decade, the Delta parties have
failed to raise a genuine issue of material fact as to whether
the Bureau will comply with the standard in the foreseeable
future. The Delta parties’ reliance on the Plan’s modeling to
attempt to create a factual issue suffers from two major flaws.
First, the model is based on hypothetical conditions. Actual
hydrological conditions will undoubtedly and frequently
change during the Bureau’s operation of the Project.
[5] Second, the model’s prediction that the Plan will violate
the Vernalis Salinity Standard in 10% of the months assumes
the Bureau’s continuous and unswerving adherence to the
Plan. However, the Plan itself is merely a starting point, and
the Bureau modifies its operation of the CVP as conditions on
the river system change. The Bureau conceded at oral argu-
ment that it is legally obligated to meet the Vernalis Salinity
Standard, even if it must deviate from its Plan in order to do
so. It is undisputed that such deviation has occurred in the
past when a violation of the salinity requirement has been
threatened. It is within the Bureau’s discretion to determine
the means by which it will satisfy the Vernalis Salinity Stan-
dard, and if the Bureau must depart from the Plan to ensure
compliance, it will. As Dwight D. Eisenhower so aptly put it,
“Plans are nothing; planning is everything.”
IV
[6] It is clear that the Bureau must comply with the Ver-
nalis Salinity Standard. It is equally clear that the Bureau’s is
an extremely difficult task: to operate the country’s largest
federal water management project in a manner so as to meet
the Bureau’s many obligations. Recognizing this difficulty,
Congress granted the Bureau considerable discretion in deter-
mining how to meet those obligations. The Bureau admits that
it is required to violate its own Plan if necessary to provide
flows sufficient to lower the salinity of the water to the levels
required by the Vernalis Salinity Standard. It has done so in
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the past, and nothing in the record suggests that it will not
continue to do so in the future. That strict adherence to the
Plan might result in violations of the standard establishes nei-
ther a factual issue nor a right to injunctive relief, because the
Bureau admits that it must violate its Plan rather than violate
the salinity requirement. There is no genuine issue of material
fact as to the Bureau’s future compliance with the Vernalis
Salinity Standard, and the judgment of the district court is
therefore
AFFIRMED.
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