Pacific Coast Federation of Fishermen's Associations v. Glaser

          Argued and Submitted June 10, 2019 San Francisco, California

          Appeal from the United States District Court, No. 2:11-cv-02980-KJM-CKD for the Eastern District of California Kimberly J. Mueller, District Judge, Presiding

          Stephan C. Volker (argued), Alexis E. Krieg, Stephanie L. Clarke, and Jamey M.B. Volker, Law Offices of Stephan C. Volker, Berkeley, California, for Plaintiffs-Appellants.

          Brian C. Toth (argued) and Martin F. McDermott, Attorneys; Eric Grant, Deputy Assistant Attorney General; Jeffrey H. Wood, Acting Assistant Attorney General; United States Department of Justice, Environment & Natural Resources Division, Washington, D.C.; Amy L. Aufdemberge, Office of the Solicitor, Department of the Interior, Washington, D.C., for Defendants-Appellees Donald R. Glaser and United States Bureau of Reclamation. Eric J. Buescher (argued), and Joseph W. Cotchett, Cotchett Pitre & McCarthy LLP, Burlingame, California; Diane V. Rathmann, Linneman Law LLP, Dos Palos, California; for Defendant-Appellee San Luis & Delta Mendota Water Authority.

          Before: MARY M. SCHROEDER and MILAN D. SMITH, JR., Circuit Judges, and DOUGLAS L. RAYES, ^[*] District Judge.

         SUMMARY ^[**]

         Clean Water Act

         The panel reversed the district court's judgment in an action alleging that the drainage system managed by the U.S. Bureau of Reclamation and the San Luis & Delta Mendota Water Authority discharged pollutants into surrounding waters in violation of the Clean Water Act, 33 U.S.C. §§ 1251-1387.

         The Central Valley Project is a federal water management project. The Grasslands Bypass Project, jointly administered by the defendants, is a tile drainage system that consists of a network of perforated drain laterals underlying farmlands in California's Central Valley that catch irrigated water and direct it to surrounding waters.

         The Clean Water Act generally requires that government agencies obtain a National Pollutant Discharge Elimination System permit before discharging pollutants from any point source into navigable waters of the United States. There is an exception to that permitting requirement "for discharges composed entirely of return flows from irrigated agriculture." 33 U.S.C. § 1342(1)(1).

         The panel held that the district court properly interpreted "discharges . . . from irrigated agriculture," as used in § 1342(1)(1), to mean discharges from activities related to crop production. The panel held that the district court ought to have begun its analysis with the statutory text, but its reliance on legislative history to construe this portion of the statute was not erroneous. The panel further held, however, that the district court erred by interpreting "entirely" to mean "majority," and by placing the burden on plaintiffs to demonstrate that the discharges were not covered under § 1342(1)(1), rather than placing the burden on defendants to demonstrate that the discharges were covered under § 1342(1)(1). The panel concluded that the district court's erroneous interpretation of the word "entirely" was the but-for cause of the dismissal of plaintiffs' Vega claim (concerning groundwater discharges from lands underlying a solar product), and the panel therefore reversed the district court's dismissal of that claim. The panel further concluded that the district court's dismissal of plaintiffs' other claims was also erroneous, reversed the dismissal of those claims, and remanded for the district court to reconsider them under the correct interpretation of § 1342(1)(1).

         The panel held that the district court erred by striking plaintiffs' seepage and sediment theories of liability from plaintiffs' motion for summary judgment because the first amended complaint encompassed those claims.

          OPINION

          MILAN D. SMITH, JR., JUDGE.

         California's Central Valley features some of the most fertile agricultural land in the United States, but it typically receives less rainfall than necessary to cultivate the crops grown in the Valley. To help address this problem, the federal government has constructed and managed several irrigation and drainage projects.

         Plaintiffs, a group of commercial fishermen, recreationists, biologists, and conservation organizations, sued Defendants Donald Glaser, the United States Bureau of Reclamation, and the San Luis & Delta Mendota Water Authority, alleging that the drainage system managed by Defendants discharges pollutants into surrounding waters, in violation of the Clean Water Act (CWA), 33 U.S.C. §§ 1251-1387. Plaintiffs appeal several rulings by the district court in favor of Defendants that ultimately led to the stipulated dismissal of Plaintiffs' single claim remaining for trial. We reverse and remand.

         FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Background

         As "the largest federal water management project in the United States," the Central Valley Project (CVP) "provides the water that is essential to [the California Central Valley's] unparalleled productivity." Cent. Delta Water Agency v. United States, 306 F.3d 938, 943 (9th Cir. 2002). Among other functions, the CVP "transfer[s] water from the Sacramento River to water-deficient areas in the San Joaquin Valley and from the San Joaquin River to the southern regions of the Central Valley." San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 594 (9th Cir. 2014).

         "Any water project that brings fresh water to an agricultural area must take the salty water remaining after the crops have been irrigated away from the service area." Firebaugh Canal Co. v. United States, 203 F.3d 568, 571 (9th Cir. 2000). Otherwise, irrigating the selenium and salt-rich soils causes pollutants to leach into groundwater. The Grasslands Bypass Project (the Project), jointly administered by Defendants, was created for this purpose. The Project is "a tile drainage system that consists of a network of perforated drain laterals underlying farmlands in California's Central Valley that catch irrigated water and direct it to" surrounding waters. The map below depicts the Project's location:

         (Image Omitted)

         The Project includes the San Luis Drain (the Drain), labeled on the map above, which is designed to collect and convey contaminated groundwater from lands adjacent to and upstream of the Drain to Mud Slough. As both parties acknowledge, the Drain discharges substantial quantities of selenium and ...