A lawsuit contesting the environmental study for the Cal-Fed Bay-Delta project may proceed, the Ninth U.S. Circuit Court of Appeals has ruled. The three-judge appellate panel overturned a district court that ruled the lawsuit was filed too early and threw it out.
The Ninth Circuit ruling means the lawsuit filed by the California Farm Bureau Federation and three farmers may go forward in federal court. The farmers contended that the combined environmental impact statement/environmental impact report (EIS/EIR) did not consider reasonable alternatives to the proposed conversion of farmland to environmental uses, failed to consider Cal-Fed’s impact on agricultural resources, and provided an inadequate analysis of mitigation options.
The Farm Bureau and other Cal-Fed opponents praised the Ninth Circuit’s decision to overturn the lower court. The Ninth Circuit, however, did not consider the merits of the Farm Bureau’s arguments. Rather, the Ninth Circuit sent the case back to the district court for consideration of the merits. A similar case challenging the EIS/EIR under the California Environmental Quality Act is alive in state court.
Cal-Fed is a cooperative undertaking involving 18 state and federal agencies responsible for the San Francisco Bay and Sacramento-San Joaquin Delta. The project seeks simultaneously to restore the Bay-Delta ecosystem and improve the quality of water available for urban uses. Farmers have feared for most of Cal-Fed’s nine years of existence that they would be the ultimate losers under the plan.
The essential questions before the Ninth Circuit were whether the Farm Bureau and the three farmers had legal standing to file the lawsuit, and, if so, whether the lawsuit was ripe for judicial review under the National Environmental Policy Act.
The Ninth Circuit ruled that the farmers had standing to bring the lawsuit because they could be injured by "the loss of affordable irrigation water for their agricultural lands." The plan selected by the EIS/EIR would convert some agricultural lands to other uses and reallocate the water elsewhere, the court noted. Because the individual farmers had standing, it did not matter whether the Farm Bureau had standing, the court determined.
The court then addressed the issue of whether the EIS/EIR was ready — or "ripe" — for judicial review. District Court Judge Oliver Wanger ruled that the issues were not ripe because the EIS/EIR did not amount to a final agency action. The EIS/EIR and the Record of Decision (ROD) "simply outline a program" and review by the court would have to await a site-specific action, Wanger ruled.
The Ninth Circuit rejected Wanger’s reasoning and pointed directly to the Cal-Fed Record of Decision, which stated the "EIS/EIR represents the culmination of the National Environmental Policy Act (NEPA) and California Environmental Quality Act (CEQA) processes. The ROD reflects a final selection of a long-term plan (preferred program alternative), which includes specific actions, to fix the Bay Delta, describes a strategy for implementing the plan, and identifies complementary actions the Cal-Fed agencies will pursue."
"Therefore," wrote Ninth Circuit Judge Sidney Thomas, "because the ROD pre-determines the future through the selection of a long-term plan, to the exclusion of others which will not be among the available options at the implementation phase, it is ripe for review."
Thomas cited Idaho Conservation League v. Mumma, 956 F.2d 1508 (1992), in which the Ninth Circuit ruled that an EIS for a proposed wilderness designation was ripe for review because "a future challenge to a particular, site-specific action would lose much force once the overall plan has been approved — especially if the challenge were premised on the view that the overall plan grew out of erroneous assumptions."
In both the current case and in Idaho Conservation League, the EIS set out a preferred program alternative to guide subsequent site-specific actions, Thomas noted. "As we noted in Idaho Conservation League, ‘if the agency action only could be challenged at the site-specific development stage, the underlying programmatic authorization would forever escape review.’"
The Ninth Circuit sent the Cal-Fed EIS/EIR back to the District Court for such a review. Additionally, the Ninth Circuit directed the District Court to consider whether state actions under Cal-Fed may be challenged in federal court, and directed the court to allow further discovery on the question of federal court jurisdiction over state defendants.
Laub v. United States Department of the Interior, No. 02-15104, 03 C.D.O.S. 8177, 2003 DJDAR 10195. Filed September 8, 2003.
For Laub: Brenda Jahns Southwick, California Farm Bureau Federation (916) 561-5660.
For Interior: Silva Quast, Department of Justice, (202) 514-2000.
For the state: Gordon Burns, attorney general’s office, (916) 324-3081.