Jump to Navigation

Water Law: Ninth Circuit Dismisses Environmental Group’s Suit to Compel State to Issue Permits for Federal Water Diversions

November 17, 2013

The U.S. Court of Appeals for the 9th Circuit recently dismissed an environmental group’s water resources suit against the U.S. Department of Interior on grounds that the group lacked standing to compel enforcement through the courts because they did not have any rights to the water they sought to have the courts prevent the U.S. from diverting; those enforcement rights belong exclusively to the State of Washington. The suit, Wild Fish Conservancy v. Jewell, alleged that the federal defendants’ water diversions for the Leavenworth National Fish Hatchery violated section 8 of the Reclamation Act of 1902 by failing to have a water permit from the State of Washington and for failing to provide adequate fish passage. The Ninth Circuit held that the Washington Department of Ecology was solely responsible for enforcing Washington water rights and, thus, the Plaintiffs-Appellants, Wild Fish Conservancy and Harriett S. Bullitt (the “Conservationists”)[1] had no standing and that fish passage was outside of section 8.

The Ninth Circuit’s decision affirms the “prudential standing” standard and is consistent with the long-standing principle that water rights are primarily the province of state law. It is the second time in a month that the Circuit has dismissed an environmental group’s suit to compel agency action on standing grounds. See Clean Air Act: Ninth Circuit Tosses Citizen Suit Seeking to Force State and Local Air Agencies to Regulate Greenhouse Gases, Marten Law Environmental News (October 27, 2013).

Case Background

Congress authorized the Leavenworth National Fish Hatchery (the “Hatchery”) under the 1937 Grand Coulee Fish Maintenance Project and reauthorized the Hatchery under the Mitchell Act in 1938.[2] The Mitchell Act authorized the Secretary of Commerce “…to establish one or more salmon cultural stations in the Columbia Basin in each of the states of Oregon, Washington, and Idaho.” The Leavenworth Hatchery is one of three mid-Columbia River stations constructed by the Bureau of Reclamation as fish mitigation facilities for the Grand Coulee Dam, Columbia Basin Project. The Columbia is one of the most hydroelectrically developed river systems in the world, incorporating one hundred and fifty dams.[3]
The Ninth Circuit’s decision concerns the control of water necessary to sustain native fish populations in Icicle Creek. Icicle Creek is a tributary of the Wenatchee River, which is itself a tributary of the Columbia River. Construction of the Hatchery was completed in 1940 on 170 acres of land, two miles south of the town of Leavenworth, Washington. When the Leavenworth Hatchery was first established, spring Chinook salmon and steelhead were identified as the primary mitigation species. Over the years, the hatchery’s production program has included a variety of species including spring and summer Chinook salmon, coho salmon, steelhead, kokanee, and various resident salmonids. Since 1974, spring Chinook salmon have been the priority species, providing fish for sport, tribal, and commercial fisheries in the Pacific Ocean, Columbia River, and Icicle Creek.

The Conservationist’s alleged that the United States is improperly diverting water from Icicle Creek to the Hatchery and otherwise violating Washington state law.[4] When the Hatchery was built in 1941, fish were raised in a one-mile segment of Icicle Creek equipped with dams and weirs to create holding ponds. The parties refer to that segment as the “Historic Channel.” Adjacent to the Historic Channel is a four-thousand foot canal, the “Hatchery Canal”. The Hatchery Canal diverges from the Historic Channel at “structure 2”—a dam with radial gates that control the amount of water flowing downstream through the Hatchery. The Canal and the Historic Channel run parallel for about one mile and then the Canal rejoins the Historic Channel immediately downstream of “structure 5.” When the gates at structure 2 are open, most of Icicle Creek’s flow travels down the Historic Channel. When the gates are closed, most of the creek’s flow travels down the Hatchery Canal. Closing the gates at structure 2 significantly, and sometimes entirely, dewaters the one-mile segment of the Historic Channel between structures 2 and 5. When the Historic Channel is dewatered fish cannot swim upstream to spawning grounds above the Hatchery. Fish-rearing operations at the Hatchery were moved to off-channel holding ponds in 1979 but Hatchery officials continue to close the gates at structure 2 at various times during the year.

The Ninth Circuit Decision

The Conservationists made several claims challenging the United States’ water diversions. First, they claimed that the Hatchery is subject to section 8 of the Reclamation Act of 1902 (“section 8”). Second, the Conservationists claimed that the Hatchery violated section 8 by failing to comply with Washington’s “fishway law” requirements that dams and other water obstructions to provide for fish passage.,

Section 8 requires that reclamation projects operate in compliance with state water law.[5] According to the Conservancy, the United States Secretary of the Interior and officials responsible for operating the Hatchery (collectively, the “Federal Defendants”) violate section 8 by diverting water from Icicle Creek without a water rights permit required by the Washington water code.[6] They also claimed that the Federal Defendants violate section 8 by failing to provide adequate fish ladders as required by Washington’s fishway law.[7]

The District Court had granted summary judgment in the United States’ favor, holding that the Conservationists’ claims were untimely.[8] In response to the Conservationists’ appeal to the Ninth Circuit, the United States attacked the Conservationists’ authority to be in federal court. The U.S. asserted that the Conservationists’ lacked standing, a threshold jurisdictional prerequisite for a party to bring suit in the federal court. The Reclamation Act does not create a private right of action. Therefore, the Conservationists brought suit under the Federal Administrative Procedure Act (APA), which provides a cause of action for persons “adversely affected or aggrieved by agency action within the meaning of a relevant statute,” in this case the Reclamation Act.

To meet the prudential standing standard, a plaintiff must assert an interest “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.”[9] In this case, the relevant statue is section 8. The U.S. argued that the Conservationists’ lacked standing under section 8 because they sought to assert the state of Washington’s rights to enforce state water laws, not their own water rights.

Section 8’s goal is to “ensure that all water rights within a state, including those associated with federal reclamation projects, are subject to a uniform set of state laws.”[10] The 9th Circuit noted that in California v. United States,[11] the U.S. Supreme Court explained that “section 8 advances the Reclamation Act’s goal of ‘cooperative federalism’ and maintains the longstanding tradition of federal deference to state water law.”[12] Section 8’s purpose is “protect the State’s sovereign authority to regulate the appropriation and use of state waters.”[13]

For that reason, federal reclamation projects shall not “in any way affect” the operation of state water law or water rights under state law.[14] Here, the 9th Circuit found that the Conservationists invoked Section “expressly in order to ‘affect’—more specifically, to enlarge—[their] rights as a water user under state law.”[15] However, the Conservationists do not have any rights to water in Icicle Creek. The court held, therefore, that they Conservationists do not have prudential standing because the language and purpose of section 8 make clear that “Congress did not intend to permit private parties who lack water rights a private right of action to compel enforcement of state law against federal agencies.”[16]

The Ninth Circuit explained that its concern about interfering with state water law administration was not theoretical, citing to the record of the case as showing that Ecology knew the Hatchery periodically diverted water from Icicle Creek and that those diversions had an effect on instream flows and native fish passage.[17] However, Ecology had never determined that the Hatchery’s operations violated Washington’s water laws or required the Hatchery to obtain a water right.

The Ninth Circuit also rejected the Conservationists’ claim that the Hatchery violated Washington’s “fishway law.”[18] That law generally requires dams and other water obstructions to provide for fish passage.[19] The Conservationists argued that the Hatchery violated Washington’s fishway law by not submitting fishway plans to the state Department of Fish and Wildlife; not maintaining fishways on Hatchery structures; and not supplying fishways with adequate water. The appeals court rejected the first two arguments on grounds that Section 8 does not incorporate the fishway law. Specifically, the fishway law governs structures that do not relate to the creation or exercise of water rights and, therefore, are not within the scope of section 8.[20] The Ninth Circuit rejected the third argument on grounds that the suit targeted state, not federal, action and, therefore, did not meet the APA requirement that a plaintiff must challenge “final” agency action and is consequently not reviewable by the court.[21]

The Ninth Circuit’s decision in Wild Fish Conservancy is consistent with existing law. Parties must have sufficient interests in an issue to meet the “prudential standing” standard and water rights are primarily the province of state law. The decision also provides a useful analysis of the relationship between the operation of federal water and fish infrastructure, and the enforcement of state water laws. The appeals court’s rejection of the expanded rights that the Conservationists had sought in Wild Fish Conservancy is consistent with the Ninth Circuit’s recent decision in Washington Envtl. Council v. Bellon,[22] where the court ruled that environmental plaintiffs did not have standing to bring a Clean Air Act citizen suit to force state agencies to regulate greenhouse gas emissions from oil refineries where the plaintiffs failed to establish a causal link between the refineries’ emissions and their claimed climate change injuries.

For more information on Marten Law’s Water Resources practice please contact Jeff Kray.

[1] Plaintiffs-Appellants are the Wild Fish Conservancy, a non-profit conservation organization, and Harriet S. Bullitt, a conservationist and owner of the Sleeping Lady Mountain Retreat, a lodge that sits on the banks of Icicle Creek.

[2] 52 Stat. 345.

[3] Opinion at 4.

[4] Id.

[5] 43 U.S.C. § 383.

[6] Wash. Rev. Code § 90.03.250.

[7] Wash. Rev. Code. § 77.57.030.

[8] The district court held that the Conservationists’ claims were untimely. Wild Fish Conservancy v. Salazar, 688 F. Supp. 2d 1225, 1237 (E.D. Wash. 2010). In the alternative, the district court concluded that it should abstain from adjudicating the Conservancy’s claims under the doctrine of primary jurisdiction. Id. at 1238. Because administration of the Washington water code and fishway law is committed to the Washington State Departments of Ecology and Fish and Wildlife, respectively, the district court held that the Conservancy should direct its claims to those agencies instead of the federal courts. Id.

[9] Opinion at 10, citing Nev. Land Action Assn. v. U.S. Forest Serv., 8 F.3d713, 716 (9th Cir. 1993)(cites omitted).

[10] Opinion at 17, citing California v. United States, 438 U.S. 645, 668-69 (1978).

[11] 438 U.S. at 650, 653.

[12] Opinion at 11.

[13] Id.

[14] 43 U.S.C. § 383.

[15] Opinion at 12.

[16] Opinion at 13.

[17] Opinion at 14.

[18] RCW 77.57.

[19] RCW 77.57.030.

[20] Opinion at 17.

[21] Opinion at 18-19.

[22] __ F.3d__, 2013 WL 5646060 (9th Cir. October 17, 2013).

This article is not a substitute for legal advice. Please consult with your legal counsel for specific advice and/or information. Read our complete legal disclaimer.