County of Fresno v. Andrus

No. F-77-202-Civ. (E.D. Cal. January 4, 1978)

The court issues a preliminary injunction prohibiting the defendants from conducting further rule-making proceedings to implement the acreage limitation provision of the federal reclamation laws until an environmental impact statement (EIS) has been prepared and filed. Defendants' proposed regulations, if put into effect, would have significant adverse environmental effects in the form of increased desertification and pesticide use, substantial overdrafts of groundwater, and shifts in population and land use patterns. Plaintiffs, which include irrigation districts and owners of irrigated land, have demonstrated that they are likely to succeed on the merits of their claim that an EIS is required and that they will suffer irreparable harm if defendants are not restrained until one is prepared.

Counsel for Plaintiffs
Owen Olpin, Charles W. Bender, John F. Daum, Neil M. Soltman
O'Melveny & Myers
Suite 3800, 611 W. 6th St., Los Angeles CA 90017
(213) 620-1120

Counsel for Defendants
Richard W. Nichols, Chief Ass't U.S. Attorney
650 Capitol Mall, Rm. 2058, Sacramento CA 95814
(916) 440-2331

Gary J. Fisher
Department of Justice, Washington DC 20530
(202) 739-2847

[8 ELR 20179]

Crocker, J.:

Findings of Fact and Conclusions of Law with Respect to Preliminary Injunction

The application of all plaintiffs in these consolidated cases for a preliminary injunction came on regularly for hearing on December 7, 1977, before the Honorable M. D. Crocker. Having read and considered the verified complaints, affidavits, and memoranda on file, and the arguments of counsel, and being fully advised in the premises, the court now makes findings of fact and conclusions of law, pursuant to Rule 52 of the Federal Rules of Civil Procedure, as follows:

Findings of Fact

1. This is an action wherein plaintiffs seek to require [8 ELR 20180] defendant Secretary of the Interior and the other defendants to prepare an environmental impact statement in accordance with the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq., and otherwise comply with that Act prior to continuing rule-making proceedings concerning certain proposed regulations related to the acreage limitation provision of federal reclamation law, 43 U.S.C. § 423(e). Defendants' proposed regulations were published in the Federal Register on August 25, 1977. 42 Fed. Reg. 43044.

2. Plaintiffs County of Fresno, County of Imperial, County of Kings, and County of Kern are political subdivisions of the State of California duly created and existing under and by virtue of the constitution and laws of the State of California. Plaintiff County of Jackson is a political subdivision of the State of Oklahoma. Many thousands of acres of land in each county are served by water furnished through facilities either constructed pursuant to the provisions of reclamation law or constructed pursuant to the provisions of the Boulder Canyon Project Act, 43 U.S.C. § 617 et seq. All of such land is or may be affected by defendants' proposed regulations. Each plaintiff county provides governmental services with respect to matters such as roads and bridges, welfare, public health, hospitals, ambulances, law enforcement, courts, parks, recreation, and agricultural advice.

3. Plaintiffs Westlands Water District, Imperial Irrigation District, Kern-Tulare Irrigation District, Cawelo Water District, North Kern Water Storage District, Lower Tule River Irrigation District, Tulare Irrigation District, Pixley Irrigation District, Delano-Earlimart Irrigation District, Exeter Irrigation District, Porterville Irrigation District, Terra Bella Irrigation District, Lindsay-Strathmore Irrigation District, Lindmore Irrigation District, Orange Cove Irrigation District, Saucelito Irrigation District, Southern San Joaquin Municipal Utility District, Shafter-Wasco Irrigation District, and Arvin-Edison Water Storage District are political subdivisions of the State of California duly formed and existing pursuant to applicable provisions of California law. Each is empowered by law to acquire water for distribution to landowners within its boundaries; each has executed a contract with the United States Department of the Interior, Bureau of Reclamation, for the acquisition of water to be supplied by the United States pursuant either to the provisions of federal reclamation law or to the provisions of the Boulder Canyon Project Act; and each distributes such water to farmers within its boundaries. Many thousands of acres of land within the boundaries of said districts are or may be affected by defendants' proposed regulations.

4. Plaintiffs City of Huron and City of Coalinga are municipal corporations in the County of Fresno, created and existing under and by virtue of the constitution and laws of the State of California. Plaintiffs are located within or adjacent to the boundaries of Westlands Water District.

5. Plaintiff American Farm Bureau Federation is a non-profit membership organization incorporated under the laws of the State of Illinois. It is the nation's largest farm organization and represents over 2.5 million families in every state (except Alaska) and Puerto Rico. Its membership is composed of farmers, ranchers, growers, and other concerned citizens.

6. Plaintiff California Farm Bureau Federation is a non-profit membership organization incorporated under the laws of the State of California. It is California's largest farm organization, representing over 79,000 member families in 54 California counties. Its membership is composed of farmers, ranchers, growers, and other concerned citizens.

7. Plaintiff Imperial Valley Conservation Research Center Committee, Inc. is a non-profit corporation organized under and by virtue of the laws of the State of California. Its primary purpose is to preserve the land and soil of Imperial Valley, to promote land reclamation, soil conservation, and soil conservation research in Imperial Valley.

8. Plaintiff Farm Bureau of Imperial County is a non-profit corporation organized and existing under and by virtue of the laws of the State of California. Its members are farmers who farm land in Imperial Valley; its purpose is to promote and protect the agriculture of the Imperial Valley

9. Plaintiff Imperial Valley Hunting Dogs, Inc. is a non-profit corporation organized and existing under and by virtue of the laws of the State of California. Its approximately 100 members hunt water fowl and other game birds in Imperial Valley, and more particularly in and around the Salton Sea.

10. Plaintiff Imperial Valley Pioneers is a non-profit corporation organized under and by virtue of the laws of the State of California. Its members are men and women who have resided in Imperial Valley for 20 years or more. Imperial Valley Pioneers and its members have an interest in preserving and protecting the heritage of Imperial Valley, including its soil, water, cultural, and historic resources.

11. Plaintiff Clara Maria Gutierrez is a widow resident in Holtville, California, within Imperial Valley. She is the owner of 515 acres of irrigable land, all of which land currently receives water from Imperial Irrigation District, which water is delivered to the district through the All American Canal, a facility constructed pursuant to the Boulder Canyon Project Act, 43 U.S.C. § 617 et seq.

12. Plaintiff Coachella Valley Water Users Association, Inc. is a non-profit corporation existing under and by virtue of the laws of the State of California. Its purpose is to promote and protect the common interest of its members as agricultural water users; its members are persons or firms owning or farming land within the boundaries of the Coachella Valley County Water District.

13. Plaintiff Louis B. Souza farms land in Westlands Water District, Fresno County, California. Plaintiff Souza also farms about 1,500 acres of land in Coachella Valley County Water District, of which he, his sister, and his sister's family own part and lease part. Both of plaintiff's farms would be affected by defendants' proposed regulations.

14. Plaintiff Harry Carian is an unmarried resident of Coachella Valley, Riverside County, California, who farms a total of about 850 acres located in Coachella Valley County Water District, in the Arvin-Edison Water Storage District, and in the Saucelito Irrigation District. All the land plaintiff Carian farms would be affected by defendants' proposed regulations.

15. Plaintiff John Powell is a resident of Coachella Valley who, together with his father, farms about 1,300 acres within Coachella Valley County Water District. Water for this land is currently supplied by the district out of water delivered to the district through the Coachella Branch of the All American Canal, a facility constructed pursuant to the Boulder Canyon Project Act, 43 U.S.C. § 617 et seq.

16. Plaintiff Fleming Bettencourt is a resident of Kings County who farms about 3,500 acres of land served by the Last Chance Water Ditch Company, a distributor of Kings River water.

17. Defendant Cecil D. Andrus is Secretary of the Interior. His official duties include supervision and direction of the administration of the reclamation of arid lands under the reclamation laws of the United States, 43 U.S.C. § 371 et seq., and supervision of public business relating to the Bureau of Reclamation, 43 U.S.C. § 1457.

18. Defendant Guy R. Martin is Assistant Secretary for Land and Water Resources of the Department of the Interior. Defendant Andrus has delegated supervision of the Bureau of Reclamation to defendant Martin.

19. Defendant R. Keith Higginson is Commissioner of Reclamation. His official duties include administration of reclamation under the reclamation laws of the United States.

20. Defendant Billy J. Martin is Regional Director of the Bureau of Reclamation for the Midpacific Region. Defendant Martin's official residence is within the Eastern District of California.

21. Defendant Manuel Lopez is Regional Director of the Bureau of Reclamation for the Lower Colorado Region.

22. On August 25, 1977, defendants published in the Federal Register a notice of proposed rule making setting forth certain proposed regulations concerning acreage limitation. 42 Fed. Reg. 43044-49. Defendants' proposed regulations were purportedly issued to enforce the 160-acre limitation of federal reclamation law, found at § 46 of the Omnibus Adjustment Act of 1926, 43 U.S.C. § 423(e). Section 46 provides, in pertinent part, that [8 ELR 20181] reclamation projects must be constructed pursuant to a contract between the United States and a local irrigation district. The section further provides that the contract must require the district to refuse to deliver water to "land held in private ownership by any one owner in excess of 160 irrigable acres," unless the owner signs a "recordable contract" agreeing to sell his excess land upon terms and conditions fixed by the Secretary of Interior.

23.On August 18, 1977, a panel of the United States Court of Appeals for the Ninth Circuit ruled, in the case of United States v. Imperial Irrigation District, 559 F.2d 509 (1977), that the acreage limitation provisions of § 46 of the Omnibus Adjustment Act applied to the contract between the United States and plaintiff Imperial Irrigation District. That contract was made pursuant to the Boulder Canyon Project Act, 43 U.S.C. § 617 et seq., and it is the district's position, as well as that of other plaintiffs herein, that under the Boulder Canyon Project Act the acreage limitation provisions of § 46 do not apply in Imperial Valley. The district, with others, has petitioned the court of appeals for a rehearing of United States v. Imperial Irrigation District, and has suggested the appropriateness of a rehearing en banc. Defendants, however, currently take the position that unless United States v. Imperial Irrigation District is reversed, they will enforce § 46 in Imperial Valley, as well as any regulations purportedly promulgated thereunder, including those that are the subject of the aforesaid notice of proposed rulemaking.

24. Defendants' proposed regulations, if implemented, would make major changes in the manner in which the reclamation laws, and especially § 46 of the Omnibus Adjustment Act of 1926, are administered by defendants and their subordinates. In particular, changes would be made as described in findings 25 through 29 below.

25. Defendants' proposed regulations include a limitation on leasing, under the terms of which no person may receive water for leased land in excess of 160 acres. Under present practice no restrictions on leasing exist.

26. Under defendants' proposed regulations, with limited exceptions, an excess landowner will not be permitted to choose the purchaser to whom he will sell excess land; purchasers are to be chosen by lottery or other random means. No such provision exists under present practice.

27. Under defendants' proposed regulations, no group of individuals will be able to purchase excess land jointly unless each member of the group has a "family" relationship to each other member of the group. A "family" relationship is defined as a "direct lineal descendant" relationship, and therefore excludes brothers, sisters, uncles, nieces, etc. No similar restriction exists under the present practice.

28. Under defendants' proposed regulations, no person will be permitted to purchase excess land unless he resides on the land he purchased or within 50 miles of it, or indicates an intent to do so within three years of purchase. Under present practice no such restriction exists.

29.Under defendants' proposed regulations, a landowner will not be entitled to reclamation water for more than a total of 160 acres in all irrigation districts. Under present practice, each district or contract service area is treated separately, so that a landowner may receive water for more than one 160-acre tract, provided the tracts are in different reclamation projects or service areas.

30. In connection with the publication of their proposed regulations, defendants made the following determination:

It is hereby determined that the publication of this proposed regulation will not significantly affect the quality of the human environment and that no environmental impact statement pursuant to § 102(2)(C) of the National Environmental Policy Act, 42 U.S.C. § 4332(2)(C) is required.

42 Fed. Reg. 43044.

31. Defendants neither included with their notice of proposed rule making, nor prepared in connection with their proposed regulations, any statement of the environmental impact of their proposed regulations.

32. Subsequent to publication of the proposed regulations, defendants held well-attended public hearings on their proposed regulations in Washington, D.C.; Billings, Montana; Denver, Colorado; Sacramento, California; Fresno, California; El Centro, California; Klamath Falls, Oregon; Boise, Idaho; Phoenix, Arizona; and elsewhere, and received numerous comments on the proposed regulations. The comment period on defendants' proposed regulations will end December 31, 1977. No environmental impact statement concerning the proposed regulations was available for review at any of the hearings held by defendants on the proposed regulations. No such statement was available for review by any person who testified at the hearings. No such statement was or will be available for review by any person who has submitted comments to defendants on their proposed regulations, or who desires to do so prior to the close of the comment period as determined by defendants.

33. If implemented, defendants' proposed regulations will have significant, adverse effects on the quality of the human environment. These impacts are described in the numerous affidavits submitted by plaintiffs, all of which are uncontroverted by defendants. These uncontroverted impacts are set forth below in findings 34 through 39.

34. If defendants' proposed regulations are implemented, as much as 100,000 acres or more of currently irrigated farmland in Imperial Valley may return to desert.

35. If defendants' proposed regulations are implemented, pesticide use will increase substantially in Imperial and Coachella Valleys, as well as within Westlands Water District in Fresno and Kings Counties.

36. If defendants' proposed regulations are implemented, serious and substantial overdrafts to the groundwater supply will result or be intensified in Coachella Valley, in Westlands Water District within Fresno and Kings Counties, in Kern County, and in the lands served by the various water districts (other than Imperial Irrigation District) identified in finding 4.

37. If defendants' proposed regulations are implemented, population shifts will occur to relatively unpopulated areas of Fresno County, Kern County, Kings County, and Imperial County, so that roads, schools, housing and other public services and facilities will have to be expanded significantly in those areas to serve the increased population.

38. If defendants' regulations are implemented, land use patterns and cropping patterns will be altered throughout the San Joaquin, Coachella, and Imperial Valleys.

39. Numerous other environmental impacts, identified in the affidavits on file, will occur.

40. Plaintiffs, and each of them, will suffer irreparable injury from one or more of the environmental impacts identified in findings 33 through 39.

41. Plaintiffs, and each of them, will suffer irreparable injury from defendants' failure to prepare an environmental impact statement in connection with their proposed regulations in that lack of knowledge of all of the environmental consequences of the proposed regulations will severely complicate or defeat plaintiffs' ability to order their own affairs (and, in the case of the plaintiffs listed in findings 3 and 4, the affairs of their citizens and taxpayers) in such a manner as to prevent or alleviate adverse environmental consequences prior to the time those consequences occur.

42. Plaintiffs, and each of them, are suffering and will suffer irreparable injury from defendants' failure to prepare an environmental impact statement in connection with the publication of their proposed regulations, in that neither defendants, plaintiffs, Congress, other decision makers, or other interested persons have or will have the opportunity to consider or comment on the proposed regulations in the light of the findings contained in such an impact statement.

43. It is not possible to determine the amount of damages that plaintiffs will sustain from the irreparable injuries that they will suffer as set forth in findings 40 through 42.

44. Defendants have stated that they are preparing an environmental assessment of the proposed regulations. They did not begin work on this assessment until some time after publication of their proposed regulations in the Federal Register, and did not interrupt or suspend rule making proceedings while the [8 ELR 20182] assessment was being prepared. The assessment will not be completed prior to December 31, 1977. Defendants state they do not know what the assessment will show, but state that if it shows an environmental impact statement is required in connection with the proposed regulations, one will be prepared.

45. In view of findings 33 through 39, and on the record before the court, the court is obliged to find, and does find, that any properly performed environmental assessment will show that defendants' proposed regulations will have significant adverse environmental impacts. At a minimum, the affidavits submitted by plaintiffs would be sufficient to raise substantial questions as to whether the proposed regulations would have significant adverse environmental impacts, even if defendants' assessment were to conclude that an environmental impact statement was not required.

46. The court finds in all respects as set forth in the Conclusions of Law that follow.

Conclusions of Law

1. The court has jurisdiction of these consolidated actions pursuant to 28 U.S.C. §§ 1331, 1337, 1361, 2201, and 2202 and 5 U.S.C. §§ 701-706.

2. Venue is proper in this district under 28 U.S.C. § 1391.

3. Plaintiffs, and each of them, have standing to maintain these actions. United States v. SCRAP, 412 U.S. 669 [3 ELR 20536] (1973); Sierra Club v. Morton, 405 U.S. 727 [2 ELR 20192] (1972); City of Davis v. Coleman, 521 F.2d 661, 670-72 [5 ELR 20633] (9th Cir. 1975).

4. The National Environmental Policy Act of 1969 (NEPA) requires all federal agencies to include, in every recommendation or report on proposals for major federal actions significantly affecting the quality of the human environment, a statement detailing the environmental impacts of the proposal. 42 U.S.C. § 4321 et seq. It is the duty of the federal courts to restrain federal agencies from proceeding with proposed actions if an environmental impact statement has not been prepared as required by NEPA. Sierra Club v. Hodel, 544 F.2d 1036 (9th Cir. 1976); Homeowners Emergency Life Protection Committee v. Lynn, 541 F.2d 814 [6 ELR 20659] (9th Cir. 1976); City of Davis v. Coleman, 521 F.2d 661 [5 ELR 20633] (9th Cir. 1975); Lathan v. Brinegar, 506 F.2d 677 [4 ELR 20802] (9th Cir. 1974) (en banc).

5. Where a federal agency initiates federal action by publishing a proposal and holding hearings on the proposal, NEPA requires an environmental impact statement to be included in the proposal and to be considered at the hearings. Aberdeen & Rockfish R.R. Co. v. Students Challenging Regulatory Agency Procedures, 422 U.S. 289, 320 [5 ELR 20418] (1975); Kleppe v. Sierra Club, 427 U.S. 390, 405-06 [6 ELR 20532] (1976).

6. Defendants' proposed regulations are a proposal for major federal action within the meaning of NEPA. If implemented, the regulations would significantly affect the quality of the human environment within the meaning of NEPA. Defendants were obligated under NEPA to prepare an environmental impact statement in connection with publication of their proposed regulations, to have it available for those who desired to comment on the regulations, and to make the statement available for consideration at any hearings held by them on the proposed regulations. Aberdeen & Rockfish R.R. Co. v. Students Challenging Regulatory Agency Procedures, supra; Kleppe v. Sierra Club, supra.

7. Defendants' rule-making proceedings with regard to their proposed regulations have been illegal at all times since publication of the proposed regulations, because of defendants' failure to comply with NEPA. If not restrained, defendants will continue their rule-making proceedings.

8. Plaintiffs will suffer irreparable injury from the continuation of defendants' rule-making proceedings, or the issuance of final regulations, in the absence of an environmental impact statement as required by NEPA, in that plaintiffs will be deprived of the assurance, intended to be provided by NEPA, that decisions concerning proposed federal actions will be made only after responsible decision makers have fully adverted to the environmental consequences of the actions, fully considered possible alternatives, and have decided that the public benefits, if any, flowing from the actions proposed outweigh their environmental consequences. Jones v. District of Columbia Redevelopment Land Agency, 499 F.2d 502, 512 [4 ELR 20479] (D.C. Cir. 1974); Friends of the Earth v. Coleman, 518 F.2d 323, 330 [5 ELR 20428] (9th Cir. 1975); City of Rochester v. United States Postal Service, 541 F.2d 967, 976 [6 ELR 20723] (2d Cir. 1976).

9. In view of the numerous affidavits submitted by plaintiffs demonstrating significant and varied environmental impacts from defendants' proposed regulations, defendants on this record have the burden of coming forward with evidence that any properly performed environmental assessment carried out by them could show the absence of environmental impacts. Defendants have not attempted to come forward with such evidence, and the court must conclude that any properly performed environmental assessment would find that defendants' proposed regulations would significantly affect the quality of the human environment.Moreover, even were defendants' environmental assessment to conclude that an environmental impact statement was not required, plaintiffs' affidavits would be sufficient to raise a substantial question as to whether the proposed regulations would have significant adverse environmental impacts, thus necessitating preparation of an environmental impact statement. City of Davis v. Coleman, 521 F.2d 661, 673 [5 ELR 20633] (9th Cir. 1975).

10. It is not appropriate on this record, as defendants argue, to withhold an injunction on the ground that the determination of whether an environmental impact statement is required should be made in the first instance by the agency involved. In this case, defendants have already determined that no environmental impact statement is required, have published that determination in the Federal Register, and have reiterated it in correspondence with plaintiffs' counsel and elsewhere. Defendants' position thus amounts only to a statement that, if not restrained, they may in the future change their minds about a decision previously made. Defendants' position is not a sufficient reason for denying plaintiffs a preliminary injunction to which they are otherwise entitled. Scientists' Institute for Public Information v. Atomic Energy Commission, 481 F.2d 1079, 1086 [3 ELR 20525] (D.C. Cir. 1973).

11. Plaintiffs are likely to prevail in a trial on the merits of this action.

12. Plaintiffs have demonstrated that they will be irreparably harmed if a preliminary injunction is not issued restraining defendants from continuing the rule-making proceedings initiated by publication of their proposed regulations, or issuing final regulations, until defendants have (a) prepared, publicly circulated, and considered an adequate environmental impact statement; (b) allowed interested parties a reasonable opportunity to comment thereon and on the proposed regulations in light of but not limited to the environmental analysis; and (c) reconsidered the proposed regulations and made appropriate revisions indicated by the environmental impact statement or comments.

13. No perceivable injury will result to defendants by preliminarily enjoining them as described above.

14. The public interest will be served by the issuance of a preliminary injunction, in that the policies of NEPA will be carried out.

15. Plaintiffs have no adequate remedy at law.

16. A bond in the amount of $1,000 will be adequate security for such costs and damages as defendants may incur should they be found to have been wrongfully enjoined or restrained.

17. The court concludes in all respects as set forth in the foregoing Findings of Fact.

Let a preliminary injunction be entered in accordance with these findings and conclusions.