US Court of Appeals

U.S. Court of Appeals for the Ninth Circuit


Case Name:
FIREBAUGH CANAL V USA 9516641

Case Number:Date Filed:
95-1530002/04/00


FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FIREBAUGH CANAL CO.; CENTRAL
CALIFORNIA IRRIGATION DISTRICT;
SUMNER PECK RANCH INC.,
Plaintiffs-Appellees,
                                                     No. 95-15300


v.
                                                     D.C. No.
                                                     CV-88-00634-OWW
UNITED STATES OF AMERICA; UNITED
STATES DEPARTMENT OF THE
INTERIOR; BUREAU OF RECLAMATION,
Defendants-Appellants.


FIREBAUGH CANAL CO.; CENTRAL
CALIFORNIA IRRIGATION DISTRICT;
SUMNER PECK RANCH INC.,
Plaintiffs-Appellees,


v.

UNITED STATES OF AMERICA; UNITED
STATES DEPARTMENT OF THE
                                                     No. 95-16641
INTERIOR; BUREAU OF RECLAMATION,
                                                     D.C. No.
Defendants,
                                                     CV-88-00634-OWW
and
                                                     OPINION
COUNTY OF CONTRA COSTA; CONTRA
COSTA WATER DISTRICT; CONTRA
COSTA COUNTY WATER AGENCY;
NATURAL RESOURCES DEFENSE
COUNCIL; THE BAY INSTITUTE,
Defendants-Intervenors-
Appellants.


                               1277


Appeals from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding


Argued and Submitted
October 6, 1998--San Francisco, California


Filed February 4, 2000

Before: Procter Hug, Jr., Chief Judge, Betty B. Fletcher and
Stephen S. Trott, Circuit Judges.


Opinion by Chief Judge Hug;
Dissent by Judge Trott


_________________________________________________________________



COUNSEL

Jeffrey C. Dobbins, United States Department of Justice,
Washington, D.C., for the defendants-appellants.


William M. Smiland, Smiland & Khachigian, Los Angeles,
California, for the plaintiffs-appellees.


Laurens H. Silver, California Environmental Law Project,
Mill Valley, California, for the defendants-intervenors-
appellants.


                               1282


Thomas W. Birmingham, Kornick, Moskovitz, Tiedemann &
Girard, Sacramento, California, for the defendant-intervenor-
appellee.


_________________________________________________________________

OPINION

HUG, Chief Judge:

The United States Government appeals a judgment entered
against the Department of Interior and the Bureau of Recla-
mation that requires the Department to "take such reasonable
and necessary actions to promptly prepare, file and pursue an
application for a discharge permit" with the California Water
Resources Control Board, pursuant to the Government's duty
to provide drainage under the San Luis Act. This court has
jurisdiction over final judgments entered by the district court
pursuant to 28 U.S.C. S 1291. We agree with the district court
that the Government's duty to provide drainage service under
the San Luis Act has not been excused by subsequent Con-
gressional action, and that the Government has failed to pro-
vide the required drainage service for many years. However,
the remedial order entered by the district court limits the Gov-
ernment's discretion to satisfy its drainage duty in alternate
ways without construction of the interceptor drain. Conse-
quently, we affirm in part, reverse in part, and remand to the

district court for further proceedings.

PROCEDURAL AND FACTUAL BACKGROUND

The Central Valley Project is the nation's largest federal
reclamation project. The project's dams and water convey-
ance facilities span the length of California's Central Valley,
from Shasta Dam, in the north, to the Friant-Kern Canal, in
the south. On June 3, 1960, Congress authorized the construc-
tion of the San Luis Unit "as an integral part of the Central
Valley project," with the principal purpose of furnishing


                               1283


water for irrigation of land in Merced, Fresno and Kings
Counties, California. See Pub. L. No. 86-488, 74 Stat. 156
(1960) (the "San Luis Act").


Irrigation and drainage are inherently linked. Any water
project that brings fresh water to an agricultural area must
take the salty water remaining after the crops have been irri-
gated away from the service area. For this reason, the San
Luis Act expressly conditioned the construction of the San
Luis Unit on the provision for drainage facilities, which could
be provided either by the State of California or the Depart-
ment of the Interior. The Feasibility Report for this project,
prepared by the Secretary of the Interior in 1956, contem-
plated a system of tile drains that would empty into an inter-
ceptor drain that would convey the water 197 miles to the
Contra Costa Delta for disposal. The Feasibility Report is
expressly referenced in section 1(a)(2) of the San Luis Act.


On June 21, 1961, the State of California notified the Sec-
retary of the Interior that California would not provide a mas-
ter drain. In response, on January 9, 1962, the Secretary of the
Interior informed Congress that the Secretary would make
provision for constructing the San Luis interceptor drain to
the Contra Costa Delta. Thereafter, construction of the San
Luis Unit began, and in 1967, the Project started water deliv-
eries to Westlands Water District ("Westlands"). In March,
1968, construction of the interceptor drain was initiated, and
by 1975, the middle 40% of the drain (about 82 miles) was
built. The Secretary of the Interior also built Kesterson Regu-
lating Reservoir (the "Reservoir") located at the north end of
the middle portion of the drain, which was designed as a regu-
lating reservoir for the drain en route to its planned terminus
at the Contra Costa Delta.


The 1965 Public Works Appropriation Act, Pub. L. No. 88-
511, 78 Stat. 778, 782 (1964), contained a provision prohibit-
ing selection of a final point of discharge for the drain until
certain conditions were met. An appropriations rider with


                               1284


similar, but not identical language, has been included in
nearly every annual appropriations act since 1965. 1 These
appropriation riders prohibited the Secretary of the Interior
from establishing the terminus of the drain until environmen-
tal concerns regarding the effect of the agricultural effluent on
the San Francisco Bay could be addressed jointly by the
Bureau of Reclamation and the State of California. No envi-
ronmental standard has been established in the past thirty-four
years since the first appropriation rider. The drain was built
with funds from lump-sum congressional appropriations for
reclamation projects, notwithstanding the existence of the
above appropriation riders.


In 1975, the Secretary suspended construction of the inter-
ceptor drain, citing "questions" and "concerns" raised in the
public arena. Nonetheless, a subsurface drainage collector
system was constructed for Westlands Water District and
drainage service began in 1978. The subsurface collector
drainage system discharged approximately 7,300 acre-feet
annually of collected subsurface agricultural drainage into the
portion of the drain constructed prior to 1975. The drain car-
ried the drainage water to Kesterson Reservoir, which had
become the temporary terminus of the drain.


In mid-1983, waterfowl nesting studies at Kesterson Reser-
voir revealed instances of embryo deformity and mortality. It
was suspected that selenium in some of the soils in Westlands
_________________________________________________________________
1 With the exception of FY 94, FY 95, FY 96, and the continuing resolu-
tion years of FY 83 and FY 79, Congress has placed nearly identical limits
on funds provided to the Bureau of Reclamation. The most recent rider
states, "None of the funds appropriated or otherwise made available by
this Act may be used to determine the final point of discharge for the inter-
ceptor drain for the San Luis Unit until development by the Secretary of
the Interior and the State of California of a plan, which shall conform with
the water quality standards of the State of California as approved by the
Administrator of the Environmental Protection Agency, to minimize any
detrimental effect of the San Luis drainage waters. " Pub. L. No. 105-62,
S 510(a), 111 Stat. 1320, 1340 (1997).


                               1285


was being carried with drainage water into Kesterson Reser-
voir and was concentrating in biota. Like other metals, sele-
nium can impair the growth of crops and is hazardous to
human and animal life when present in high concentrations.
On March 15, 1985, the Secretary of the Interior announced
that it would close the Reservoir. Pursuant to that end, the
drains at Westlands were plugged and the middle portion of
the interceptor drain was closed as of June 1986. However,
the United States continued to deliver water, without drainage
service, to Westlands.


Affected landowners, both inside and outside the San Luis
Unit service area, sued the Department of the Interior, seeking
completion of the master drain to the Contra Costa Delta. See
Sumner Peck Ranch, Inc. v. Bureau of Reclamation, No. CV-
F-91-048; Firebaugh Canal Co. v. USA, No. CV-F-88-634.
The plaintiffs include the largest contractor for water from the
San Luis Unit, Westlands Water District, some of the individ-
ual water users within Westlands, specifically Sumner Peck
Ranch, Inc., et al. ("Sumner Peck Plaintiffs"), and two water
districts downslope of the San Luis Unit (the "Firebaugh
Canal Plaintiffs"). In May of 1992, these lawsuits were par-
tially consolidated to resolve the plaintiffs' mutual allegation
that the Secretary of Interior is required by law to construct
facilities to drain agricultural drainage water from certain
lands in Westlands Water District. The plaintiffs filed a
motion for partial summary judgment, which was granted by
the district court. The district court's unpublished opinion

held that the San Luis Act required the Government to pro-
vide drainage service to lands receiving water through the San
Luis Unit.


Following the partial summary judgment, the Government
argued that subsequent changes in the law and environmental
knowledge made compliance with the San Luis Act impossi-
ble, and thereby excused the United States from performing
that duty. A three week bench trial was held to assess this
claim -- to determine whether the Secretary's drainage obli-


                               1286


gation "had been excused by factual or legal impossibility,"
and if not, "the extent of the court's authority to order compli-
ance with that obligation," as well as "what non-monetary
relief, if any, should be ordered." Sumner Peck Ranch, Inc. v.
Bureau of Reclamation, No. CV-F-91-048; Firebaugh Canal
Co. v. USA, No. CV-F-88-634 (E.D.C.A. Dec. 2, 1994). The
Government presented substantial expert testimony that
argued that the Government's duty to build the interceptor
drain had been excused by reason of impossibility, superven-
ing illegality, or implicit repeal. Both oral and documentary
evidence was introduced on the effect of California water
quality laws, the Endangered Species Act, the Migratory Bird
Treaty Act, the Clean Water Act, the Central Valley Project
Improvement Act, and past appropriation riders. In addition,
the district court viewed affected lands within the San Luis
Unit service area.


The district court concluded that the Secretary's responsi-
bility to construct a drain had not been excused. In most
instances, the district court found, concerns about the concen-
tration of pollutants in the drainage water could be resolved
in proceedings for a discharge permit that would have to
occur before the California Water Resources Control Board.
The district court also rejected the Government's contentions
that subsequent action by Congress had implicitly or explic-
itly repealed the mandatory requirement to construct a drain.


On March 13, 1995, the district court issued a Partial Judg-
ment based on its conclusions that the San Luis Act estab-
lished a mandatory duty to provide drainage that had not been
excused. In the judgment, the district court ordered the Secre-
tary of the Interior and the Bureau of Reclamation to "take
such reasonable and necessary actions to promptly prepare,
file and pursue an application for a discharge permit" with the
California Water Resources Control Board. Sumner Peck
Ranch, Inc. v. Bureau of Reclamation, No. CV-F-91-048;
Firebaugh Canal Co. v. USA, No. CV-F-88-634 (E.D.C.A.
Mar. 10, 1995). The Government appeals this judgment.


                               1287


Contra Costa County, the Contra Costa Water Agency, the
Contra Costa Water District, the National Resources Defense
Council, and The Bay Institute have intervened in this appeal,
in support of the United States, as these entities have an inter-
est in the water quality of the Contra Costa Delta, the poten-
tial terminus of the San Luis interceptor drain (the
"Intervenors").


DISCUSSION

I Standard of Review

We review the district court's interpretation of the San Luis
Act, a federal statute, de novo. Tierney v. Kupers, 128 F.3d
1310, 1311 (9th Cir. 1997).


II The Government's Duty under the San Luis Act

The Government contends that the plain language of the
San Luis Act does not require the Bureau of Reclamation to
build the interceptor drain to the Contra Costa Delta. Further,
the Government asserts that the district court erred by failing
to defer to the Agency's reasonable interpretation of the San
Luis Act. We reject these arguments.


We are confronted with two questions when reviewing an
agency's construction of a statute it administers. Chevron,
USA, Inc. v. Natural Resources Defense Council, Inc. , 467
U.S. 837, 842 (1984). "First, always, is the question of
whether Congress has directly spoken to the precise question
at issue." Id. "If the intent of Congress is clear, that is the end
of the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress." Id.
at 842-43. "The judiciary is the final authority on issues of
statutory construction and must reject administrative construc-
tions which are contrary to clear congressional intent." Id. at
843 n.9 (citations omitted).


                               1288


If, however, the court determines Congress has not directly
addressed the precise question at issue, we do not simply
impose the agency's construction of the statute--rather the
question is whether the agency's answer is based on a permis-
sible construction of the statute. See id. Under these condi-
tions, an executive agency interpretation is afforded
considerable deference, unless it is arbitrary, capricious, or
manifestly contrary to the statute. See id. at 844.


First, the Government contends that the San Luis Act is an
authorizing statute, and does not require the construction of
the interceptor drain to the Contra Costa Delta. 2 We find the
plain language of the San Luis Act in direct conflict with the
Government's argument.


[1] It is true that the San Luis Act "authorized," but did not
require, the Secretary to "construct, operate, and maintain the
San Luis unit." Pub. L. No. 86-488, 74 Stat. 156 (emphasis
added). However, the discretion contained in this authoriza-
tion is limited to the decision whether to construct the unit.
The very next sentence of the statute specifically defines
which "principal engineering features" are to be included in
the "unit" (if the unit is constructed), and it thus denies the
Secretary discretion as to what constitutes the San Luis "unit."


The statute directs that the "principal engineering features
of said unit shall be [a dam, reservoir, etc.] and necessary . . .
drains." Id. (emphasis added). The term "shall" is usually
regarded as making a provision mandatory, and the rules of
statutory construction presume that the term is used in its
ordinary sense unless there is clear evidence to the contrary.
Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 1166 (1997).
Here, there is no evidence that Congress misused the term
"shall" or intended that the word is precatory, as asserted by
the Government. Thus, although the Department of the Inte-
rior was only authorized (and not required) to construct the
_________________________________________________________________
2 The dissent also seizes briefly upon this argument. See dissent at 1299.


                               1289


unit, once it decided to construct the unit, it was required to
construct "necessary . . . drains" as part of the unit. In other
words, the Department's discretion was limited to the deci-
sion whether to build the unit, not to pick and choose which
"principal engineering features" to include in the unit-- Con-
gress made that decision.


[2] The Government further contends that the San Luis Act
reference to "necessary . . . drains" does not include the inter-
ceptor drain. This interpretation conflicts with section
(1)(a)(2) of the San Luis Act. The 1956 Feasibility report
expressly contemplated providing drainage in conjunction
with irrigation water. Within this context, section (1)(a)(2)
expresses a clear indication that either the State of California
or the Department of the Interior shall provide a drainage plan
prior to construction of the San Luis Unit. After the State of
California indicated that it would not provide a master drain,
the Secretary of Interior had a choice: provide for the inter-
ceptor drain or forego construction of the San Luis Unit.


[3] The statutory language makes clear that if construction
of the San Luis Unit commenced, the Secretary's discretion
was limited to a determination of which lands within the unit
need drainage service to protect their arability and how big
the interceptor drain must be to meet the drainage require-
ments of the San Luis Unit. After assuring Congress that the
Department of the Interior had made provision to construct an
interceptor drain of sufficient capacity to serve the drainage
requirements of the San Luis Unit, the Secretary did not have
unlimited discretion to determine whether the construction of
a drain was necessary at all.


The Government also contends that the Secretary's man-
date was limited to "providing for" the interceptor drain and
does not necessitate construction or completion. This analysis
leaves section (1)(a)(2) without meaning, by allowing the San
Luis Unit to be constructed without a means of comprehen-


                               1290


sive drainage. Consequently, we must also reject this argu-
ment.


[4] We conclude that the San Luis Act clearly expresses the
intent of Congress to provide for the interceptor drain prior to
the construction of the San Luis Unit. Since Congressional
intent is clear from the statutory language, we find no need to
consider the Agency's interpretation of the statute. Agency
deference is limited to circumstances where Congress has not
directly spoken to the precise question at issue. When the
intent of Congress is clear, as here, the court must give effect
to the unambiguously expressed intent of Congress. We reject
the Government's invitation to create ambiguity from the stat-
ute's plain language. For these reasons, the district court's
finding that the San Luis Act mandated the Secretary to pro-
vide the interceptor drain is proper.


III Effect of Subsequent Congressional Action on the
      Government's Duty under the San Luis Act


Beginning in 1965, and continuing for almost every year up
through the present time, Congress has approved language in
the appropriations acts for the Department of the Interior,
which provides:


      None of the funds appropriated or otherwise made
      available by this Act may be used to determine the
      final point of discharge for the interceptor drain for
      the San Luis Unit until development by the Secretary
      of the Interior and the State of California of a plan,
      which shall conform with the water quality standards
      of the State of California as approved by the Admin-
      istrator of the Environmental Protection Agency, to
      minimize any detrimental effect of the San Luis
      drainage waters.


Pub. L. No. 105-62, S 510(a), 111 Stat. 1320, 1340 (1997).

                               1291


The Government, Intervenors, and the dissent contend that
these appropriation riders cumulatively lead to an implicit
repeal of the Secretary's duty to provide drainage under the
San Luis Act. We disagree.


[5] In Tennessee Valley Authority v. Hill, 437 U.S. 153, 189
(1978), the Supreme Court held that without express action of
Congress appropriations for a multi-million dollar dam did
not repeal the protection of an animal's "critical habitat"
under the Endangered Species Act. In reaching this decision,
the Court reiterated the " `cardinal rule .. . that repeals by
implication are not favored.' " Id. (quoting Morton v.
Mancari, 417 U.S. 535, 549 (1974)). Rather," `[t]he intention
of the legislature to repeal must be clear and manifest,' " id.
(quoting Posadas v. National City Bank of N.Y. , 296 U.S. 497,
503 (1936)), and "[i]n the absence of some affirmative show-
ing of an intention to repeal, the only permissible justification
for a repeal by implication is when the earlier and later stat-
utes are irreconcilable," id. at 190 (quoting Morton, 417 U.S.
at 550) (emphasis added). This doctrine of disfavoring repeals
by implication "applies with full vigor when . . . the subse-
quent legislation is an appropriations measure." Id. (internal

quotation omitted).3

[6] We find TVA directly applicable to this case. First, the
appropriations acts do not provide an "affirmative showing of
an intention to repeal" the drainage requirements of the San
Luis Act. The acts state that the Department of the Interior is
not to use any of the funds appropriated "to determine the
final point of discharge for the interceptor drain for the San
Luis Unit until development by the Secretary of the Interior
_________________________________________________________________
3 The TVA Court clarified that when legislators vote on appropriations
measures, they "are entitled to operate under the assumption that the funds
will be devoted to purposes which are lawful and not for any purpose for-
bidden. Without such an assurance, every appropriations measure would
be pregnant with prospects of altering substantive legislation, repealing by
implication any prior statute which might prohibit the expenditure."
Tennessee Valley Authority, 437 U.S. at 190.


                               1292


and the State of California of a plan . . . to minimize any detri-
mental effect of the San Luis drainage waters." Pub. L. No.
105-62, S 510(a), 111 Stat. 1320, 1340 (1997) (emphasis
added). As can be garnered from the plain meaning of these
acts, Congress merely placed a condition on the determination
of the final point of discharge; by no means did it excuse or
repeal the Secretary's obligation to provide drainage. Indeed,
the appropriations acts themselves contemplate the existence
of an "interceptor drain for the San Luis Unit " (albeit with a
yet-to-be-determined point of discharge), as well as "San Luis
drainage waters." It is thus apparent from the language of the
acts that Congress's "clear and manifest" intention was not to
repeal the drainage requirements of the San Luis Act, but
merely to order the Secretary, in fulfilling those obligations,
to develop a plan that addresses the environmental problems
posed by the discharge of agricultural effluent.


[7] Second, the appropriations provisos do not irreconcil-
ably conflict with section 1(a) of the San Luis Act. The San
Luis Act expressly requires the Department of the Interior to
provide necessary drainage. The appropriations riders merely
prevent the use of funds to determine the final point of dis-
charge until the Secretary and the State of California develop
a water quality plan. Examination of the language of the
appropriations provisos shows that none of them warranted,
let alone compelled, the Secretary to halt construction of the
drainage facilities, or to stop drainage service. The Depart-
ment's duty to develop a water quality plan before selecting
the terminus of the interceptor drain simply does not conflict
with its duty to provide drainage service under the San Luis
Act. Thus, based on Tennessee Valley Authority ,4 we hold that
_________________________________________________________________
4 The dissent would distinguish TVA in two ways. First, the dissent
argues that the appropriations bill in TVA made no mention of the Endan-

gered Species Act, whereas here the appropriations act specifically men-
tions the San Luis Act. See dissent at 1300-01. We do not see this as a
meaningful distinction. Even though the appropriations acts reference the
San Luis Act, they do not conflict with the San Luis Act, and their refer-


                               1293


the appropriations acts did not implicitly repeal the drainage
provisions of the San Luis Act.


The Government and Intervenors seek application of
Friends of the Earth v. Armstrong, 485 F.2d 1, 9 (10th Cir.
1973). In Friends of the Earth, the Tenth Circuit held that the
appropriations riders in issue, in addition to an exhaustive
Congressional debate, amounted to "reversal of a previous
[legislative] provision." 485 F.2d at 9. Unlike the instant case,
the appropriations proviso in Friends of the Earth directly
contradicted language of the authorizing act,5 and committee
reports accompanying the appropriations provisions described
"the considerations examined and evaluated by Congress and
the reasons for the actions taken." Id. The Tenth Circuit thus
reached the conclusion that Friends of the Earth  was "not
really a situation of repeal by implication . . . but more a
reversal of a previous position after considering it fully in the
public hearings." Id. Since there is no such direct conflict in
_________________________________________________________________
ences to the San Luis Act are thus immaterial to the TVA inquiry. Second,

the dissent argues that the vitality of the San Luis Act depends on the
appropriations acts, whereas in TVA the Endangered Species Act would
continue to have effect regardless of whether the appropriation bills had
passed. See dissent at 1301. Again, however, this distinction does not pre-
vent our reliance on TVA. In this case, Congress did not deny funding of
the San Luis Act, or of its drainage provisions -- it merely placed a condi-
tion on the use of funds to determine the terminus of the drain. Thus,
although the dissent's second distinction might have been persuasive had
Congress denied all funding for the drainage provisions of the San Luis
Act, that simply did not occur. Therefore, the dissent's factual premise for
this distinction is flawed.
5 In Friends of the Earth, the 1956 Colorado River Storage Act directed
the Secretary of the Interior to "take adequate protective measures to pre-
clude impairment of the Rainbow Bridge National Monument" by water
from Lake Powell. 43 U.S.C. S 620. However, subsequent appropriations

measures clearly stated that "no part of the funds herein appropriated shall
be available for construction or operation of facilities to prevent waters of
Lake Powell from entering any National Monument." 1962 Appropriation
Act, Pub. L. No. 87-330, 75 Stat. 724, 726 (1961). Such a direct conflict
is patently absent from the legislation at issue in this case.


                               1294


this case, we find Friends of the Earth inapposite. Moreover,
the Government's reliance on other cases that involve direct
conflicts between the authorizing acts and the appropriations
acts, see U.S. v. Dickerson, 310 U.S. 554, 561 (1940)
(repeated yearly enactment of an appropriations law, denying
funds to payment of re-enlistment allowances, had the effect
of suspending the right to the allowance during the affected
year); Preterm, Inc. v. Dukakis, 591 F.2d 121, 134 (1st Cir.
1979) (applying implicit repeal to an appropriations measure
where members of Congress were informed that their
approval would change the Medicaid Act), is equally unper-
suasive. Consequently, the district court properly held that the
appropriations riders, without more, failed to repeal the Secre-
tary's duty to provide drainage under the San Luis Act.


[8] Having found that the Secretary's obligation to provide
drainage under the San Luis Act has not been repealed by the
appropriations acts, we now must examine whether the dis-
trict court was correct in finding that the Secretary has been
derelict in failing to fulfill those obligations. The appropria-
tions riders direct the Department of the Interior to develop a
plan with the State of California to minimize the detrimental
effect of the San Luis Drainage water. The Government pro-
vides no explanation why the Bureau of Reclamation and the
State of California have been unable to establish the requisite
environmental standards sometime during the past thirty-four
years. In the meantime, for the past thirteen years the Depart-
ment has been providing water service to the Westlands, but
no drainage. As a result, the lands within Westlands are rap-
idly becoming sterile. Based on these facts, we agree with the
district court that the Secretary of Interior, through the Bureau
of Reclamation, has made the policy decision not to provide

drainage service, in violation of section 1 of the San Luis Act.

[9] This finding, however, does not end the inquiry. The
Government contends that Congress, through actions taken
after the San Luis Act, has encouraged the Department of
Interior to investigate and pursue drainage solutions other


                               1295


than the interceptor drain contemplated by the San Luis Act.
Since the late 1970s, Congress has appropriated funds so that
the Bureau of Reclamation could, in cooperation with the
State, local water districts, and other entities, examine solu-
tions to drainage other than the construction of the master drain.6
We reject the Government's contention that this action has
eliminated the Bureau's duty to provide drainage; however,
we do find that the subsequent Congressional action supple-
ments the drainage solutions available to the Department of
the Interior. See City of Los Angeles v. Adams , 556 F.2d 40,
50 (D.C. Cir. 1977); Skoko v. Andrus, 638 F.2d 1154, 1158
(9th Cir. 1979); District of Columbia v. Potomac Elec. Power
Co., 402 A.2d 430, 435-36 (D.C. 1979). If, as the district
court concluded, the interceptor drain was the only method
through which the Department could meet its drainage obliga-
tions under the San Luis Act, then the alternative drainage
solutions that Congress has supported for years would be

superfluous. Thus, although the San Luis Act limits the drain-
age solution to an interceptor drain to the Contra Costa Delta,
the subsequent Congressional action indicates that the Depart-
ment of the Interior can meet its drainage obligations through
means other than the interceptor drain. Therefore, we hold
that the subsequent Congressional action has not eliminated
the Department's duty to provide drainage, but that it has
given the Department the authority to pursue alternative
options other than the interceptor drain to satisfy its duty
under the San Luis Act.


IV The District Court's Order

[10] At the conclusion of the bench trial, the district court
ordered the Department of Interior and the Bureau of Recla-
_________________________________________________________________
6 See "Reclamation Wastewater and Groundwater Study and Facilities
Act of 1992", Pub. L. No. 102-575, SS 1601-1617, 106 Stat. 4600, 4663
(1992) (enacting 43 U.S.C. SS 390h to 390h-15 (West Supp. 1997));
"Central Valley Project Improvement Act", id. at SS 3401-3411, 106 Stat.
4600, 4706.


                               1296


mation to "take such reasonable and necessary actions to
promptly prepare, file and pursue an application for a dis-
charge permit," with the California Water Resources Control
Board. Sumner Peck Ranch, Inc. v. Bureau of Reclamation,
No. CV-F-91-048; Firebaugh Canal Co. v. USA, No. CV-F-
88-634 (E.D.C.A. Mar. 10, 1995). The Government contends
that the district court's order oversteps the broad discretion
given to the Department of Interior with regard to providing
a drainage solution for the San Luis Unit. We agree.


Under the Administrative Procedure Act, a district court,
"shall . . . compel agency action unlawfully withheld." 5
U.S.C. S 706(1) (West 1996). Government inaction despite a
statutory mandate may support a mandatory injunction issued
by the court. In Houseton v. Nimmo, 670 F.2d 1375 (9th Cir.
1982), we affirmed the district court's order compelling
agency action after 16 months of unlawful inaction. This
Court ruled that the lower court's findings of "unreasonable
delay and serious prejudice" were proper. Id.  at 1378.


Although we conclude that the Department of Interior has
a duty to provide drainage service under the San Luis Act,
subsequent Congressional action has given discretion to the
Department in creating and implementing a drainage solution.
Since 1986, the Department of Interior has withheld drainage
service from the Westlands Water District, in violation of sec-
tion 1 of the San Luis Act. The lack of drainage service has
seriously diminished the viability of agricultural land within
Westlands, including certain locations where the land is com-
pletely sterile. This action constitutes agency action unlaw-
fully withheld under 5 U.S.C. S 706(1) and Houseton.


[11] Although the district court can compel the Department
of Interior to provide drainage service as mandated by the San
Luis Act, the district court cannot eliminate agency discretion
as to how it satisfies the drainage requirement. By ordering
the Department of Interior to apply for a discharge permit, the


                               1297


district court precludes other, non interceptor-drain, solutions
to the drainage duty created by the San Luis Act.


[12] However, we agree with the district court that the
Department of Interior must act to provide drainage service.
The Bureau of Reclamation has studied the problem for over
two decades. In the interim, lands within Westlands are sub-
ject to irreparable injury caused by agency action unlawfully
withheld. Now the time has come for the Department of Inte-
rior and the Bureau of Reclamation to bring the past two dec-
ades of studies, and the 50 million dollars expended pursuing
an "in valley" drainage solution, to bear in meeting its duty
to provide drainage under the San Luis Act.


CONCLUSION

We affirm the district court's conclusion that the Govern-
ment must act promptly to provide drainage service, but
reverse that part of the judgment that forecloses non-
interceptor drain solutions. We remand the case to the district
court for further proceedings consistent with this opinion.


AFFIRMED in part, REVERSED in part, and RE-
MANDED.


Each party is to bear its own costs.

_________________________________________________________________

TROTT, Circuit Judge, Dissenting:

I conclude from this lengthy record that Judge Hug is cor-
rect when he says that, "any water project which brings fresh
water to an agricultural area [with a layer of clay under the
soil] must take the salty water remaining after the crops have
been irrigated away from the service area." A failure to take
this obvious step leads inexorably to the spoilation of the agri-
cultural capacity of the land intended to be benefitted by the


                               1298


irrigation project. What is happening to the land here is akin
to putting clothes from a washing machine without a rinse
cycle directly into a dryer. Not only will the clothes emerge
still dirty, but they will eventually be destroyed. Unfortu-
nately, I'm afraid the majority opinion does similar damage
to our legislative process that requires first the authorization
of Executive Branch activity, and then the appropriation of
money to pay for it.


Congress and various agencies of our government have
failed for many years to come to grips with the difficult issues
in this case, issues arising primarily from legitimate environ-
mental concerns such as what the effluent from the project
would do to the San Francisco Bay. The Kesterson Reservoir
experience and its incompatibility with the Migratory Bird
Treaty Act and other valid health and safety concerns proves
once again that for every benefit, there is a cost somewhere
that must be borne by someone.


As far as I can tell, when some of the downstream costs of
the San Luis Unit became apparent, Congress hit half the
brakes, allowing needed irrigation to continue, but blocking
the removal of the waste water by an interceptor drain until
a plan could be developed that would meet environmental and
water quality requirements. As I read the law, Congress' stud-
ied and specific instructions on this thorny issue are disposi-
tive and extinguish or excuse any obligation of the Secretary
of the Interior to go ahead -- at any level -- with the inter-
ceptor drain. In the first place, nothing in the plain language
of the Act requires the construction of a master, or a central,
drain. The Act merely authorizes the Secretary to include nec-
essary drains and to make provisions for the construction of
a master drain. An authorization is not a mandate. The best
one can say for the construction of the Act offered by the
Appellees is that the statute is ambiguous, which means that
we must defer to the Secretary's construction of it. With all

respect to the majority, the "mandatory" language they seize
upon to support a different result relates only to "principal


                               1299


engineering features," not to any order that the master drain
must be built.


In any event, Congress' explicit actions on this subject over
a thirty-year period are very revealing. When push comes to
shove, it is the appropriations bills that count, and here, Con-
gress has blocked construction in nearly every appropriations
bill for the Bureau of Reclamation for thirty years. The rele-
vant appropriations bills prohibit the Secretary from selecting
"the final point of the discharge for the interceptor drain for
the San Luis Unit until development by the Secretary of the
Interior and the State of California of a plan, which shall con-
form to the water quality standards of the State of California
as approved by the Administrator of the EPA, to minimize
any detrimental effect of the San Luis drainage waters." Pub.
L. No. 105-62, at S 510(a), 111 Stat. 1320, 1340 (1997); Pub.
L. No. 104-206, Stat. 2984, 3002 (1996). Under the circum-
stances, we exceed our authority to order the expenditure of
public funds in the face of Congress' orders that such funds
not be spent for this purpose. Article 1, Section 9 of our Con-

stitution, which provides that "[n]o money shall be drawn
from the Treasury, but in Consequence of Appropriations
made by law," would appear to block the result reached first
by the district court, and now by us.


With all respect, the majority opinion is not correct in its
claim that Tennessee Valley Authority v. Hill , 437 U.S. 153,
189 (1978), commands a different result. In TVA , the appro-
priations bill in question had the effect of causing a project to
go forward. When conflict with a statute not mentioned in the
appropriations bill became apparent, the Court held that the
appropriations bill could not impliedly repeal the former
statute. Id. In the instant case, however, the appropriations bill
has a negative effect, that of causing a project to halt unless
the specific requirement of the appropriation is met.


Two features of the instant case distinguish it from TVA.
First, the 1960 Act is specifically mentioned in the appropria-


                               1300


tions bill, while in TVA, the appropriations bill made no men-
tion of conflicting Endangered Species Act. See TVA, 437
U.S. at 189 & n.35. Second, in the instant case the Act being
repealed depends for its vitality on the appropriations bill
itself, while in TVA, the ESA would continue to have effect
whether or not the appropriation had passed. Because of this
second distinction, the government's citation of Friends of the
Earth v. Armstrong, 485 F.2d 1, 7-8 (10th Cir. 1973), is appo-
site. In that case, the Tenth Circuit held that the appropria-
tions' act denial of funds to implement the requirements of the
prior act represented a congressional choice. Id. at 8. ("This
indicates that Congress reached the decision not to modify the
planned operation of the Glen Canyon Dam nor to authorize
protective works to be built.").


The government is correct that the Secretary must have
appropriated monies to go ahead with the 1960 Act's man-
dates. Appropriated monies are not available to build the
interceptor drain until the Secretary of the Interior and the
State of California develop a plan, as required by the riders to
the appropriations bills.


After spending months with this record, I'm not at all sure
we can find the right answer to the puzzle. The pieces are
strewn over half a century, and they appear to have been cut
by Congress from competing pieces of wood with no refer-
ence to a coherent design. We have been left with pieces that
cannot be assembled to produce any picture at all, much less
the one on the box. The Feasibility Report for this project was
prepared by the Secretary of the Interior in 1956 -- when
Dwight D. Eisenhower was the President of the United States.
In 1965, Congress used an appropriations rider to slow it
down. In 1975, twenty-five years ago, the construction of the
interceptor drain project went into a stall because of
"questions" and "concerns" raised in the public arena; and in
1985, it was stopped dead because of the Kesterson disaster.


The thorny problem of what to do with the noxious effluent
is not readily susceptible of a solution that the parties with


                               1301


competing interests will find acceptable. In fact, the question
in search of an answer has become a political question beyond
our ability, competence, and authority to resolve. It is tempt-
ing to turn to the courts when Congress falters or refuses to
act, but not appropriate under our Constitution's allocation of
powers.


One can only have sympathy for the plight of the farmers
and families this irrigation project was intended to benefit, for
it seems now that the well-intentioned project threatens to
destroy their lands. Equally valid are the fears of those who
may be burdened by the effluent from this initiative. Never-
theless, the answer to their plight lies outside our power to
act. It is to Congress and the State of California to which
those concerned must turn and then hope that the difficult pol-
icy choices we in the judiciary are not equipped to make can
be made in those fora.


Accordingly, I respectfully dissent.

                               1302

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