# Etchegoinberry v. United States

> United States Court of Federal Claims · September 30, 2013 · 114 Fed. Cl. 437

URL: https://www.frixlaw.com/law-library/cases/7218493

## Case

- **Full name:** Michael ETCHEGOINBERRY v. UNITED STATES
- **Court:** United States Court of Federal Claims
- **Decided:** September 30, 2013
- **Citations:** 114 Fed. Cl. 437; 2013 U.S. Claims LEXIS 1458; 2013 WL 7022451
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Horn
- **Judges:** Horn
- **Cited by:** 6 later opinions in the Frix Law Library

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## Opinion text

OPINION
HORN, J.
Plaintiffs, a group of landowners in the Westlands Water District (the Westlands) within the San Luis Unit of the Central Valley Project, have filed claims in the United States Court of Federal Claims, under the Fifth Amendment to the United States Constitution, alleging that the government’s failure to comply with its statutory obligation to provide drainage to plaintiffs’ farmlands has led to a physical invasion of their property, without just compensation. There are four named plaintiffs in the above captioned case, Michael Etehegoinberry, Erik Clausen, Barlow Family Farms, L.P., and Christopher Todd Allen. The named plaintiffs filed their
*441 complaint as a class action under Rules of the United States Court of Federal Claims (RCFC) 23(b) (2013) on behalf of the following class: 1
All landowners located 'within the West-lands Water District (“Westlands” or “District”) and served by the San Luis Unit of the Central Valley Project whose farmlands have not received the necessary drainage service the United States is required to provide under the San Luis Act ( Pub.L. No. 86-488, 74 Stat. 156 (I960)).
Plaintiffs allege that defendant has abandoned its statutory obligation and its plan to provide drainage to the San Luis Unit. The United States District Court for the Eastern District of California held, and the United States Court of Appeals for the Ninth Circuit, which affirmed the District Court opinion, found that defendant has an unexeused statutory duty to provide drainage to the San Luis Unit under the San Luis Act of 1960, Pub.L. No. 86-488, 74 Stat. 156(San Luis Act). Without the drainage, plaintiffs allege that, “wastewater settles beneath these lands, resulting in high water tables and the accumulation of saline groundwater,” leaving the land unsuitable for farming. Because plaintiffs’ farmlands allegedly never have received drainage services from the United States as contemplated by the San Luis Act, plaintiffs now seek certification of a class action, just compensation in an amount that exceeds $10,000.00, interest, as well as attorneys’ fees and costs. Defendant has filed a motion to dismiss plaintiffs’ claims for lack of subject matter jurisdiction, arguing that the statute of limitations has run or, alternatively, that plaintiffs lack standing. 2
FINDINGS OF FACT
Construction and Subsequent Closure of the San Luis Drain (1956-1986)
The Central Valley Project is a United States Department of the Interior (DOI), Bureau of Reclamation water project, which was initiated in the 1930s and designed to provide irrigation to California’s Central Valley by storing surplus water in the northern half of the state and transferring it to the more arid Central Valley region. In the 1940s, landowners on the west side of the San Joaquin Valley, the area of the Central Valley that lies to the south of the Saeramento-San Joaquin River Delta, petitioned the Fresno County Board of Supervisors to form a water district in order to facilitate delivery of Central Valley Project water to their farmlands. The Fresno County Board of Supervisors formed the Westlands Water District, referred to below as Westlands, in 1952, encompassing approximately 400,000 acres in the San Joaquin Valley. In order to convey water from Central Valley Project facilities to Westlands, new infrastructure would have to be constructed.
The San Joaquin Valley historically has faced problems with drainage and salt accumulation, which are exacerbated by irrigation. The parties have stipulated that when fresh water is brought in to irrigate an agricultural area, salty water, which remains after crops have been irrigated, must be carried back out in order to avoid a build-up of *442 salt in the soil. As early as the 1890s, large swaths of the San Joaquin Valley became challenging for farming because of salt accumulation resulting from a lack of adequate drainage. Improved drainage technology allowed much of the land to be re-cultivated in the mid-twentieth century. Salt management and drainage problems, however, have continuously plagued the region.
In 1956, the Bureau of Reclamation delivered to the United States Congress, “A Report on Feasibility of Water Supply Development” for the San Luis Unit (the 1956 Feasibility Report), which recommended constructing a group of water management facilities, called the San Luis Unit, as an addition to the Central Valley Project, in order to bring irrigation waters to an area of approximately 496,000 acres in the San Joaquin Valley, including most of the West-lands, 3 at an estimated cost of $229,143,000.00. The 1956 Feasibility Report indicated that the State of California also was trying to implement a long-range water plan, the California Water Plan, and that the State and federal plans for the San Luis area were similar, with both “proposing] a pumping diversion from the Sac-l’amento-San Joaquin Delta, use of San Luis Reservoir site and a high-level canal from the reservoir to convey water throughout the service area.” According to the 1956 Feasibility Report, the San Luis Unit’s service area relied solely on ground water for crop irrigation, but about five times as much water was being pumped out each year, as was being naturally replaced, so a supplemental water supply was needed to maintain current levels of fanning.
The 1956 Feasibility Report recommended that the Bureau of Reclamation build, and the State of California operate and maintain, a series of structures, pumps, and pumping facilities to deliver water from existing Central Valley Project infrastructure to the San Luis Unit service area. The proposed facilities would be able to deliver 1,126,000 acre-feet of water annually to provide irrigation for approximately 440,000 acres per year. The 1956 Feasibility Report indicated that the federal government would be repaid for the costs of building the San Luis Unit and that could be accomplished by charging water users an annual rate of $7.50 per acre-foot, “a rate well within the ability of the water users to repay.” In addition, the 1956 Feasibility Report claimed “a portion of the Central Valley Project power revenues would be made available to assist San Luis Unit repayment.”
The 1956 Feasibility Report also discussed the drainage problem in the San Luis Unit service area, stating:
Soils of the area which will be served by the San Luis Unit contain salts which will be dissolved and carried by the percolating water into the soils in the lower parts of the service area. If left undrained evaporation and transpiration of the percolating waters would concentrate the salts and make these soils unsuitable for irrigation use. The construction of a drainage system will lower the ground-water table and prevent the concentration of salts.
The 1956 Feasibility Report recommended building a drainage system for at least the lower 96,000 acres of the San Luis Unit service area, consisting of a series of tile pipe drains connected to open drains, which would transfer “saline water unsuitable for reuse” to an interceptor drain, a proposed one hundred and ninety-seven mile earthen channel to carry drainage waters from the service area to the Sacramento-San Joaquin Delta. According to the 1956 Feasibility Report, this proposed system could handle a volume of about 127,000 acre-feet of drainage waters annually. The 1956 Feasibility Report acknowledged that other drainage methods “may prove feasible,” but indicated that other methods would increase the operation and maintenance costs, and, therefore, carrying water to the Sacramento-San Joaquin Delta for disposal was the preferred method. The 1956 Feasibility Report stated that the main features of the drainage system for the San Luis Unit could be constructed within five- and-one-half years, but that the drainage sys *443 tem would not be built “until after the project is in operation and definite requirements have been established.”
In I960, Congress passed the San Luis Act, Pub.L. No. 86-488, 74 Stat. 156 (1960). Section 1(a) of the San Luis Act established the statutory obligation of the Secretary of the Interior to provide drainage for the San Joaquin and Sacramento River Delta and to “construct, operate, and maintain the San Luis unit as an integral part of the Central Valley Project,” for the purpose of furnishing water to approximately 500,000 acres in the San Joaquin Valley. See id. § 1(a). The San Luis Act continued: “The principal engineering features of said unit shall be a dam and reservoir at or near the San Luis site, a forebay and afterbay, the San Luis Canal, the Pleasant Valley Canal, and necessary pumping plants, distribution systems, drains, channels, levees, flood works, and related facilities____” Id. The San Luis Act anticipated that some of the San Luis Unit facilities, including “the dam and reservoir at or near the San Luis site, forebay and afterbay, pumping plants, and the San Luis Canal,” would be “joint-use facilities” for use by both the federal government and the State of California. Thus, the San Luis Act instructed DOI to construct those facilities “to the capacities necessary to serve both the Federal San Luis unit service area and the State’s service area,” or to construct them “so as to permit future expansion.” Id. The State of California was responsible for paying an equitable portion of the cost of constructing such joint-use facilities by making annual payments to DOI, proportionate to the state’s share of the costs of using the facilities. Id. § 3(b). The State of California also was responsible for making annual, equitable payments for the operation, maintenance, and replacement costs for joint-use facilities. Id. § 3(d).
The San Luis Act also conditioned construction of the San Luis Unit on DOI securing water rights and, significantly, on the provision of adequate drainage facilities, stating:
Construction of the San Luis unit shall not be commenced until the Secretary has (1) secured, or has satisfactory assurances of his ability to secure, all rights to the use of water which are necessary to carry out the purposes of the unit and the terms and conditions of this Act, and (2) received satisfactory assurance from the State of California that it will make provision for a master drainage outlet and disposal channel for the San Joaquin Valley, as generally outlined in the California water plan, Bulletin Numbered 3, of the California Department of Water Resources, which will adequately serve, by connection therewith, the drainage system for the San Luis unit or has made provision for constructing the San Luis interceptor drain to the delta designed to meet the drainage requirements of the San Luis unit as generally outlined in the report of the Department of the Interior, entitled “San Luis Unit, Central Valley Project,” dated December 17, 1956 [the 1956 Feasibility Report].
Id. § 1(a). Congress, in passing the San Luis Act, initially made available $290,430,000.00 for the facilities comprising the San Luis Unit, excluding distribution and drainage systems, and an additional amount, not to exceed $192,650,000.00, for construction of distribution and drainage systems. Id. § 8.
On June 21, 1961, California notified the Secretary of Interior that the State would not provide a master drain. In response, in January 1962, the Secretary of Interior reported to Congress that DOI would construct the San Luis Drain. 4 The Bureau of Reclamation planned to construct a drain which would extend two hundred and seven miles, from Kettleman City in the southern San Joaquin Valley, to a discharge point in the Saeramento-San Joaquin Delta.
Before construction began, several water districts filed suit in the Southern District of California on December 20, 1962, against the United States, seeking an injunction against *444 construction of the San Luis Unit until provision was made for construction of the San Luis Drain. In Central California Irrigation District, et al. v. United States, No. 2356-ND (S.D.Ca.1962), the court denied the water districts’ request for a preliminary injunction, based on the Secretary of Interior’s representation to the court that provision had been made for constructing the San Luis Drain, and that “required drainage will be provided by the time water is furnished to the Federal San Luis Unit area.”
The following year, the United States and Westlands entered into a forty-year contract (the 1963 Contract) for water services, providing that defendant would annually supply a certain amount of water to Westlands. 5 The 1963 Contract also stated that defendant would provide “an interceptor drain designed to meet the drainage requirements of the San Luis Unit,” and that local drainage facilities in the Westlands could be connected to the interceptor drain, as mutually agreed upon by the parties. The 1963 Contract provided that Westlands’ rate of payment for water deliveries, which was not to exceed eight dollars per acre-foot of water, “shall include a drainage service component of not to exceed Fifty Cents ($0.50) for the interceptor drain,” beginning the year following the date that drainage service became available. The 1963 Contract was effective from 1967, when Westlands began receiving water deliveries from the San Luis Unit, until December 31,2007.
Westlands and the United States entered into a second contract, the “Contract Between the United States and Westlands Water District Providing for the Construction of a Water Distribution and Drainage Collector System,” on April 1, 1965. (the 1965 Contract). The 1965 Contract stated that West-lands “desires that a water distribution and drainage collector system be constructed for the District by the United States,” and that “the United States is willing to undertake the construction of the aforementioned water distribution and drainage collector system” under the terms of the contract. The 1965 Contract provided that the federal government would spend up to $157,048,000.00, which Westlands would repay over time, to construct a distribution and drainage system to serve approximately 400,000 acres in the Westlands. The facilities comprising the distribution and drainage collection systems would be constructed in phased groups, and “Construction group 1 shall include substantially all of the water distribution facilities, drainage collector facilities, and works for the integration of ground with surface water____” Construction groups 2 and 3 were to be constructed beginning no later than June 30, 1974, and June 30, 1979, respectively. Under the 1965 contract, the federal government and Westlands were to work together in drawing up plans and designs for the distribution and drainage system and in overseeing the contracting process for construction. The 1965 Contract stated that Westlands was to repay defendant for the cost of constructing the distribution and drainage collection systems, and as each phased group of facilities was built, “accept the care, operation, and maintenance of such group____”
While the San Luis Drain was still in the planning stages, concerns arose about the potential effect of draining untreated, irrigation waters into the Sacramento-San Joaquin Delta and the San Francisco Bay. Reflecting those concerns, on October 22,1965, Congress passed Public Law 89-299, 79 Stat. 1096 (1965), which contained an appropriations rider prohibiting selection of a final discharge point for the San Luis Drain until certain conditions were met, including completion of a pollution study and development of a plan to mitigate damage from drainage water on the San Francisco Bay. The parties have stipulated that a similar appropriations rider was included in nearly every yearly appropriations act after 1965, until at least 2000, prohibiting DOI from determining a terminus point for the San Luis Drain. 6 De *445 spite the fact that an environmental standard has never been established, keeping the appropriation riders in force, portions of the drain were constructed, as discussed below, using lump-sum congressional appropriations for Bureau of Reclamation projects.
Defendant began delivering water to West-lands in 1967, and began constructing the San Luis Drain in March 1968. As part of the San Luis Drain system, defendant began constructing the Kesterson Reservoir, which was originally intended to serve as a reservoir that would regulate water flows in the San Luis Drain prior to their discharge into the Sacramento-San Joaquin Delta, but which instead became the temporary terminal disposal site for the San Luis Drain. By 1975, approximately eighty-three miles 7 of the San Luis Drain and the first stage of the Kesterson Reservoir had been completed. At that time, however, the Bureau of Reclamation suspended construction of the San Luis Drain, citing public “concerns.”
Despite the suspension of construction of the San Luis Drain, the central component of the planned drainage system for the San Luis Unit, defendant continued to move forward with building out the overall drainage collection system by contracting for the construction of sub-surface drains for 42,000 acres of land within the Westlands. The sub-surface drainage collection system discharged drainage water from farmlands in the Westlands into the San Luis Drain, which earned the water to the Kesterson Reservoir, where it was disposed of through evaporation. Drainage service for those 42,000 acres in the Westlands began in 1976. Those 42,000 acres are the only portion of the West-lands that, as of 2011, have ever been supplied with drainage services and, as discussed below, even those drainage services were short-lived.
On June 15, 1977, Congress passed an appropriations act (the 1977 Act), which raised the appropriations ceiling for construction of the distribution system and the San Luis Drain by $31,050,000.00, to a total of $223,700,000.00. The 1977 Act provided, however, that those funds could not be expended until Westlands and any other affected water districts pledged to DOI that the districts would repay those additional costs. The 1977 Act also required that DOI establish a task force to review the management and operations of the San Luis Unit, and specifically instructed the task force to report back to Congress on “the fiscal and future environmental impacts of the completion, under current plans, of the San Luis interceptor drain north of the Kesterson Reservoir, and recommendations as to the feasibility of implementing alternative uses of waste water such as reclamation for agricultural or industrial re-use.”
In compliance with the 1977 Act, the Bureau of Reclamation established the first of many task forces, called the Special Task Force on the San Luis Unit, which submitted a report to Congress in 1978 (the 1978 Task Force Report). The 1978 Task Force Report indicated that the San Joaquin Valley faced a *446 growing problem with saline drainage waters, which threatened to lower the quality of ground water supplies and decrease the productivity of agricultural land in the area. The 1978 Task Force Report went on to explain that there were numerous problems associated with constructing the San Luis Drain, and that, even if the San Luis Drain were completed as planned, it would “not be a valleywide solution.” The 1978 Task Force Report stated that, as of October 1977, approximately eighty-two miles of the San Luis Drain had been completed south of the Kesterson Reservoir, but another twenty-six miles were needed to reach the planned starting-point at Kettleman City, California. Meanwhile, no construction had occurred north of the Kesterson Reservoir, so approximately seventy-five miles still had to be built to reach the planned discharge point in the Sacramento-San Joaquin Delta. The 1978 Task Force Report also indicated that, in order for the San Luis Drain to maximize its capacity, on-farm tile drains and collector drains had to be installed throughout the San Luis Unit service area. The Bureau of Reclamation’s plans for completing construction of the San Luis Unit drainage system called for building ninety-one collector drains in the Westlands. As of 1977, however, only eight had been completed, and estimates included in the 1978 Task Force Report showed that the system of “on-farm” tile drains and collector drains would not be fully operational until 2080. The 1978 Task Force Report stated that, “a minute amount of subsurface agricultural return flow is thus presently reaching the San Luis Drain. Theoretically, therefore, it can be said to be in operation, but as a practical matter it has only barely begun to function.”
The 1978 Task Force Report also evaluated the costs and environmental impact of completing the San Luis Drain as planned, versus the implications of not building a drain, as well as potential alternative drainage solutions. The 1978 Task Force Report found that, while the 1956 Feasibility Report estimated that the San Luis Drain would cost $7,232,000.00 to construct, by 1978 it was estimated to cost $185,320,000.00, and that the cost could rise as high as $275,004,803.00 if the discharge point was moved farther west. In addition, although the 1956 Feasibility Report had indicated that approximately 96,000 acres of the San Luis Unit would require drainage, whereas by 1978 it was calculated that approximately 270,000 acres would require drainage. Without adequate drainage the 1978 Task Force Report predicted that, eventually, 230,000 acres of the San Luis Unit would go out of production, resulting in losses of nearly $100 million per year. The 1978 Task Force Report further indicated that the United States Environmental Protection Agency, which was responsible for issuing permits for discharge of pollutants into navigable waters, had not yet established pollution control requirements for the discharge point of the San Luis Drain. The 1978 Task Force Report recommended that the Bureau of Reclamation “proceed with securing the necessary appropriations from Congress to assure completion of the San Luis Interceptor Drain from its point of origin near Kettleman City to Kesterson Reservoir,” but that “[n]o construction or land asquisition [sic] activities associated with completing the San Luis Interceptor Drain north of Kesterson Reservoir should be undertaken until” four things happened: 1) agreement had been reached with the State of California as to the final point of disposal and treatment of drainage water, 2) the federal Bureau of Reclamation had completed a final environmental impact statement, 3) a repayment method and timeline had been agreed upon by the federal government and the State, and/or water districts, and 4) full consideration had been given to the possibility of granting State of California and others joint use of the existing San Luis Drain.
Throughout the 1970s, however, water deliveries continued and drainage services were being provided to the 42,000 acres of land in the Westlands. In 1977, the United States demanded various modifications to its existing agreements with Westlands in order to continue delivery of Central Valley Project water to the district. In order to keep water flowing to the area, Westlands entered into a series of annual, temporary water service contracts with the United States in 1978, 1979, 1980, and 1981. Ongoing negotiations *447 between the United States and Westlands over delivery of water and drainage services continued over multiple years.
Between 1975 and 1979, a joint federal-state project was launched to “find an economically, environmentally, and politically acceptable solution to San Joaquin Valley drainage problems.” Named the San Joaquin Valley Interagency Drainage Program, 8 this collaboration between the Bureau of Reclamation, the California Department of Water Resources, and the California State Water Resources Control Board, recommended, in the late 1970s, that the San Luis Drain be completed to a terminus point at the Saeramento-San Joaquin Delta. Based on that recommendation, the Bureau of Reclamation initiated a study, named the San Luis Unit Special Study, in order to move forward with permitting for the San Luis Drain.
When the Kesterson Reservoir was established in 1970, approximately 5,900 acres around the reservoir had been designated as a National Wildlife Refuge. Beginning in 1982, federal authorities noticed problems with the wildlife in the Kesterson Wildlife Refuge, and subsequent laboratory reports of fish from the Kesterson Reservoir “revealed extremely high levels of selenium” in their tissue. Studies conducted in 1983 showed high rates of mortality and embryonic deformities among birds in the Wildlife Refuge and testing, once again, found high concentrations of selenium in both adult birds and bird eggs. On February 5,1985, California’s State Water Resources Control Board issued a cleanup and abatement order, requiring the Bureau of Reclamation either to present to the State board a plan to clean up the Kesterson Reservoir, or to shut it down as a drainage facility by February 1988. In March of 1985, the DOI issued a statement saying that it would begin shutting down the Kesterson Reservoir by plugging the San Luis Drain and stopping delivery of irrigation waters to the areas which drained into the Kesterson Reservoir. In April 1985, however, Westlands and the Bureau of Reclamation entered into an agreement, whereby the Bureau of Reclamation agreed to continue supplying water to Westlands in exchange for Westlands agreeing to immediately begin closing the San Luis Drain and Kesterson Reservoir, to “proceed expeditiously to design, install, and operate alternative means for disposal of drain water from Westlands” so that no drain water would flow to into the San Luis Drain by June 1986, and to submit to the federal government by June 1985 plans for the installation of a chosen alternative drainage program.
By June 1986, twenty-six years after the San Luis Act was passed and twenty-four years after the Secretary of Interior had promised the District Court for the Eastern District of California that “required drainage will be provided by the time water is furnished to the Federal San Luis Unit area,” the drains in the Westlands had been plugged and the only portion of the San Luis Drain that was ever open, the eighty-plus mile stretch south of Kesterson Reservoir, also had been closed. The Bureau of Reclamation continued to deliver water to West-lands, absent the drainage service that was supposed to be a prerequisite for the construction of the San Luis Unit. The 42,000 acres of lands in the Westlands that had been receiving drainage service since 1976, therefore, lost the drainage service in 1986. The parties have stipulated that no other area in the Westlands has, at any time between 1960 and the filing of the above captioned case, received drainage services as originally contemplated in the San Luis Act. The few named plaintiffs’ properties are all outside of the 42,000 acres that received drainage from 1976 to 1986, and, therefore, that plaintiffs’ properties have never received drainage ser *448 vice from the federal government as originally contemplated in the San Luis Act.
The closure of the Kesterson Reservoir, however, did not mark the end of defendant’s efforts to provide drainage services to the San Luis Unit. On March 15, 1985, the Secretary of Interior recognized in his statement announcing the closing of the Kesterson Reservoir:
The Department [of Interior] also recognizes it has responsibilities to those with whom it has contracted for the delivery of irrigation water. Irrigated agriculture clearly is important to the economy of California and the Nation. We have been and we will continue to diligently seek scientific solutions to this issue____ The Secretary [of Interior] remains committed to seeking a permanent solution.
Moreover, defendant represented in litigation in the 1990s that, after the closure of the Kesterson Reservoir, “the United States has supported efforts made to provide for drainage while at the same time fulfilling its other statutory responsibilities to protect the environment.”
Barcellos Litigation
On April 26, 1979, a group of landowners and water users within the Westlands filed suit against the Westlands in the District Court for the Eastern District of California, Barcellos & Wolfson, Inc. v. Westlands Water District, No. CV-79-106, claiming that the plaintiffs’ lands had been granted priority rights over other areas in the water district to both quantities of, and prices for, water, but that Westlands’ annual water service contracts with the United States for “1978, 1979 and future years” adopted uniform rates and allocations for the whole water district, which deprived the plaintiffs of their “priority guarantee.” The District Court ordered the plaintiffs to add to the litigation “the Federal Defendants,” including the United States, DOI, the Bureau of Reclamation, and various officials at DOI and the Bureau of Reclamation, as well as landowners in other portions of the Westlands. In the third amended complaint in the Barcellos litigation, the plaintiffs asserted claims against Westlands, other landowners in the West-lands, and the federal defendants relating to water services, rates, and state and federal reclamation law.
On July 24, 1981, Westlands filed suit against the United States in the Eastern District of California, Westlands Water District v. United States, No. CV-81-245, alleging that the United States has repudiated various contracts and agreements with the District, including the annual water contracts the parties signed in 1978, 1979, 1980, and 1981, and seeking a preliminary injunction against a 1981 threat by the federal government to terminate water delivery on January 1, 1982, as well as a declaration of rights and obligations between Westlands and the United States under contract and federal reclamation law.
On September 18, 1981, the District Court for the Eastern District of California partially consolidated the Barcellos and Westlands litigation, consolidating all claims in the Westlands litigation and those claims in the Barcellos case that pertained to the rights and obligations of the Westlands and the United States under contract and federal reclamation law. The consolidated action was captioned Westlands Water District, et al., v. United States, et al.; Barcellos & Wolfson, et al., v. Westlands Water District, et al., No. CV-F-81-245.
The parties in the consolidated Westlands/Barcellos cas e, No. CV-F-81-245, entered into a Stipulated Judgment (Barcellos Judgment) on August 29, 1986, which was enforced by the court pursuant to a December 30,1986 Order. The Barcellos Judgment first stated that the 1963 Contract between Westlands and the United States was “a valid, enforceable and implementable contract entitling the District through the end of 2007 to water and other service by the United States,” and requiring Westlands and the United States to perform on the 1963 Contract. With regard to drainage services, the Barcellos Judgment stated that the federal defendants, “shall develop, adopt and submit to the District by December 31, 1991, a Drainage Plan for Drainage Service Facilities____” The Drainage Plan was required to provide plans for facilities that could “transport, treat as necessary, and dispose *449 of’ at least 60,000 aere-feet, but not more than 100,000 aere-feet, of water by December 31, 2007, and was to be “Cost Effective and financially feasible,” as well as “capable of construction, acquisition and operation in compliance with all applicable law.” The Drainage Plan was to “contain a schedule for the initiation and completion of each Drainage Service Facility by the United States,” although recognizing that compliance with the schedule was dependent upon approvals by the Executive Branch and Congress. At all times since the December 30, 1986 Order, the United States has been under federal court order to expeditiously implement a plan to provide drainage services to the Westlands.
The Barcellos Judgment also established a “Drainage Trust Fund” “[t]o aid in funding costs of Drainage Service Facilities and to encourage and expedite United States’ construction or acquisition thereof.” Westlands was to establish the Drainage Trust Fund, and beginning in 1988, to levy $5 million per year in assessments on lands within the water district to deposit into the fund, until sufficient funds were deposited into the fund to meet Westlands’ payment obligations to the federal government for construction of drainage facilities. Funds from the Drainage Trust Fund were to go toward an annual “progress payment of 35 percent of the estimated Costs of Construction by the United States during that fiscal year of Drainage Service Facilities,” not to exceed $500,000.00 per facility or $15 million total for each year, and $100 million in the aggregate. Money in the Drainage Trust Fund would be released back to Westlands if any of the following occurred, subject to the parties’ waiver: 1) the federal defendants failed to develop and submit to Westlands a Drainage Plan by December 31, 1991, 2) Congress failed to authorize funds for construction of Drainage Service Facilities described in the Drainage Plan, 3) the federal defendants failed to commence construction of at least one of the facilities included in the Drainage Plan by December 31, 1996, 4) Congress failed for any two consecutive years to appropriate necessary funds for construction of drainage facilities, 5) the federal defendants failed to “diligently pursue construction or acquisition” of drainage facilities once funds were appropriated, 6) the federal defendants did not complete construction of all drainage facilities by the date provided in the Drainage Plan, 7) the federal defendants stated that they would not implement the Drainage Plan, or 8) Congress conditioned future appropriations on cost-sharing arrangements other than those provided for in the instant agreement. 9 In addition, the Barcellos Judgment specifically reserved “[a]ny claim against the United States of the right to drainage service or Drainage Service Facilities.”
The Bureau of Reclamation’s Drain-Related Activities from 1989-1993
After the December 30, 1986 Order by the District Court for the Eastern District of California enforcing the Barcellos Judgment in 1986, the Bureau of Reclamation appeared, for several years, to be on a path toward formulating and implementing a drainage plan in compliance with the Judgment. In 1989, in response to the Barcellos Judgment, the Bureau of Reclamation formed the San Luis Unit Drainage Program. The purpose of the San Luis Unit Drainage Program was “to identify and implement an agricultural drainage plan for the San Luis Unit” that “will, at least, address agricultural drainage needs through the year 2007.... ” In March 1990, the Bureau of Reclamation issued the “San Luis Unit Drainage Program Plan of Study,” which stated:
The goal of the program [San Luis Unit Drainage Program] is to identify and implement a long-term solution to the drainage problem of the SLU [San Luis Unit] of the Central Valley Project which is compatible with protection and improvement of fish and wildlife habitat and populations. Long-term, in this case, denotes an equilibrium condition where there is no buildup of water or salts occurring in the agricultural *450 environment, so that irrigated agriculture is indefinitely viable.
The 1990 Plan of Study indicated that, “[c]omprehensive planning studies will be needed to identify and select a feasible, long-term drainage plan that meets project needs, is consistent with Reclamation law and Central Valley Project authorization, and is compatible with other possible drainage plans for serving the San Joaquin Valley.” Since the Barcellos Judgment required the Bureau of Reclamation to implement a drainage plan by 1991, and because “there are currently no feasible out-of-valley drainage disposal alternatives, the focus of the initial activities will be on in-valley alternatives.” The 1990 Plan of Study further indicated that “it is possible that meeting the schedule of the judgment [the Barcellos Judgment] will involve planning and implementing facilities that provide only short or intermediate term drainage service, while long-term solutions are being developed.” The 1990 Plan of Study included a schedule of planned work activities for 1990 and 1991, which indicated that the Bureau of Reclamation would issue an Alternative Plans Formulation Report and a Draft Environmental Study by September 1991, with a Final Environmental Impact Study to follow after December 1991.
Before the Bureau of Reclamation completed its planned next steps, however, a new joint federal-state program issued a report that seemed to shift the focus away from completing the originally-planned interceptor drain, which, as described, would have carried drainage water out of the San Luis Unit for disposal into the Sacramento-San Joaquin River Delta, and toward an “in-valley” solution. In response to the problems discovered at the Kesterson Reservoir in the mid-1980s, the Governor of California and the Secretary of Interior had launched the San Joaquin Valley Drainage Program in 1984 to investigate the drainage problems in the San Luis Unit and possible solutions. The San Joaquin Valley Drainage Program issued a final report in September 1990, which became known as the “Rainbow Report.” The 1990 Rainbow Report presented a plan for managing the drainage problems in the west San Joaquin Valley from 1990 to 2040. While the 1990 Rainbow Report was initially supposed to look at all possible drainage solutions, the study ended up looking solely at in-valley solutions. 10 The preface to the 1990 Rainbow Report explained:
A comprehensive study of agricultural drainage and drainage-related problems on the westside San Joaquin Valley has resulted in the management plan presented in this final report of the Federal-State interagency San Joaquin Valley Drainage Program.
Understandably, some may be disappointed that no single, sure, and lasting solution to the drainage problem has been put forward. Rather, the management plan presented is complex and includes risks that could be costly. Moreover, it may be only the first step in solving the salt accumulation problem. Virtually everyone involved in examination of the drainage problem agrees, however, that there is no single solution and no easy answer to the problem.
But it is also generally agreed that the drainage problem is manageable and that this management logically begins in the valley with a broadly shared effort to reduce the amount of drainage water, to place the remaining water under control, and to contain and isolate toxicants such as selenium. Such actions would largely correct present problems of waterlogging of farmlands and could greatly reduce adverse impacts on fish and wildlife.
*451 The in-valley actions recommended in the plan would also be necessary for any eventual export of salt from the San Joaquin Valley. The recommended actions would provide a regional drainage infrastructure that now exists only in scattered pieces. If the plan proposed here is implemented, a salt export decision need not be made for several decades.
The 1990 Rainbow Report clarified that the recommended plan presented was not a blueprint for construction of any new facilities, stating:
The plan is not site-specific, and, without more detailed analysis, it is not a plan from which structures may be built. Rather, it should be considered as a framework that will permit the present level of agricultural development in the valley to continue, while protecting fish and wildlife and helping to restore their habitat to levels existing before direct impact by contaminated drainage water.
The 1990 Rainbow Report recommended a combination of in-valley management solutions, including: source control in order to reduce the overall amount of irrigation waters that had to be drained, a system of drainage water reuse on more salt-tolerant plants, drainage water evaporation ponds, land retirement to stop irrigation on lands that were more difficult to drain, groundwater management, discharge to the San Joaquin River, protection and provision of substitute water supplies for wildlife habitats, and institutional changes such as changing the pricing and delivery of water and forming regional water management organizations. The 1990 Rainbow Report suggested, however, that completion and usage of the San Luis Drain was still a viable option, and made no mention of a decision or shift in focus by the Bureau of Reclamation to permanently cancel the plans for the construction of the San Luis Drain. Elaborating on the above strategies, the 1990 Rainbow Report discussed various ways of disposing of drainage water, including “[discharge to the San Joaquin River without dilution (including use of portions of the San Luis Drain to convey drainage water to treatment or disposal areas).” Although the 1990 Rainbow Report focused on in-valley management solutions, there was no indication in the report that the plan to build the San Luis Drain had been or was being abandoned by DOI.
In December 1991, four federal agencies, the Bureau of Reclamation, the U.S. Fish and Wildlife Service, the U.S. Soil Conservation Service, and the U.S. Geological Survey, as well as four California agencies, the Department of Water Resources, the Department of Fish and Game, the Department of Food and Agriculture, and the State Water Resources Control Board, signed a “Memorandum of Understanding for Implementation of the San Joaquin Valley Drainage Program’s Recommended Plan,” (the 1991 Memorandum) The 1991 Memorandum stated that all of the parties would use the management plan described in the 1990 Rainbow Report “as the principal guide for remedying subsurface agricultural drainage and related problems.” The 1991 Memorandum further indicated that all parties would develop an action plan and determine a schedule for implementing all components of the Rainbow Report’s plan. The 1991 Memorandum did not directly address plans to construct the San Luis Drain.
In 1991, the Bureau of Reclamation’s San Luis Unit Drainage Program released a Draft Environmental Impact Statement on December 20, 1991, which “buil[t] upon and propose[d] to implement site-specific actions based upon the recommendations in the” 1990 Rainbow Report. The 1991 Draft Environmental Impact Statement evaluated four action alternatives, 11 as well as a “no action alternative.” None of the four action alternatives, nor the no action alternative, addressed completion of the San Luis Drain. The 1991 Draft Environmental Impact Statement indicated that there were other action alternatives that had been considered for implementation, but eliminated, including a *452 “delta disposal alternative.” The 1991 Draft Environmental Impact Statement explained:
The delta disposal alternative, as planned when the San Luis Drain was authorized, would also be a complete and effective alternative. Because the alternative was once considered cost effective and authorized, it is reasonable to conclude that this alternative would still be cost effective. However, the social and environmental unaeceptability of the alternative precludes further consideration at this time. Questions continue to be raised about potential effects of untreated agricultural drainage on the water quality of the delta and San Francisco Bay. Therefore, the delta disposal alternative was also eliminated from detailed consideration for the scope of this document.
Instead of the “delta disposal alternative,” the 1991 Bureau of Reclamation’s Draft Environmental Impact Statement identified alternative 4, source control and new technologies, as the preferred action alternative. The 1991 Bureau of Reclamation’s Draft Environmental Impact Statement stated that, alternative 4 “concentrates on source control, monitoring, and demonstration programs of new technologies to collect, treat, and ultimately dispose of concentrated brines and salts.” The 1991 Draft Environmental Impact Statement further explained that alternative 4 “was designed to recognize and accommodate technologies that appear promising and implementable within the timeframe of the Barcellos Judgment but may be unproven and, therefore, could not be proposed for full-scale implementation at this time.” The 1991 Draft Environmental Impact Statement asserted that alternative 4 fulfilled the Barcellos Judgment because it provided “an implementable drainage plan by December 31, 1991, for drainage service for the Westlands Water District to the year 2007.” The 1991 Draft Environmental Impact Statement acknowledged, however, in a section titled Unresolved Issues: “The proposed action treats drainage water avoided through alternative land use and source control programs as alternatives to the San Luis Drain. The issue is that parties to the judgment have not necessarily agreed to this interpretation.” It appears from the 1991 Draft Environmental Impact Statement, therefore, that by 1991, the Bureau of Reclamation had decided to pursue an approach to drainage in the San Luis Unit that did not include construction of a master drain and had asserted that such alternatives complied with the Barcellos Judgment, but without consensus from all of the affected parties.
In October 1992, Congress passed the Reclamation Wastewater and Groundwater Study Act of 1992, Pub.L. No. 102-575, §§ 1601-1617, 106 Stat. 4600 , 4663, which directed the Secretary of the Interior to:
[UJndertake a program to investigate and identify opportunities for reclamation and reuse of municipal, industrial, domestic, and agricultural wastewater, and naturally impaired ground and surface waters, for the design and construction of demonstration and permanent facilities to reclaim and reuse wastewater, and to conduct research, including desalting, for the reclamation of wastewater and naturally impaired ground and surface waters.
With respect to the San Luis Unit, however, the 1992 Act limited the Secretary of Interior to investigating projects that were recommended in the 1990 Rainbow Report, stating:
The Secretary shall not investigate, promote or implement, pursuant to this title, any project intended to reclaim and reuse agricultural wastewater generated in the service area of the San Luis Unit of the Central Valley Project, California, except those measures recommended for action by the San Joaquin Valley Drainage Program in the report entitled A Management Plan for Agricultural Subsurface Drainage and Related Problems on the Westside San Joaquin Valley (September 1990) [the Rainbow Report].
The Bureau of Reclamation indicated that its 1990 Plan of Study that its Draft Environmental Impact Statement, issued in 1991, would be followed by a Final Environmental Impact Statement, however, no Final Environmental Impact Statement was ever issued. Between 1991 and 2000, the Bureau of Reclamation, Westlands, and various groups *453 of landowners were engaged in a period of protracted litigation over the issue of drainage in the San Luis Unit service area. There is no information in the record regarding the development of new contracts for drainage facilities during that time. It appears from the record that, whatever plans there were to construct new drainage facilities in Westlands were put on hold during that time, while the federal government attempted to argue in federal court that its statutory duty to provide drainage to the San Luis Unit had been excused by intervening circumstances.
Firebaugh Canal and Sumner Peck Litigation
On December 7,1988, following the earlier closure of the Kesterson Reservoir and the plugging of the San Luis Drain, Firebaugh Canal Company, a private water company, and the Central California Irrigation District, a water district downslope of the San Luis Unit (the Firebaugh plaintiffs), filed a complaint in the District Court for the Eastern District of California. In Firebaugh Canal Co. v. United States, No. CV-F-88-634, the Firebaugh plaintiffs alleged several tort claims under the Federal Tort Claims Act, 28 U.S.C. § 2671 , and violations of the Administrative Procedure Act (APA), 5 U.S.C. § 702 , against the United States, DOI, the Bureau of Reclamation, and the Secretary of the Interior, together the “federal defendants,” and sought general and special damages, as well as an injunction compelling the defendants to cease delivery of water to Westlands until adequate drainage facilities were in place and operating.
On January 31, 1991, a group of one hundred and thirty-five landowners from the Westlands (the Sumner Peck plaintiffs) filed a complaint against DOI, the Bureau of Reclamation, Westlands, the California Department of Water Resources, and the State Water Resources Control Board in the District Court for the Eastern District of California. In Sumner Peck Ranch v. Bureau of Reclamation, No. CV-F-91-048, the Sumner Peck plaintiffs sought both equitable and monetary relief, including declarations that the federal defendants had violated their duties under the San Luis Act and the subsequent 1977 Appropriations Act, their various contracts with the Westlands, and the 1986 Barcellos Judgment, to provide drainage services to the San Luis Unit. The Sumner Peck plaintiffs also brought claims of inverse condemnation against the federal government, Westlands, and the California agencies. The Firebaugh and Sumner Peck cases were partially consolidated on May 26, 1992, “for purposes of determining the obligation imposed by the San Luis Act, Public Law 86-488, 74 Stat. 156, on the United States Department of Interior, Bureau of Reclamation, to provide drainage service.” Westlands moved to dismiss the case and the federal defendants moved for summary judgment and judgment on the pleadings. On May 28, 1993, Judge Oliver W. Wanger issued a Memorandum Opinion and Order (the 1993 Wanger Memorandum opinion) regarding the consolidated motions. Relevant to the case currently before this court, the 1993 Wanger Memorandum opinion granted the federal defendants’ motion for judgment on the pleadings regarding the Sumner Peck plaintiffs’ inverse condemnation claims, and found that the district court did not have jurisdiction because the takings claim exceeded $10,000.00.
After determining, in an opinion dated May 17,1993 that the federal defendants had a statutory duty to provide drainage for the San Luis Unit, Judge Wanger held trial in Firebaugh/Sumner Peck case in August and September 1994 to determine whether that duty had been excused by factual or legal impossibility, the extent of the court’s authority to order compliance with any existing duty, and whether the plaintiffs were due monetary relief. Judge Wanger issued his Findings of Fact and Conclusions of Law for the first phase of the trial on December 16, 1994. Judge Wanger determined that “[t]he 1960 San Luis Act required construction of necessary drains to remove salts and salty water from farm soils to maintain productivity.” Judge Wanger further determined plaintiffs had a need for the drainage at issue for arability of the land, to dispose of drain water which contains containments and that “[i]f the government were excused from its drainage service obligation, some lands in the drainage service area might be reclassified as *454 ‘Class 6’ lands, ineligible to receive CVP water.” Judge Wanger also defined Westlands Water District as the only member of the San Luis Unit which presently does have drainage service. Judge Wanger made one hundred and thirty-four specific “Findings of Fact,” including:
• “There is a need for drainage service in a large area of Westlands Water District (WWD). Drainage service is needed to maintain salt balance within the crop root zone. This need for drainage [in the San Luis Unit service area] has been created in large part by the Bureau’s [of Reclamation] deliveries of CVP [Central Valley Project] water to San Luis Unit contractors.”
• “The activities funded and undertaken by the Bureau since the mid-1980s have been directed at managing the drainage problem ‘in-Valley’ by reducing the volume of drainage water. Since the mid-1980s, the Bureau has not undertaken any efforts to complete the San Luis Drain in order to physically remove saline subsurface agricultural drainage water from the drainage service area.”
• “The Federal defendants have failed to take necessary steps to provide drainage service for a number of years. The Bureau is unlikely to undertake efforts to provide drainage service unless ordered to do so by the Court.”
• “Since May 1993, when the Court issued its order declaring that Section 1(a) of the San Luis Act required completion of a drain, the Bureau has not undertaken activities to complete the drain.”
• “The Court finds that the federal agencies that have responsibility for providing drainage to the San Luis United have not effectively addressed the serious problems of water-logging and salt accumulation that are destroying the plaintiffs’ ability to farm their lands in the San Luis Unit.”
• “Litigation by plaintiffs over San Luis Unit drainage was settled around 1983. By that settlement, the government had until 1993 to provide its plan for San Luis Unit drainage. It did so only in a December 1993 Report that further defers providing drainage.”
• “Based on all of the evidence submitted, completion of the San Luis Drain to the Delta as contemplated by San Luis Act and its legislative history is not foreclosed by factual or legal impossibility.”
• “The San Luis Act places the obligation to provide drainage to the San Luis Unit on the United States, not the plaintiffs.”
• “In view of the actual, extensive, and continuing harm suffered by plaintiffs in the loss of productivity and value of their farmlands, when balanced against the potential threat to the environment the installation of drainage may have, and in further light of the extensive regulatory protections which will guard against environmental harm, the balance of hardships and the public interest favor injunctive relief for plaintiffs.”
• “Plaintiffs are entitled to declaratory and injunctive relief.”
Judge Wanger also issued twenty-six “Conclusions of Law.” Among other findings, he found that the plaintiffs were entitled to declaratory and injunctive relief because the federal defendants had failed to prove that their statutory duty to provide drainage to the San Luis Unit was excused by “impossibility, supervening illegality, implied repeal or any other reason.” Judge Wanger also concluded:
• “The Secretary of the Interior through the Bureau of Reclamation has made the policy decision not to complete the San Luis Drain, in violation of Section 1 of the San Luis Act. This action constitutes agency action unlawfully withheld.”
• “The evidence establishes the Bureau will not undertake mandated efforts to provide needed drainage service without order of the Court.”
• “By failing to provide drainage for the San Luis Unit in violation of law plaintiffs have been caused irreparable injury. ...”
• California water law requires the issuance of a waste permit prior to the approval and construction of any drainage facilities.
• “The Federal defendants shall take all reasonable and necessary actions to apply for a discharge permit for the San Luis drain.”
*455 • “The Court retains jurisdiction to enforce compliance with this Order.”
Judge Wanger declined to issue a more far-reaching order, instead finding that the Bureau of Reclamation “must be provided the opportunity to comply with the law to provide drainage to the San Luis Unit. The Court will not presume that the Secretary will ignore the obligation identified by these findings.”
Subsequently, Judge Wanger entered partial judgment on the consolidated Firebaugh/Sumner Peck case on March 12, 1995 (1995 Partial Judgment), summarized and quoted from his earlier findings and issued the following injunction:
FURTHER ORDERED that the Secretary of the Interior, the United States Department of Interior, the United States Bureau of Reclamation, and each of them, and them officials and employees, shall, without delay, take such reasonable and necessary actions to promptly prepare, file, and pursue an application for a discharge permit for the San Luis Drain to comply with section 1(a) of the San Luis Act to provide drainage to the San Luis Unit,
(capitalization in original). Judge Wanger’s 1995 Partial Judgment, therefore, ordered the federal government to expeditiously move forward with implementing the original plan for constructing the San Luis Drain and discharging drainage water into the Delta.
On February 10, 1995, the federal defendants appealed Judge Wanger’s December 16,1994 Findings of Fact and Conclusions of Law to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit did not issue a decision until February 4, 2000. On February 4, 2000, the Ninth Circuit agreed with Judge Wanger that the federal defendants had an unexeused statutory duty to provide drainage service to the San Luis Unit service area, and that the Bureau of Reclamation had made a policy decision not to provide drainage service in violation of that statutory duty. The Ninth Circuit also found, however, that Congress, in legislation subsequent to the San Luis Act of 1960, had granted DOI discretion “in creating and implementing a drainage solution.” By ordering DOI to apply for a discharge permit for the San Luis Drain, the Ninth Circuit found, the district court “preclude[d] other, non interceptor-drain, solutions to the drainage duty created by the San Luis Act.” The Ninth Circuit emphasized:
The Bureau of Reclamation has studied the problem for over two decades. In the interim, lands within Westlands are subject to irreparable injury caused by agency action unlawfully withheld. Now the time has come for the Department of Interior and the Bureau of Reclamation to bring the past two decades of studies, and the 50 million dollars expended in pursuing an “in valley” drainage solution, to bear in meeting its duty to provide drainage under the San Luis Act.
The Ninth Circuit, “affirm[ed] the district court’s conclusion that the Government must act promptly to provide drainage service, but reverse[d] that part of the judgment that forecloses non-interceptor drain solutions.” The Ninth Circuit remanded the case to the district court for further proceedings.
In compliance with the Ninth Circuit’s opinion, on December 18, 2000, Judge Wanger modified his March 12, 1995 Partial Judgment to state:
FURTHER ORDERED that the Secretary of the Interior, the United States Department of the Interior, the United States Bureau of Reclamation, and each of them, and their officials, and employees, shall, without delay, provide drainage to the San Luis Unit pursuant to the statutory duty imposed by section 1(a) of the San Luis Act. The Secretary of the Interior, the United States Department of Interior, the United States Bureau of Reclamation, and each of them, shall no later than January 29,2001, submit to this court a detailed plan describing the action or actions, whether short term or long term, they will take to promptly provide drainage to the San Luis Unit, which plan shall contain a schedule of dates by which the action or actions described in the plan will be accomplished.
After the Ninth Circuit’s decision and Judge Wanger’s modification, the Firebaugh/Sumner Peck litigation continued, al *456 though, in 2002, two groups of plaintiffs settled with the federal defendants, relieving the government of its duty to provide drainage to approximately 37,000 acres of land in the Westlands. 12 The two groups of plaintiffs, designated the Britz plaintiffs and the Peck plaintiffs, comprised all of the Sumner Peck plaintiffs. The Sumner Peck Ranch, Inc., et al. v. Bureau of Reclamation case, No. CV-F-91-048, was dismissed on March 12, 2003, however, the partially consolidated Firebaugh/Sumner Peck litigation proceeded, with only the Firebaugh plaintiffs pursuing further remedies.
The Firebaugh plaintiffs filed their fifth amended complaint on June 1, 2004, alleging the following claims: 1) continuing negligence, 2) continuing nuisance as to the water districts and as to the federal defendants, 3) continuing trespass, 4) inverse condemnation, 5) a violation of the APA by the federal defendants, and, 6) declaratory relief that the water districts also violated the APA. The fifth amended complaint indicated that claims one and three had been dismissed with prejudice, claim two had been dismissed as against the water districts, and claim four had been transferred to the United States Court of Federal Claims, 13 leaving claims two, five, and six as against the federal defendants, left for resolution by the District Court in the second phase of the litigation.
The Bureau of Reclamation’s Actions From 2001-2009
In order to comply with the Ninth Circuit’s ruling and the district court’s modified injunction in the Firebaugh/Sumner Peck ease, on April 18, 2001, the Bureau of Reclamation issued a “Plan of Action for Drainage to the San Luis Unit Central Valley Project” (2001 Plan of Action), which stated that the Bureau of Reclamation “will initiate immediately a detailed review of all reasonable alternatives for providing drainage service to lands within the San Luis Unit.” The Bureau of Reclamation explained that the review process would involve a Feature Re-evaluation and an environmental review, “resulting] in a decision on how to proceed with providing drainage service within the San Luis Unit.” The 2001 Plan of Action stated that, while new “innovative and promising techniques” were being explored,
the only proven technologies that have been identified to date to provide drainage and achieve sustainable salt balance on drainage-affected, irrigated lands in West-lands Water District are disposal of salts out of valley such as through completion and operation of the San Luis Drain, or disposal to evaporation ponds---- Whether these methods can be implemented in an affordable or environmentally permissible way remains to be determined, however, and Reclamation cannot prejudge the outcome of the analysis nor predict the ultimate viability of those alternatives.
The 2001 Plan of Action included as an attachment an excerpt of a 1984 report on “Completion of the San Luis Drain Alternative,” but indicated that every aspect of possible completion of the San Luis Drain would have to be reevaluated since nearly two decades had passed. The 2001 Plan of Action included a schedule, listing when certain “milestones” would be completed. The schedule indicated that formulating alternative options for providing drainage would take twenty months, evaluation of those action alternatives, and the filing of a Draft Environmental Impact Statement would be completed within three years, and issuing a Final Environmental Impact Statement and a Record of Decision would take four years, meaning a Record of Decision could be issued by June 2005.
Between 2001 and 2007, the Bureau of Reclamation appeared to be complying with *457 its Plan of Action, although the process got behind schedule by about two years. Initially, the Bureau of Reclamation issued the “San Luis Unit Drainage Feature Reevaluation Preliminary Alternatives Report” (2001 Preliminary Alternatives Report) in December 2001. The 2001 Preliminary Alternatives Report indicated that the Bureau of Reclamation had reviewed previous studies regarding the drainage problems in the San Luis Unit and possible solutions to develop “preliminary options and alternatives” for providing drainage service, 14 and had begun to evaluate various action alternatives. The 2001 Preliminary Alternatives Report identified a range of action alternatives that could be pursued in order to provide drainage services to the San Luis Unit, however, limited the proposed alternatives to ones which both met the Firebaugh/Sumner Peck courts’ orders and utilized proven technology. The 2001 Preliminary Alternatives Report stated that “Reclamation is developing and refining alternatives by combining treatment and disposal methods for three drainage service concepts:” in-valley disposal, out-of-valley disposal, and beneficial and/or commercial use. 15 The 2001 Preliminary Alternatives Report included the following description of each of these three broad concepts and subdivided each concept into sub-alternatives that could be stand-alone action alternatives for providing drainage, or could be combined with other alternatives:
In-Valley Disposal: disposal of drain water and salts in or near the drainage-affected area, possibly with prior treatment to remove selenium or other constituents.
• Drainage based on current irrigation technology going to the evaporation ponds and ultimately disposed in landfills
• Drainage after enhanced irrigation management going to the evaporation ponds and ultimately disposed in landfills
• Drainage after integrated drainage management going to evaporation ponds and ultimately disposed in landfills
• Land retirement with drainage from the remaining acres based on current irrigation technology going to evaporation ponds and ultimately disposed in landfills
• Drainage based on current irrigation technology with disposal of drainage using deep well injection
Out-of-Valley Disposal: transport of drain water to the Pacific Ocean, Delta, or San Joaquin River, possibly with treatment to remove selenium or other constituents.
• Delta
• Drainage based on current irrigation technology going to selenium treatment and ultimate disposal in the Delta
• Drainage after enhanced irrigation management going to selenium treatment and ultimate disposal in the Delta
• Drainage from integrated drainage management going to selenium treatment and ultimate disposal in the Delta
• Ocean Disposal
• Drainage based on current irrigation technology with ultimate disposal going to the Ocean
• Drainage after enhanced irrigation management with ultimate disposal going to the Ocean
• Drainage from integrated drainage management with ultimate disposal going to the Ocean
• Land retirement with drainage from the remaining acres using current irrigation technology with ultimate disposal going to the ocean
Beneficial and/or Commercial Use: use of treated drain water for irrigation, municipal, or other uses and potential commercial use of removed salts.
*458 • Drainage based on current irrigation technology going through reverse osmosis treatment with the brine to evaporation ponds and ultimately disposed inland fills
• Drainage based on enhanced irrigation management going through reverse osmosis treatment with the brine to evaporation ponds and ultimately disposed in landfills and the clean product water going to a beneficial use
• Drainage from integrated drainage management going through reverse osmosis with the brine to evaporation ponds and ultimately disposed in landfills and the clean product water going to a beneficial use
• Land retirement with drainage from the remaining acres using current irrigation technology going through reverse osmosis treatment with the brine to evaporations and ultimately disposed in landfills and the clean product water going to a beneficial use
• Drainage from integrated drainage management going through reverse osmosis treatment with the brine to evaporation ponds, with the dried salts going to a beneficial use and the clean product water going to a beneficial use
(emphasis in original). Each of these alternatives was evaluated for effectiveness and cost. The 2001 Preliminary Alternatives Report explained that, through 2002, the Bureau of Reclamation would “evaluate and refine the preliminary alternatives identified in this Report,” and that in 2003 and 2004, the Bureau of Reclamation would “complete detailed evaluation of the alternatives.”
One year later, in December 2002, the Bureau of Reclamation issued the “San Luis Drainage Feature Re-Evaluation Plan Formulation Report” (the 2002 Re-Evaluation Plan Formulation Report), which narrowed the set of action alternatives for providing drainage services that were being evaluated by the Bureau of Reclamation to five, including a no action alternative. The 2002 ReEvaluation Plan Formulation Report began by describing four “Major Findings” that formed the basis of the agency’s evaluation of the four action alternatives, as follows:
• By 2050, approximately 379,000 acres would need drainage service (343,000 acres in the Unit and 36,000 acres in the Northerly Area outside the Unit).
• Cost-effective, on-farm and in-district drainwater reduction measures and regional drainwater reuse could reduce drainage volumes by nearly 80 percent.
• For land retirement scenarios, it appears that the expected costs of purchasing and retiring lands is greater than the cost of providing drainage service to these lands.
• Implementing any drainage service plan would require further congressional action to increase the authorized appropriation cap under the San Luis Act.
The 2002 Re-Evaluation Plan Formulation Report described the “drainage study area” being evaluated by the Bureau of Reclamation as consisting primarily of the San Luis Unit, which encompassed the entire West-lands, as well as several other water districts, but also an adjacent area called the Grasslands Drainage Area, which was included “because the [Grasslands Drainage Area’s] drainage systems are closely interrelated with the lands in the [San Luis] Unit and Section 5 of the San Luis Act authorizes participation of adjacent lands in San Luis Unit drainage facilities.” 16 The 2002 ReEvaluation Plan Formulation Report stated *459 that the Bureau of Reclamation had developed four action alternatives for providing drainage services, and also examined a No Action Alternative. The 2002 Re-Evaluation Plan Formulation Report expanded on the 2001 Preliminary Alternatives Report and the four action alternatives in the 2002 ReEvaluation Plan Formulation Report included: an In-Valley Disposal Alternative, an Ocean Disposal Alternative (Point Estero), and two Delta Disposal Alternatives (Chipps Island and Carquinez Strait). The four action alternatives involved several common elements, including on-farm measures, such as drainwater recycling, groundwater management, and seepage reduction, as well as land retirement, drainwater collection, regional reuse facilities, and drainwater treatment and disposal.
The In-Valley Alternative “include[d] a drainwater collection system, regional drain-water reuse facilities, selenium treatment, reverse osmosis treatment for the Northerly Area, and evaporation ponds for salts disposal.” For the In-Valley Alternative, drainwater from the Northerly Area would be conveyed to a proposed treatment plant, where reverse osmosis would be used to remove salts and other contaminants, leaving clean water that could then be blended with California Valley Project water and used again for crop irrigation. Drainwater from the Westiands would be collected in a closed regional collection system and then used to irrigate salt tolerant crops. After reuse, drainwater from the Westiands would be sent to a selenium treatment facility, where it would be put into aerated lagoons and treated for “biological removal of selenium.” The treated drainwater then would be conveyed to two regional evaporation ponds, where the water would be evaporated off and any salt precipitates would “require periodic excavation and burial of accumulated salts.”
The Ocean Disposal Alternative and the two Delta Disposal Alternatives differed from the In-Valley Alternative in that drain-water from both the Westiands and the Northerly Area would be collected and reused to irrigate salt tolerant crops, but would then be transported by pipeline to either the ocean or the Saeramento-San Joaquin River Delta for disposal. In addition, the Bureau of Reclamation indicated it was required by statute 17 to evaluate a No Action Alternative, which examined what conditions would exist if no additional drainage service were provided to the San Luis Unit between 2001 and 2050.
Based on these findings, the 2002 ReEvaluation Plan Formulation Report stated that the Bureau of Reclamation had identified the In-Valley Alternative as the “Proposed Action” for providing drainage services because it “has the lowest cost, the shortest time to implement, greatest flexibility to adjust to new technology or changing conditions, and fewest potential impacts to aquatic resources.” The 2002 Re-Evaluation Plan Formulation Report indicated that the next steps were for the Bureau of Reclamation to publish an Environmental Impact Statement to evaluate the environmental effects of various alternatives for providing drainage service. The Bureau of Reclamation planned to release a Draft Environmental Impact Statement by June 2005 and a Final Environmental Impact Statement by June 2006, but also intended to begin work on acquiring the necessary permits for the In-Valley Alternative in January 2003 “due to the long lead time required for permitting such a complex project and the need to provide prompt drainage service.”
In July, 2004, however, the Bureau of Reclamation changed course and, rather than moving forward with the environmental analysis of the five action alternatives described in the 2002 Re-Evaluation Plan Formulation Report, issued an Addendum to the 2002 ReEvaluation Plan Formulation Report (the 2004 Addendum). The 2004 Addendum explained that, in May 2003, stakeholders in the region, including several water districts, put forth the Westside Regional Drainage Plan. The Westside Regional Drainage plan called for implementation of a mix of water man *460 agement methods, including land retirement 18 of up to 200,000 acres. The 2004 Addendum stated that, based on this input from local organizations and stakeholders, the Bureau of Reclamation had decided to “expand[] the scope of the San Luis Drainage Feature Re-evaluation ... to include land retirement among the alternatives for providing drainage service.” The 2004 Addendum indicated that the Bureau of Reclamation had submitted to the Firebaugh/Sumner Peck court an “Amended Plan of Action for Drainage to the San Luis Unit,” which stated that the Bureau of Reclamation would “continue to refine and evaluate all five alternatives described in the PFR [2002 Re-Evaluation Plan Formulation Report] for inclusion in the EIS [Environmental Impact Statement],” but that the Bureau of Reclamation would also “formulate alternative(s) that use land retirement as a method to control drainage.... ” Although the original 2002 Re-Evaluation Plan Formulation Report had stated as one of its “Major Findings” supporting its evaluation of various action alternatives that, “[f]or land retirement scenarios, it appears that the expected costs of purchasing and retiring lands is greater than the cost of providing drainage service to these lands,” the 2004 Addendum reversed that basic assumption and made land retirement a major component of the Bureau of Reclamation’s approach to managing drainage in the San Luis Unit.
According to the 2004 Addendum, the Bureau of Reclamation had developed and selected three land retirement alternatives for evaluation in the Environmental Impact Statement. Under each of the three land retirement alternatives, designated amounts of land, ranging from 92,600 acres to 308,000 acres, would be retired or taken out of agricultural production. For the land remaining in agricultural production, drainwater would be collected, treated, and disposed of in the same manner provided for under the In-Valley Alternative described in the original 2002 Re-Evaluation Plan Formulation Report, using a drainwater collection system, regional drainwater reuse facilities, selenium treatment, reverse osmosis treatment for the Northerly Area, and evaporation ponds for salts disposal. Because all three land retirement alternatives built upon the In-Valley Alternative, all three were labeled “In-Valley/Land Retirement” alternatives. The In-Valley/Groundwater Quality Land Retirement Alternative called for retiring all lands in the Westlands with a selenium concentration above a certain measurement, which totaled 92,600 acres, while remaining drainage-impaired lands would be provided with drainage service. The In-Valley/Water Needs Land Retirement Alternative “would retire enough lands to balance internal water use needs of the San Luis Unit (194,000 acres),” while remaining drainage-impaired lands would be provided with drainage service. The In-Valley/Drainage-Impaired Area Land Retirement Alternative called for retiring all drainage-impaired lands in the West-lands, which totaled 308,000 acres. Under the In-Valley/Drainage-Impaired Area Land Retirement Alternative, “[w]ater made available from this alternative would exceed the agricultural water demand by the remaining lands within the Unit, and would be available for reallocation to other purposes.” The three In-Valley/Land Retirement Alternatives addressed in the 2004 Addendum were added to the five alternatives identified in the original 2002 Re-Evaluation Plan Formulation Report, the In-Valley Disposal Alternative, Ocean Disposal Alternative, two Delta Disposal Alternatives, and No Action Alternative, none of which involved a land retirement component, for evaluation of environmental impact in the Bureau of Reclamation’s Environmental Impact Statement.
The Bureau of Reclamation’s Draft Environmental Impact Statement was issued in May 2005, and “provide[d] information on the environmental effects of seven action alternatives for providing drainage service to the San Luis Unit (the Unit),” as well as a No Action Alternative, “and provide[d] the public and interested agencies an opportunity for review and comment.” (brackets in original). The 2005 Draft Environmental Impact State *461 ment concluded that one of the three In-Valley/Land Retirement Alternatives, or some combination of in-valley disposal and land retirement, would be the Bureau of Reclamation’s Preferred Action Alternative because they were the most flexible alternatives and also had the greatest net economic benefit. The 2005 Draft Environmental Impact Statement indicated that the public would be given sixty days to review the report, after which time the Bureau of Reclamation would issue a Final Environmental Impact Statement. The 2005 Draft Environmental Impact Statement explained that the Bureau of Reclamation would identify a Preferred Alternative in the Final Environmental Impact Statement, however, a final decision regarding which alternative should be implemented would not be made until a Record of Decision was issued.
The Bureau of Reclamation did not issue the Final Environmental Impact Statement until May 2006, more than ten months after the sixty-day period previously announced by the Bureau in the 2005 Draft Environmental Impact Statement. The 2006 Final Environmental Impact Statement offered an explanation for two of the months of delay, indicating that the public comment period on the Draft Environmental Impact Statement had been extended from July 2005 to September 2005 because of the amount of public feedback. The 2006 Final Environmental Impact Statement stated: “The entire drainage study area (including the lands to the north and outside of the Unit, 40,400 acres) totals approximately 730,000 acres. Of these 730,000 acres, approximately 379,000 acres 19 would be drainage-impaired and constitute the drainage service area.” The 2006 Final Environmental Impact Statement described each of the action alternatives assessed, beginning with elements that were common to all evaluated alternatives. Under each alternative, the federal government would construct the following facilities, although their size and the volume of drainwater processed through them varied with each alternative: 1) a closed collection system to collect and convey drainwater from on-farm tile drains to regional reuse facilities, 2) Firebaugh Sumps, 20 which would collect water and be connected to a proposed Delta-Mendota Canal, a pipeline system that would convey water from the sumps to the Northerly Area reuse facility, and 3) sixteen regional reuse facilities, where water would be used to irrigate more salt-tolerant crops and then reused drainwater would be collected and conveyed either to a treatment facility or a disposal facility.
The 2006 Final Environmental Impact Statement indicated that the Bureau of Reclamation had selected the In-Valley/Drainage-Impaired Area Land Retirement Alternative as its Preferred Alternative for providing a drainage solution. As indicated above, the In-Valley/Drainage-Impaired Area Land Retirement Alternative called for retiring 308,000 acres, all of the drainage-impaired lands in the Westlands, *462 meaning “[d]rainage collection, treatment, and disposal facilities would not be needed in the Westlands drainage-impaired areas,” but only in drainage-impaired area in the Northerly Area. The 2006 Final Environmental Impact Statement indicated that, in addition to the common elements described above, the In-Valley/Drainage-Impaired Area Land Retirement Alternative would involve construction of one selenium treatment plant in the Northerly Area. Drain-water from the Northei’ly Area reuse facility would be conveyed to the selenium treatment plant, treated for selenium removal, and then waste water from the plant would be discharged to an evaporation basin also located in the Northerly Area. The 2006 Final Environmental Impact Statement estimated that the facilities for the In-Valley/Drainage-Impaired Area Land Retirement Alternative could be completed by 2009, and that the cost would be $857,500,000.00. According to the Bureau of Reclamation’s analysis, the In-Valley/Drainage-Impaired Area Land Retirement Altei’native was “the alternative with the greatest net benefit (benefits minus costs) to the United States as a whole.”
The 2006 Final Environmental Impact Statement also recognized the In-Valley/Water Needs Land Retii’ement Altexmative as “having distinct advantages.” The 2006 Final Environmental Impact Statement stated: “The In-Valley/Water Needs Land Retirement Alternative would retire lands such that the water needs of the lands remaining in production could be met by the Unit’s foreseeable water supply from its CVP contracts and groundwater resources,” estimated at 194,000 acres. Under the In-Valley/Water Needs Land Retirement Altexmative, the lands remaining in agricultural production would be divided up into four areas: the Northerly Area, the Westlands Noi’th area, the Westlands Central area, and the West-lands South area. Like all of the other action alternatives, the In-Valley/Water Needs Land Retirement Alternative would include a collection system, the Firebaugh Sumps/Delta-Mendota Canal feature, and sixteen regional reuse facilities, but in addition it would include four reverse osmosis treatment plants and four selenium treatment plants, one of each for each of the four drainage areas. Reused drainwater from the sixteen regional reuse facilities would be conveyed to the four reverse osmosis treatment plants, where the drainwater would be treated “to produce high-quality product water that could be blended with CVP water for irrigation.” The “concentrate stream” leftover after the reverse osmosis px-ocess would be conveyed to the four selenium treatment plants for selenium removal and then to evaporation basins in each of the four drainage areas for disposal. The 2006 Final Environmental Impact Statement estimated that the facilities for the In-Valley/Drainage-Impaired Area Land Retirement Alternative could be completed by 2010 and that the cost would be $773,100,000.00. The 2006 Final Environmental Impact Statement indicated that the Bureau of Reclamation would wait at least thirty days and then complete a Record of Decision, stating the action that would be implemented.
In March 2007, two years after the Bureau of Reclamation’s earlier proposed schedule, the Bureau of Reclamation issued a Record of Decision, indicating that the Bureau of Reclamation had chosen the In-Valley/Water Needs Land Retirement Alternative as the action alternative that would be implemented to meet defendant’s statutory duty to provide drainage to the San Luis Unit, despite the fact that the 2006 Final Environment Impact Statement had concluded that the In-Valley/Drainage-Impaired Land Retirement Alternative was the Preferred Alternative. 21 The 2007 Record of Decision explained that the In-Valley/Water Needs Land Retirement Alternative was selected over the In-Valley/Drainage-Impaired Land Retirement Alternative, despite the fact that the latter was the environmentally preferred plan in the 2006 Final Environmental Impact Statement, because: 1) the In-Valley/Water Needs Land Retirement Alternative would retain 100,000 more acres of land for continued agricultural *463 production which would retain more farm jobs in small Central Valley communities with high unemployment, 2) it was the closest alternative to the Westside Regional Drainage Plan put forth by local stakeholders and “more likely deemed to constitute ‘drainage service’ as required under the Court Order,” and 3) it would still retire enough land to balance water needs for lands remaining in agricultural production.
The 2007 Record of Decision stated that the selected alternative would meet the requirements in Judge Wagner’s decision in Firebaugh/Sumner Peck, and affirmed by the Ninth Circuit, but that “[¡Implementation of this Project would likely require new authorizing legislation to increase the appropriations ceiling for funding beyond what was authorized by the San Luis Act____” According to the 2007 Record of Decision, the Bureau of Reclamation was in the process of finalizing cost estimates to confirm whether new legislation would be required, and if new legislation was required, the Bureau of Reclamation indicated it would be required to develop a legislative proposal for Congress. According to the 2007 Record of Decision, construction of the necessary facilities would proceed in phases with initial construction beginning in the Northerly Area, while
[i]n Westlands, the land retirement component will be implemented and initial construction efforts will focus on the collection and reuse components. While proceeding simultaneously with the Northerly Area, implementation of the Westlands components will take longer because no significant drainage system currently exists in Westlands and the drainage system will extend over a large area.
The 2007 Record of Decision did not include a schedule for implementing the chosen drainage alternative, but instead simply indicated that the Bureau of Reclamation was in the process of finalizing cost proposals and that implementation would likely require appropriation of additional funds by Congress and apportionment of such funds by the Office of Management and Budget.
The existing contract for water delivery 'between the United States and Westlands expired in 2007, and, therefore, in December 2007, the two parties signed a new Interim Contract (the 2007 Interim Contract). The 2007 Interim Contract provided that the United States would continue to deliver water to Westlands until 2010, at which point the contract could be renewed at the request of Westlands. The 2007 Interim Contract reiterated that the United States “intends, to the extent appropriated funds are available, to develop and implement effective solutions to drainage problems in the San Luis Unit,” and that “such drainage solutions may involve actions not originally contemplated and/or the construction or use of facilities, other than the San Luis Drain.”
Once the Bureau of Reclamation issued its 2007 Record of Decision identifying the In-Valley/Water Needs Land Retirement Alternative as the action alternative to be implemented, a new feasibility study on the San Luis Drainage Feature was required in order to “determine if the proposed action is feasible and warrants Federal implementation.” The Bureau of Reclamation issued a new Feasibility Report titled, “The San Luis Drainage Feature Re-Evaluation,” in March 2008 (the 2008 Feasibility Report), and transmitted the 2008 Feasibility Report to Congress on July 8, 2008. The 2008 Feasibility Report “re-examine[d] the Federal interest” in implementing a drainage solution in the San Luis Unit, and estimated the costs of doing so. The 2008 Feasibility Report stated that about 379,000 out of 730,000 acres in the western San Joaquin Valley were “drainage-impaired,” but that the Bureau of Reclamation projected installation of sub-surface drainage systems in two-thirds of the area within a fifty-year period would maintain all 379,000 acres as arable farmlands. The 2008 Feasibility Report evaluated both the In-Valley/Drainage-Impaired Land Retirement Alternative, identified as the environmentally preferred action alternative in the 2006 Final Environmental Impact Statement, and the In-Valley/Water Needs Land Retirement Alternative, the alternative selected in the 2007 Record of Decision.
The 2008 Feasibility Report explained that “Federal interest is established either by legislation or through an evaluation of a proposed action relative to the agency’s mission” *464 and that, to be federally implementable, an action “must be feasible as defined by the Economic and Environmental Principles and Guidelines (Principles and Guidelines). The Principles and Guidelines require Federal actions contribute to the national economic development (NED).” The 2008 Feasibility Report continued:
The San Luis Act of 1960 as amended establishes the Reclamation’s Federal interest in the proposed action. This interest was reaffirmed by the Federal District Court Order dated November 29, 2000. However, the requirement for a net positive contribution to the Nation’s economy cannot be met by either of the two action alternatives.
The 2008 Feasibility Report concluded that although the Bureau of Reclamation’s proposal was mandated by statute and court order, the action alternative selected by the Bureau was not appropriate for implementation according to the government’s own accepted standards. The 2008 Feasibility Report also recommended the adoption of legislation in order to implement the action alternative selected by the Bureau of Reclamation.
The 2008 Feasibility Report addressed the costs and time-frame for implementing both the In-Valley/Drainage-Impaired Land Retirement Alternative and the In-Valley/Water Needs Land Retirement Alternative, respectively. According to the 2008 Feasibility Report, the San Luis Unit had been authorized with two appropriation ceilings which, combined, totaled $428,674,777.00. 22 The estimated cost of the In-Valley/Drainage-Impaired Land Retirement Alternative in 2008 was estimated at $2.24 billion, while the estimated cost of the In-Valley/Water Needs Land Retirement Alternative in 2008 was estimated at $2.69 billion, meaning that either alternative would significantly exceed the cost ceiling. The Bureau of Reclamation predicted that it would take approximately six years to complete construction of the first phase of the In-Valley/Drainage-Impaired Land Retirement Alternative in the Northerly Area and that, after a five-year monitoring period, a second construction phase would be initiated. The In-Valley/Water Needs Land Retirement Alternative would take approximately ten years to construct because it involved facilities in both the Northerly Area and Westlands and that, after a one-year monitoring period, 23 a second phase of facilities could be implemented.
The 2008 Feasibility Report further described why the Bureau of Reclamation had determined that neither the In-Valley/Drainage-Impaired Land Retirement Alternative nor the In-Valley/Water Needs Land Retirement Alternative were feasible, first defining feasibility as follows:
Project feasibility consists of four parts— technical, environmental, economic, and financial. Technical feasibility consists of engineering, operations, and constructability analyses verifying that the project can be constructed, operated, and maintained. Environmental feasibility consists of analyses verifying that constructing or operating the project will not result in unacceptable environmental consequences to endangered species, cultural, Indian trust, or other resources. Economic feasibility consists of analyses verifying that constructing the project is an economically sound investment of capital (i.e., that the project would result in positive net benefits or the project’s benefits would exceed the costs). Financial feasibility consists of (1) an allocation of costs to project purposes, (2) determination of reimbursable and non-reimbursable costs, (3) commitment on the part of project beneficiaries to pay the reimbursable costs, and (4) a determination of project beneficiaries’ ability to pay their allocated costs, including capital costs and long-term op *465 eration, maintenance, and replacement costs.
The 2008 Feasibility Report indicated that both the In-Valley/Drainage-Impaired Land Retirement Alternative and the In-Valley/Water Needs Land Retirement Alternative were considered “technically feasible, constructible, and can be operated and maintained,” and also considered environmentally feasible. The 2008 Feasibility Report, however stated, “[njeither action alternative is economically feasible,” “and do not justify warrant [sic] the expenditure of Federal funds.” The Bureau of Reclamation acknowledged that the No Action Alternative failed to comply with the Firebaugh/Sumner Peck court’s Order.
The 2008 Feasibility Report recommended implementing the In-Valley/Water Needs Land Retirement Alternative, the same alternative selected in the 2007 Record of Decision, despite 2008 Feasibility Report’s conclusion of lack of economic and financial feasibility. The 2008 Feasibility Report detailed the steps “it would require to” implement the In-Valley/Water Needs Land Retirement Alternative, including: 1) amend the 1960 San Luis Act to designate the In-Valley/Water Needs Land Retirement Alternative as a distribution systems and drains component of the San Luis Unit and increase the construction cost ceiling for the distribution systems and drains by $2.69 billion, 2) provide relief from the Reclamation Extension Act of 1914, (the Act of Aug. 13, 1914, 38 Stat. 686 ) which requires full payment of the operation and maintenance costs for water delivery and authorize federal appropriations to cover the portion of operation and maintenance costs related to implementation of the In-Valley/Water Needs Land Retirement Alternative that affected water districts would be unable to pay, 3) authorize the Secretary of Interior to defer, without interest, payments of capital and operation and management costs associated with implementation of the In-Valley/Water Needs Land Retirement Alternative until the Secretary determines that repayment is not unduly burdensome for water users, and 4) direct the Secretary of Interior to keep separate accounts of the capital, operation and management costs associated with implementation of the In-Valley/Water Needs Land Retirement Alternative, versus capital and operation and management costs incurred to construct and operate and implement the In Valley/Water Needs Land Retirement Alternative and the pre-existing Central Valley Project facilities. The 2008 Feasibility Report indicated that the action alternative selected by the Bureau of Reclamation, after a six-year evaluation process, was extremely problematic because it was too expensive for the water districts to afford to repay the federal government, as required by the San Luis Act, and the Bureau itself found that it did not “justify warrant [sic] the expenditure of Federal funds.”
Developments From 2009 and 2012
On July 22, 2009, Judge Wanger issued a Scheduling Conference Order in the Firebaugh/Sumner Peck case, and indicated his frustration at the slow pace of the federal defendants’ implementation of drainage services. The Order indicated that the federal defendants had reported at a recent status conference that the changeover in administrations meant that a new Secretary of Interior and other relevant appointees had recently taken office, and that federal defendants were unprepared to provide a current report on implementation of drainage service to the San Luis Unit. The court ordered the federal defendants to provide within ninety days, “a report to the Court identifying what specific actions will be taken to provide drainage to the San Luis Unit and a specific time table to implement drainage.” Judge Wanger’s Order stated: “The parties have been provided notice that no further delay shall be permitted in this case and that in the event the Federal Defendants continue to fail and refuse to provide the drainage long ago ordered by the Courts, this case shall proceed to an enforcement of judgment stage.”
The federal defendants’ timely filed, required report stated that defendants “have identified specific actions for providing drainage service within the San Luis Unit that can be implemented during federal fiscal year *466 2010,” and which “ean be funded, in whole or in part, by Reclamation.” Those measures included “a project to treat contaminated groundwater within Westlands,” and a suite of water conservation projects designed to reduce and manage drainage source water, which together were estimated to cost $7.2 million. In addition, the Bureau of Reclamation reported that it was continuing efforts to provide drainage service to the Northerly Area and had allocated $6.4 million to fund projects in that area. The federal defendants’ report said, however, that the federal defendants’ proposals for implementation of drainage services after 2010 would require appropriations from Congress. The report indicated that Congress had so far “not acted on the Feasibility Report recommendations, and it is unclear when congressional action on the Feasibility Report is likely.” The federal defendants stated that the Bureau of Reclamation would “seek appropriations in future years through the annual federal budget process,” and proposed to keep the court informed about their progress through periodic status reports. The federal defendants’ report to Judge Wanger also indicated that negotiations between the various interested parties to find an alternative solution to the drainage problems had failed. The federal defendants’ report indicated that officials at DOI had drafted legislation and were “actively engaged in evaluating the draft legislation and expect to continue discussions with the affected parties this fall, with a goal of finalizing the elements of a proposal that the Administration can support by the end of this calendar year.”
Between November 2009 and April 2012, the Firebaugh!Sumner Peck parties submitted status reports to the court every six months, detailing what steps were being taken toward resolution of the drainage issue. In the parties’ November 18, 2009 status report, the federal defendants indicated that the Bureau of Reclamation would “commence implementation of Reclamation’s Record of Decision” by taking steps to provide drainage service to one sub-unit of the Westlands, the northern sub-unit. The federal defendants stated in them November 18, 2009 status report status report that the Bureau of Reclamation could construct “fully functional, self-sustaining drainage service facilities within existing appropriations ceilings” for the northern sub-unit of the Westlands. An attached Control Schedule indicated that those facilities could be completed by 2018. Although the defendant’s portion of the November 18, 2009 status report status report indicated it would develop a legislative proposal on a long-term drainage strategy and seek additional appropriations, the status report did not mention what would be done to implement drainage service in the rest of the Westlands or San Luis Unit service area. Because the Westlands would be required to repay the federal government for construction and operation and maintenance of any drainage facilities, the status report indicated that the Bureau of Reclamation would initiate negotiations of a repayment contract with Westlands. In addition to those actions, the federal defendants stated that they would finalize a legislative proposal on a long-term drainage solution by the end of 2009.
The Westlands and the United States renewed their contract for water services on February 26, 2010. The 2010 Interim Renewal Contract stated that the parties “have made significant progress in them negotiations of a long-term renewal contract ... and mutually commit to continue to negotiate to seek to reach agreement, but anticipate that the environmental documentation necessary for execution of any long-term renewal contract will be delayed until March 2011.” Therefore, the 2010 Interim Renewal Contract would be effective through February 29, 2012, and could be renewed if a long-term renewal contract was not executed before that date.
On April 1, 2010, the federal defendants in the Firebaugh/Sumner Peck litigation filed another status report with the court. The federal defendants stated that steps toward construction of drainage facilities in the northern sub-unit of the Westlands were being taken, including efforts to secure appropriations from Congress, commencement of site-specific and regulatory activities needed to begin construction, and negotiations of a repayment contract with Westlands. The April 1, 2010 status report also indicated that the Bureau of Reclamation had finalized a *467 legislative proposal on a long-term drainage strategy that it would discuss with local authorities, and then transmit to Congress.
On September 1, 2010, the Bureau of Reclamation transmitted its finalized legislative proposal to Congress via a letter from the Bureau of Reclamation’s Commissioner, Michael L. Connor to Senator Dianne Feinstein (the 2010 Connor Letter). The 2010 Connor Letter provided a brief summary of the history of attempts to implement drainage services for the San Luis Unit, and indicated that “the Department remains committed to working with you in the advancement of a long term solution to drainage in the unit and water supplies in California.” The 2010 Con-nor Letter also stated that the Bureau of Reclamation had indicated to the Firebaugh/Sumner Peck court that although the Bureau of Reclamation would be able to construct drainage facilities in the northern subunit of the Westlands, beyond that sub-unit, the Bureau of Reclamation would need “additional Congressional authorization.” 24
The 2010 Connor Letter indicated that, in 2007 and 2008, the affected parties had worked on a legislative proposal, but that they were unable to come up with a consensus draft bill and that “there appears to be no consensus among the groups as to the appropriate path forward.” Therefore, in the 2010 Connor Letter the Bureau of Reclamation offered its own long-term legislative strategy. The 2010 Connor Letter indicated that an approach was necessary that would promote continued sustainable agricultural activity, improve environmental quality, and increase the reliability of water supply to the Central Valley of California “by providing for locally-controlled, timely, and effective irrigation drainage management in the Unit____” The Bureau of Reclamation then stated: ‘We believe that the best way to accomplish those goals is to transfer responsibility for irrigation drainage to local control, subject to state and local regulation, and to provide corresponding adjustments in financial obligations or otherwise provide financial incentives to the districts.”
The 2010 Connor Letter went on to lay out thirteen “key elements of a long-term legislative drainage strategy ... that the Administration would support in legislation,” which summarized, and included among others the following: 1) “Transfer irrigation drainage responsibility to local control: Drainage service should be the responsibility of the individual Unit contractor pursuant to a drainage management plan that complies with applicable state and federal standards.” (emphasis in original). Other key elements mentioned in the 2010 Connor Letter included, but were not limited to: 2) requiring water districts to prepare a comprehensive drainage management plan, 3) directing the Bureau of Reclamation to stop delivery of Central Valley Project water to the water districts unless they met certain performance goals, 4) requiring Westlands to permanently retire a minimum of 200,000 acres of the most drainage impaired lands as part of the required drainage management plan, 5) decreasing the amount of Central Valley Project water delivered to the Westlands after the 200,000 acres had been retired, 6) reducing, relieving or reforming some of the water districts’ remaining payment and repayment obligations to the federal government for existing Central Valley Project facilities in light of the districts assuming upfront responsibility for drainage management, 7) recognizing the potential changes to water supply reliability and environmental requirements that may result from the Bay Delta Conservation Plan, 8) passing legislation which makes clear that there is no liability for the United States if the full amount of contracted water cannot be made available, 9) ending the ongoing litigation between the water districts, residents, and the federal government with the legislation that “must require that the Unit contractors and exchange contractors waive any past, current, or future drainage claims against the U.S.,” and 10) possibly transferring title of federally owned water facilities to the water districts. The 2010 Connor Letter indicated that, while *468 affected stakeholders continued to meet to discuss a long-term legislative strategy, “[t]here continues to be no consensus among the groups as to the appropriate path forward.” The Bureau of Reclamation felt, however, that the long-term strategy outlined in the 2010 Connor Letter “represents] a reasonable approach for providing long-term drainage service to the CVP [Central Valley Project] Unit....”
In their October 1, 2010 and April 1, 2011 status reports to the court, the Firebaugh/Suvmer Peck federal defendants indicated that they were complying with the Control Schedule, submitted to the court in November 2009, for building drainage facilities in the northern sub-unit of the West-lands.
On April 7, 2011, Westlands’ General Manager, Thomas Birmingham sent Senator Feinstein a letter responding to those issues and to the Department of Interior’s 2010 Connor Letter (the 2011 Birmingham Letter). The 2011 Birmingham Letter began by stating that the “Westlands Water District does not support and would vigorously oppose legislation along the lines described by Commissioner Connor.” After a brief history of the controversy and litigation surrounding the San Luis Drain, the 2011 Birmingham Letter continued, “[p]rior to adoption of the Record of Decision, Reclamation approached Westlands about the potential of finding alternative means of addressing the San Luis Unit drainage issue because it had become apparent to Reclamation that it would cost in excess of $2.6 billion to implement the alternative that it was likely to adopt.” The 2011 Birmingham Letter indicated that Westlands and the other water districts agreed to engage in a collaborative process with the Bureau of Reclamation to develop a proposal for contractor managed drainage service, and not the federal government. According to the 2011 Birmingham Letter, a proposal was negotiated, which, dependent on certain conditions, called for each San Luis contractor to assume the obligation for drainage service in its service area, and to relieve DOI from any further obligation to provide drainage service. When this proposal was made public, however, according to the 2011 Birmingham Letter, “the reaction from other agencies and nongovernmental organizations was swift and negative.” The 2011 Birmingham Letter detailed the discussions between the Bureau of Reclamation and the water districts and listed the concessions that Westlands had made in those negotiations in an effort to be “flexible.” The 2011 Birmingham Letter indicated, however, “if there was consensus on anything, it was that not everyone involved in your process would agree on the content of the draft legislation.”
The 2011 Birmingham Letter went on to state that Westlands was firmly opposed to the elements of the legislative strategy put forth in the 2010 Connor Letter not in the Joint Proposal, including those that called for Westlands to retire at least 200,000 acres of land and the repayment method put forth in the 2010 Connor Letter, because, under that method, “Westlands would be required to spend in excess of $800,000,000.00, with the potential that at the end of the repayment period of its debt, its water supply could be terminated.” As stated in the 2011 Birmingham Letter regarding the latter, “[n]o reasonable person would accept this potential.” The 2011 Birmingham Letter summed up the 2010 Connor Letter as follows:
Westlands has a judgment against the Secretary [of the Interior] ordering him to provide drainage. The government estimates that it will cost $2.6 billion to comply with that order. But as an alternative, Reclamation proposes: (1) that the obligation to provide drainage be transferred to Westlands; (2) that if Westlands does not perform this obligation (something Reclamation has been unable to do for 40 years) its water supply will be reduced; (3) that Westlands must retire 200,000 acres of land at its expense; and (4) that for the privilege of undertaking these obligations and risks, Westlands will give up 400,000 acre-feet of contract supply.
The 2011 Birmingham Letter concluded that the proposal put forth in the 2010 Connor Letter was “unacceptable,” but stated that Westlands was “committed to finding a viable solution that serves the interests of all interested parties.” There is no evidence in the *469 record before this court, the Bureau of Reclamation responded to the 2011 Birmingham Letter.
In June 2011, Westlands filed a motion in the Fir ebaugh!Sumner Peck case seeking the court’s permission to allow the federal defendants to change the Control Schedule regarding construction of drainage facilities in the northern sub-unit of the Westlands. The motion stated that, “for reasons of practicality, efficacy and cost Westlands desires to have construction of drainage facilities begin in the central subunit rather than its northern sub-unit as described in the Control Schedule.” The United States District Court for the Eastern District of California granted Westlands’ motion in July of 2011, giving the federal defendants one hundred and twenty days to evaluate the feasibility of beginning construction in the central sub-unit, rather than the northern sub-unit, and instructing the federal defendants to promptly report any changes to the Control Schedule to the court.
On September 30, 2011, 25 Judge Wanger issued a Memorandum Decision (2011 Memorandum Decision) regarding the parties’ cross-motions for summary judgment in the Firebaugh/Sumner Peck case. Plaintiffs’ motion sought judgment that: 1) the United States had unlawfully withheld drainage service for the San Luis Unit, 2) the United States’ duty to provide drainage service extended to plaintiffs’ land that was outside of, but contiguous to, the San Luis Unit, 3) the United States’ failure to construct drainage facilities constituted agency action unlawfully withheld under APA § 706(1), and 4) the United States had acted arbitrarily and capriciously in refusing to construct adequate drainage facilities in violation of APA § 706(2). The federal defendants’ cross-motion for summary judgment sought judgment that 1) the federal defendants had no duty to provide drainage service outside of the San Luis Unit, 2) the United States was complying with its duty to provide drainage under the San Luis Act, and 3) the drainage plan put in place by the Bureau of Reclamation’s 2007 Record of Decision was not arbitrary or capricious. The court found in the 2011 Memorandum Decision that, although the federal defendants had a statutory duty to provide drainage within the San Luis Unit, the San Luis Act, as amended by later appropriations riders, did not “impose[ ] a mandatory duty to provide drainage to areas outside the San Luis Unit or to remediate adverse effects outside of the Unit’s boundaries caused by operation of the Unit.” The court, therefore, partially granted defendant’s motion for summary judgment. The court also granted defendant’s motion for summary judgment on plaintiffs’ APA § 706(2) claim, holding that the Secretary of Interior’s interpretation of the San Luis Act was reasonable. Regarding plaintiffs’ claim of unreasonable delay under APA § 706(1), 5 U.S.C. § 706 (1) (2006), the court noted that a failure to act claim “can succeed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is legally required to take.” Judge Wanger stated that, in their most recent status report, federal defendants had reported taking numerous steps towards implementing the 2007 Record of Decision. Judge Wanger found that
[t]he Department issued its ROD [Record of Decision] in 2007, its Feasibility Report in 2008, and its Control Schedule for implementing the drainage solutions identified in 2009; that a drainage system was not yet in place at the time Plaintiffs’ [sic] filed their motion for summary judgment in October 2010 does not, under the totality of circumstances, constitute unreasonable delay in the context of this case. It is undisputed that the Department [of the Interi- or] is complying with the Control Schedule, more than ten years after final judgment was entered in the Court of Appeal and fourteen years after final judgment in the trial court.
Therefore, Judge Wanger held that the plaintiffs were not entitled to summary judgment on their § 706(1) claim. The plaintiffs *470 appealed Judge Wanger’s decision to the Ninth Circuit Court of Appeals.
The federal defendants submitted another status report to the District Court for the Eastern District of California in October 2011. The October 1, 2011 status report indicated that, based on Westlands’ request, and with the court’s permission, the Bureau of Reclamation had begun evaluating the feasibility of constructing drainage facilities in the central sub-unit of the Westlands, rather than the northern sub-unit. The Bureau of Reclamation was in the process of preparing cost estimates and evaluating funding, and stated that it would report back to the court in November 2011, with a revised Control Schedule, if appropriate. In addition, the October 1,2011 status report stated that, in order to stay on track with the Control Schedule, the Bureau of Reclamation also was moving forward with the actions in the northern sub-unit should the parties decide to move forward with construction as originally planned, rather than in the central subunit.
In the fall of 2011, Judge Wanger retired and the Firebaugh/Sumner Peck litigation was transferred to Judge Lawrence O’Neill, also in the District Court for the Eastern District of California. The federal defendants submitted a supplemental status report to the District Court in November 2011, regarding the feasibility of building drainage facilities in the central sub-unit of the West-lands. The November 2011 supplemental status report referred to an attached declaration, not provided to this court, which apparently described “a proposed phased approach to the provision of drainage service in the central sub-unit of Westlands” and included a revised Control Schedule for construction of the proposed drainage facilities. The federal defendants reported that Phase 1 of the proposed facilities would provide drainage service to approximately 24,000 acres of land in the central sub-unit of Westlands. The Bureau of Reclamation had determined that the proposed approach for constructing drainage facilities in the central, rather than the northern sub-unit as previously planned, was feasible and, thus, the Bureau of Reclamation supported moving forward with Phase 1 construction in the central sub-unit.
On March 19, 2012, Judge O’Neill issued Final Judgment on the claims alleged in the plaintiffs’ fifth amended complaint which, as indicated above were: 1) continuing negligence, 2) continuing nuisance as to the water districts and as to the federal defendants, 3) continuing trespass, 4) inverse condemnation, 5) a violation of the APA by the federal defendants, and 6) declaratory relief that the water districts also violated the APA. Judge O’Neill issued judgment in favor of the federal defendants and the water districts on claims one, two, three, five, and six, and indicated that claim four already had been transferred to the United States Court of Federal Claims and the inverse condemnation claim was dismissed by the court dismissed for lack of subject matter jurisdiction under 28 U.S.C. § 1500 on March 29, 2006. Judge O’Neill’s Final Judgment did not alter Judge Wanger’s 1995 Partial Judgment, as amended in 2000, on the first phase of claims, concerning the federal defendants’ unexeused, statutory duty to provide drainage service to the San Luis Unit. The Order issued by Judge Wanger which provided that the federal defendants “shall, without delay, provide drainage to the San Luis Unit pursuant to the statutory duty imposed by section 1(a) of the San Luis Act,” therefore, remained in ' place. The California District Court maintained jurisdiction over the ease to enforce Judge Wanger’s 2000 Partial Judgment.
The federal defendants’ April 1, 2012 status report to Judge O’Neill indicated that “Reclamation is now proceeding in accordance with a Revised Control Schedule____” The April 1, 2012 status report stated that, in order to collect data needed for final designs for Phase 1 of the construction of drainage facilities for the central sub-unit, the Bureau of Reclamation needed to “perform extensive field investigations.” Those investigations were scheduled to take place during Fiscal Year 2013. The Bureau of Reclamation also decided to go ahead with construction of a treatment plant in the northern sub-unit of the Westlands, and the April 2012 status report indicated that the Bureau of Reclamation was moving forward on that project and *471 anticipated awarding a construction contract in the fourth quarter of Fiscal Year 2012.
The Firebaugh plaintiffs also had appealed Judge Wanger’s 2011 Memorandum Decision denying the plaintiffs’ motion for summary judgment on its APA and Judge Wanger’s earlier dismissal of the Federal Tort Claims Act (FTCA) claims to the Ninth Circuit. 26 The Ninth Circuit issued an opinion on April 5, 2013 affirming Judge Wanger’s ruling. The Ninth Circuit stressed that, under APA § 706(1), a claim “ ‘can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.”’ Firebaugh Canal Water Dist. v. United States, 712 F.3d at 1301 (quoting Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 , 124 S.Ct. 2373 , 159 L.Ed.2d 137 (2004) (emphasis in original)). The Ninth Circuit explained that “required to take” means that the agency must be “compelled by law” to act, and that, even if an agency is “compelled by law to act within a certa

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7218493. Public record. Not legal advice.