Argued and Submitted February 11, 2003 — San Francisco, California.
THOMAS, Circuit Judge.
This appeal presents the question of whether an action under the National Environmental Protection Act (NEPA), 42 U.S.C. § 4321 et seq., against various federal and state government defendants
At issue in this case is the CALFED Bay-Delta program (CALFED program), a cooperative interagency effort of eighteen State and Federal agencies with management or regulatory responsibilities for California's San Francisco Bay/ Sacramento-San Joaquin Delta (Bay-Delta). The Bay-Delta estuary is the largest estuary on the West Coast, including over 738,000 acres in five counties and supplying drinking water for two-thirds of Californians and irrigation water for over seven million acres of highly productive agricultural land. The CALFED program describes itself as "the largest, most complex water management program in the world," engaged in "the most complex and extensive ecosystem restoration project ever proposed."
CALFED was formed in summer 1994 when the federal and state governments executed a "Framework Agreement" to establish "a comprehensive program for coordination and communication" in order to advance environmental protection and water supply dependability in the Bay-Delta estuary. In late 1995 and early 1996, the governmental entities executed a "Memorandum of Understanding For Preparation of Environmental Impact Statement/Report" (MOU), in order to "coordinate preparation of a single environmental document that satisfies both NEPA and CEQA."
Pursuant to this agreement, in July 2000, CALFED issued a programmatic environmental impact statement/ environmental impact report (EIS/EIR). The EIS/EIR identified a Preferred Program Alternative which, among other actions, would "convert agricultural lands to other uses, including habitat, levee improvements, and water storage." In August 2000, CALFED certified the EIS/EIR in a Record of Decision (ROD). The ROD stated that it "represents the culmination of the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA) processes," and "reflects a final selection of a long-term plan (Preferred Program Alternative) which includes specific actions, to fix the Bay-Delta, describes a strategy for implementing the plan, and identifies complementary actions the CALFED agencies will also pursue." Attached to the ROD were two agreements entered into by the state and federal governments: the "Implementation Memorandum of Understanding" (IMEU) and the "Environmental Water Account Operating Principles Agreement" (EWA). The EWA is described as "a cooperative management program whose purpose is to provide protection to the fish of the Bay-Delta estuary through environmentally beneficial changes in the operations of the
Plaintiffs are individual farmers Don Laub, Debbie Jacobsen, and Ted Sheely, and the California Farm Bureau Federation. In response to the issuance of the CALFED EIS/EIR and ROD, Plaintiffs filed suit in federal district court for the Eastern District of California, alleging that the Defendants failed to follow procedures mandated by NEPA and CEQA when promulgating the CALFED EIS/EIR and ROD. Specifically, Plaintiffs' theory is that Defendants failed to consider any reasonable alternatives to the proposed conversion of agricultural resources to environmental uses, that they failed to consider the direct, indirect and cumulative impacts of projects that will cause significant effects on agricultural resources, and that their analysis of mitigation options is inadequate.
On August 27, 2001, the district court dismissed the CEQA claims against the State Defendants with prejudice based on application of the Eleventh Amendment, a decision that Plaintiffs have not appealed. However, the district court retained jurisdiction over the NEPA claims against the Federal Defendants and invoked the Ex Parte Young doctrine to retain jurisdiction over the individual State Defendants.
On August 29, 2001, the district court granted the Federal Defendants Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction without prejudice, holding that the issuance of EIS/EIR was not a final agency action ripe for review. The court further determined that challenged state site-specific acquisitions of land and water were not federalized under NEPA; thus, the court had no jurisdiction over the State Defendants. The court also denied Plaintiffs' request for discovery and briefing on the question of the federal government's level of involvement in the state land and water acquisitions. However, the district court dismissed Plaintiffs' complaint with leave to amend.
Plaintiffs then moved for reconsideration of the dismissal. In the alternative, Plaintiffs requested that the district court dismiss the entire action without prejudice in order to permit appeal because WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136-37 (9th Cir.1997) (en banc) holds that dismissal of a complaint with leave to amend was not an appealable final judgment. On December 11, 2001, the district court denied Plaintiffs' motion for reconsideration and granted their request to dismiss the entire action without prejudice and without leave to amend. This timely appeal followed.
Ripeness is a question of law we review de novo. Daniel v. County of Santa Barbara, 288 F.3d 375, 380(9th Cir. 2002). We review dismissal for lack of subject matter jurisdiction de novo. McGraw v. United States, 281 F.3d 997, 1001 (9th Cir.2002), amended by 298 F.3d 754 (9th Cir.2002). We review a district court's rulings concerning discovery for an abuse of discretion. Panatronic USA v. AT&T Corp., 287 F.3d 840, 846 (9th Cir. 2002).
The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 & 1361.
The Federal Defendants have raised Plaintiffs' alleged lack of constitutional standing for the first time on appeal. In fact, they explicitly declined to raise the issue of standing below, stating in their reply brief that "the Federal Defendants have not argued that the plaintiffs lack standing." This turnabout is undoubtedly troubling to Plaintiffs, as it is to us. Nonetheless, "[a]s a jurisdictional issue, standing may be addressed for the first time on appeal." Arakaki v. Hawaii, 314 F.3d 1091, 1097 (9th Cir.2002) (citing Pritikin v. Dep't of Energy, 254 F.3d 791, 796 (9th Cir.2001)). Indeed, because it implicates jurisdiction, a challenge to constitutional standing is one "which we are required to consider, even though raised for the first time on appeal." Newdow v. U.S. Congress, 313 F.3d 500, 503 (9th Cir.2002) (citing United States v. Viltrakis, 108 F.3d 1159, 1160 (9th Cir.1997)).
The party invoking federal jurisdiction bears the burden of establishing the following elements: (1) that the plaintiff has suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical; (2) that there is a causal connection between the injury and the conduct complained of; and (3) that it is likely the injury can be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); see also Hall v. Norton, 266 F.3d 969, 975 (9th Cir.2001). When a party raises standing for the first time on appeal, we first examine the complaint and, if it fails to establish standing, the record. Animal Protection Inst. of Am. v. Hodel, 860 F.2d 920, 924 n. 6 (9th Cir. 1988). Here, the complaint alleges individualized injury to each of the plaintiffs, so we need not consider the record.
The complaint alleges plaintiffs Laub's and Jacobson's injury as follows:
It further alleges injury to plaintiff Sheely:
Finally, the complaint alleges the interest of the California Farm Bureau Federation (Farm Bureau) as follows:
The complaint also alleged that plaintiffs Laub, Jacobsen, and Sheely are members in good standing of the Farm Bureau.
The individual plaintiffs meet Lujan's standard for injury in fact since each has alleged an invasion of a legally protected particularized interest which "affect[s] the plaintiff[s] in a personal and individualized way"—the loss of affordable irrigation water for their agricultural lands. Lujan, 504 U.S. at 560 & n. 1, 112 S.Ct. 2130. Therefore, they have adequately alleged that they will be "directly affected apart from their `special interest' in the subject," as Lujan requires. See id. at 563, 112 S.Ct. 2130; See also Churchill County v. Babbitt, 150 F.3d 1072, 1079(9th Cir.1998), amended, 158 F.3d 491 (9th Cir.1998) (plaintiffs had concrete interest sufficient for standing when there was reasonable probability that transfer of water rights from surrounding areas would adversely affect their lands).
Although the Federal Defendants correctly note that Lujan explicitly rejects procedural injury alone as sufficient to establish injury in fact, see Lujan, 504 U.S. at 572-73, 112 S.Ct. 2130, Plaintiffs do not advance their procedural injury as the basis for injury in fact. Rather the injury alleged is the threatened harm to their farmlands. Thus, as Lujan requires, the parties seeking review are themselves among the injured. See id. at 563, 112 S.Ct. 2130. Because the individual plaintiffs have standing, we need not consider whether the Farm Bureau has standing. See Watt v. Energy Action Educ. Found., 454 U.S. 151, 160, 102 S.Ct. 205, 70 L.Ed.2d 309 (1981) (noting that because one plaintiff had standing to bring the suit, the court need not consider the standing of the other plaintiffs); see also Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264 & n. 9, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (same).
Further, when a plaintiff seeks to enforce a procedural requirement, "the disregard of which could impair a separate concrete interest of theirs, the plaintiff can establish standing without meeting all the normal standards for redressability and immediacy." Hall, 266 F.3d at 975(quoting Lujan, 504 U.S. at 572 & n. 7, 112 S.Ct. 2130). The Federal Defendants assert that Plaintiffs are unable to show they will likely suffer immediate injury or identify
Here, Plaintiffs have satisfied the relaxed causation and redressibility requirements for a procedural standing case. See Cantrell v. City of Long Beach, 241 F.3d 674, 682(9th Cir.2001) ("Once a plaintiff has established injury in fact under NEPA, the causation and redressability requirements are relaxed."). The plan selected by the challenged EIS/EIR would "convert agricultural lands to other uses, including habitat, levee improvements, and water storage," and would reallocate agricultural waters in some areas. Plaintiffs have alleged that this would adversely impact their ability to maintain current irrigation levels in their farmlands. Thus, Plaintiffs have adequately alleged that the proposed action will endanger their interests. See Churchill County, 150 F.3d at 1078 (to establish causation, a plaintiff need only show a "`reasonable probability' of the challenged action's threat to its concrete interest.'").
In order to establish redressability, plaintiffs asserting the inadequacy of an agency's EIS, as Plaintiffs do here, need not show that further analysis by the government would result in a different conclusion. See Hall v. Norton, 266 F.3d 969, 977 (9th Cir.2001). Rather, they need only show that the decision could be influenced by the environmental considerations that NEPA requires an agency to study. Id. NEPA's implementing regulations require an EIS to include the economic effects of a federal action, and its proximity to "prime farmlands." See 40 C.F.R. § 1508.8 ("effects" include economic effects); 40 C.F.R. § 1508.27(requiring consideration of "unique characteristics of geographic area such as proximity to ... prime farmlands."). Therefore, CALFED's decision to convert agricultural land and water to other uses could be influenced by an environmental analysis that properly considered the above effects.
Accordingly, we conclude that the Plaintiffs have adequately alleged an injury in fact sufficient to confer constitutional standing.
The district court erred in holding that Plaintiffs' NEPA claims were not ripe for review. NEPA claims are reviewed under the APA. Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 375-76, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). In addition to constitutional standing requirements, Plaintiffs must also meet the APA's standing requirements that there be (1) a final agency action; and (2) that the plaintiff suffers an injury that falls within the "zone of interests" of the violated statutory provision. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 882-83, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).
This case is akin to Idaho Conservation League v. Mumma, 956 F.2d 1508 (9th Cir.1992). In that case, environmental organizations brought a NEPA challenge to a forest service EIS recommending against wilderness designation in certain roadless areas. As do the Federal Defendants here, the Forest Service in Idaho Conservation League argued that the case was unripe for review because "actual, site-specific decisions regarding development are made at a later stage, and each decision must be accompanied by an EIS calibrated to the project's degree of specificity," and the "ultimate decision regarding wilderness designation lies in Congress' not the agency's, hands." Id. We rejected this argument, holding that the case was ripe because
Id. at 1520.
Here, as in Idaho Conservation League, the Preferred Program Alternative set out in the EIS will influence subsequent site-specific actions. The ROD explains the process as follows:
See also 40 C.F.R. § 1502.20(instructing agencies to tier their environmental impact statements and to "focus on actual issues ripe for discussion at each level," and noting that "[w]henever a broad environmental impact statement has been prepared (such as program or policy statement)" and a subsequent site-specific statement is then prepared, it "need only summarize the issues discussed in the broader statement by reference and shall concentrate on the issues specific to the subsequent action"). Thus, the Preferred Program Alternative set out in the EIS will determine the scope of future site-specific proposals. As we noted in Idaho Conservation League, "if the agency action only could be challenged at the site-specific development stage, the underlying programmatic authorization would forever escape review." 956 F.2d at 1516.
Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346 (9th Cir.1994) also dictates that this case is ripe for judicial review. There, we determined that a challenge to a Forest Service programmatic EIS proposing the application of herbicides was reviewable before any specific applications of herbicides had been authorized. Relying on Idaho Conservation, we held that "plaintiffs need not wait to challenge a specific project when their grievance is with an overall plan." Id. at 1355.
The district court based its determination that the case is not ripe for review on Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 734-35, 118 S.Ct. 1665, 140 L.Ed.2d 921 (1998). In that case, a challenge to a Forest Service land resource management plan for allowing too much logging and clearcutting was deemed unripe for review because the plan could not be implemented without further site-specific environmental review. However, the Ohio Forestry the plaintiffs had brought a substantive challenge to the plan, rather than a procedural challenge under NEPA. The Court carefully distinguished the case at issue from a procedural challenge:
Id. at 737, 118 S.Ct. 1665.
Since Ohio Forestry was decided, we have recognized the distinction between substantive challenges which are not ripe until site-specific plans are formulated, and procedural challenges which are ripe for review when a programmatic EIS allegedly violates NEPA.
The Federal Defendants' reliance on Rapid Transit Advocates, Inc. v. S. Cal. Rapid Transit Dist., 752 F.2d 373(9th Cir. 1985), to support their assertion that Plaintiffs' claims are unripe for review is unavailing. In that case, the court determined that a challenge to the decision of the Urban Mass Transit Administration (UMTA) to grant federal funds to a state transit agency to design and engineer a mass transit system was not ripe for review because no final agency action had taken place. Defendants argue that the administrative decision-making process in that case is analogous to the one at issue here. In Rapid Transit, the local transit authority had prepared a "first-tier" environmental impact statement which studied various alternatives for rapid transit and selected a preferred alternative. Id. at
However, in Rapid Transit there was no tiering between the two stages of the program. Thus, funding approval at stage one did not commit the agency to design approval at stage two. See 752 F.2d at 376. Moreover, the agency "ha[d] explicitly disavowed any advance commitment to approve construction." Id. at 378. By contrast, in this case the site-specific implementation of the Preferred Program Alternative will tier from the Final Programmatic EIS at issue here. Furthermore, the ROD describes its purpose as follows:
Therefore, because the ROD pre-determines the future through the selection of a long-term plan (to the exclusion of others which will not be among the available options at the implementation phase), it is ripe for review. See Res. Ltd. v. Robertson, 35 F.3d 1300, 1303 (9th Cir.1993) (holding that NEPA challenge to timber management plan was ripe for review at programmatic stage rather than when individual sales were announced because the plan pre-determined the future); Seattle Audubon Soc'y v. Espy, 998 F.2d 699, 703 (9th Cir.1992) (challenge to timber management plan was ripe before specific sales were announced because individual sales would be driven by the overall plan and therefore "plaintiffs need not wait to challenge a specific project when their grievance is with the overall plan"); Portland Audubon Soc'y v. Babbitt, 998 F.2d 705 (9th Cir.1993) (challenge to overall timber management plan ripe because plan pre-determines the future). Accordingly, we must reverse the district court's determination that Plaintiffs' claim is not ripe for review.
In addition to their claims against the Federal Defendants, Plaintiffs also challenge certain State acquisitions of land and water that were undertaken pursuant to the CALFED program. Usually, "the federal government is the only proper defendant in an action to compel compliance
Plaintiffs argue that the CALFED program in its entirety sufficiently intertwines state and federal action that the State Defendants may be enjoined from proceeding with CALFED projects until they have complied with NEPA. Because Plaintiffs do not contend that the federal government itself directly made or funded the particular challenged acquisitions, Plaintiffs' ability to bring a NEPA challenge against the State Defendants necessitates a finding that the CALFED program as whole involves sufficient federal participation that it may be characterized as a "single federal action" and thus non-federal entities acting pursuant to the program are subject to NEPA requirements.
The determination of whether federal and state projects are sufficiently intertwined to constitute a "federal action" for NEPA purposes "will generally require a careful analysis of all facts and circumstances surrounding the relationship." Friends of the Earth, Inc. v. Coleman, 518 F.2d 323, 329(9th Cir.1975). "There are no clear standards for defining the point at which federal participation transforms a state or local project into major federal action. The matter is simply one of degree." Almond Hill School v. United States Dep't of Agric., 768 F.2d 1030, 1039 (9th Cir.1985). Here, the district court based its findings solely on its conclusion that the federal government role appeared to be advisory. Plaintiffs contest this on a number of grounds, alleging that the CALFED program as a whole constitutes a joint federal-state partnership which serves to federalize the entire project. See Friends of the Earth, 518 F.2d at 327(acknowledging that state-funded projects may be "so closely interwoven with those receiving federal funds to make the entire [project] the relevant action for NEPA purposes," although the project in that case was not); Sierra Club v. Hodel, 544 F.2d 1036, 1043 (9th Cir.1976) (NEPA applies to entire project when federal government enters into partnership with non-federal entity). Plaintiffs highlight language in the Framework Agreement, coordination requirements, cost sharing arrangements, joint management and the requirement that the respective agencies "will develop a single blueprint for implementing the Ecosystem Restoration Program." Plaintiffs also contend that, because of the express reservation of rights contained in the relevant agreements, the CALFED Policy Group cannot force an unwilling agency to implement an approved plan. Plaintiffs also note that Proposition 204 itself states that "[t]he state shall, to the greatest extent possible, secure federal and non-federal funding to implement this article." Cal. Water Code § 78537.
Without recounting and analyzing each of these claims, it is apparent that Plaintiffs have made a sufficient showing that a fact-intensive analysis is required before a conclusion can be made as to whether the state and federal activities are so intertwined that the project qualifies as a major federal action. Because this determination cannot be made on the basis of the record before us, we remand the question to the district court.
In the district court, the State Defendants asserted for the first time in their reply brief that their land and water acquisitions were independent of the CALFED program and therefore they were not subject to an injunction under
A district court is vested with broad discretion to permit or deny discovery, and a decision "to deny discovery will not be disturbed except upon the clearest showing that the denial of discovery results in actual and substantial prejudice to the complaining litigant." Hallett v. Morgan, 287 F.3d 1193, 1212 (9th Cir.2002). Prejudice is established if there is a reasonable probability that the outcome would have been different had discovery been allowed. Martel v. County of Los Angeles, 56 F.3d 993, 995 (9th Cir.1995) (en banc). Here, the public documents offered by Plaintiffs suggest that there is at least an arguable claim that the federal government plays a significant enough role in the CALFED program to render actions taken pursuant to the program subject to NEPA requirements. Although the proffered public documents may be insufficient in themselves to establish jurisdiction, granting Plaintiffs' request to obtain through discovery a "detailed accounting of all transactions undertaken by the Defendants" would create a "reasonable probability" that the outcome of the factual motion to dismiss would be different. Therefore, Plaintiffs have established actual and substantial prejudice from being denied discovery.
Furthermore, "discovery should ordinarily be granted where pertinent facts bearing on the question of jurisdiction are controverted or where a more satisfactory showing of the facts is necessary." Butcher's Union Local No. 498 v. SDC Inv., Inc., 788 F.2d 535, 540 (9th Cir.1986) (citation omitted). Although a refusal to grant discovery to establish jurisdiction is not an abuse of discretion when "it is clear that further discovery would not demonstrate facts sufficient to constitute a basis for jurisdiction," discovery should be granted when, as here, the jurisdictional facts are contested or more facts are needed. See Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 430 n. 24 (9th Cir.1977) (holding that district court abused its discretion in refusing to grant discovery on jurisdictional issue); see also Natural Res. Def. Council v. Pena, 147 F.3d 1012, 1024 (D.C.Cir.1998) (remanding to permit "jurisdictional discovery" when allegations indicated its likely utility); Edmond v. United States Postal Serv. Gen. Counsel, 949 F.2d 415, 425 (D.C.Cir.1992) (finding abuse of discretion when district court denied jurisdictional discovery in light of allegations suggesting jurisdiction did exist). Because additional discovery would be useful to establish federal subject matter jurisdiction, and because the extent of federal involvement in the challenged transactions is contested, we reverse the district court's decision not to permit discovery.