D.C. No. CV-93-05327-OWW. D.C. No. CV-93-05327-OWW. D.C. No. CV-93-05327-OWW Appeals from the United States District Court for the Eastern District of California. Oliver W. Wanger, District Judge, Presiding.
Before: Herbert Y.c. Choy, Jerome Farris, and Melvin Brunetti, Circuit Judges. Opinion by Judge Farris.
Several water districts seek to enjoin the implementation of sections 3406(b)(2) and (d)(1) of the Central Valley Project Improvement Act. They contend that the Secretary of Interior must first complete an environmental impact statement as required by NEPA. The district court granted the water districts' motion for a preliminary injunction. The Secretary and environmental defendants appeal. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1) and vacate the preliminary injunction.
California's Central Valley is one of the most fertile agricultural regions in the United States. Several state and federal water projects, including the federal Central Valley Project, make this agricultural productivity possible by diverting water from streams that flow out of the Sierra mountains. These water projects produce many agricultural and economic benefits, but the water diversions harm wildlife habitats and ecological resources. In addition, agricultural water users consume most of California's developed water yet comprise only a small fraction of California's population. As urban populations continue to grow, urban water users are demanding more water. In 1992, Congress enacted the Central Valley Project Improvement Act, Pub. L. No. 102-575, title 34, 106 Stat. 4706. The Act reallocates a portion of federal reclamation water away from farmers to rehabilitate environmental and wildlife resources, and makes more water available to urban areas through water transfers.
Agricultural water users have filed two lawsuits to prevent the implementation of the CVPIA. In a companion case, O'Neill v. United States, No. 93-17154, farmers allege, among other things, that the CVPIA violates water service contracts between the United States and Westlands Water District. In this case, Westlands and other local water districts seek to enjoin implementation of sections 3406(b)(2) and (d)(1), two of the CVPIA's fish and wildlife provisions. They contend that implementation would violate the National Environmental Policy Act, 42 U.S.C. § 4332 (1988). The district court granted their motion for a preliminary injunction, holding that (1) the water districts were likely to succeed in their NEPA claim and (2) the harm to the water districts would outweigh the harms cited by the Secretary and environmental defendants.
The water districts are entitled to a preliminary injunction if they demonstrate (1) a likelihood of success on the merits and a possibility of irreparable injury or (2) the existence of serious questions on the merits and a balance of hardships tipping in their favor. National Wildlife Fed'n v. Burlington N. R.R., 23 F.3d 1508, 1510 (9th Cir. 1994). The two tests are not separate but represent a sliding scale in which the required probability of success on the merits decreases as the degree of harm increases. Oakland Tribune, Inc. v. Chronicle Publishing Co., 762 F.2d 1374, 1376 (9th Cir. 1985). If the public interest is involved, the district court must also determine whether the public interest favors the water districts. Fund For Animals, Inc. v. Lujan, 962 F.2d 1391, 1400 (9th Cir. 1992). We review the legal issues underlying the district court's preliminary injunction de novo. Miller v. California Pac. Medical Ctr., 19 F.3d 449, 455 (9th Cir. 1994) (en banc).
The water districts make three arguments why NEPA should apply to the CVPIA: Sections 3406(b)(2) and (d)(1) of the CVPIA are not in conflict with NEPA; even if these sections conflict with NEPA, section 3406(b) overrides the language in sections 3406(b)(2) and (d)(1); and section 3409 does not exempt the CVPIA from NEPA compliance.
A. IRRECONCILABLE CONFLICT BETWEEN NEPA AND SECTIONS 3406(b)(2) & 3406 (d)(1) OF THE CVPIA
NEPA directs that, "to the fullest extent possible . . . public laws of the United States shall be interpreted and administered in accordance with [NEPA]." 42 U.S.C. § 4332 (1988). We give NEPA the broadest possible interpretation. Jones v. Gordon, 792 F.2d 821, 826 (9th Cir. 1986). Only if there is an "irreconcilable" conflict between the statute and NEPA will the requirements of NEPA not apply. Id. An irreconcilable conflict is created if a statute mandates a fixed time period for implementation and this time period is too short to allow the agency to comply with NEPA. See Flint Ridge Development Co. v. Scenic Rivers Ass'n, 426 U.S. 776, 791, 49 L. Ed. 2d 205, 96 S. Ct. 2430 (1976) (holding that NEPA does not apply because Secretary of Housing had an obligation to allow real estate records to go into effect 30 days after filing). If, however, the statute "does not require [implementation] within any particular period," NEPA will be applicable. Jones, 792 F.2d at 826.
The Secretary and environmental appellants contend that sections 3406(b)(2) and (d)(1) irreconcilably conflict with NEPA, and therefore the Secretary may implement those sections without first conducting an environmental impact statement. Section 3406(b)(2) provides:
Upon enactment of this title [the Secretary of Interior shall] dedicate and manage annually eight hundred thousand acre-feet of Central Valley Project yield for the primary purpose of implementing the fish, wildlife, and habitat ...