Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
City & County of San Francisco Super. Ct. No. CPF-06-506483
Siggins, J.
Appellants Protect Our Water and Environmental Rights, Michael Abatti and Jimmy Abatti (POWER) filed seriatim mandamus actions against the Imperial Irrigation District (Imperial) and others, challenging construction and financing agreements between the United States and several California water agencies pertaining to the “All-American Canal lining project.” Both petitions alleged that Imperial, as the lead agency under the California Environmental Quality Act (CEQA), approved the agreements without conducting adequate environmental reviews, and named the United States Department of Interior Bureau of Reclamation as a real party in interest.
The court sustained demurrers brought by Imperial and other parties as to each of the petitions. With respect to the original petition, the court ruled that (1) the United States was an indispensable party that due to its sovereign immunity could not be joined in the action; and (2) the action was not filed within the 60-day limitations period for validation actions. (Code Civ. Proc., § 860.) The demurrer to the second petition was also sustained on the indispensable party ground.
Real party in interest Metropolitan Water District of Southern California (Metropolitan Water District) also demurred to the original petition; San Diego County Water Authority, also named as a real party in interest, filed a joinder. San Diego County Water Authority and Metropolitan Water District both filed joinders to Imperial’s second demurrer.
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
POWER appealed from the judgments entered in both actions. Pursuant to the parties’ stipulation, this court ordered the two matters consolidated. We agree that the United States is an indispensable party that cannot be joined to the actions and affirm.
BACKGROUND
The All-American Canal (AAC) was authorized by Congress in the Boulder Canyon Project Act in 1928. (43 U.S.C. § 617.) It was constructed in the 1930’s by the United States Department of the Interior Bureau of Reclamation (the Bureau) and remains federally owned. The AAC diverts water from the Colorado River at the Imperial Dam in Arizona and transports it to California’s Imperial and Coachella Valleys. It is 80 miles long, but in terms of quantity, is the largest conduit that carries Colorado river water to California. The California allocation of Colorado river water and related issues are governed in part by a set of complex agreements between local, state and federal entities known as “Quantification Settlement Agreements.”
Because the AAC is an earthen canal that is unlined, a substantial amount of water is lost because it continuously seeps into the ground beneath the canal. In order to limit this seepage, in 1988, Public Law Number 100-675 authorized the United States Secretary of the Interior to line the AAC or take other measures using construction funds from California water agencies that are entitled to use Colorado River water. (Pub.L. No. 100-675 (Nov. 17, 1988) 102 Stat. 4000.) Title I of Public Law Number 100-675 also comprises the San Luis Rey Indian Water Rights Settlement Act, through which the United States comprehensively settled water rights litigation with five Indian bands (the Five Bands) and various local entities by, in part, guaranteeing the Five Bands rights to 16,000 acre-feet per year of supplemental water reclaimed as a result of the AAC lining project. Congress also instructed the Secretary of the Interior to determine how much water would be conserved by the lining project and deliver the conserved water to California’s Colorado River contractors in accordance with certain agreements. Imperial was authorized by law to be the sole contractor for the lining project.
In 1991, the Bureau and Imperial published a joint draft environmental impact statement under the National Environmental Protection Act and draft environmental impact report under CEQA (draft EIS/EIR) to assess the impacts of the AAC lining project. The draft EIS/EIR defined the preferred project as one “to line a 23-mile section of the canal by constructing a concrete-lined canal parallel to the existing canal.” In addition to “no project”, the EIS/EIR discussed three alternatives to the preferred parallel canal. Two involved construction of a lining in the existing canal; the third consisted of digging well fields to capture the seepage. Imperial elected to proceed with construction of a concrete-lined parallel canal.
In 2000, Congress amended the San Luis Rey Indian Water Rights Settlement Act through enactment of Public Law Number 106-377, Appendix B, section 211; 114 Statutes 1441 A70 (2000) (the Packard Amendment). The Packard Amendment, among other things, directed the Secretary of the Interior to provide the 16,000 acre-feet of water conserved by the AAC lining project to the Five Bands and others in accordance with the settlement of the Five Bands water rights litigation.
Despite the approval of the project, agreements on funding sources and complete allocation of the seepage water that would be reclaimed by the lining project remained unresolved. In September 2003, the California Legislature appropriated funding for the lining project. Final designs were initiated in 2004.
On January 10, 2006, Imperial held a meeting at which POWER and other interested parties submitted evidence of changes to the project and project circumstances, significant new information they alleged was not previously considered, and objections to Imperial’s failure to circulate information about the project to its directors or the public. That same day Imperial approved and authorized its general manager to execute two contracts to carry out the AAC lining project: a financing agreement between Imperial and the San Diego County Water Authority and a construction agreement between Imperial, the Bureau and the San Diego County Water Authority.
In December, Congress enacted the Tax Relief and Health Care Act of 2006 (The 2006 Act). The 2006 Act directed the Secretary of the Interior to implement the AAC lining project without delay. In pertinent part, it provides: “(a) . . . Notwithstanding any other provision of law, upon the date of enactment of this Act, the Secretary shall, without delay, carry out the All American Canal Lining Project . . . . [¶] . . . [¶] (b) . . . (1) Subject to paragraph (2), if a State conducts a review or study of the implications of the All American Canal Lining Project as carried out under subsection (a), upon request from the Governor of the State, the Commissioner of Reclamation shall cooperate with the State, to the extent practicable, in carrying out the review or study. [¶] (2) RESTRICTION OF DELAY.—A review or study conducted by a State under paragraph (1) shall not delay the carrying out by the Secretary of the All American Canal Lining Project.” (Pub.L. No. 109-432, title III, subtitle J, § 395.)
POWER’s First Petition for Writ of Mandate
On April 18, 2006, in the Imperial County Superior Court, POWER filed a petition for writ of mandate naming Imperial as respondent and the Bureau, the San Diego County Water Authority, and Metropolitan Water District as real parties in interest. The petition, which we will refer to as POWER I, was later transferred to San Francisco Superior Court. The petition alleged that on January 10, 2006, Imperial violated CEQA when it approved the financing and construction agreements and authorized their execution because it failed to prepare a subsequent or supplemental EIR. The petition further alleged that all approvals relating to the lining project were therefore void and should be set aside, and any activity by Imperial or any real parties in interest connected with the approvals or the lining project should be enjoined.
Imperial demurred on two grounds. It argued that the United States is a necessary and indispensable party that cannot be sued in state court due to its sovereign immunity. It also argued that the petition was time-barred by the 60-day statute of limitations provided in California’s validation statutes. Metropolitan Water District demurred on indispensable party grounds due to POWER’s inability to sue the United States. San Diego County Water Authority joined in both demurrers.
The trial court sustained the demurrers without leave to amend. It concluded the United States had properly asserted sovereign immunity and that it was both a necessary and indispensable party to the action under section 389 and Public Resources Code section 21167.6.5. As an independent ground, the court ruled the action was untimely because it was filed after the 60-day limitations period prescribed by section 860 for actions challenging certain public agency actions. POWER timely appealed from the judgment of dismissal entered following the successful demurrers.
This court previously deferred ruling on two requests for judicial notice by POWER and one by San Diego County Water Authority seeking notice of documents including court records in related actions and legislative history. These requests are granted only to the extent the specific materials for which judicial notice is sought are relevant and otherwise appropriate matters for judicial notice. (Evid. Code, § 452; Mangini v. R .J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.)
The Federal Actions
Within a month after its petition for mandamus was dismissed by the superior court, POWER filed a complaint for declaratory and injunctive relief in the United States District Court for the Eastern District of California asserting a claim for violation of CEQA against the defendants and real parties in interest in the state mandamus action. (POWER v. Imperial Irrigation District et al., E.D. Cal. No. Civ S-06-2073 (POWER II).) The United States moved to dismiss the complaint for lack of subject matter jurisdiction on the grounds that POWER failed to state a claim against the United States or allege the violation of any federal law. The district court granted the motion.
Alleged deficiencies in environmental review of the AAC lining project were also asserted in a federal case filed before POWER II. On July 19, 2005, environmental and other organizations sued the federal government in Consejo de Desarrollo Economico de Mexicali, A.C. v. U.S. (D.Nev.) 05-CV-0870-PMP. The complaint alleged, inter alia, that the federal government’s approval and implementation of the AAC lining project violated the National Environmental Protection Act, the Endangered Species Act (16 U.S.C. §§ 1531 et seq.) and other federal laws. POWER was not a party to the CDEM suit. However, Michael Abatti (a POWER member and a plaintiff in POWER I) and one of POWER’s consultants filed declarations in the case that supported the CDEM plaintiffs. The district court entered summary judgment for defendants. The United States Court of Appeals for the Ninth Circuit granted a temporary injunction that halted work on the canal lining project pending appeal, but subsequently vacated the injunction and remanded the case to the district court with instructions to dismiss certain causes of action as moot under the 2006 Act and to dismiss the remaining claims for lack of subject matter jurisdiction. Consejo de Desarrollo Economico de Mexicali, A.C. v. U.S. (9th Cir. 2007) 482 F.3d 1157.)
Adopting convention used in the briefs, we refer to this action as the CDEM suit.
POWER’s Second Petition for Writ of Mandate
POWER filed its second petition for writ of mandate (POWER III) on September 18, 2006, shortly after it filed POWER II. The petition was substantially the same as the one they filed in POWER I, but added allegations challenging Imperial’s approval on July 27, 2006, of an “Addendum to Final EIR/EIS and Amendment to Environmental Commitment Plan for the All American Canal Lining Project” on the ground, as in its previous challenge to the January 10, 2006, approvals, that Imperial failed to conduct requisite environmental reviews.
POWER subsequently filed an amended petition to add a claim that Imperial violated the 2006 Act.
Imperial again demurred on the grounds that (1) the United States was an indispensable party that cannot be joined because of its sovereign immunity, and (2) the action was time-barred. It further, and alternatively, argued the action was subject to mandatory abatement because POWER had challenged the same approvals and agreements in POWER I and POWER II. The trial court sustained this demurrer without leave to amend because the United States was an indispensable party that could not be sued in state court.
DISCUSSION
I. Standard of Review
“In determining whether a plaintiff has properly stated a claim for relief, ‘our standard of review is clear: “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” ’ ” (California Commerce Casino, Inc. v. Schwarzenegger (2007) 146 Cal.App.4th 1406, 1419.)
“The determination of whether a party is necessary or indispensable is one in which the court ‘weighs “factors of practical realities and other considerations.” ’ [Citation.] In view of that standard, we review the trial court’s ruling for abuse of discretion.” (TG Oceanside, L.P. v. City of Oceanside (2007) 156 Cal.App.4th 1355, 1366; County of San Joaquin v. State Water Resources Control Bd. (1997) 54 Cal.App.4th 1144, 1149-1153 (San Joaquin).)
II. The United States is a Necessary and Indispensable Party
The trial court properly determined that the United States is both a necessary and indispensable party within the meaning of section 389. Section 389, subdivision (a) sets out a definition of “necessary” parties who whenever possible should be joined in litigation. “A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.” (§ 389, subd. (a).)
“Then, subdivision (b) sets forth the factors to follow if such a person cannot be made a party in order to determine ‘whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable.’ ” (San Joaquin, supra, 54 Cal.App.4th at p. 1149.) Section 389, subdivision (b) directs the court to consider: “(1) to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person’s absence will be adequate; (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder.” (§ 389, subd. (b).) As the San Joaquin court observed, “[t]he subdivision (b) factors ‘are not arranged in a hierarchical order, and no factor is determinative or necessarily more important than another.’ ” (San Joaquin, supra, at p. 1149.)
Here, POWER argues that all four of the factors specified in subdivision (b) weigh against dismissal of the action. But within the legal structure of section 389, subdivision (b), the issue is whether the trial court abused its discretion when it decided to the contrary. (See County of Imperial v. Superior Court (2007) 152 Cal.App.4th 13, 35 [test for abuse of discretion is not whether section 389, subdivision (b) factors could be balanced to allow action to proceed, but whether they must be].) It did not.
We will not separately consider under subdivision (a) whether the United States is a necessary party. Our analysis of the subdivision (b) factors equally disposes of any such claim. (See People ex rel Lungren v. Community Redevelopment Agency (1997) 56 Cal.App.4th 868, 880 [same assessment under both subdivisions as to whether judgment issued in party’s absence might be prejudicial or subject parties to inconsistent obligations].)
POWER contends the United States would not be prejudiced by a judgment rendered in its absence because any relief entered would merely delay the project, not “forever take it off the books.” This contention is facile. The United States has expressed its substantial interest in the timely completion of the project. It is the owner of the AAC; it is a party to the complex agreements that govern construction of the project and the allocation of water to be recovered by it. Federal legislation authorized the project and specifically directed that it proceed without delay. Moreover, the United States has material, and often controlling, responsibilities for the project’s construction. At a minimum, delay would prejudice the United States because timely completion is necessary to avoid the potential loss of project funding. POWER’s argument that delay would not prejudice the United States is contradicted by Congress’s express directive in the 2006 Act that the Project be carried out without any further delays, and, specifically, that the project not be further delayed pending reviews under state laws, “[n]otwithstanding any other provision of law.” The POWER actions seek precisely the result that Congress has sought to prevent.
Pursuant to Water Code section 12562, any portion of $200 million appropriated by the state for project construction may be lost if not expended on the project by December 31, 2008. (Wat. Code, § 12562, subds. (a)(1), (2).)
The trial court also had ample reason to conclude that allowing the petitions to proceed without the United States would impair the federal government’s fiduciary obligation to the Five Bands that is unique to the United States as sovereign and not shared or likely to be served by any other party or real party in interest. (See generally Seminole Nation v. U.S. (1942) 316 U.S. 286, 296-297.) POWER suggests no way that “by protective provisions in the judgment, by the shaping of relief, or other measures,” any prejudice to the United States could be lessened or avoided. (§ 389, subd. (b)(2).)
It was also reasonable for the trial court to conclude that a judgment issued in the absence of and without binding power over the United States would not be an “adequate” judgment for any party. (§ 389, subd. (b)(3).) The petitions seek to enjoin Imperial from going forward with the Project pending further CEQA review and potential modifications. But, Congress has directed the Secretary of the Interior to carry out the project without delay for further state review. A judgment that does not bind the United States therefore creates a significant risk that Imperial will be caught between its obligations to the federal government to perform under the construction agreement, on the one hand, and a conflicting state court order to delay the project on the other. (See People ex rel Lungren v. Community Redevelopment Agency, supra, 56 Cal.App.4th at p. 880 [party’s absence is prejudicial if proceeding to judgment would subject existing parties to inconsistent obligations]; Sierra Club, Inc. v. California Coastal Com. (1979) 95 Cal.App.3d 495, 501-502 [same].)
POWER’s strongest, but ultimately unavailing, point is that it will have no legal remedy if its actions are dismissed, and will forever lose its right to substantively challenge in litigation Imperial’s approvals of the project. (See § 389, subd. (b)(4).) “The availability of an ‘adequate remedy’ is one, but only one, factor which the trial court evaluates in making its determination. Each case turns on its facts. To deem the unavailability of an alternative forum a conclusive factor in all cases and circumstance would, in effect, rewrite the statute, because the statute directs the court to consider all four factors in making this determination.” (San Joaquin, supra, 54 Cal.App.4th at p. 1154.) In ruling in POWER I the trial court acknowledged that POWER might lack an adequate remedy if its action were dismissed, but it correctly observed that POWER’s “strategic decision to proceed in state court instead of the available federal forum weighs against [its] claim that equity and justice require that this case continue without the United States.” POWER has no response to the observation that it could have, but did not, allege a federal claim under the National Environmental Protection Act in its federal action alongside its state law CEQA claim in order to avoid the dismissal that resulted from its failure to plead any federal claim or question. Moreover, POWER apparently made no attempt to intervene and join its claims in the similar CDEM action. As Metropolitan Water District states in its brief, “POWER squandered its alternative remedies.”
In the circumstances, the absence of a different forum for POWER’s claims does not overcome the federal government’s ownership of the project and its expressed concern that the project proceed without delay so that it may fulfill the underlying public policy goals and meet its contractual and trust obligations. The trial court’s conclusion that, on balance, the section 389, subdivision (b) factors require dismissal was well within its discretion.
III. The United States Did Not Waive Its Sovereign Immunity
We next consider, and reject, POWER’s alternative contention that the United States has waived its sovereign immunity and is therefore subject to suit in state court. According to POWER, the United States waived its sovereign immunity (1) when federal officials entered into the construction agreement; or (2) through enactment of section 8 of the Reclamation Act of 1902 (Reclamation Act). We review this strictly legal question de novo. (Bame v. City of Del Mar (2001) 86 Cal.App.4th 1346, 1354.)
“ ‘It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.’ ” (Dept. of Treasury-I.R.S. v. F.L.R.A. (9th Cir. 2008) 521 F.3d 1148, 1152-1153, quoting United States v. Mitchell (1983) 463 U.S. 206, 212.) As plaintiff, POWER bears the burden of demonstrating that the United States has expressly waived its sovereign immunity. (Dunn & Black, P.S. v. U.S. (9th Cir. 2007) 492 F.3d 1084, 1088.)
We will first consider POWER’s argument that the federal government waived sovereign immunity in section 20 of the construction agreement. Section 20 provides: “GOVERNING LAW: This Agreement shall be interpreted, governed by, and construed under any applicable laws of the State of California and any applicable Federal law. In case of conflict between Federal and California law, Federal law controls.” The construction agreement was executed on behalf of the United States by one of the Bureau’s regional directors.
Section 20 is a choice of law provision. It does not address a waiver of federal sovereign immunity or make the United States amenable to suit in state, or any, court. It therefore cannot be construed to be a waiver of immunity. “The waiver of the United States’ sovereign immunity must be unequivocally expressed in the statutory text and will not be implied. [Citation.] Furthermore, ‘a waiver of the Government’s sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign.’ ” (Dept. of Treasury-I.R.S. v. F.L.R.A., supra, 521 F.3d at p. 1153.)
POWER’s attempt to cast section 20 as a consent to be sued must also fail because the Bureau and its officials do not have sufficient authority to waive sovereign immunity. “[I]t is a well-settled principle that the federal government’s sovereign immunity may only be waived by Congressional enactment, and that ‘no contracting officer or other official is empowered to consent to suit against the United States.’ ” (Presidential Gardens v. U.S. ex rel. Sec. of HUD (2d. Cir. 1999) 175 F.3d 132, 140.) “[N]either the government’s attorneys nor any other officer of the United States may waive the United States’ sovereign immunity.” (In re Talbot (10th Cir. 1997) 124 F.3d 1201, 1205.) Accordingly, “The United States consents to be sued only when Congress unequivocally expresses in statutory text its intention to waive the United States’ sovereign immunity.” (Id. at p. 1206, italics added.) POWER’s position that the Bureau’s agreement to section 20 constitutes a waiver of sovereign immunity is, therefore, a legal impossibility.
POWER does not fare any better under its argument that the United States waived sovereign immunity in the Reclamation Act. The provision of the Act that POWER says waives immunity provides: “Nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws. . . .” (43 U.S.C. § 383.) This language by no means “unequivocally expresse[s]” an intent to waive sovereign immunity. (See Dept. of Treasury-I.R.S. v. F.L.R.A., supra, 521 F.3d at p. 1153.) It concerns only the applicable substantive law that governs the use of irrigation water under the Act—not whether the United States is subject to suit in state courts. Nothing in section 8 even remotely grants jurisdiction over the United States or waives its sovereign immunity. Nor is POWER’s position substantiated by any reading of the Reclamation Act’s legislative history. “ ‘A statute’s legislative history cannot supply a waiver that does not appear clearly in any statutory text; “the ‘unequivocal expression’ of elimination of sovereign immunity that we insist upon is an expression in statutory text.” ’ ” (Dept. of Treasury, supra, at p. 1153; Lane v. Pena (1996) 518 U.S. 187, 192.)
The cases on which POWER relies do not support its position that we are to liberally construe the Reclamation Act to find the United States consented to be sued. United States v. Yellow Cab Co. (1950) 340 U.S. 543 addresses whether an express waiver of sovereign immunity contained in the “sweeping language” of the federal Tort Claims Act extends to suits for contribution brought by a joint tortfeasor. (Id. at p. 547.) The Reclamation Act contains no such express waiver. More recently, moreover, the United States Supreme Court has vigorously reaffirmed the principle that waivers of the government’s sovereign immunity must be “unequivocally expressed” and “are not generally to be ‘liberally construed’ ” unless such construction is consistent with clearly expressed congressional intent. (United States v. Idaho ex rel Director, Idaho Dept. of Water Resources (1993) 508 U.S. 1, 6-7; Lane v. Pena, supra, 518 U.S. at p. 192; United States v. Nordic Village, Inc. (1992) 503 U.S. 30, 33-34.)
Nor do Conrad v. Unemployment Ins. Appeals Bd. (1975) 47 Cal.App.3d 237 and United States v. Hellard (1944) 322 U.S. 363 stand for POWER’s proposition that a waiver of federal sovereign immunity may be implied in these circumstances. In Conrad, a federal statute expressly waived sovereign immunity by subjecting federal agencies to the appeals procedures of state unemployment compensation laws: “While the United States is ordinarily immune from suit [citations], submission to the jurisdiction of a state court may be implied where congress has vested state tribunals with jurisdiction to determine matters in which the United States claims an interest.” (Conrad, supra, at p. 242, italics added.) Congress has done no such thing here. United States v. Hellard, supra, at pages 365-366 similarly involved a federal statute that expressly authorized state court jurisdiction over suits to partition restricted Indian land. More apposite here is LaRue v. Swoap (1975) 51 Cal.App.3d 543, 555, which distinguishes Conrad because the federal law at issue in LaRue, as here, contains no express grant of jurisdiction over the federal government. These authorities are fatal to POWER’s insistence that the Reclamation Act waives federal sovereign immunity.
For these reasons, the trial court correctly ruled that the United States is an indispensable party who cannot be joined in the action. The demurrers were properly sustained.
We therefore do not decide whether the United States is a “recipient of an approval” under Public Resources Code section 21167.6.5, whether these actions were timely, or whether POWER III must be abated.
DISPOSITION
The judgments in both actions are affirmed.
We concur: Pollak, Acting P.J., Jenkins, J.