Citations
- 438 F. Supp. 2d 1207
Full opinion text
ORDER RE: SUMMARY JUDGMENT
PRO, Chief Judge.
A long history precedes this action commenced July 19, 2005, by Plaintiffs’ Complaint for Injunctive and Declaratory Relief challenging the final authorization of the All-American Canal Lining Project (AACLP).
The Mexicali Aquifer underlies both the Imperial Valley in California and the Mexicali Valley in Mexico. Prior to 1901, waters from the Colorado and Alamo rivers recharged the Mexicali aquifer. In 1901, the Alamo Canal was constructed through the channelization of the Alamo River and because it was unlined, the river continued to recharge the aquifer. In 1928, Congress authorized the Bureau of Reclamation to build a canal wholly within the United States.
The All-American Canal, which was completed in 1942, is located in California’s Imperial Valley and provides a route through which Colorado River water is delivered to the Imperial Valley and Mexico. The All-American Canal is unlined and provides as much as eleven to twelve percent of the recharge water to the Mexicali Aquifer, which underlies both the Imperial Valley in California and the Mexicali Valley in Mexico.
In 1944, the United States and Mexico entered into a water treaty that allocated the waters of the Colorado River between the two countries. See Treaty between the United States of America & Mex. Respecting Utilization of Waters of the Col. & Tijuana Rivers & of the Rio Grande [“1944 Water Treaty”], 59 Stat. 1219, T.S. No. 994, Section III, Art. 10 (Nov. 8, 1945). The 1944 Water Treaty committed to the International Boundary and Water Commission (“IBWC”) the power to resolve disputes arising under the Treaty. Id, Arts. 2, 24(d). It also requires the United States to deliver 1.5 million acre-feet of Colorado River water to Mexico. Id, Art. 10.
In 1988, Congress passed the San Luis Rey Indian Water Rights Settlement Act which authorized the Secretary of the Interior “to construct a new lined canal or to line the previously unlined portions of the All American Canal ... or construct seepage recovery facilities____” Pub.L. No. 100-675, 102 Stat. 4000, § 203. Congress authorized the action because “significant quantities of water currently delivered into the All-American Canal and its Coachella Branch are lost by seepage from the canals and that such losses could be reduced or eliminated by lining these canals.” Id § 201. After conducting environmental studies considering the impacts the All-American Canal lining project and other alternatives, including a no-action alternative, the Bureau of Reclamation (“Reclamation”) issued its Final Environmental Impact Statement (“FEIS”) which was noticed in the Federal Register in March 1994. 59 Fed.Reg. 18,573 (Apr. 19, 1994). Reclamation approved the Record of Decision (“ROD”) authorizing the All-American Canal lining project on July 29, 1994. (AR 1.) Subsequent to the issuance of the ROD, Reclamation and the United States section of the IBWC have engaged in diplomatic interchange with Mexico and the Mexican section of the IBWC. (Mem. in Supp. of United States’ Mot. to Dismiss Counts 1-4 and 7-8 [Doc. # 36], Exs. 6-10; AR 7586.)
At the time of the 1994 FEIS, California was using over five million acre feet of Colorado River Water per year, well over its normal year apportionment of 4.4 million acre feet of water per year. (AR 7595.) In 2002 to 2003, the Federal Defendants and California water agencies “began an intensive effort to assist California in reducing its historical overuse of Colorado River Water.” (Id.) On October 10, 2003, the Federal Defendants and other parties entered into an Allocation Agreement Among the United States of America, the Metropolitan Water District of Southern California, Coachella Valley Water District, Imperial Irrigation District, San Diego County Water Authority, the La Jolla, Pala, Pauma, Rincon & San Pasqual Bands of Mission Indians, the San Luis Rey River Indian Authority, the City of Escondido & Vista Irrigation District (“Allocation Agreement”). (Imperial Irrigation Dish’s Request for Judicial Notice & Lodgment of Exs. in Supp. of its Mot. to Intervene & Mot. to Dismiss [“IID Exs.”] [Doc. # 45], Ex. 8.) The Allocation Agreement “pertains to the allocation of water conserved by the planned lining of the All-American Canal, which carries water from the Colorado River to [Imperial Irrigation District’s (“IID”) ] service area.” (Decl. of Mark Hattman [Doc. # 199-3], Ex. 1 at 15-16.) The Allocation Agreement “provide[s] for the allocation of an amount of Colorado River water equal to the amount conserved from the Title II works....” (IID Exs., Ex. 8 at 315.)
Under the Allocation Agreement, the Secretary of Reclamation (“the Secretary”) must determine when the lining of the All-American Canal is complete and determine the amount of water available for allocation as a result of the All-American Canal lining project:
The Secretary will determine the completion of the lining of each canal reach.... The Secretary will determine the amount of Colorado River water available for allocation as a result of lining each canal reach ... The Secretary will send a notice of reach completion for each canal reach to the Parties as each such reach is completed and ... include in the notice the Secretary’s determination as to the amount of water available for allocation as a result of lining that reach.
(IID Exs., Ex. 8 at 328.) The Secretary also must “deliver Colorado River water available for allocation as a result of the Projects each Calendar Year for the benefit of the San Luis Rey Settlement Parties. ...” (Id., Ex. 8 at 331.) The Allocation Agreement also provides:
If for any reason work on the All-American Canal Lining Project is terminated prior to lining the All-American Canal or construction of a new concrete-lined canal ... the Secretary, after consultation with the Parties, shall deem the Project to be complete and will determine the amount of Colorado River water available for allocation from that Project.
(Id., Ex. 8 at 328.)
Additionally, the Allocation Agreement contains a clause limiting the manner and venue in which parties can present disputes with the United States pursuant to the Allocation Agreement:
Disputes under this Allocation Agreement involving the United States shall be presented first to the Regional Director of the Lower Colorado Region of the Bureau of Reclamation.... The decision of the Regional Director shall be subject to appeal to the Commissioner.... The decision of the Commissioner shall be subject to appeal to the Secretary.... The decision of the Secretary may then be appealed to the federal courts to the extent permitted by and in accordance with federal law.
(Id., Ex. 8 at 367.) On November 13, 2003, IID filed an amended complaint in California state court to validate the Allocation Agreement pursuant to California law and 43 U.S.C. § 390uu. The validation proceedings in California state court are ongoing but currently stayed pending resolution of certain motions on appeal. (Decl. of Mark Hattman, Ex. 8.)
On September 9, 2004, Reclamation requested Fish and Wildlife Services (“FWS”) to confirm as a biological opinion a conference opinion that FWS issued on February 8, 1996 regarding the effects of the All-American lining project on the Peirson’s milk-vetch. (AR 7648.) FWS confirmed the conference opinion as a biological opinion on January 10, 2006 because no significant information or changes existed that would alter FWS’s prior opinion. (Id.) On November 18, 2005, Reclamation issued a Biological Analysis for the All-American Canal Lining Project, Potential Species Impact in the Republic of Mexico, which FWS reviewed and concluded Reclamation was not required to consult with FWS regarding transboundary effects. (AR 7654, 7697.) On January 12, 2006, Reclamation issued a Supplemental Information Report (“SIR”) regarding the lining project. In the SIR, Reclamation determined that no substantial changes, significant new information, or circumstances existed that would require Reclamation to issue a supplemental environmental impact statement (“SEIS”). (AR 7575.)
Plaintiffs Consejo de Desarollo Económ-ico de Mexicali (“CDEM”), Citizens United for Resources and the Environment (“CURE”), and Desert Citizens Against Pollution (“DCAP”) filed suit in this Court on July 19, 2005, seeking injunctive and declaratory relief and asserting eight claims. On February 9, 2006, the Court dismissed Counts 1-4 and 6-8 of Plaintiffs’ original Complaint, which Plaintiffs subsequently amended. On June 26, 2006, the Court dismissed Counts 1-4, and 7-8 of Plaintiffs’ Amended Complaint, Count 5 as it relates to the 1994 FEIS, and Plaintiff CDEM from Count 6 for lack of standing. The Court granted Plaintiff in Intervention status to the City of Calexico, California as to Count 5. The remaining claim asserted by all Plaintiffs is violation of the National Environmental Protection Act (“NEPA”) for failing to issue a SEIS (Count 5). Plaintiff CURE also asserts a claim for violation of the Endangered Species Act (“ESA”) (Count 6).
Plaintiffs move for summary judgment as to Count 5 arguing Defendants violated NEPA by failing to issue a SEIS because significant new information, circumstances, and substantial changes exist requiring Reclamation to issue a SEIS. Plaintiff CURE also moves for summary judgment as to Count 6 arguing new information exists requiring Reclamation to reinitiate formal consultation with FWS under the ESA.
Federal Defendants and Defendant In-tervenors oppose Plaintiffs’ motions for summary judgment and cross-move for summary judgment arguing that no significant new information, circumstances, or substantial changes exist requiring Reclamation to issue a SEIS. Federal Defendants oppose Plaintiff CURE’S motion for summary judgment and cross-move for summary judgment as to Count 6 arguing Reclamation fulfilled its consultation obligations under the ESA, and that no new information exists that would require Reclamation to re-initiate formal consultation with FWS. Defendant-Intervenor IID also asserts this Court should abstain from deciding this case pursuant to the Colorado River and the Younger doctrines.
I. MOTIONS TO LIMIT REVIEW, ALLOW DISCOVERY, TO STRIKE & EVIDENTIARY OBJECTIONS
Federal Defendants move to limit the scope of review to the Administrative Record and to request the Court to issue an order protecting Federal Defendants from discovery. (United States’ Mot. to Limit the Scope of Review to the Admin. R. & for Protective Order [Doc. # 34].) The Court granted in part and denied in part the motion pending the resolution of the motions to dismiss. (November 1, 2005 Order [Doc. # 98].) Plaintiffs seek discovery and to supplement the Administrative Record. (Pis.’ Mot. to Supp. the Admin. R. [Doc. # 99].) Defendants also move to strike various declarations Plaintiffs submitted. (Fed. Defs.’ Mot. to Strike Pis.’ Decís. & Docs. [Doc. # 218].)
Plaintiffs move for judicial notice of various documents submitted with CDEM and CURE’S motion for summary judgment. (Request for Judicial Notice in Supp. of Mot. for Summ. J. or Prelim. Inj. [Doc. # 152].) Plaintiffs also request the Court to deem undisputed Plaintiffs’ Statement of Undisputed Material Facts attached to Plaintiffs DCAP and CURE’S motion for summary judgment because neither the Federal Defendants nor the Defendant In-tervenors opposed it. (Reply Re: Pis.’ Separate Statement of Undisputed Material Facts [Doc. # 259].) Additionally, Plaintiffs move for leave to file Craig Morgan’s Declaration. (Pis.’ Mot. for Leave to Late File the Decl. of Craig Morgan in Supp. of Pis.’ Mot. for Summ. J., or Alternatively, for Prelim. Inj. [Doc. #281].) Finally, Defendant-Intervenor San Diego County Water Authority (“SDCWA”), IID, and Plaintiffs object to various declarations and exhibits.
A. Supplementing the Administrative Record/Allowing Discovery
In reviewing agency decisions, courts should “typically focus[ ] on the administrative record in existence at the time of the decision and does not encompass any part of the record that is made initially in the reviewing court.” The Lands Council v. Powell, 395 F.3d 1019, 1029 (9th Cir.2005) (quoting S.W. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir.1996)). Nonetheless, in an action to compel agency action unlawfully withheld or unreasonably delayed “review is not limited to the record as it existed at any single point in time, because there is no final agency action to demarcate the limits of the record.” Friends of the Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir.2000) (quotation omitted). The United States Court of Appeals for the Ninth Circuit has articulated narrow exceptions to the general rule limiting review to the administrative record:
(1) if admission is necessary to determine “whether the agency has considered all relevant factors and has explained its decision,” (2) if “the agency has relied on documents not in the record,” (3) “when supplementing the record is necessary to explain technical terms or complex subject matter,” or (4) “when plaintiffs make a showing of agency bad faith.”
The Lands Council, 395 F.3d at 1030 (quoting S. W. Ctr. for Biological Diversity, 100 F.3d at 1450).
Defendants argue that because Plaintiffs challenge agency action, this Court’s review is limited to the Administrative Record. They also argue the Administrative Record is sufficient to show the agency’s decision-making process. Plaintiffs assert discovery is necessary to determine whether the Administrative Record is complete. Additionally, Plaintiffs argue they should be allowed to supplement the Administrative Record because Reclamation failed to consider all of the relevant factors and information in making its decisions not to re-initiate formal consultation and not to issue a SEIS. Plaintiffs further contend Reclamation has acted in bad faith by failing to consider the Andrade Mesa Wetlands when it knew of the wetlands’ existence or to consider the lining project’s impacts on Mexico.
Because the remaining claims are actions to compel agency action unlawfully withheld, the Court will not limit its review to the Administrative Record and instead will consider materials submitted by Plaintiffs as they relate to the present matter. Specifically, the Court will consider those materials concerning whether Reclamation acted arbitrarily or capriciously in failing to issue a SEIS or re-initiate consultation with FWS. However, the Court will not permit discovery because Plaintiffs have failed to show that discovery is necessary to determine whether the agency has considered all the relevant factors, that the agency has relied on documents not in the record, to explain technical terms or complex subject matter, or that the agency has acted in bad faith. Accordingly, the Court will grant Plaintiffs’ motion to supplement the Administrative Record with admissible materials relating to Plaintiffs’ NEPA and ESA claims and will deny Defendants’ motion to limit the scope of review to the Administrative Record. Further, the Court will deny Plaintiffs’ request for discovery and grant Defendants’ protective order.
B. Motions to Strike
Federal Defendants also move to strike the declarations of Paul Rosenfeld, Steven Larson, and Edward Glenn attached to Plaintiffs’ motions for summary judgment because Federal Defendants argue the declarations are “wholly inappropriate in a record review case.” (Fed. Defs.’ Mot. to Strike Pis.’ Decís. & Docs, at 2.) Federal Defendants assert the Court should strike the Declarations of Jane Williams, Stephanie Pincetl, and Fred Cagle, Enrique Rovisora, Ricardo Hinojosa, and Michael Abatti to the extent they opine about the sufficiency of Reclamation’s environmental documents. For the reasons discussed above, the Court may review extra-record materials to determine whether Reclamation considered all the relevant factors and information in making its decision whether to issue a SEIS or re-initiate formal consultation with FWS. Accordingly, the Court will deny Defendants’ motion to strike.
C. Motion for Judicial Notice
Plaintiffs DCAP and CURE move the Court to take judicial notice pursuant to Federal Rule of Evidence 201 of the following documents: California Department of Health Services Environmental Health Investigations Branch October 2005 Imperial County Asthma Profile; Clean Air Initiative Second Community Survey Report Imperial County & Mexicali dated June 2005; United States [EPA] Final and Proposed Rules re Finding of Failure to Attain and Reclassification to Serious Nonattainment Imperial Valley Planning Area dated August 11, 2004; California Air Resources Board PM 10 Trends Summary: Saltón Sea Air Basin; California Air Resources Board PM 10 Trends Summary: Brawley-Main Street; California Air Resources Board PM 10 Trends Summary: Westmoreland — W 1st Street; Imperial County Air Pollution Control District [“ICAPCD”] Rules 800 and 801; South Coast Air Quality Management District Rule 403; [ICAPCD] Air Quality handbook dated February 2005; County of Imperial Second Amended Petition for Writ of Mandate .in County of Imperial v.[IID], et al.; South Coast Air Quality Management District and [ICAPCD]’s Petition for Writ of Mandamaus in SCAQMD v. State Water Resources Control Board, et al.; Sixty Day Notice Letter of [CURE] dated May 17, 2005; Sixty Day Notice Letter of [DCAP]; United States EPA’s 1995 AP 42 Compilation of Air Quality Pollutant Emission Factors section 13.2,2; United States EPA’s 1995 AP 42 Compilation of Air Quality Pollutant Emission Factors section 13.2.3; and United States EPA’s 1995 AP 42 Compilation of Air Quality Pollutant Emission Factors section 13.2.4. Plaintiffs do not set forth any'argument supporting their request for judicial notice. Federal Defendants argue the Court should not take judicial notice of these documents because the Court should limit its review to the Administrative Record and the documents reflect ongoing and developing scientific research, information which typically is not the type of facts for which judicial notice is appropriate.
Federal Rule of Evidence 201 provides:
A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
A Court may take judicial notice of the fact that a public record exists but may not otherwise take judicial notice of the disputed facts contained therein. Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir.2001). Therefore, to the extent that Plaintiffs request the Court to take judicial notice of the listed documents’ existence, the Court will do so. However, absent Plaintiffs identifying to specific facts within the documents that are appropriate for judicial notice, the Court will not take judicial notice of any facts or information contained within those documents.
D. Separate Statement of Undisputed Facts
Plaintiffs CURE and DCAP argue that pursuant to Federal Rule of Civil Procedure 56 and Local Rule 56-1, the Court should deem undisputed the undisputed statement of material facts they attached to their motion for summary judgment. Defendant Intervenor IID counters that the Court should deny Plaintiffs’ request because IID opposed those facts in its supplemental opposition to summary judgment and that nothing in Federal Rule 56 or Local Rule 56-1 requires parties to file a separate document disputing the facts or to dispute each fact opposing parties list as undisputed. Moreover, IID argues Federal Defendants and Defendant Intervenors contest Plaintiffs’ alleged undisputed facts in their pleadings and briefs.
Nothing in Federal Rule of Civil Procedure 56 or Local Rule 56-1 requires litigants to file a separate document disputing opposing parties’ statement of undisputed facts. See Fed R. Civ. P. 56; Local Rule 56-1. Accordingly, the Court will deny Plaintiffs CURE and DCAP’s request to deem undisputed their Undisputed Statement of Material Facts.
E. Motion for Leave to Late File
Plaintiffs move for leave to file the Declaration of Craig W. Morgan arguing good cause exists to allow late filing because the declarant’s information first came to Plaintiffs’ attention on April 4, 2006. Defendant Intervenor SDCWA counters the Court should not allow Plaintiffs to file the declaration because Plaintiffs have not stated sufficiently good cause or excusable neglect. Federal Defendants argue the Court should deny Plaintiffs leave to file because the declaration is outside the Administrative Record, the information in the declaration was based on information known to the parties prior to April 4, 2006 and Plaintiffs waited to file the declaration until after they filed their reply brief, and Plaintiffs have not filed a memorandum of points and authority to support their motion.
Federal Rule of Civil Procedure 6(b) provides:
When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect
In considering whether excusable neglect exists, a district court must consider the following criteria: “the danger of prejudice to the [nonmovant], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993).
The Court will grant Plaintiffs leave to file the declaration and consider it to the extent it is relevant to whether Reclamation considered all relevant factors in deciding not to issue a SEIS or reinitiate formal consultation with FWS. The declaration will not create a danger of prejudice to Defendants, because no new arguments are presented in the declaration. The declaration contains information concerning Plaintiffs’ argument that changes in the canal design pose a threat to human safety, an argument Plaintiffs previously raised in their motion for summary judgment and reply brief. Nor will the delay in filing impact these proceedings because Plaintiffs submitted the declaration only seven days after their Reply and use it for the purpose of rebutting arguments Defendants made in their opposition and cross-motion. Further, the reason for the delay was not within the reasonable control of Plaintiffs because Plaintiffs were not aware of the declarant’s specific information until April 4, 2006. Finally, no evidence exists that Plaintiffs acted in bad faith. Federal Defendants have not presented any evidence Plaintiffs knew about the information prior to that date and Plaintiffs moved for leave to file the declaration within two days of discovering the information. Accordingly, the Court will grant leave to Plaintiffs to late file the declaration and consider the declaration for the purposes discussed above.
F. Evidentiary Objections
“A trial court can only consider admissible evidence in ruling on a motion for summary judgment.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir.2002) (citing Fed.R.Civ.P. 56(e); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir.1988)). Federal Rule of Evidence 402 provides “[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules proscribed by the Supreme Court.... Evidence that is not relevant is not admissible.” Evidence is relevant if it “ha[s] any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401.
“A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.... [Such evidence] may, but need not, consist of the witness’ own testimony.” Fed. R.Evid. 602. Lay opinion testimony must be “(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed.R.Evid. 701. An expert witness “qualified as an expert by knowledge, skill, experience, training, or education, may testify” about technical, scientific or specialized knowledge, if “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Fed.R.Evid. 702. An expert may base his or her opinion or inference on facts or data “made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field ... the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.” Fed.R.Evid. 703. Opinion testimony “otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Fed.R.Evid. 704.
Hearsay is inadmissible unless it meets one of the exceptions or exclusions provided by the Federal Rules of Evidence. Fed.R.Evid. 802. Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801. Federal Rule of Evidence 901 also requires a proponent to authenticate evidence before a court can admit the evidence. This authentication requirement “ ‘is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.’ ” Alexander Dawson, Inc. v. N.L.R.B., 586 F.2d 1300, 1302 (9th Cir.1978) (quoting Fed.R.Evid. 901). Thus, “[t]he issue for the trial judge under Rule 901 is whether there is prima facie evidence, circumstantial or direct, that the document is what it is purported to be.” Id.
1. SDCWA’s Evidentiary Objections
SDCWA objects to certain paragraphs of the declarations of Edward Glenn, Stephanie Pincetl, Michael Abatti, Gaylord Smith and attached exhibits, Heliodoro Gonzalez Villanueva, Victor Smith, and Steven P. Larson, arguing the declarations are irrelevant, lack foundation, argumentative, vague and ambiguous, hearsay, and speculative. (Evidentiary Objections of [SDCWA] to Decís, of Edward Glen [sic], Nazario Ortiz, Stephanie Pincetl, Enrique Rovirosa, Michael Abatti, Gaylord Smith, Heliodoro Gonzalez Villanueva, and Steven P. Larson [Doc. #196].) SDCWA also objects to the entire declarations of Naza-rio Ortiz and Heliodoro Gonzalez Villa-nueva because they are in Spanish and English and no declaration exists from any competent person that the English versions are true and correct versions of the submitted Spanish versions; and SDCWA objects to certain paragraphs of the declarations because they are irrelevant, lack foundation, and contain legal conclusions. (Id.)
Additionally, SDCWA objects to paragraph four of the Declaration of Edie Harmon arguing it is irrelevant, without foundation, not based on personal knowledge, and inadmissible lay opinion. (Evidentiary Objections of [SDCWA] to Decís, of Edie Harmon, Ricardo Hinojosa, Jane Williams, Fred Cagle, Ph.D., & Paul Rosenfeld, Ph.D. [Doc. # 197].) SDCWA also objects to certain paragraphs of the declarations of Ricardo Hinojosa, Jane Williams, Fred Cagle, Ph.D., and Paul Rosenfeld, Ph. D. because they are irrelevant, hearsay, lack foundation and personal knowledge, and offer opinions on ultimate facts. (Id.) SDCWA objects to paragraphs in the Second Declaration of Steven P. Larson because they are irrelevant, referenced documents are in Spanish and no translation is provided, and they lack foundation. (Evi-dentiary Objections of [SDCWA] to the Second Deck of Steven P. Larson in Supp. of Pis.’ Mot. for Prelim. Inj. [Doc. # 274].)
Similarly, SDCWA objects to certain paragraphs of the Declaration of Claire Browning Hervey arguing they are irrelevant. (Evidentiary Objections of [SDCWA] to the Deck of Claire Browning Hervey in Supp. of Pis.’ Mot. for Prelim. Inj. [Doc. #275].) SDCWA objects to paragraphs and exhibits A and B of the Declaration of Osvel Hinojosa-Huerta asserting they are irrelevant, the declarant lacks the necessary credentials to qualify as an expert, and Exhibit B is in Spanish and no translation is provided. (Eviden-tiary Objections of [SDCWA] to the Decl. of Osvel Hinojosa-Huerta in Supp. of Pis.’ Mot. for Prelim. Inj. [Doc. #276]; Supplemental Evidentiary Objections of [SDCWA] to the Deck of Osvel Hinojosa-Huerta in Supp. of Pis.’ Mot. for Prelim. Inj. [Doc. #280].) Finally, SDCWA objects to the entire Declaration of Craig Morton arguing the declaration is irrelevant and lacks foundation. ([SDCWA]’s Objection to the Deck of Craig Morton Filed in Supp. of Pis.’ Mots, for Summ. J. or in the Alternative Prelim. Inj. [Doc. # 295].)
a. Relevance
The majority of SDCWA’s relevance challenges to the declarations rest on SDCWA’s argument that portions of the declarations are irrelevant because they relate to the lining project’s effects on Mexico and seepage to the Mexicali Aquifer. SDCWA argues that information is irrelevant because the Court dismissed Plaintiffs’ claims asserting rights to the seepage water and that extra-territorial effects are irrelevant because Defendants are not required to examine the effects of the lining project in Mexico. However, the information about the impacts the lining project will have in Mexico and those impacts’ transboundary effects are relevant because they are facts that form the basis of Plaintiffs’ claims under NEPA and ESA. Further, whether Reclamation must examine the extra-territorial effects of the lining project is a legal question for the Court to decide and is an issue still in controversy. Accordingly, the Court declines to strike the challenged portions of the declarations on that basis. The Court therefore will deny SDCWA’s relevance objections to the declarations of Edward Glenn, Nazario Ortiz, Stephanie Pincetl, Enrique Rovirosa, Michael Abatti, Helio-doro Gonzalez Villanueva, Victor Smith, Steven P. Larson, Edie Harmon, Ricardo Hinojosa, Jane Williams, and Paul Rosen-feld Ph.D.; and to Exhibits C, D, G, I to the Declaration of Gaylord Smith.
The Court also will consider evidence that relates to whether the California validation proceedings are parallel to the present matter and air quality deterioration in the Imperial Valley because such evidence is relevant to HD’s summary judgment motion based on abstention. Accordingly, the Court will deny SDCWA’s relevance objections to the declarations of Claire Brown Hervey, Michael Abatti, Fred Cagle, Ph.D., and Paul Rosenfeld, Ph.D. The Court will sustain SDCWA’s objections to the Declaration of Gaylord Smith, Exhibit B, because the exhibit discusses the flat-tailed horned lizard rangewide management strategy. Evidence concerning the flat-tailed horned lizard is irrelevant because Plaintiffs make no claims concerning the flat-tailed horned lizard in the remaining claims in Counts 5 or 6.
b. Authentication
The Court will sustain SDCWA’s objection to the declarations of Nazario Ortiz and Heliodoro Gonzalez Villanueva because no evidence exists sufficient to support a finding that the matters in question are what their proponent claims. The declarations appear to have been written originally in Spanish and later translated into English. There is no indication that the English versions of the declarations are true and correct translations.
However, the Court will overrule SDCWA’s authentication objection to the Second Declaration of Steven P. Larson based on the declaration referencing documents that are written in Spanish. The letters are not offered as evidence, rather they form the basis of Steven P. Larson’s opinion. Likewise, the Court will overrule SDCWA’s authentication objection to the Declaration of Osvel Hinojosa-Huerta. Exhibit B to the declaration is one of Hinojosa-Huerta’s publications and the declarant offers it to demonstrate he is qualified as an expert and not as evidence.
c. Lack of Personal Knowledge/Expert Opinion Foundation
The Court will overrule SDCWA’s foundation and lack of personal knowledge objections to the Declaration of Edward P. Glenn because the declaration provides the foundation for his opinion. For the same reason, the Court will overrule SDCWA’s objections to the declarations of Steven P. Larson, Fred Cagle, Ph.D., Paul Rosenfeld, Ph.D., and Osvel Hinojosa-Huerta, to the extent the declarants do not state legal conclusions. The Court will overrule SDCWA’s objection to the Second Declaration of Steven P. Larson and the references to governmental documents in his declaration, because the declaration provides the foundation for his opinion and the information from governmental entities are the type of data reasonably relied upon by hydrologists in forming their expert opinions. The Court also will deny SDCWA’s objection to the Declaration of Edie Harmon because the declaration is based on the declarant’s personal knowledge.
The Court will sustain SDCWA’s foundation and lack of personal knowledge objections to paragraphs five, eight, ten, and eleven of the Declaration of Stephanie Pincetl because the information is not within the declarant’s personal knowledge and the declaration does not set forth adequately the basis of the declarant’s opinion as to technical, scientific or specialized knowledge. For the same reasons, the Court will sustain SDCWA’s objections to paragraphs two, three, and five through eleven of the Declaration of Michael Abatti; paragraph seven of the Declaration of Victor Smith; paragraph four of the Declaration of Ricardo Hinojosa; and paragraphs five and nine of the Declaration of Jane Williams. The Court will sustain SDCWA’s foundation objections to paragraphs one through eight of the Declaration of Enrique Rovisora and the Declaration of Craig W. Morton because the declarations do not set forth adequately the basis of the declarants’ opinions as to technical, scientific, or specialized knowledge.
d. Hearsay
The Court will overrule SDCWA’s hearsay objections concerning the Declaration of Edward P. Glenn because the referenced documents are not offered for the truth of the matter asserted but rather form the basis of the declarant’s expert opinion. Likewise, the Court will overrule SDCWA’s hearsay objections to Exhibits C, D, and I, as the Court will not consider the exhibits for the truth of the matter asserted. The Court will sustain SDCWA’s hearsay objection to paragraph six of the Declaration of Victor Smith, to the extent those paragraphs opine about what other United States farming concerns knew or were aware.
2. HD’s Evidentiary Objection
IID and SDCWA object to Plaintiffs’ submittal of a DVD movie depicting the Mexicali Region and the accompanying Declaration of Victor Hermosillo because Plaintiffs did not serve them with the DVD, and they further assert the DVD is hearsay, lacks oath or affirmation, is improper expert or lay opinion, and is irrelevant. ([HD’s] Objection to Pis.’ Submittal of a DVD Movie to the Ct. as Evid. [Doc. # 282].) Plaintiffs provide the Declaration of Claire Hervey Re Service of DVD Exhibit to Declaration of Victor Hermosillo (Doc. #288) which states Plaintiffs inadvertently did not serve parties with the DVD on March 31, 2006 because the file size was too large to download to the Court’s electronic case filing system. (Decl. of Claire Hervey Re Service of DVD Ex. to Decl. of Victor Hermosillo ¶ 4.) In the declaration, Claire Hervey declares under penalty of perjury that Plaintiffs subsequently served the parties with the DVD on April 10, 2006. (Id. ¶ 3.) Nonetheless, the Court will sustain HD’s objections to the DVD movie and the Declaration of Victor Hermosillo because they are hearsay and do not set forth adequately the basis of the opinions therein as to technical, scientific, or specialized knowledge.
3. Plaintiffs’ Evidentiary Objections
Plaintiffs object to the Declaration of Michael King arguing that the Declaration is irrelevant, speculative, lacks foundation, and violates NEPA’s hard evidence rule by referring to absent documents. (Pis.’ Objections to Intervenors’ Decl. of Michael King [Doc. #260].) Additionally, Plaintiffs object to paragraphs of the declarations of Stephen Arakawa and Maureen Stapleton, asserting the declarations are irrelevant, speculative, and lack foundation. (Pis.’ Evidentiary Objections to Decís, of Stephen Arakawa, Maureen Stapleton, & the Previously Filed Decl. of Dennis B. Underwood [Doc. #271].) Plaintiffs also object to the Declaration of Dennis Underwood, because it is hearsay as the declarant has died since the filing of the declaration, and argue the declaration also is irrelevant, speculative, and lacks foundation. (Id.)
The Court will overrule Plaintiffs’ objections to the Declaration of Michael King to the extent the Declaration discusses how an injunction would harm IID and how the project construction will comply with air quality guidelines as those are facts in consequence and the declaration sets forth adequately the basis of the declarant’s opinion as to technical, scientific, or specialized knowledge. For the same reasons, the Court will overrule Plaintiffs’ objections to the declarations of Stephen Arakawa and Maureen Stapleton. However, the Court will sustain Plaintiffs’ objection to the Declaration of Dennis B. Underwood.
II. ABSTENTION
Defendant Intervenor IID argues that Plaintiffs’ Motion for Summary Judgment is an attack on the Allocation Agreement because its effect is to enjoin the implementation of the Allocation Agreement. Because the Allocation Agreement is already the subject of an ongoing state court proceeding, IID argues this Court should abstain from deciding the issue and either dismiss the case under the Younger doctrine or stay these proceedings pending the outcome of the state court proceedings pursuant to the Colorado River doctrine. IID also acknowledges that Plaintiffs could not have brought the NEPA claims under the APA in the validation proceedings, but argues that because IID brought the validation action pursuant to 43 U.S.C. § 390uu the state court has concurrent jurisdiction over the NEPA claims through 43 U.S.C. § 390uu.
Plaintiffs respond that California Courts may validate only actions of California public agencies, not federal agencies. They also argue that this action does not attack the Allocation Agreement because it attacks Federal Defendants’ agency action. Plaintiffs similarly argue that granting in-junctive relief in this action will not invalidate the Allocation Agreement even if the effect of the relief delays or prevents the Allocation Agreement’s implementation. Finally, Plaintiffs argue they are not parties to the validation proceedings. Accordingly, Plaintiffs assert neither the Colorado River nor the Younger doctrines apply to this case.
A. Younger Doctrine
The doctrine propounded by Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny reflects a “strong federal policy against federal interference with ongoing state proceedings.” Meredith v. Oregon, 321 F.3d 807, 817, amended by 326 F.3d 1030 (9th Cir.2003). A federal district court should abstain under Younger when: 1) state judicial proceedings are ongoing; 2) the proceedings implicate important state interests; and 3) the state proceedings provide the plaintiff with an adequate opportunity to raise federal claims. Meredith, 321 F.3d at 817. Even if all of three criteria are met, Younger abstention is not appropriate in all eases. Application of the Younger abstention doctrine is appropriate only when the federal relief sought would interfere in some manner with the state court proceedings. Green v. City of Tucson, 255 F.3d 1086, 1094 (9th Cir.2001) (en banc).
The state proceedings seek to validate the Allocation Agreement. California Civil Procedure Code provides the following:
A public agency may upon the existence of any matter which under any other law is authorized to be determined pursuant to this chapter, and for 60 days thereafter, bring an action in the superior court of the county in which the principal office of the public agency is located to determine the validity of such matter. The action shall be in the nature of a proceeding in rem.
Cal.Civ.Proc.Code § 860. “A validation action ([Cal.] Code Civ. Proc., § 860 et seq.) allows a [California] public agency to obtain a judgment that its financing commitments are valid, legal, and binding. If the public agency has complied with statutory requirements, the judgment in the validation action binds the agency and all other persons.” Friedland v. City of Long Beach, 62 Cal.App.4th 835, 73 Cal.Rptr.2d 427 (1998). Thus, if IID succeeded in the validation hearings, it would “obtain a judgment that its financing commitments [under the Allocation Agreement] are valid, legal, and binding” and the judgment would “bind [IID] and all other persons.” See id.
The federal relief Plaintiffs seek, i.e., an injunction requiring Defendants to issue a SEIS and to reinitiate formal consultation with FWS, would not interfere with the state court proceedings. The matter before this Court addresses whether Federal Defendants violated federal environmental laws by failing to issue a SEIS or re-initiate consultation with FWS. If this Court were to issue an injunction requiring Federal Defendants to prepare a SEIS or re-initiate consultation, such an injunction would not interfere with a holding by the state court that the Allocation Agreement is binding and IID’s financial commitments are valid. The parties to the Allocation Agreement still would be required to uphold their obligations under the Allocation Agreement. The Secretary still could determine the completion of the lining of the All-American Canal, determine the amount of water available for allocation as a result of the All-American Canal lining, and deliver any Colorado River water available for allocation as a result of the project. (IID Exs., Ex. 8 at 328, 331.) The Allocation Agreement defines the Secretary’s duties if the project is terminated, requiring the Secretary to determine the amount of water from the Colorado River available for allocation. (Id. at 328.) Because the validation proceedings concern the obligations of the parties under the Allocation Agreement and not whether Federal Defendants complied with federal environmental law, this action would not interfere with the state court validation proceedings.
Furthermore, even if resolution of the matter before this Court would interfere with the state proceedings, Plaintiffs would not have been able to sue Federal Defendants in state court. First, the Allocation Agreement contains a clause requiring parties to present disputes involving the United States to Reclamation first and then allowing appeals of any decision to the Secretary of the Interior and then to United States district court. (IID Exs., Ex. 8 at 367.) Hence, parties may not bring disputes with the United States arising under the Allocation Agreement in a state court.
Second, 43 U.S.C. § 390uu does not waive the United States’ immunity from suit in state courts, rather it allows a party to a contract with Reclamation to sue for enforcement of the contract in federal court. See 43 U.S.C. § 390uu (“Any suit pursuant to this section may be brought in any United States district court in the State in which the land involved is situated.”); see also United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (“absent an unequivocal expression of congressional consent to suit, sovereign immunity bars even a claim for non-monetary relief against the government”). Third, 43 U.S.C. § 390uu would not allow Plaintiffs to assert their NEPA or ESA claims against Federal Defendants because 43 U.S.C. § 390uu “waives the United States’ sovereign immunity from a declaratory relief action brought by a party to a contract with the United States to establish the party’s rights under that contract.” Wyoming v. United States, 933 F.Supp. 1030, 1038 (D.Wyo.1996) (citations omitted). Plaintiffs are not a party to the Allocation Agreement nor do they seek to enforce any rights under the Allocation Agreement. (IID Exs., Ex. 8.) Accordingly, the validation proceedings would not provide Plaintiffs with an adequate forum to litigate their NEPA and ESA claims. Because these proceedings will not interfere with the validation action and the validation action would not provide an adequate forum for Plaintiffs, the Younger doctrine is inapplicable and the Court will not grant IID’s motion for summary judgment on that basis.
B. Colorado River Doctrine
The Colorado River doctrine requires federal courts to stay matters in which there are ongoing parallel state proceedings. Colorado River Water Conserv. Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Exact parallelism is not required but the federal and state proceedings must be “substantially similar.” Nakash v. Marciano, 882 F.2d 1411, 1416 (9th Cir.1989). “Colorado River abstention should be invoked only in ‘exceptional circumstances.’ ” Id. at 1415 (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 19, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)). However, “[FJederal abstention and deference to parallel state proceedings is appropriate under Colorado River even when none of the more established doctrines apply.” Fireman’s Fund Ins. v. Quackenbush, 87 F.3d 290, 298 (9th Cir.1996).
The Supreme Court has outlined six factors courts should consider in determining whether the Colorado River doctrine applies:
(1) whether either court has assumed jurisdiction over a res; (2) the relative convenience of the forums; (3) the desirability of avoiding piecemeal litigation; ... (4) the order in which the forums obtained jurisdiction; .... (5) whether state or federal law controls[;] and (6) whether the state proceeding is adequate to protect the parties’ rights.
Nakash, 882 F.2d at 1414 (citing Colorado River, 424 U.S. at 818, 96 S.Ct. 1236; Moses Cone, 460 U.S. at 25-26, 103 S.Ct. 927). Courts should apply the factors “in a pragmatic and flexible way, as part of a balancing test rather than as a ‘mechanical checklist.’ ” Id. (quotation omitted).
The validation action is not a parallel proceeding to this matter. As discussed above, the validation action seeks declaratory relief that HD’s financing commitments under the Allocation Agreement are valid, legal, and binding. In this matter, Plaintiffs request injunctive relief requiring Federal Defendants to issue a SEIS and to re-initiate FWS consultation. In the matter before this Court, federal law controls entirely. As discussed above, Plaintiffs could not have brought their NEPA or ESA claims through the validation action. For the same reasons, the state proceeding would not protect adequately Plaintiffs’ or Federal Defendants’ rights. Although the state court obtained jurisdiction over the validation action first and consolidating the actions in the state court would avoid piecemeal litigation, that the validation action is not a parallel proceeding and does not protect adequately the parties’ rights, weigh against abstention under the Colorado River doctrine. Accordingly, the Court will deny HD’s motion for summary judgment on the basis of abstention.
III. SUMMARY JUDGMENT
A. Legal Standard
Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any” demonstrate “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The substantive law defines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All justifiable inferences must be viewed in the light most favorable to the non-moving party. County of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir.2001).
The party moving for summary judgment bears the initial burden of showing the absence of a genuine issue of material fact. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir.2000). The burden then shifts to the non-moving party to go beyond the pleadings and set forth specific facts demonstrating there is a genuine issue for trial. Id.; Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir.2001).
B. NEPA Violation — Count 5
Plaintiffs argue Defendants violated NEPA because new information and circumstances concerning the lining project’s environmental impacts require Reclamation to prepare a supplement to the 1994 FEIS. Specifically, Plaintiffs assert Reclamation has failed to address adequately significant new information regarding the Andrade Mesa Wetlands in Mexico and listed species habitating therein, the socioeconomic impacts on Mexicali and the rebounding effects on the United States, increased impacts to the Saltón Sea, human safety, the deterioration of air quality in the Imperial Valley, and new PM-10 mitigation measures. Plaintiffs also argue Defendants may not use the 2006 SIR to address the new information, especially given the lapse of time between it and the 1994 FEIS.
Defendants respond that no SEIS is required because the 2006 SIR concluded no significant new impacts will result from the lining project. Defendants argue the 2006 SIR adequately considers wetlands and listed species impacts, socio-economic effects, impacts on the Saltón Sea, public safety, air quality, and air quality mitigation. Additionally, Defendants argue foreign impacts and their rebounding effects within the United States do not require Reclamation to prepare a SEIS.
1. Impacts on Mexico & Ti'ansboun-dary Effects
Plaintiffs argue the existence of the An-drade Mesa Wetlands is significant new information that requires the Federal Defendants to issue a SEIS. Additionally, Plaintiffs argue that impacts on the An-drade Mesa Wetlands would affect listed species, in particular the Yuma Clapper Rail, and that because the Yuma Clapper Rail’s habitat is bi-national, the effects will be felt within the United States. Plaintiffs also argue the loss of seepage water from the All-American Canal will have a devastating effect on the Mexicali economy, which in turn will have rebound effects within the United States, particularly within Calexico, California.
Federal Defendants respond that the Court should dismiss Plaintiffs’ claims involving impacts on Mexico because the issue presents a non-justiciable political question. Federal Defendants also contend NEPA does not require federal agencies to analyze extraterritorial effects and that Reclamation’s only obligation to examine impacts in Mexico arose under Executive Order 12114, which does not create a cause of action. Finally, Defendants assert that Reclamation was not required to examine the project’s impacts on Mexico and the rebounding effects because federal agencies only are required to look at the effects of agency action to the extent of the agency’s control or responsibility. Plaintiffs reply that because significant impacts in the United States will result from the lining project’s effects in Mexico, NEPA requires Federal Defendants to prepare a SEIS concerning impacts in Mexico.
a. Political Question
The political question doctrine “prevents] the federal courts from intruding unduly on certain policy choices and value judgments that are constitutionally committed to Congress or the executive branch.” Koohi v. United States, 976 F.2d 1328, 1331 (9th Cir.1992). When determining whether a case poses a political question, “courts should undertake a discriminating case-by-case analysis to determine whether the question posed lies beyond judicial cognizance.” Alperin v. Vatican Bank, 410 F.3d 532, 545 (9th Cir.2005) (citing Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)), cert. denied sub nom Order of Friars Minor v. Alperin, — U.S.-, 126 S.Ct. 1141, 163 L.Ed.2d 1000, 2006 WL 88991 (2006). Accordingly, the United States Supreme Court has suggested six factors to determine whether a case involves a non-justiciable political question:
Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Baker, 369 U.S. at 217, 82 S.Ct. 691. “Dismissal on the basis of the political question doctrine is appropriate only if one of [the Baker factors] is ‘inextricable’ from the case.” Alperin, 410 F.3d at 544 (citing Baker, 369 U.S. at 217, 82 S.Ct. 691).
Generally, “ ‘matters relating to the conduct of foreign relations ... are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.’ ” Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431, 1439 (9th Cir.1996) (quoting Regan v. Wald, 468 U.S. 222, 242, 104 S.Ct. 3026, 82 L.Ed.2d 171 (1984) (citation omitted)). Nevertheless, the Supreme Court has “cautioned against ‘sweeping statements’ that imply all questions involving foreign relations are political ones.” Alperin, 410 F.3d at 545 (quoting Baker, 369 U.S. at 217, 82 S.Ct. 691 (citation omitted)). For example, the interpretation of statutes involving foreign affairs is a justiciable question even though a decision in the case may have “significant political overtones” because the interpretation of statutes presents a purely legal question. Japan Whaling Ass’n, v. Am. Cetacean Soc’y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986). Further, “interpreting congressional legislation is a recurring and accepted task for the federal courts.” Id.
Federal Defendants argue that whether NEPA requires Reclamation to examine the lining project’s impacts on Mexico implicates the political question doctrine because it “interjects this Court into an area that Mexico and the United States have made a matter of diplomatic consultation pursuant to procedures agreed to under the 1944 Treaty.” (Fed. Defs.’ Corrected Mem. of P. & A. in Opp’n to Pls.’ Mots, for Summ. J. or Prelim. Inj., & in Supp. of Federal Defs.’ Cross-Mot. for Summ J. at 53.) Plaintiffs counter that whether NEPA requires Federal Defendants’ to consider impacts in Mexico is irrelevant to the 1944 Water Treaty as NEPA compliance does not constitute a dispute between the United States and Mexico.
Although the United States and Mexico have engaged in diplomatic negotiations regarding the lining project, whether NEPA requires federal agencies to examine extraterritorial impacts is a justiciable controversy because it presents a purely legal question of statutory interpretation. See Japan Whaling Ass’n, 478 U.S. at 230, 106 S.Ct. 2860. Accordingly, because the political question doctrine is inapplicable, the Court will exercise jurisdiction over the question.
b. Extraterritorial Application of NEPA
Plaintiffs argue Defendants admit the significance of the loss of portions of the Andrade Mesa Wetlands is significant and that significant impacts will result to the Yuma Clapper Rail both in Mexico and the United States. Plaintiffs also argue that the loss of canal seepage will impact negatively the Mexicali’s economy, the flow of water to the New River in Mexico which feeds the Saltón Sea, and air quality in the Mexicali Valley. As a result, Plaintiffs argue Defendants must prepare a SEIS. Federal Defendants argue NEPA does not require them to analyze the lining project’s impacts in Mexico because NEPA does not apply outside of the United States.
“Acts of Congress normally do not have extraterritorial application unless such an intent is clearly manifested.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 188, 113 S.Ct. 2549, 125 L.Ed.2d 128 (1993). Title 42 U.S.C. § 4332(C) requires agencies to prepare a detailed report on “major Federal actions significantly affecting the quality of the human environment.” NEPA’s Congressional declaration of national environmental policy states:
it is the continuing policy of the Federal Government in cooperation with State and local governments, and other concerned public and private organizations, ... to promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic and other requirements of present and future Americans .... it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may—
(2) assure for all Americans, safe, healthful, productive, and aesthetically and culturally pleasing surroundingsf.] 42 U.S.C. § 4331(a)-(b)(2). Nothing in NEPA’s language suggests Congress intended NEPA to apply outside United States territory. To the contrary, the use of “[s]tate and local governments” when describing with whom federal agencies must cooperate and “Americans” and “the Nation” when describing who will benefit from NEPA’s policies suggests Congress intended NEPA to apply only within United States territory. Moreover, nothing in the Council on Environmental Quality (“CEQ”) regulations promulgated under NEPA indicates clearly that agencies must examine extraterritorial impacts. See 40 C.F.R. § 1500.1 et seq.
Nonetheless, “[questions involving the reach of Congress’ prescriptive jurisdiction are not implicated when the conduct sought to be regulated occurs within the United States.” Gushi Bros. Co. v. Bank of Guam, 28 F.3d 1535, 1538 (9th Cir.1994) (citing Envt’l Def. Fund, Inc. v. Massey, 986 F.2d 528, 531 (D.C.Cir.1993)). To determine whether the conduct occurs within the United States, courts “look to the conduct proscribed by the particular legislation and to the impact of the conduct within the United States.” Id. The Ninth Circuit has not addressed what conduct makes NEPA applicable to extraterritorial impacts resulting from agency action withm the United States. Courts that have considered the extraterritorial application of NEPA, in addition to looking at the statute itself, have looked at whether the environmental impacts are wholly extraterritorial, whether the agency action was entirely within United States territory, and whether the United States has legislative control over the impacted area. See, e.g., Envt’l Def. Fund, Inc., 986 F.2d at 529; Natural Res. Def. Council, Inc. v. Nuclear Regulatory Comm’n, 647 F.2d 1345, 1347-48 (D.C.Cir.1981); Basel Action