Full opinion text
MEMORANDUM DECISION RE DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS (DOC. 24) AND PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT (DOC. 17) OLIVER W. WANGER, District Judge. I. INTRODUCTION This case concerns the ongoing operation of the San Luis Unit (the “Unit”) of the Central Valley Project (“CVP”). Plaintiffs, San Luis Unit Food Producers (“Food Producers”), an unincorporated association whose members include owners, operators, and managers of agricultural land in the Unit and their allied customers and suppliers, and various individuals and entities that own land and/or farm in the Unit, claim that various provisions of U.S. Reclamation law mandate that the Unit be operated to: (a) “provide farmers with irrigation water service” (Doc. 1, Compl. at ¶ 2); (2) “exercise the water rights obtained to divert, store, convey, and deliver the water necessary to irrigated project lands” (id. at ¶ 3); and (3) “sell project water to irrigators ... in order to recoup the costs of construction and operation and maintenance of water supply works providing irrigation” (id. at ¶ 4). Plaintiffs generally allege that the Department of the Interior and its Bureau of Reclamation (“Reclamation” or “Bureau”) (collectively, “Federal Defendants”) have managed the Unit in recent years in violation of these mandates: 10. In recent years, however, pursuant to a highly controversial new practice, defendants have unlawfully withheld from Unit farmers the irrigation water service mandated by federal reclamation statutes. Defendants are not operating certain pumps, dams, canals, and other facilities they previously built to provide such service, and such facilities now sit effectively idle. Defendants do not now exercise the water rights to bring about use of the water at the place and for the purpose of the appropriation. Defendants no longer sell project water to Unit irrigators, but allow virtually all of the water to be used without charge for other purposes and in other places. In the absence of defendants’ obedience to the above statutory mandates, plaintiffs’ lands and trees are being destroyed, and their farming operations are suffering massive and possibly fatal losses. 11. The first sentence of Section 1(a) of the 1960 Act authorizes construction and operation of the Unit as an integral part of the CVP for the “principal purpose” of furnishing water for the irrigation of lands in the Unit service area and, in addition, for several other specified purposes “as incidents thereto.” But, as a result of defendants’ recent statutory violations, the principal purpose of the Unit is being treated as if it were, at most, a mere incidental purpose, and a purpose designated as incidental is being treated as if it were the principal purpose. The defendants have unlawfully turned the Unit on its head. Id. at ¶¶ 10-11. Federal Defendants move for judgment on the pleadings that: (1) The United States has not waived its sovereign immunity to Plaintiffs’ claims; and (2) The Court lacks subject matter jurisdiction. Doc. 25. Plaintiffs oppose. Doc. 36. Federal Defendants replied. Doc. 45. Plaintiffs’ cross-move for judgment on the pleadings, arguing that: (1) The Court has subject matter jurisdiction; (2) The APA provides an applicable waiver of sovereign immunity; (3) Plaintiffs have standing to sue; (4) Plaintiffs have exhausted any required administrative remedies; (5) The action is not barred by the statute of limitations; (6) The action is not barred by laches; (7) Plaintiffs are entitled to declaratory and injunctive relief. Doc. 18 at 5-11. In addition, Plaintiffs move for summary judgment that Defendants are violating fifteen (15) Reclamation statutes. Specifically, Plaintiffs allege: (1) Five provisions of reclamation law mandate that Federal Defendants operate project facilities to provide irrigation water service, namely: (a) The second sentence of Section 1(a) of the 1960 Act; (b) A 1920 Amendment to the 1902 Reclamation Act; (c) Section 6 of the 1902 Act; (d) The second proviso of Section 2 of the 1937 Act; (e) The fourth proviso of Section 2 of the 1937 Act; (2) The following four Reclamation statutes mandate that defendants exercise water rights: (a) The 1920 amendment to the 1902 Act; (b) The last sentence of Section 1(a) of the 1960 Act; (c) The proviso of Section 8 of the 1960 Act; (d) Section 8 of the 1902 Act; and (3) The following six statutes mandate that Defendants sell irrigation water to farmers to recoup project costs: (a) Section 4 of the 1902 Act; (b) A 1914 amendment to the 1902 Act (c) A 1926 amendment to the 1902 Act (d) A 1939 amendment to the 1902 Act (e) Section 1(5) of the 1956 amendments to the 1902 Act (f) Another provision of the 1956 amendments to the 1902 Act. Doc. 18. Federal Defendants oppose both the motion for judgment on the pleadings and the motion for summary judgment. Doc. 38. Plaintiffs replied. Doc. 43. Oral argument was heard on August 3, 2010, at which time the parties were granted leave to submit supplemental briefs on a limited range of issues. Docs. 52 and 53. Those briefs have also been considered. II. LEGAL & FACTUAL BACKGROUND. A. History and Original Purposes of the CVP. The Reclamation Act of 1902 (“1902 Act”), Pub. L. 57-161, 32 Stat. 388 (codified as amended at 43 U.S.C. §§ 371-600e), “set in motion a massive program to provide federal financing, construction, and operation of water storage and distribution projects to reclaim arid lands in many Western States.” Orff v. United States, 545 U.S. 596, 598, 125 S.Ct. 2606, 162 L.Ed.2d 544 (2005) (citing California v. United States, 438 U.S. 645, 650, 98 S.Ct. 2985, 57 L.Ed.2d 1018 (1978)).' In the 1902 Act, “Congress committed itself to the task of constructing and operating dams, reservoirs and canals for the reclamation of the arid lands in 17 western states.” Peterson v. Dept. of the Interior, 899 F.2d 799, 802 (9th Cir.1990). Its goals were “to promote the growth of an agricultural society in the West.” Id. at 803. “The purpose of the original 1902 Act was to encourage people to go West, to grow crops on modest family farms in the country’s drier regions so that the nation’s agricultural bounty would increase.” Barcellos and Wolfsen v. Westlands Water District, 899 F.2d 814, 815 (1990). The CVP, the largest reclamation project in the nation, was created to “capture and store” waters of the major Central Valley rivers and “pump” the waters “to the cultivated lands.” United States v. Gerlach Live Stock Co., 339 U.S. 725, 728-29, 733, 70 S.Ct. 955, 94 L.Ed. 1231 (1950). The CVP was created to bring to the valley’s “parched acres a water supply sufficiently permanent to transform them into veritable gardens for the benefit of mankind.” Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 280, 78 S.Ct. 1174, 2 L.Ed.2d 1313 (1958), rev’d on other grounds by California v. United States, 438 U.S. 645, 98 S.Ct. 2985. Snowmelts from the Sierra Nevada, if not controlled, “waste this phenomenal accumulation of water so valuable to the valley’s rich alluvial soil. The object of the plan is to arrest this flow and regulate its seasonal and year-to-year variations ...” Id. at 281, 78 S.Ct. 1174. “The absence of rain” in the region served by the CVP, “makes irrigation essential, particularly in the southern region.” Id. “The grand design of the Project was to conserve and put to maximum beneficial use the waters of the Central Valley of California ...” Dugan v. Rank, 372 U.S. 609, 612, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963); see also United States v. Westlands Water District, 134 F.Supp.2d 1111, 1116 (E.D.Cal.2001) (citing above cases). The 1937 Rivers and Harbors Act, Pub. L. 75-397, 50 Stat. 844, 850, authorized a large scale diversion of surplus water from the delta to the valley by means of the Jones Pumping Plant and the Delta-Mendota Canal, both of which had excess capacity. The Act of June 3, 1960, Pub. L. No 86-488, 74 Stat. 156, described the pumping plant and canal as integral parts of the Unit; Section 4 thereof describes diversion from the Delta via the pumping plant and the canal. See Sierra Club v. Andrus, 610 F.2d 581, 585-86, 602-03, 604-05 (9th Cir.1980). B. Modem Administration of Central Valley Project and Delivery of Water Under Reclamation Law. Pursuant to Section 8 of the Reclamation Act of 1902, Reclamation must obtain and maintain the water rights necessary for its CVP operations in compliance with state law. 43 U.S.C. § 383. Permits and licenses issued by California’s State Water Resources Control Board (“SWRCB”), together with relevant SWRCB decisions and orders, define the parameters and conditions under which Reclamation may divert and deliver project water, which is then allocated to water districts in accordance with the terms and conditions of contracts for water service with these districts. Declaration of Ray Sahlberg, Doc. 40, (“Sahlberg Deck”) ¶ 2; Declaration of Richard Stevenson, Doc. 41, (“Stevenson Deck”) ¶ 3. Reclamation does not contract with individual irrigators or end-users on municipal and industrial water contracts. Stevenson Deck, Doc. 41, at ¶ 4. Reclamation’s diversion and delivery of project water to the San Luis Unit is governed by 13 separate permits, the authorized purposes of which include irrigation, domestic use, municipal and industrial use, fish and wildlife enhancement, salinity control, water quality control, stock-watering, and recreation. Sahlberg Deck ¶ 3; Declaration of Ron Milligan (“Milligan Deck”), Doc. 42, ¶ 2. Reclamation’s CVP operations are also constrained by the need to comply with requirements established by the U.S. Fish & Wildlife Service and National Marine Fisheries Service to protect various fish species under the Endangered Species Act (“ESA”), 16 U.S.C. 1531, et seq. Milligan Deck, Doc. 42, at ¶ 2. In September 1985, Reclamation requested SWRCB approval of a petition to consolidate the places and purposes of use of its various permits governing appropriations for the CVP, to allow for better coordinated management of CVP operations and to facilitate those operations necessary to comply with CVPIA mandates. Sahlberg Decl., Doc. 40, at ¶ 4. The SWRCB approved that petition in Decision (Revised) No. D-1641 (“D-1641”), issued in March 2000. Id. Each year Reclamation projects the amount of water that will be available based upon reservoir storage, precipitation, runoff forecasts, and other indices. Stevenson Decl., Doc. 41, at ¶ 5; Milligan Decl., Doc. 42, at ¶¶ 2, 3. Based on that projection and after taking into account the amount of water required to satisfy statutory and regulatory requirements, Reclamation determines the amount of water that can be delivered and allocated to its various contractors, including irrigation districts, municipal and industrial users, and wildlife refuges. Stevenson Deck, Doc. 41, at ¶ 5; Milligan Deck, Doc. 42, at ¶ 3. Reclamation’s water service contracts, including those in the San Luis Unit, contain shortage provisions that specifically recite that Reclamation is not liable for shortages caused by compliance with legal obligations. Stevenson Deck, Doc. 41. at ¶ 5. In addition to other operational and regulatory requirements, certain physical limitations constrain Reclamation’s operation of the San Luis Unit. Milligan Deck, Doc. 42, at ¶ 4. For example, in water year 2009, CVP pumping operations were impacted variously by dry weather hydrology, requirements imposed by D-1641, ESA mandates, physical limitations of the facilities, or by a combination of several of these constraints. Id. at ¶ 4. III. STANDARDS OF DECISION A. Motion for Judgment on the Pleadings. Federal Rule of Civil Procedure 12(c) states, “[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.” “[I]f a party raises an issue as to the court’s subject matter jurisdiction on a motion for a judgment on the pleadings, the district judge will treat the motion as if it had been brought under Rule 12(b)(1).” See 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1367 (3d ed. 2004); Rutenschroer v. Starr Seigle Comm’n, Inc., 484 F.Supp.2d 1144, 1147-48 (D.Haw.2006). Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action for “lack of jurisdiction over the subject matter.” Faced with a Rule 12(b)(1) motion, a plaintiff bears the burden of proving the existence of subject matter jurisdiction. Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir.1996). A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). A challenge to subject matter jurisdiction may be facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000). As explained in Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1038 (9th Cir.2004) In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction. In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment. Savage v. Glendale Union High School, 343 F.3d 1036, 1039 n. 2 (9th Cir.2003); McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988). “If the challenge to jurisdiction is a facial attack, i.e., the defendant contends that the allegations of jurisdiction contained in the complaint are insufficient on their face to demonstrate the existence of jurisdiction, the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made.” Cervantez v. Sullivan, 719 F.Supp. 899, 903 (E.D.Cal.1989), rev’d on other grounds, 963 F.2d 229 (9th Cir.1992). “The factual allegations of the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction.” Id. When Rule 12(c) is used to raise the defense of failure to state a claim upon which relief can be granted, the standard governing the Rule 12(c) motion for judgment on the pleadings is the same as that governing a Rule 12(b)(6) motion. See McGlinchy v. Shell Chemical Co., 845 F.2d 802, 810 (9th Cir.1988). A motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). In deciding whether to grant a motion to dismiss, the court “accept[s] all factual allegations of the complaint as true and draw[s] all reasonable inferences” in the light most favorable to the nonmoving party. TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir.1999). To survive a motion to dismiss, a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S.-, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (May 18, 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id. (citing Twombly, 550 U.S. at 556-57, 127 S.Ct. 1955). Dismissal also can be based on the lack of a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.1988). B. Motion for Summary Judgment. Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323, 106 S.Ct. 2548 (internal quotation marks omitted). Where the movant has the burden of proof on an issue at trial, it must “affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007); see also S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir.2003) (noting that a party moving for summary judgment on claim on which it has the burden at trial “must establish beyond controversy every essential element” of the claim) (internal quotation marks omitted). With respect to an issue as to which the non-moving party has the burden of proof, the movant “can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party’s case.” Soremekun, 509 F.3d at 984. When a motion for summary judgment is properly made and supported, the nonmovant cannot defeat the motion by resting upon the allegations or denials of its own pleading, rather the “non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial.’ ” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment.” Id. To defeat a motion for summary judgment, the non-moving party must show there exists a genuine dispute (or issue) of material fact. A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. “[Sjummary judgment will not lie if [a] dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248, 106 S.Ct. 2505. In ruling on a motion for summary judgment, the district court does not make credibility determinations; rather, the “evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255, 106 S.Ct. 2505. IV. ANALYSIS A. Standing. Plaintiffs’ motion for judgment on the pleadings seeks a determination that Plaintiffs have standing to sue. Doc, 18 at 6-10. Defendants oppose Plaintiffs’ motion but do not cross-move as to standing. Doc. 38 at 8-10 (opposition); Doc. 25 (no mention of standing in motion for judgment on the pleadings). Nevertheless, a court has a sua sponte duty to examine standing in every case. Bernhardt v. County of Los Angeles, 279 F.3d 862, 868 (9th Cir.2002). 1. General Legal Standard Re Standing. Standing is a judicially created doctrine that is an essential part of the case-or-controversy requirement of Article III. Pritikin v. Dept. of Energy, 254 F.3d 791, 796 (9th Cir.2001) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). “To satisfy the Article III case or controversy requirement, a litigant must have suffered some actual injury that can be redressed by a favorable judicial decision.” Iron Arrow Honor Soc. v. Heckler, 464 U.S. 67, 70, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983). “In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). To have standing, a plaintiff must show three elements. First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130 (internal citations and quotations omitted). In addition to the constitutional requirements of Article III, courts have developed a set of prudential considerations to limit standing in federal court to prevent a plaintiff “from adjudicating ‘abstract questions of wide public significance’ which amount to ‘generalized grievances’ pervasively shared and most appropriately addressed in the representative branches.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474-75, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (quoting Warth, 422 U.S. at 499-500, 95 S.Ct. 2197). To that end, “the plaintiffs complaint must fall within ‘the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.’ ” Valley Forge, 454 U.S. at 475, 102 S.Ct. 752 (quoting Ass’n of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970)). In cases arising under the APA, this requirement is particularly important given the limitations of 5 U.S.C. § 702, which “grants standing to a person ‘aggrieved by agency action within the meaning of a relevant statute.’ ” Association of Data Processing Serv. Orgs., 397 U.S. at 153-54, 90 S.Ct. 827 (citing § 702). The Supreme Court has described a plaintiffs burden of proving standing at various stages of a case as follows: Since [the standing elements] are not mere pleading requirements but rather an indispensable part of the plaintiffs case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim. In response to a summary judgment motion, however, the plaintiff can no longer rest on such “mere allegations,” but must “set forth” by affidavit or other evidence “specific facts,” Fed. Rule Civ. Proc. 56(e), which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be supported adequately by the evidence adduced at trial. Lujan, 504 U.S. at 561, 112 S.Ct. 2130; see also Churchill County v. Babbitt, 150 F.3d 1072, 1077 (9th Cir.1998). A plaintiff is not required to prove that he would succeed on the merits to summarily adjudicate his standing to sue. Farrakhan v. Gregoire, 590 F.3d 989, 1001 (9th Cir.2010) (granting summary judgment and noting that “[w]hether Plaintiffs can succeed on their [ ] claim is irrelevant to the question whether they are entitled to bring that claim in the first place.”). However, the underlying claims are not wholly irrelevant: Although standing in no way depends on the merits of the plaintiffs contention that particular conduct is illegal, e.g., Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), it often turns on the nature and source of the claim asserted. The actual or threatened injury required by Art. Ill may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing .... ’ See Linda R.S. v. Richard D., supra, 410 U.S. [614], at 617 n. 3, 93 S.Ct. [1146, 35 L.Ed.2d 536 (1973) ]; Sierra Club v. Morton, 405 U.S. 727, 732, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Moreover, the source of the plaintiffs claim to relief assumes critical importance with respect to the prudential rules of standing that, apart from Art. Ill’s minimum requirements, serve to limit the role of the courts in resolving public disputes. Essentially, the standing question in such cases is whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiffs position a right to judicial relief.... Warth, 422 U.S. at 500, 95 S.Ct. 2197. 2. Actual Injury. The first element of Article III standing is injury-in-fact, which Lujan defines as “an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not ‘conjectural or hypothetical.’ ” 504 U.S. at 560, 112 S.Ct. 2130 (internal citations omitted). Here, the Complaint alleges that, in recent years, Plaintiffs and other Unit farmers have purchased from the Bureau and applied to their lands substantially less water for irrigating their crops than they historically bought and used and to which they are allegedly entitled. Doc. 1, Compl. at ¶¶ 25-26. Federal Defendants do not dispute that each plaintiff is suffering concrete and particularized injury. 3. Causation. The second standing requirement, causation, requires that the injury be “fairly traceable” to the challenged action of the defendant, and not be “the result of the independent action of some third party not before the court.” Tyler v. Cuomo, 236 F.3d 1124, 1132 (9th Cir.2000). The causation element is lacking where an “injury caused by a third party is too tenuously connected to the acts of the defendant.” Citizens for Better Forestry v. U.S. Dept. of Agric., 341 F.3d 961, 975 (9th Cir.2003). For the purposes of determining standing, while the causal connection cannot “be too speculative, or rely on conjecture about the behavior of other parties, [it] need not be so airtight ... as to demonstrate that the plaintiffs would succeed on the merits.’ ” Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 860 (9th Cir.2005). Here, Plaintiffs’ maintain that various provisions of Reclamation law require the Bureau to sell and deliver to them a “normal” supply of irrigation water and that their “current inability to purchase and apply to their lands each year a normal supply of irrigation water is directly caused by the Bureau’s failure and refusal to sell and deliver it.” Doc. 18 at 8. It is undisputed that the Bureau’s delivery of water to Unit farmers has been reduced in recent years. See Milligan Deck, Doc. 42, at ¶4 (admitting that hydrologic conditions, Delta pumping constraints, and operational requirements needed to meet D-1641 have caused delivery curtailments in recent years). Plaintiffs’ injury is fairly traceable to the Bureau’s failure to deliver water. Whether and to what extent the cited statutes actually require the Bureau to deliver particular volumes of water is disputed. Federal Defendants argue that Plaintiffs cannot possibly establish causation because they have no rights to Project water, which are held by Reclamation. Doc. 38 at 9. It is undisputed that Plaintiffs are not in contractual privity with Reclamation, but Plaintiffs do not allege breach of contract. See Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206, 1210-1212 (9th Cir.1999) (irrigators had no standing to bring breach of contract claim against Reclamation because not intended third-party beneficiaries of contract). Federal Defendants do not explain why the absence of contractual privity bars Plaintiffs’ claims under the APA based on the Bureau’s noncompliance with Reclamation law. In NRDC v. Patterson, 791 F.Supp. 1425, 1429-32 (E.D.Cal.1992), environmental plaintiffs with recreational interests on the San Joaquin River below Friant Dam had standing to sue the Bureau for allegedly violating Section 8 of the 1902 Reclamation Act, which Plaintiffs claimed imposed the requirements of a state fish protection statute on Friant Dam operations. Causation was not an issue, but Patterson confirms that an APA claim does not require that Plaintiffs be in privity with the Bureau, if they otherwise satisfy the standing requirements. 4. Redressibility. Standing also requires that the injury likely can be redressed by a favorable court decision. Lujan, 504 U.S. at 561, 112 S.Ct. 2130. Plaintiffs seek declaratory relief that defendants have 15 mandatory duties under reclamation statutes and that they are violating each of them. Doc. 18 at 9. Plaintiffs assert that obtaining such a declaration will induce defendants to once again honor those duties and, thereby, operate project facilities, exercise water rights, and sell irrigation water in a manner that increases water deliveries to Plaintiffs. See id. “[Sjtanding in no way depends on the merits of the plaintiffs contention that particular conduct is illegal.” See Warth, 422 U.S. at 500, 95 S.Ct. 2197. If Plaintiffs’ obtain a ruling declaring that the Bureau’s reduced deliveries to members of the Unit violate the various statute they invoke, there is a substantial likelihood that their injury will be redressed, at least in part. 5. Zone of Interest. Finally, Plaintiffs APA “complaint must fall within ‘the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.’ ” Valley Forge, 454 U.S. at 475, 102 S.Ct. 752 (quoting Ass’n of Data Processing Service Orgs., 397 U.S. at 153, 90 S.Ct. 827). The interest asserted by the plaintiff must bear a plausible relationship to the policy underlying the statute. NRDC v. Patterson, 791 F.Supp. at 1429-30. [T]he source of the plaintiffs claim to relief assumes critical importance with respect to the prudential rules of standing that, apart from Art. Ill’s minimum requirements, serve to limit the role of the courts in resolving public disputes. Essentially, the standing question in such cases is whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiffs position a right to judicial relief.... Warth, 422 U.S. at 500, 95 S.Ct. 2197 Federal Defendants argue that Plaintiffs cannot satisfy the zone of interest requirement for any of their claims because “none of the statutory provisions upon which Plaintiffs rely provides any guarantee of water deliveries, ... [and] [t]hose matters that are in fact addressed by those statutory provisions, such as the manner in which Reclamation may set water contract rates, e.g., 43 U.S.C. § 485h(e), or provide funding for the operation and maintenance of Reclamation facilities, e.g., 43 U.S.C. §§ 391, 491, have nothing to do with Plaintiffs’ claimed injuries.” Doc. 38 at 9. Plaintiffs assert that Defendants are violating five statutes that require the Bureau to operate the Unit to deliver and sell Plaintiffs increased volumes of water. See Doc. 18 at 8-9. If the interest asserted by Plaintiffs in increased water deliveries bears a plausible relationship to the policy underlying the cited statutory provisions, Plaintiffs, as users of that water, arguably fall within the zone of interests protected by the statutes. B. Sovereign Immunity/APA Federal Defendants assert the defense of sovereign immunity. The United States, as a sovereign, is immune from suit unless it has waived its immunity. Dept. of the Army v. Blue Fox, Inc., 525 U.S. 255, 260, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999). A court lacks subject matter jurisdiction over a claim against the United States if it has not consented to be sued on that claim. Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir.2007). “When the United States consents to be sued, the terms of its waiver of sovereign immunity define the extent of the court’s jurisdiction.” United States v. Mottaz, 476 U.S. 834, 841, 106 S.Ct. 2224, 90 L.Ed.2d 841 (1986). A waiver of sovereign immunity by the United States must be expressed unequivocally. United States v. Nordic Village, Inc., 503 U.S. 30, 33, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). As a general matter, purported statutory waivers of sovereign immunity are not to be liberally construed. Id. at 34,112 S.Ct. 1011. The Administrative Procedure Act (“APA”) waives sovereign immunity and prescribes standards for judicial review of certain agency actions. See 5 U.S.C. § 702 (granting standing to plaintiffs “suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute”). The APA’s waiver of sovereign immunity contains several limitations. See Gallo Cattle Co. v. United States Dep’t of Agriculture, 159 F.3d 1194, 1198 (9th Cir.1998). One of those limitations is the requirement that the challenged decision be a “final agency action for which there is no other adequate remedy in a court____”5 U.S.C. § 704. 1. Agency Action. The APA defines “agency action” to “inelud[e] the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). Here, Plaintiffs allege that defendants are failing to act as required by 15 congressional commands. However, “the only agency action that can be compelled under the APA is action legally required,” Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 63, 65, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (“SUWA ”). Plaintiffs’ claims will only satisfy the APA’s agency action requirement if they allege a failure to perform a mandatory, nondiscretionary act. SUWA, 542 U.S. at 61-64, 124 S.Ct. 2373; Alvarado v. Table Mt. Rancheria, 509 F.3d 1008, 1019-20 (9th Cir.2007). As with the prudential standing requirement, the resolution of the agency action inquiry turns on whether any of the cited provisions contain a legal mandate to deliver any specific volume of water. 2. Final Agency Action. The parties engage in extended argument over whether Plaintiffs’ claims satisfy the “final agency action” requirement. By its terms, the APA permits review only of “agency action made renewable by statute and final agency action for which there is no other adequate remedy in a court____” 5 U.S.C. § 704. Where, as here, no specific statutory judicial review provision exists, the APA only applies to “final agency action.” Id.; Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (“Lujan v. NWF”). An agency action is deemed “final” for purposes of APA when it meets the following two criteria: First, the action must mark the “consummation” of the agency’s decision-making process — it must not be of a merely tentative or interlocutory nature; and And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (internal citations omitted). Federal Defendants argue that Plaintiffs only challenge the day-do-day administration or operation of the Unit, citing Lujan v. NWF, 497 U.S. at 890-94, 110 S.Ct. 3177, for the proposition that the day-today operation of a project or program is not “final agency action” reviewable under the APA. Lujan v. NWF concerned various activities undertaken by the Bureau of Land Management to comply with the Federal Land Policy and Management Act (“FLPMA”), which, among other things: repealed many of the miscellaneous laws governing disposal of public land, 43 U.S.C. § 1701 et seq. [ ]and .established a policy in favor of retaining public lands for multiple use management. It directed the Secretary to “prepare and maintain on a continuing basis an inventory of all public lands and them resource and other values,” § 1711(a), required land use planning for public lands, and established criteria to be used for that purpose, § 1712. It provided that existing classifications of public lands were subject to review in the land use planning process, and that the Secretary could “modify or terminate any such classification consistent with such land use plans.” § 1712(d). It also authorized the Secretary to “make, modify, extend or revoke” withdrawals. § 1714(a). Finally it directed the Secretary, within 15 years, to review withdrawals in existence in 1976 in 11 Western States, § 1714(1)(1), and to “determine whether, and for how long, the continuation of the existing withdrawal of the lands would be, in his judgment, consistent with the statutory objectives of the programs for which the lands were dedicated and of the other relevant programs,” § 1714(1)(2). Id. at 877, 110 S.Ct. 3177. The Lujan v. NWF plaintiffs described “[t]he activities undertaken by the BLM to comply with these various provisions” as the BLM’s “land withdrawal review program.” Id. Plaintiffs complained “the reclassification of some withdrawn lands and the return of others to the public domain would open the lands up to mining activities, thereby destroying their natural beauty.” Id. at 879, 110 S.Ct. 3177. The Supreme Court held that the so-called “land withdrawal review program” was “not an ‘agency action’ within the meaning of § 702, much less a ‘final agency action’ within the meaning of § 704.” Id. at 890,110 S.Ct. 3177. The term “land withdrawal review program” (which as far as we know is not derived from any authoritative text) does not refer to a single BLM order or regulation, or even to a completed universe of particular BLM orders and regulations. It is simply the name by which petitioners have occasionally referred to the continuing (and thus constantly changing) operations of the BLM in reviewing withdrawal revocation applications and the classifications of public lands and developing land use plans as required by the FLPMA. It is no more an identifiable “agency action”much less a “final agency action”-than a “weapons procurement program” of the Department of Defense or a “drug interdiction program” of the Drug Enforcement Administration. As the District Court explained, the “land withdrawal review program” extends to, currently at least, “1250 or so individual classification terminations and withdrawal revocations.” [National Wildlife Federation v. Burford,] 699 F.Supp. [327], at 332 [ (D.D.C.1988) ]. Respondent alleges that violation of the law is rampant within this program-failure to revise land use plans in proper fashion, failure to submit certain recommendations to Congress, failure to consider multiple use, inordinate focus upon mineral exploitation, failure to provide required public notice, failure to provide adequate environmental impact statements. Perhaps so. But respondent cannot seek wholesale improvement of this program by court decree, rather than in the offices of the Department or the halls of Congress, where programmatic improvements are normally made. Under the terms of the APA, respondent must direct its attack against some particular “agency action” that causes it harm. Some statutes permit broad regulations to serve as the “agency action,” and thus to be the object of judicial review directly, even before the concrete effects normally required for APA review are felt. Absent such a provision, however, a regulation is not ordinarily considered the type of agency action “ripe” for judicial review under the APA until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant’s situation in a fashion that harms or threatens to harm him. (The major exception, of course, is a substantive rule which as a practical matter requires the plaintiff to adjust his conduct immediately. Such agency action is “ripe” for review at once, whether or not explicit statutory review apart from the APA is provided. See Abbott Laboratories v. Gardner, 387 U.S. 136, 152-154, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Gardner v. Toilet Goods Assn., Inc., 387 U.S. 167, 171-173, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967). Cf. Toilet Goods Assn., Inc. v. Gardner, 387 U.S. 158, 164-166, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967).) Id. However, eight years after and in reliance on Lujan, the Ninth Circuit in ONRC Action v. Bureau of Land Management, 150 F.3d 1132, 1137 (9th Cir.1998) reaffirmed that “a court’s review of an agency’s failure to act has been referred to as an exception to the final agency action requirement.” This exception operates when the agency has a “clear duty to act” under the invoked statutory provision. Id. at 1137-38. Again, the resolution of this issue turns on an examination of the statutory claims. 3. Equitable Relief. The parties engage in extensive argument regarding Plaintiffs’ entitlement to declaratory and/or injunctive relief under the several statutes cited in the Complaint. These arguments are subject to sovereign immunity and subject matter jurisdiction determinations. All parties appear to agree that if sovereign immunity has been waived and federal question jurisdiction exists, the APA permits declaratory and injunctive relief. 5 U.S.C. § 703 (judicial review under the APA includes the remedies of “declaratory judgments or writs of prohibitory or mandatory injunction”). 4. Failure to Exhaust Administrative Remedies. Federal Defendants contend that “[o]ne or all of Plaintiffs’ claims are barred by Plaintiffs’ failure to exhaust administrative remedies.” Doc. 13 at 20. Plaintiffs move for judgment on the pleadings that their claims are not barred by an exhaustion defense. Doc. 18 at 10. In an APA case, exhaustion “is a prerequisite to judicial review only when expressly required by statute or when an agency rule requires appeal before review and the administrative action is made inoperative pending that review.” Darby v. Cisneros, 509 U.S. 137, 154, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993); see, e.g., Cedars-Sinai Medical Ctr. v. Nat’l League of Postmasters of U.S., 497 F.3d 972, 980-81 (9th Cir.2007) (because agency regulations only mandate exhaustion of disputes between insurance carriers and “covered persons,” a third party is with no role in this administrative process need not exhaust). Federal Defendants have not identified any applicable statutory exhaustion requirement, nor have they identified any exception to the Darby rule. Plaintiffs’ motion for judgment on the pleadings as to exhaustion of administrative remedies is GRANTED. 5. Statute of Limitations. Defendants’ fourth defense is that some or all of plaintiffs’ claims are barred by the statute of limitations. Doc. 13 at 19. Title 28, United States Code, section § 2401(a) provides a six year statute of limitations applicable to civil actions commenced against the United States: Except as provided by [the Contract Disputes Act of 1978,] every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues. The action of any person under legal disability or beyond the seas at the time the claim accrues may be commenced within three years after the disability ceases. This limitations period applies to cases brought under the APA. Hells Canyon Pres. Council v. United States Forest Serv., 593 F.3d 923, 930 (9th Cir.2010) (general six-year statute applies to APA claims). Therefore, unless excused, any claim arising earlier than October 23, 2003 (six years prior to the filing of the Complaint) is time-barred. Here, Plaintiffs suggest that the § 2401(a) six-year limitations period should not bar their claims because either (a) the violations alleged are continuing or (b) the statute of limitations does not apply to claims based on an agency’s actions in excess of statutory authority. Doc. 18 at 10. As a general rule in the Ninth Circuit, § 2401(a)’s limitations period is not jurisdictional and is subject to traditional exceptions, such as equitable tolling, waiver, and estoppel. Cedars-Sinai Med. Ctr. v. Shalala, 125 F.3d 765, 770 (9th Cir.1997). The continuing violation doctrine has been extended the § 2401(a) statute of limitations in federal employment and civil-rights litigation. See, e.g., Douglas v. Cal. Dep’t of Youth Auth., 271 F.3d 812 (9th Cir.2001); Gutowsky v. County of Placer, 108 F.3d 256 (9th Cir.1997). However, the Ninth Circuit recently refused to extend the continuing violation doctrine to APA claims. See Hall v. Regional Transp. Com’n of S. Nev., 362 Fed.Appx. 694, 695-96 (9th Cir.2010) (unpublished) (citing with approval Gros Ventre Tribe v. United States, 344 F.Supp.2d 1221, 1229 (D.Mont.2004)). Plaintiffs’ alternative argument that the statute of limitations does not apply because the agency’s actions are ultra vires is likewise unpersuasive. This argument is based on Wind River Mining Corp. v. United States, 946 F.2d 710, 714-15 (9th Cir.1991), which created an exception to the application of the statute of limitations for claims in which a plaintiff asserts an agency acted in excess of its statutory authority. However, “a substantive challenge to an agency decision alleging lack of agency authority may be brought within six years of the agency’s application of that decision to the specific challenger.” Id. at 716; see also NRDC v. Evans, 232 F.Supp.2d 1003, 1024 (N.D.Cal.2002) (challenge to regulation as ultra vires must be brought within six years of application of that regulation to challenger). In this case, Plaintiffs allege that Reclamation’s “shift in policy” began as early as 1987, Doc. 18 at 3, and should have been evident by the mid-1990s, Compl. at ¶ 49. Under Wind River, Plaintiffs were required to bring suit long before October 2009. Plaintiffs’ motion for judgment on the pleadings as to the statute of limitations defense is DENIED. 6. Laches. Federal Defendants’ fifth defense is that some or all claims are barred by the equitable doctrine of laches, i.e. delay with prejudice. Doc. 13 at 19. Plaintiffs move for judgment on the pleadings as to this affirmative defense. Federal Defendants do not oppose, as they claim no prejudice caused by allegedly inequitable delay. Plaintiffs’ motion for judgment on the pleadings as to the defense of laches is GRANTED. C. Analysis of Statutory Claims. 1. Threshold Issue: Arguments Raised by Defendants that Plaintiffs Maintain Were Not Pled in the Answer. Plaintiffs complain that Federal Defendants have raised certain “defenses” in their briefing that were not pled in the answer. Specifically, Defendants argue in various places that Plaintiffs own contracts, D-1641, the ESA, and the CVPIA bar the relief Plaintiffs seek. Pleading rules require an answer to state in short and plain terms the “defenses” to each claim asserted. Fed. R. Civ. Pro. 8(b)(1)(A). Any “denial” must fairly respond to the substance of the allegations. Rule 8(b)(2). In responding to a complaint, an answer must “affirmatively state any avoidance or affirmative defense.” Rule 8(c)(1). A defendant is barred from raising any avoidance or affirmative defense by failing to plead it in the answer. Prieto v. Paul Revere Life Insurance Co., 354 F.3d 1005, 1012-13 (9th Cir.2004). Defenses that are waived if not pled include: (1) conduct in compliance with governmental regulations, or (2) a statutory bar to recovery. 5 Wright & Miller, Fed. Prac. and Pro. Civ. (3d ed.) § 1271 n. 54, 59 (citing authorities). The complaint alleges that Defendants are violating 15 provisions of federal Reclamation law. The answer asserts that the allegations of duty under the 15 reclamation statutes are “legal conclusions” and denies the charges of violation thereof. Plaintiffs maintain that Defendants’ arguments based on the contract, D-1641, the ESA, and the CVPIA should not be considered because they were not mentioned in the answer. Plaintiffs’ contention is without merit. The Answer denies the existence of subject matter jurisdiction, Doc. 13 at 19 (First Defense), and asserts that some or all of Plaintiffs’ claims fail to state a claim upon which relief may be granted, id. at 19 (Third Defense). Federal Defendants are free to cite the CVPIA, the ESA, and Section 8 of the 1902 Act, and any other relevant legal authority that supports these defenses. 2. Statutory Provisions That Allegedly Require Operation of Irrigation Facilities. a. Section 1(a) of the 1960 Act. The second sentence of Section 1(a) of the 1960 Act reads, in pertinent part: “The principal engineering features of said unit shall be a dam and reservoir at or near the San Luis site, a forebay and afterbay, the San Luis Canal, the Pleasant Valley Canal, and necessary pumping plants, distribution systems, drains, channels, levees, flood works, and related facilities ...” Pub. Law. 86-488, § 1(a) (June 30, 1960). Plaintiffs maintain that Defendants have a mandatory duty under this provision to provide irrigation service. Compl. at ¶¶ 2, 30, 76. Plaintiffs also allege, and Defendants do not dispute, that defendants historically operated San Luis Unit facilities to provide a full water supply under water service contracts. Compl. at ¶¶ 9, 46; Answer at ¶¶ 9, 46. The complaint further alleges that Defendants are failing to operate the specified facilities for irrigation service and, accordingly, are violating the mandate. Compl. at ¶¶ 9, 46. More specifically, Plaintiffs argue that this Court’s decision in Firebaugh Canal and the Ninth Circuit’s affirming opinion establish, as a matter of law, that defendants are legally bound under this sentence to provide irrigation service. Doc. 18 at 16. In Firebaugh Canal, plaintiffs, including Unit farmers and their District, alleged that the government was violating the sentence by not constructing the “necessary ... drains” referred to therein and was not providing drainage service to the farmlands. The Court granted plaintiffs’ motion for partial summary judgment, holding that the sentence unambiguously mandates construction of the specified facilities and that such mandate gives rise to the obligation to provide drainage service to the Unit. Memorandum Opinion and Order Re: Plaintiffs Motions for Partial Summary Judgment, Firebaugh Canal Co. v. United States, 1:88-cv-00634, at 6-17 (attached to Plaintiffs Request for Judicial Notice (“PRJN”) as Exhibit 6). These holdings were confirmed, after trial on the government’s alleged defenses, in conclusions of law and a partial judgment. Id. at Docs. 426 & 442 (Findings of Fact and Conclusions of Law & Partial Judgment), PRJN Exs. 7 & 8. The Ninth Circuit affirmed in relevant part, holding that the second sentence of Section 1(a) of the 1960 Act unambiguously mandates provision of drainage service, but that Interior retained discretion “as to how it satisfies the drainage requirement.” Firebaugh Canal Co. v. United States, 203 F.3d 568, 573-74, 577-78 (9th Cir.2000). Plaintiffs argue that the Ninth Circuit “repeatedly referred to the government’s consequent ‘duty’ to provide service from the facilities at issue.” Doc. 18 at 16 (citing 203 F.3d at 570, 575, 576, 577, 578). From this, Plaintiffs maintain, Firebaugh Canal “compels the conclusion that the second sentence of Section 1(a) of the 1960 Act unambiguously mandates that the government has a duty to provide irrigation service from the specified facilities including the San Luis dam and reservoir, the forebay and afterbay, the San Luis Canal, and necessary pumping plants and distribution systems.” Doc. 18 at 16. Plaintiffs read far too much into the district court and Ninth Circuit decisions in Firebaugh Canal. Irrigation service was not there directly at issue. At its core, Firebaugh Canal held that the second sentence of Section 1(a) created a mandatory duty to construct all of the physical “principal engineering features” of the Unit, including drainage facilities called for by the act. The statute directs that the “principal engineering features of said unit shall be [a dam, reservoir, etc.] and necessary ... drains.” Id. (emphasis added). The term “shall” is usually regarded as making a provision mandatory, and the rules of statutory construction presume that the term is used in its ordinary sense unless there is clear evidence to the contrary. Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Here, there is no evidence that Congress misused the term “shall” or intended that the word is precatory, as asserted by the Government. Thus, although the Department of the Interior was only authorized (and not required) to construct the unit, once it decided to construct the unit, it was required to construct “necessary ... drains” as part of the unit. In other words, the Department’s discretion was limited to the decision whether to build the unit, not to pick and choose which “principal engineering features” to include in the unit-Congress made that decision. 203 F.3d at 573-74. The district court did conclude that “[t]he language 41 that ‘necessary drains’ be provided gives rise to the obligation to provide drainage.” PRJN, Ex. 6 at 13. But, this referred to Interior’s statutory-obligation to construct facilities once Interior exercised its statutory authority to construct the Unit. The Ninth Circuit held drainage must be provided, but the means is left to the Agency. Assuming the necessary facilities are constructed pursuant to section 1(a), neither the district court nor the Ninth Circuit decisions in Firebaugh Canal say anything about how the Unit should be operated or water service provided. For the same reason, Plaintiffs’ suggestion that the government is bound to provide irrigation service by virtue of the doctrine of issue preclusion is without merit. Issue preclusion prevents a party from relitigating an issue decided in a previous action if four requirements are met: (1) there was a full and fair opportunity to litigate the issue in the previous action; (2) the issue was actually litigated in that action; (3) the issue was lost as a result of a final judgment in that action; and (4) the person against whom collateral estoppel is asserted in the present action was a party or in privity with a party in the previous action. Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1050 (9th Cir.2008). “The burden is on the party seeking to rely upon issue preclusion to prove each of the elements have been met.” Id. at 1051. Here, Plaintiffs cannot possibly demonstrate that the second requirement is met, as the statutory issue presently before the Court, duty to provide irrigation, was not “actually litigated” in Firebaugh Canal or any other case. Plaintiffs’ further suggestion that “defendants are violating the [ ] duty to provide irrigation service,” because they have reduced deliveries to comply with other statutory obligations relating to the operation of the CVP fails for two reasons. First, Plaintiffs have not pointed to any language establishing a “duty to provide irrigation service.” Second, even if the second sentence of Section 1(a) could be read to establish some duty to provide irrigation service, it is undisputed that Defendants do provide irrigation service to the water districts in the Unit, who then, in turn, provide irrigation water to Plaintiffs pursuant to water service contracts formed and executed by Interior in discharging its statutory, non-mandatory authority to do so. Plaintiffs’ real complaint is with the volume of irrigation water provided. They have pointed to absolutely no language in Reclamation law that requires Federal Defendants to provide any particular volume of irrigation water, or that they operate the Unit to “full capacity.” Under § 2 of the 1937 Act, as amended by § 3406(a) of the CVPIA, CVP operations include actions necessary to benefit fish and wildlife habitat (a statutory mandate that Plaintiffs ignore throughout their briefs). Plaintiffs’ suggestion that Reclamation is violating the law by operating the CVP and the Unit to benefit fish and wildlife is contradicted by the express promises of the CVPIA. Plaintiffs do not fall within the zone of interest of this statutory provision and have not failed articulated a “clear duty to act” for purposes of the final agency action requirement. b. 48 U.S.C. § 521. A 1920 amendment to the 1902 Act, codified at Title 43 United States Code, section 521, provides: The Secretary of the Interior in connection with the operations under the reclamation law is authorized to enter into contract to supply water from any project irrigation system for other purposes than irrigation, upon such conditions of delivery, use, and payment as he may deem proper: Provided, That the approval of such contract by the water-users’ association or associations shall have first been obtained: Provided, That no such contract shall be entered into except upon a showing that there is no other practicable source of water supply for the purpose: Provided further, That no water shall be furnished, for the uses aforesaid if the delivery of such water shall be detrimental to the water service for such irrigation project, nor to the rights of any prior appropriator: Provided further, That the moneys derived from such contracts shall be covered into the reclamation fund and be placed to the credit of the project from which such water is supplied. (emphasis added). “Detriment,” within the meaning of this section, occurs where the challenged use lessens water deliveries to irrigated lands or perceptibly injures or damages agricultural landowners. El Paso County Water Improvement District v. El Paso, 133 F.Supp. 894, 920 (W.D.Tex.1955), aff'd as modified, 243 F.2d 927 (5th Cir.1957). Plaintiffs argue that this language “creates a mandatory statutory duty to refrain from furnishing water for non-irrigation uses if doing so shall be detrimental to the project’s irrigation water service.” Doc. 18 at 19. Plaintiffs allege that defendants historically operated the irrigation facilities without detriment to irrigation service, Compl. at ¶¶ 9, 46, but that in recent years, Defendants have been violating this mandate because they are operating the CVP and the Unit to furnish substantially all of the water for uses other than irrigation, even though doing so is detrimental to water service, id. at ¶ 51. Title 43, United States Code section 521 must be read as a whole. It authorizes the Secretary of Interior to enter into contracts for the sale of water from irrigation projects for non-irrigation purposes if he or she deems it necessary, provided there is no other “practicable” source of water for those non-irrigation purposes, and provided that the non-irrigation use will not be “detrimental to the water service of such irrigation project, nor to the rights of any prior appropriator.” Plaintiffs do not allege that Reclamation has entered into contracts with other parties for non-irrigation purposes, let alone that any such contracts have caused them detriment. See Doc. 1. To the extent that water deliveries have been curtailed to provide non-irrigation benefits, those curtailments have occurred in response to statutory, not contractual, requirements. See O’Neill, 50 F.3d 677. Section 521 does not apply to the complained-about conduct. Plaintiffs maintain that the third proviso “does not refer to contracts.” Doc. 43 at 3. This ignores context. The entire provision grants Reclamation permission to enter into contracts for non-irrigation purposes, provided certain conditions are met. The third proviso is such a condition and applies only to Reclamation’s capacity as a contractor for non-irrigation purposes. Alternatively, Plaintiffs maintain that Reclamation “has entered i