FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CENTRAL DELTA WATER AGENCY; 

SOUTH DELTA WATER AGENCY;

ALEXANDER HILDEBRAND; R. C.

FARMS, INC.,

Plaintiffs-Appellants,

and

SAVE SAN FRANCISCO BAY

ASSOCIATION; NATURAL RESOURCES

DEFENSE COUNCIL; ENVIRONMENTAL

DEFENSE FUND; BAY INSTITUTE OF

SAN FRANCISCO; PACIFIC COAST

FEDERATION OF FISHERMEN’S No. 04-16632

ASSOCIATIONS; UNITED ANGLERS OF D.C. No. CALIFORNIA,

CV-99-05650-OWW Intervenors, 

ORDER AND

v. AMENDED

BUREAU OF RECLAMATION, UNITED OPINION

STATES DEPARTMENT OF INTERIOR;

GALE A. NORTON, Secretary of the

Interior; MICHAEL J. SPEARS,

Regional Director, US Dept. of

Interior, Fish and Wildlife Service,

Region 1; KIRK RODGERS, Acting

Regional Director, Dept. of

Interior, Bureau of Reclamation,

Mid-Pacific Region; DEPARTMENT

OF FISH AND GAME, STATE OF

CALIFORNIA; ROBERT C. HIGHT,

Defendants-Appellees, 

6969
SAN JOAQUIN RIVER GROUP 

AUTHORITY; OAKDALE IRRIGATION

DISTRICT; SOUTH SAN JOAQUIN

IRRIGATION DISTRICT; MERCED

IRRIGATION DISTRICT; MODESTO

IRRIGATION DISTRICT (MID);

TURLOCK IRRIGATION DISTRICT; SAN

JOAQUIN RIVER EXCHANGE 

CONTRACTORS WATER AUTHORITY,

Defendants-IntervenorsAppellees,

v.

STOCKTON EAST WATER DISTRICT,

Plaintiff-Intervenor. 

Appeal from the United States District Court

for the Eastern District of California

Oliver W. Wanger, District Judge, Presiding

Argued and Submitted

April 3, 2006—San Francisco, California

Filed May 22, 2006

Amended June 23, 2006

Before: Warren J. Ferguson, Stephen S. Trott, and

Andrew J. Kleinfeld, Circuit Judges.

Opinion by Judge Trott

6970 CENTRAL DELTA WATER v. BUREAU OF RECLAMATION
COUNSEL

Daniel A. McDaniel, Nomellini, Grilli & McDaniel Professional Law Corporations, Stockton, California, for the

plaintiffs-appellants. 

David C. Shilton, Assistant United States Attorney, Washington, D.C., for the defendants-appellees. 

Tim O’Laughlin and William C. Paris, III, O’Laughlin &

Paris LLP, Chico, California, for the defendants-intervenorsappellees. 

ORDER

The Opinion filed May 22, 2006 is amended as follows:

1. At page *2 of the Opinion, found at ___ F.3d ___,

2006 WL 1377447 (9th Cir. 2006), in the third full paragraph

in the left-hand column, the sentence “The gauging station at

Vernalis is located close to the ocean, below the confluence

of the two major rivers.” is replaced with:

“The gauging station at Vernalis is located below the

confluence of the Stanislaus River and the San Joaquin River.” 

2. At page *2 of 2006 WL 1377447, in the fourth full

paragraph that spans both the left-hand and right-hand columns, the sentence “While nothing in the Act requires that the

CENTRAL DELTA WATER v. BUREAU OF RECLAMATION 6973
Bureau use New Melones water for its § 3406(b)(2) releases,

the State Board exercised its discretion to use that water.” is

replaced with:

“While nothing in the Act requires that the Bureau

use New Melones water for its § 3406(b)(2) releases,

the Bureau exercised its discretion to use that water.”

3. In the listing of counsel for Plaintiffs-Appellants,

before page *1 of 2006 WL 1377447 (9th Cir. 2006), in the

left hand column, counsel’s listing as “Daniel A. McDaniel,

Nomellini, Grilli & McDaniel Professional Law Corporation,

Stockton, California, for the plaintiffs-appellants.” is replaced

with:

“Daniel A. McDaniel, Nomellini, Grilli & McDaniel

Professional Law Corporations, Stockton, California,

for the plaintiffs-appellants.”

OPINION

TROTT, Circuit Judge: 

Plaintiffs Central Delta Water Agency, South Delta Water

Agency, Alexander Hildebrand, and R. C. Farms, Inc. (“Delta

parties”) appeal the district court’s denial of their motion for

summary judgment and grant of defendant the United States

Bureau of Reclamation’s (“Bureau”) motion for summary

judgment. The Delta parties sued the Bureau and several

administrative officials, claiming that the Bureau was violating the Central Valley Improvement Act because it was operating the Central Valley Project (“CVP or Project”) in a

manner that would at some point in the future violate the Vernalis Salinity Standard, a state standard with which the

Bureau must comply in its operation of the CVP.1 The district

1Various parties intervened in the lawsuit, but we discuss only the Delta

parties and the Bureau. 

6974 CENTRAL DELTA WATER v. BUREAU OF RECLAMATION
court cited several grounds for its decision, but we find dispositive the absence of a genuine issue of material fact as to

whether the Bureau will comply with the Vernalis Salinity

Standard in the foreseeable future. Therefore, we affirm the

district court’s denial of the Delta parties’ motion and grant

of the Bureau’s motion for summary judgment. 

I

The CVP is the largest federal water management project

in the country. It includes two of California’s major rivers, the

Sacramento and the San Joaquin, which meet at the

Sacramento-San Joaquin Delta. The rivers mix at the delta

and then flow into San Francisco Bay and ultimately out to

the Pacific Ocean. The Bureau, a division of the Department

of the Interior, operates the Project and holds permits from the

California State Water Resources Control Board (“State

Board”) to appropriate water and distribute it for various beneficial uses. One of the reservoirs operated by the Bureau is

the New Melones Unit, located on the San Joaquin River system. 

In 1992, Congress passed the Central Valley Project

Improvement Act (“CVPIA” or “Act”). The purposes of the

Act are 

(a) to protect, restore, and enhance fish, wildlife,

and associated habitats in the Central Valley and

Trinity River basins of California;

(b) to address impacts of the Central Valley Project on fish, wildlife and associated habitats;

(c) to improve the operational flexibility of the

Central Valley Project;

(d) to increase water-related benefits provided by

the Central Valley Project to the State of California

CENTRAL DELTA WATER v. BUREAU OF RECLAMATION 6975
through expanded use of voluntary water transfers

and improved water conservation;

(e) to contribute to the State of California’s

interim and long-term efforts to protect the San Francisco Bay/Sacramento-San Joaquin Delta Estuary;

(f) to achieve a reasonable balance among competing demands for use of Central Valley Project

water, including the requirements of fish and wildlife, agricultural, municipal and industrial and power

contractors.

CVPIA § 3402, Title XXXIV of the Reclamation Projects

Authorization and Adjustment Act of 1992, Pub. L. 102-575,

106 Stat. 4600, 4706 (1992). 

The Act requires that the Secretary

dedicate and manage annually eight hundred thousand acre-feet of Central Valley Project yield for the

primary purpose of implementing the fish, wildlife,

and habitat restoration purposes and measures authorized by this title; to assist the State of California in

its efforts to protect the waters of the San Francisco

Bay/Sacramento-San Joaquin Delta Estuary; and to

help to meet such obligations as may be legally

imposed upon the Central Valley Project under State

or Federal law following the date of enactment of

this title . . . . 

CVPIA § 3406(b)(2). In addition, the CVPIA requires the

Secretary of the Interior to “develop and implement a program . . . for the acquisition of a water supply to supplement

the quantity of water dedicated to fish and wildlife purposes

under” § 3406(b)(2). CVPIA § 3406(b)(3). 

The Act states that the Secretary of the Interior “immediately upon the enactment of this title, shall operate the Central

6976 CENTRAL DELTA WATER v. BUREAU OF RECLAMATION
Valley Project to meet all obligations under State and Federal

law,” including the decisions of the State Board. CVPIA

§ 3406(b). “In short, the Act demands that the Project implement a significant fish habitat protection program, but that it

do so in accordance with the applicable state water use permits.” Cent. Delta Water Agency v. United States (Central

Delta I), 306 F.3d 938, 945 (9th Cir. 2002). 

One such state permit standard is known as the Vernalis

Salinity Standard. The gauging station at Vernalis is located

below the confluence of the Stanislaus River and the San Joaquin River. The Vernalis Salinity Standard, initially set by the

State Board at 500 parts per million total dissolved solids, is

now set at an electrical conductivity measurement of 1.0

mmhos/cm during the period of September through March

and 0.7 mmhos/cm during the irrigation months of April

through August. The Bureau is required, both by the terms of

its water permits and by the CVPIA, to operate the CVP so

as not to exceed the 0.7-1.0 mmhos/cm salinity standard. All

parties agree that the Bureau has not violated the Vernalis

Salinity Standard since 1994. 

The Bureau periodically releases water from the New Melones Unit, pursuant to § 3406(b)(2) of the Act, to create flows

sufficient to maintain wildlife habitats. While nothing in the

Act requires that the Bureau use New Melones water for its

§ 3406(b)(2) releases, the Bureau exercised its discretion to

use that water. Central Delta I, 306 F.3d at 945. In 1997, the

Bureau adopted the New Melones Interim Operations Plan

(“Plan”). The Plan provides for (b)(2) water releases from

New Melones, as well as the purchase of water, under

§ 3406(b)(3), from other water users. The Plan was initially

intended to be temporary, but, for lack of a better program,

the Bureau has continued to operate the CVP under the Plan

since its adoption. 

The Plan includes a model showing a possibility that the

Vernalis Salinity Standard might be violated in the future. The

CENTRAL DELTA WATER v. BUREAU OF RECLAMATION 6977
model consists of a 71-year projected study of the operation

of the CVP under the Plan. That model showed that in 37 of

the 71 years there would be at least one violation of the standard, and that violations would occur in 88 of the 852 months

covered by the study (approximately 10%). Although the

Bureau operates the Project pursuant to this Plan, the Bureau

does not blindly adhere to it: the Bureau deviates from the

Plan when necessary in order to meet its various obligations,

including compliance with the Vernalis Salinity Standard. 

The Delta parties sued the Bureau for injunctive relief,

claiming that the Bureau may not release any water from New

Melones under § 3406(b)(2) or purchase water under

§ 3406(b)(3) unless it first dedicates a sufficient amount of

water to ensure that the Vernalis Salinity Standard is satisfied.

The Delta parties asserted that the (b)(2) releases and the

(b)(3) purchases decrease the amount of water that will flow

down to Vernalis during irrigation months, thus resulting in

a higher salinity content of the water. The Delta parties

alleged that a higher salinity content will injure the crops irrigated by the water. Relying on the Bureau’s modeling, the

Delta parties contended that the Bureau’s operation of the

Project under the Plan threatened a violation of the Vernalis

Salinity Standard. 

The district court initially held that the Delta parties lacked

standing to challenge the Bureau’s Plan because there had

been no violation of the standard since 1994. We reversed,

holding that the Bureau’s modeling created a risk of harm to

the Delta parties sufficient to confer standing: “a credible

threat of harm is sufficient to constitute actual injury for

standing purposes, whether or not a statutory violation has

occurred.” Central Delta I, 306 F.3d at 950.

On remand, the Delta parties and the Bureau moved for

summary judgment. The district court denied the Delta parties’ motion and granted the Bureau’s motion. See Fed. R.

Civ. P. 56(c). Among other grounds, the district court held

6978 CENTRAL DELTA WATER v. BUREAU OF RECLAMATION
that the Delta parties could not show, “within reasonable scientific certainty,” that the Bureau would violate the Vernalis

Salinity Standard in the future. Cent. Valley Water Agency v.

United States, 327 F. Supp. 2d 1180, 1218 (E.D. Cal. 2004).

II

We review de novo a district court’s decision on crossmotions for summary judgment. Magana v. Northern Mariana Islands, 107 F.3d 1436, 1438 (9th Cir. 1997). “We must

determine, viewing the evidence in the light most favorable to

. . . the non-moving party, whether there are any genuine

issues of material fact and whether the district court correctly

applied the substantive law.” Olsen v. Idaho State Bd. of

Med., 363 F.3d 916, 922 (9th Cir. 2004).

III

[1] As an initial matter, the Delta parties argue that they

need not show an actual violation of the CVPIA because our

prior decision in Central Delta I is the “law of the case.”

There is no such law of the case, however, because our decision on standing does not obviate the need to address the merits of the litigation. See Cardenas v. Anzai, 311 F.3d 929, 933

(9th Cir. 2002) (meaning of statute is a question of law that

does not affect standing); Davis v. Passman, 442 U.S. 228,

239 n.18 (1979) (court of appeals improperly confused the

question of standing with the question of whether plaintiff had

a cause of action). The Delta parties cannot stand on our prior

decision to avoid the need to demonstrate an imminent statutory violation. 

The Delta parties have failed to show that the Bureau has

committed such a violation. We find meritless the Delta parties’ contention that § 3406(b)(2) requires that the Bureau

dedicate and allocate a specific amount of water to meet the

Vernalis Salinity Standard before it may do anything else.

CENTRAL DELTA WATER v. BUREAU OF RECLAMATION 6979
After directing the Secretary to manage 800,000 acre-feet of

“Central Valley Project yield,” the statute continues: 

For the purpose of this section, the term “Central

Valley Project yield” means the delivery capability

of the Central Valley Project during the 1928-1934

drought period after fishery, water quality, and other

flow and operational requirements imposed by terms

and conditions existing in licenses, permits, and

other agreements pertaining to the Central Valley

Project under applicable State or Federal law existing at the time of enactment of this title have been

met. 

CVPIA § 3406(b)(2) (emphasis added). The Delta parties

seize on the word “after,” claiming that it unambiguously

requires an allocation of water for all pre-CVPIA requirements prior to any releases for fishery purposes. 

[2] However, this portion of the statute is merely a definition. The clear language of § 3406(b)(2) first requires the

Bureau to dedicate and manage 800,000 acre-feet of “Central

Valley Project yield.” It then goes on to define “Central Valley Project yield” as the amount of water, assuming hydrological conditions of the period of 1928-1934, after pre-CVPIA

requirements are met. The statute does not direct the Bureau

to allocate a specific amount of water to pre-CVPIA purposes

prior to exercising its discretion to achieve its other purposes.

[3] The Delta parties are correct that the Bureau lacks the

discretion to violate the Vernalis Salinity Standard. However,

the Act leaves to the agency’s discretion the decision of how

to comply with those standards. The Bureau has consistently

met the Vernalis Salinity Standard under its current Plan, even

though the Plan’s model showed that it would violate the standard 10% of the time. The Bureau’s discretion to modify the

Plan to account for changes in conditions, therefore, seems to

be working just fine. 

6980 CENTRAL DELTA WATER v. BUREAU OF RECLAMATION
[4] Not only has there been no violation of the Vernalis

Salinity Standard in over a decade, the Delta parties have

failed to raise a genuine issue of material fact as to whether

the Bureau will comply with the standard in the foreseeable

future. The Delta parties’ reliance on the Plan’s modeling to

attempt to create a factual issue suffers from two major flaws.

First, the model is based on hypothetical conditions. Actual

hydrological conditions will undoubtedly and frequently

change during the Bureau’s operation of the Project. 

[5] Second, the model’s prediction that the Plan will violate

the Vernalis Salinity Standard in 10% of the months assumes

the Bureau’s continuous and unswerving adherence to the

Plan. However, the Plan itself is merely a starting point, and

the Bureau modifies its operation of the CVP as conditions on

the river system change. The Bureau conceded at oral argument that it is legally obligated to meet the Vernalis Salinity

Standard, even if it must deviate from its Plan in order to do

so. It is undisputed that such deviation has occurred in the

past when a violation of the salinity requirement has been

threatened. It is within the Bureau’s discretion to determine

the means by which it will satisfy the Vernalis Salinity Standard, and if the Bureau must depart from the Plan to ensure

compliance, it will. As Dwight D. Eisenhower so aptly put it,

“Plans are nothing; planning is everything.”

IV

[6] It is clear that the Bureau must comply with the Vernalis Salinity Standard. It is equally clear that the Bureau’s is

an extremely difficult task: to operate the country’s largest

federal water management project in a manner so as to meet

the Bureau’s many obligations. Recognizing this difficulty,

Congress granted the Bureau considerable discretion in determining how to meet those obligations. The Bureau admits that

it is required to violate its own Plan if necessary to provide

flows sufficient to lower the salinity of the water to the levels

required by the Vernalis Salinity Standard. It has done so in

CENTRAL DELTA WATER v. BUREAU OF RECLAMATION 6981
the past, and nothing in the record suggests that it will not

continue to do so in the future. That strict adherence to the

Plan might result in violations of the standard establishes neither a factual issue nor a right to injunctive relief, because the

Bureau admits that it must violate its Plan rather than violate

the salinity requirement. There is no genuine issue of material

fact as to the Bureau’s future compliance with the Vernalis

Salinity Standard, and the judgment of the district court is

therefore

AFFIRMED. 

6982 CENTRAL DELTA WATER v. BUREAU OF RECLAMATION