                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


FIREBAUGH CANAL WATER                  No. 11-17715
DISTRICT; CENTRAL CALIFORNIA
IRRIGATION DISTRICT,                     D.C. Nos.
            Plaintiffs-Appellants,    1:88-cv-00634-
                                         LJO-DLB
                v.                    1:92-cv-05554-
                                          OWW
UNITED STATES OF AMERICA;             1:91-cv-00048-
DEPARTMENT OF INTERIOR;                  LJO-DLB
BUREAU OF RECLAMATION;
KENNETH LEE SALAZAR;
WESTLANDS WATER DISTRICT;                OPINION
PANOCHE WATER DISTRICT;
BROADVIEW WATER DISTRICT;
SAN LUIS WATER DISTRICT,
          Defendants-Appellees,

NATURAL RESOURCES DEFENSE
COUNCIL; THE BAY INSTITUTE;
CONTRA COSTA COUNTY;
CONTRA COSTA WATER AGENCY,
Intervenor-Defendants-Appellees.


      Appeal from the United States District Court
          for the Eastern District of California
   Oliver W. Wanger, Senior District Judge, Presiding
2 FIREBAUGH CANAL WATER DIST. V. UNITED STATES

                  Argued and Submitted
        December 5, 2012—San Francisco, California

                        Filed April 5, 2013

Before: Stephen S. Trott and Johnnie B. Rawlinson, Circuit
        Judges, and Frederic Block, District Judge.*

                     Opinion by Judge Block


                           SUMMARY**


                           Water Rights

    The panel affirmed the district court’s summary judgment
in favor of the United States Department of the Interior in an
action challenging Interior’s management of California’s
Central Valley Project.

    The panel held that Interior’s broad discretion in matters
of drainage precluded the Firebaugh Canal Water District and
the Central California Irrigation District’s claims that a lack
of adequate drainage in part of the Central Valley Project
caused poor quality water flow into the District’s service area,
and that Interior should be ordered to provide the necessary
drainage or pay money damages. The panel also held that


 *
   The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
   FIREBAUGH CANAL WATER DIST. V. UNITED STATES 3

Interior’s discretion put Interior’s actions beyond the scope of
both the Administrative Procedure Act and Federal Tort
Claims Act.


                         COUNSEL

Paul R. Minasian, Minasian, Meith, Soares, Sexton &
Cooper, LLP, Oroville, California, for Plaintiffs-Appellants.

Brian C. Toth, United States Department of Justice,
Environmental & Natural Resources Division, Washington,
D.C.; Daniel J. O’Hanlon and Eric N. Robinson, Kronick,
Moskovtiz, Tiedemann & Girard, Sacramento, California, for
Defendants-Appellees.

Hamilton Candee, Altshuler Berzon LLP, San Francisco,
California; Katherine Poole, Natural Resources Defense
Council, San Francisco, California; Laurens H. Silver,
California Environmental Law Project, Mill Valley,
California, for Intervenor-Defendants-Appellees.


                          OPINION

BLOCK, District Judge:

    The Central Valley Project (“CVP”) is a massive
undertaking to transfer water from the northern part of
California’s Central Valley to the relatively arid southern part
of the valley. The project is managed by the United States
Department of the Interior (“Interior”).
4 FIREBAUGH CANAL WATER DIST. V. UNITED STATES

    Interior’s management of the CVP has been the subject of
much litigation. Here, we address the claim of the Firebaugh
Canal Water District and the Central California Irrigation
District (collectively, “Firebaugh”) that a lack of adequate
drainage in part of the CVP causes poor quality water to flow
into its service area.

    Firebaugh argues that Interior should be ordered to
provide the necessary drainage or, alternatively, to pay money
damages. For the reasons set forth below, we hold that
Interior’s broad discretion in matters of drainage precludes
both claims.

                               I

A. The San Luis Act

    In 1960, Congress passed the San Luis Act, Pub. L. No.
86-488, 74 Stat. 156 (1960). The Act sought to “furnish[]
water for the irrigation of approximately five hundred
thousand acres of land in Merced, Fresno, and Kings
Counties, California,” by authorizing Interior to construct and
maintain the San Luis Unit (“the Unit”). Id. § 1(a). The Unit
was to include a dam and reservoir, along with “necessary
pumping plants, distribution systems, drains, channels,
levees, flood works, and related facilities.” Id.

    Aware that increased irrigation would increase drainage
requirements, Congress conditioned construction of the Unit
on “satisfactory assurance from the State of California that it
will make provision for a master drainage outlet and disposal
channel for the San Joaquin Valley.” Id. Alternatively, the
Unit could be constructed once Interior had “made provision
for constructing the San Luis interceptor drain to the [Contra
   FIREBAUGH CANAL WATER DIST. V. UNITED STATES 5

Costa] delta designed to meet the drainage requirements of
the San Luis unit.” Id. In addition, section 5 of the Act
authorized Interior to “enter into agreements and participate
in construction and operation of drainage facilities designed
to serve the general area of which the lands to be served by
the San Luis unit are a part, to the extent the works authorized
in section 1 of this Act contribute to drainage requirements of
said area.”

    When California declined to provide a master drainage
outlet, Interior then informed Congress that it would build the
drain. Construction began thereafter and the Unit started
making water deliveries in 1967.

    Since 1965, Congress has prohibited Interior from using
any of its annual appropriation to establish the terminus of the
interceptor drain pending the creation of environmental
standards agreed upon by both the state and federal
governments. No such standards have been established, and
the prohibition has been reenacted nearly every year.

    Though prohibited from fixing the drain’s endpoint,
Interior completed construction on the middle portion of the
drain in 1975. It also created the Kesterson Reservoir as an
interim measure to receive the drain’s output.

    In 1983, studies at Kesterson revealed elevated levels of
selenium in the drainage water. In 1986, Interior closed the
reservoir and plugged the drains leading to it. It continued,
however, to provide irrigation water to lands within the Unit.
6 FIREBAUGH CANAL WATER DIST. V. UNITED STATES

B. Initial District Court Proceedings

    The closing of the Kesterson Reservoir precipitated
lawsuits by those adversely affected by the lack of drainage.
In Firebaugh Canal Water District v. United States, No. 88-
CV-634 (E.D. Cal.), Firebaugh alleged that Interior was
statutorily obligated to drain lands irrigated by the Unit.
Westlands Water District, the Unit’s largest water district,
along with several individual landowners within the Unit,
made a similar allegation in Sumner Peck Ranch v. Bureau of
Reclamation, No. 91-CV-48 (E.D. Cal.).

    The district court partially consolidated the two actions to
address the common allegation. On plaintiffs’ motion for
partial summary judgment, the district court held that section
1(a) of the San Luis Act required Interior to drain lands
within the Unit. It then rejected Interior’s argument that
Congress’s ban on fixing the drain’s endpoint and other
changed circumstances had implicitly repealed or excused the
obligation. Based on those rulings, the district court entered
a partial judgment requiring Interior to “take such reasonable
and necessary actions to promptly prepare, file and pursue an
application for a discharge permit” for completion of the
interceptor drain. Interior appealed.

C. Firebaugh I

    In Firebaugh Canal Co. v. United States, 203 F.3d 568
(9th Cir. 2000) (“Firebaugh I”), we upheld the district court’s
ruling that “the San Luis Act mandated the Secretary to
provide the interceptor drain.” Id. at 574. We further held
that “subsequent Congressional action has not eliminated the
Department’s duty to provide drainage, but that it has given
the Department the authority to pursue alternative options
   FIREBAUGH CANAL WATER DIST. V. UNITED STATES 7

other than the interceptor drain to satisfy its duty under the
San Luis Act.” Id. at 577. Accordingly, we reversed the
portion of the judgment requiring Interior to seek a permit for
the interceptor drain, and remanded for further proceedings.
See id. at 578.

D. Interior’s Actions After Firebaugh I

    On remand, the district court modified its judgment to
require Interior to “without delay, provide drainage to the San
Luis Unit pursuant to the statutory duty imposed by section
1(a) of the San Luis Act.” Consistent with our holding that
Interior retained broad discretion to choose a drainage
solution, the district court’s only specific directive was that
Interior submit “a detailed plan describing the action or
actions, whether short term or long term, [it] will take to
promptly provide drainage to the San Luis Unit, which plan
shall contain a schedule of dates by which the action or
actions described in the plan will be accomplished.”

    Interior submitted an action plan on April 18, 2001. The
plan identified ten “milestones” and proposed dates for their
completion, which dates have been amended several times.

    Pursuant to the action plan, Interior conducted an
extensive re-evaluation of the Unit’s drainage situation,
including public comment and examination of environmental
impact issues. A report completed in December 2002
estimated that 379,000 acres would require drainage by 2050;
that total included 24,000 located outside the Unit, in
Firebaugh’s service area.

   In March 2007, Interior issued a record of decision
announcing that it had selected an “in-valley” drainage
8 FIREBAUGH CANAL WATER DIST. V. UNITED STATES

alternative. Through that alternative, Interior undertook to
(1) reduce the amount of drainwater through treatment and
reuse, and (2) dispose of the remaining wastewater in
evaporation ponds and, later, landfills. The alternative also
called for retirement of some lands from irrigated farming, a
measure proposed by local water districts.

    Interior estimated that its “in-valley” alternative would
eventually cost $2.69 billion. It is, however, constrained by
existing legislation to spend no more than $429 million on
construction costs. In addition, Interior determined that the
water districts that would benefit from the drainage plan
lacked the current ability to pay the difference, as required by
current reclamation law. Therefore, Interior submitted a
feasibility study to Congress that outlined changes in
legislation that would be required to fully implement the plan.
Congress has taken no action to increase the cap on
construction costs, or to defer or excuse the Unit’s water
districts’ obligation to repay them.

    Notwithstanding the lack of congressional action, Interior
undertook drainage projects that fell within its existing
construction cap. In 2009, it submitted to the district court a
control schedule setting forth its proposals for such actions
through 2019. The district court adopted the control
schedule, and Interior submitted periodic status reports
addressing its compliance with the schedule.

    As of the end of fiscal year 2011, Interior had secured $7
million in appropriations for control schedule projects, and
had spent $5.5 million of those appropriations on pre-
construction activities for a demonstration treatment plant in
one of the Unit’s water districts, as well as a self-sufficient
   FIREBAUGH CANAL WATER DIST. V. UNITED STATES 9

drainage system for a portion of another district. It also
requested more than $14 million for fiscal year 2012.

E. Subsequent District Court Proceedings

      Interior settled with the in-Unit landowners in 2002,
leaving Firebaugh as the only plaintiff. Firebaugh filed a
fourth—and later, fifth—amended complaint setting forth
claims against Interior. Although the complaint also referred
to claims against four in-Unit water districts—Westlands
Water District, Panoche Water District, Broadview Water
District and San Luis Water District—Firebaugh represents
that those parties were named as interested parties only, and
that “[n]o question of their duty under federal law or state law
was ever before the District Court.” We accept Firebaugh’s
representation that its lawsuit did not seek to impose any
liability on the in-Unit districts and confine our discussion
accordingly.

    Firebaugh asserted several claims against Interior, but
only two are at issue on appeal. First, Firebaugh alleged that
Interior’s failure to provide drainage constituted a trespass
and nuisance, and sought damages under the Federal Tort
Claims Act (“FTCA”). The district court dismissed the
FTCA claim in 2004, holding (1) that water suppliers do not,
under California law, have a duty to prevent water from
draining onto downslope lands, and (2) that Interior’s actions
fell within the discretionary function exception to FTCA
liability.

    Second, Firebaugh alleged that Interior’s failure to
provide drainage constituted a final agency action that was
“arbitrary, capricious, an abuse of discretion and otherwise
not in accordance with law.” In the alternative, it alleged that
10 FIREBAUGH CANAL WATER DIST. V. UNITED STATES

Interior’s failure to provide drainage constituted agency
action unlawfully withheld or unreasonably delayed.
Invoking the Administrative Procedure Act (“APA”), it
sought an order requiring Interior to “immediately
implement[] plans to stop migration of groundwater . . . from
the San Luis Unit . . . across the Firebaugh boundary.” On
cross-motions for summary judgment, the district court held
that Interior’s “only discrete duty required by law” was to
provide drainage within the Unit, and that its actions—though
“frustratingly slow”—did “not at present constitute
unreasonable delay as a matter of law.” Firebaugh timely
appealed.

                                       II

    The APA empowers a reviewing court to “compel agency
action unlawfully withheld or unreasonably delayed.”
5 U.S.C. § 706(1).1 Four years after Firebaugh I, the
Supreme Court laid out the parameters of § 706(1) review in
Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55
(2004) (“SUWA”). Writing for a unanimous Court, Justice
Scalia held that “a claim under § 706(1) can proceed only
where a plaintiff asserts that an agency failed to take a
discrete agency action that it is required to take.” Id. at 64.
The limitation to “discrete” agency action, the Court
concluded, precludes a “broad programmatic attack,” id.,

  1
    Firebaugh also bases its APA claim on 5 U.S.C. § 706(2)(A), which
authorizes a court to “set aside agency action . . . found to be . . . arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law.” However, because Firebaugh challenges Interior’s failure to provide
drainage, there is no agency action for us to “set aside.” See Hells Canyon
Preservation Council v. United States Forest Serv., 593 F.3d 923, 930 (9th
Cir. 2010) (“To bring a claim under 5 U.S.C. § 706(2), plaintiffs must
identify a final agency action upon which the claim is based.”).
      FIREBAUGH CANAL WATER DIST. V. UNITED STATES 11

while “[t]he limitation to required agency action rules out
judicial direction of even discrete agency action that is not
demanded by law,” id. at 65:

         Thus, when an agency is compelled by law to
         act within a certain time period, but the
         manner of its action is left to the agency’s
         discretion, a court can compel the agency to
         act, but has no power to specify what the
         action must be.

Id.

    Thus, under SUWA, Firebaugh must show that Interior has
failed to take a discrete action that it is legally required to
take. Firebaugh proffers two such actions: (1) a duty to
provide drainage to lands outside the Unit, and (2) a duty to
provide drainage within the Unit. It argues that both duties
are imposed by the San Luis Act.

A. Drainage Outside The Unit

      Section 5 of the San Luis Act presents a serious—and, in
our view, insurmountable—obstacle to Firebaugh’s claim that
the Act requires Interior to provide drainage to lands outside
the Unit. That section addresses drainage facilities “designed
to serve the general area of which the lands to be served by
the San Luis unit are a part.” But unlike section 1(a)—which
states that the features of the Unit “shall” include “necessary
. . . drains”—section 5 merely “authorize[s]” Interior to build
and operate drainage facilities.

    In Firebaugh I, we ascribed different meanings to
Interior’s “authority” to construct the San Luis Unit and the
12 FIREBAUGH CANAL WATER DIST. V. UNITED STATES

mandatory language to include “necessary . . . drains” if the
Unit was to be constructed:

       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 574 (omission in original).

    Firebaugh notes that section 1(a) refers to the drainage
requirements of the Unit as those “generally outlined in the
report of Department of the Interior, entitled ‘San Luis Unit,
Central Valley Project,’ dated December 17, 1956.” The
1956 report generally discussed drainage within the Unit,
estimating, for example, that “[a]pproximately 96,000 acres
along the lower fringes of the service area will require a
drainage system for the disposal of saline water unsuitable for
reuse.” The closest it comes to mentioning out-of-Unit
drainage is a reference that possible problems in the lower
part of the service area might also crop up “in a few isolated
spots elsewhere.” Even then, however, the proposed solution
was a system of tile drains “along the eastern edge of the
[service] area.” At best, the report anticipated that in-Unit
drainage issues could affect downslope lands; it made no
proposal for solving those issues by providing drainage to
downslope lands.
   FIREBAUGH CANAL WATER DIST. V. UNITED STATES 13

    Firebaugh argues that Congress could not have foreseen
the effects of Interior’s failure to construct the interceptor
drain as planned. But the inclusion of section 5 demonstrates
Congress’s awareness that operation of the Unit would impact
lands outside the Unit because Interior’s discretion to provide
drainage facilities to out-of-Unit lands was expressly limited
“to the extent the works authorized in section 1 of this Act
contribute to drainage requirements of said area.”

     Construing section 1(a) to require drains outside the Unit
would render section 5 unnecessary. We are bound to respect
Congress’s decision to address the possible impact of in-Unit
irrigation by authorizing, but not requiring, drainage outside
the Unit.

B. Drainage Within The Unit

    As Firebaugh I held, Interior is obligated to provide
drainage to lands inside the Unit. At oral argument, Interior
acknowledged that it is bound by that holding and by the
district court’s judgment requiring it to provide a drainage
solution “without delay.” We therefore have no occasion to
address whether SUWA would command a different result
today.

    We can say, however, that the duty announced in
Firebaugh I is the only thing on which Firebaugh can base its
claim. There are simply no other, more specific acts for the
district court to compel as “unlawfully withheld” or
“unreasonably delayed” under § 706(1).

   We agree with the district court that Interior is neither
withholding nor unreasonably delaying drainage within the
Unit. Its “in-valley” solution has been in place since 2007.
14 FIREBAUGH CANAL WATER DIST. V. UNITED STATES

And while Firebaugh’s frustration with the pace of
implementation is quite understandable, that pace is
determined by the scope and cost of the project. Those
obstacles are not, by and large, a product of Interior’s
inaction. For example, Interior can seek appropriations for
drainage projects—and, indeed, has done so—but it is
ultimately up to Congress to provide funds. Likewise, it is
for Congress to decide whether to lift the current cap on
construction costs or to excuse in-Unit districts from their
obligation to eventually repay those costs.

    Firebaugh proposes that Interior take certain steps to
counter congressional inertia, such as categorizing
construction costs as “maintenance and operation,” for which
there is no appropriations cap. Whatever their merits,
Firebaugh’s proposals do not involve discrete actions that
Interior is legally required to take; rather, they involve
matters of discretion and, as such, are beyond the scope of
§ 706(1).

                             III

    The FTCA makes the United States liable for tort
damages “in the same manner and to the same extent as a
private individual under like circumstances.” 28 U.S.C.
§ 2674. Excepted from this waiver of sovereign immunity
are claims “based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty
on the part of a federal agency or an employee of the
Government, whether or not the discretion involved be
abused.” Id. § 2680(a). The district court held that
Firebaugh’s FTCA claim was barred under both the “private
analog” requirement of § 2674 and the “discretionary
function” exception of § 2680(a).
   FIREBAUGH CANAL WATER DIST. V. UNITED STATES 15

A. Private Analog

    The question of whether a private analog exists is a
question of “whether a private person would be responsible
for similar negligence under the laws of the State where the
acts occurred.” Rayonier, Inc. v. United States, 352 U.S. 315,
319 (1957). In United States v. Olson, 546 U.S. 43 (2005),
the Supreme Court reaffirmed that the proper analogy is to
“state-law liability of private entities, not to that of public
entities.” Id. at 46 (citing Indian Towing Co. v. United States,
350 U.S. 61, 64 (1955)).

    As far as we are aware, no California case addresses the
tort liability of private water suppliers for the downslope
effects of the water they provide. Firebaugh argues that the
San Luis Act imposes such liability, but violations of federal
law “are not actionable under the FTCA because any liability
would arise under federal rather than state law.” Jachetta v.
United States, 653 F.3d 898, 904 (9th Cir. 2011).
Conversely, case law holding that public water districts are
not “responsible for the acts of its users when the District
does no more than supply water,” Hagemann v. West
Stanislaus Irrigation Dist., 144 Cal. App. 3d 910, 914 (Ct.
App. 1983), are inapposite under Olson. See Tekle v. United
States, 511 F.3d 839, 851 (9th Cir. 2007) (“The Court [in
Olson] emphasized the ‘private person’ language, rejecting
the notion that the United States would be liable only if a
state or municipal entity would be liable.”).

    The absence of cases exactly on point is not necessarily
fatal to Firebaugh if there is an appropriate analogy. See
Olson, 546 U.S. at 46 (“[T]he words ‘like circumstances’ do
not restrict a court’s inquiry to the same circumstances, but
require it to look further afield.”). Rather than undertake a
16 FIREBAUGH CANAL WATER DIST. V. UNITED STATES

search for one, we assume the existence of a private analog
and proceed to the discretionary function inquiry.

B. Discretionary Function Exception

    Determining whether the discretionary function exception
applies is a two-step inquiry. See Terbush v. United States,
516 F.3d 1125, 1129 (9th Cir. 2008) (citing Berkovitz v.
United States, 486 U.S. 531, 536–37 (1988)). “First, we must
determine whether the challenged actions involve an element
of judgment or choice.” Id. (internal quotation marks
omitted). “When a specific course of action is not
prescribed,” “[w]e then must consider whether that judgment
is of the kind that the discretionary function exception was
designed to shield, namely, only governmental actions and
decisions based on considerations of public policy.” Id.
(internal quotation marks omitted).

    In its reply brief, Firebaugh argues that the duty embodied
in section 1(a) of the San Luis Act removes any element of
discretion and, therefore, makes the discretionary function
exception inapplicable. That argument, however, ignores
Firebaugh I’s explicit caveat that Interior retains “broad
discretion” as to how drainage is to be provided. 203 F.3d at
577.

    Interior’s actions in developing a drainage solution for the
Unit clearly implicate considerations of policy, including
environmental policy (in closing the Kesterson Reservoir),
economic policy (in continuing to provide irrigation to
communities in which agriculture is the predominant
industry), and—perhaps most importantly—the fiscal
limitations imposed by Congress. For these reasons, we
conclude that providing irrigation water without
   FIREBAUGH CANAL WATER DIST. V. UNITED STATES 17

concomitantly providing adequate drainage for it is a
discretionary function and, therefore, not actionable under the
FTCA.

                              IV

    We do not minimize the very real costs that continued
operation of the San Luis Unit imposes on downslope lands,
and we repeat Firebaugh I’s holding that Interior is obliged
to find a solution. We also reaffirm, however, that the
contours of the solution lie within Interior’s discretion. That
discretion places Interior’s actions beyond the scope of both
the APA and the FTCA.

    There is, to be sure, some point at which Interior’s actions
could become so sluggish that we could rightly say that the
agency has entirely abandoned its legal duty to provide
drainage within the San Luis Unit. The record before us does
not now support that conclusion. Accordingly, the judgment
of the district court is

    AFFIRMED.
