United States v. California

WALLACE, Circuit Judge,

concurring and dissenting:

Although recent Supreme Court decisions leave me with no clear concept of what Congress must say in order to require the federal government to comply with state law, I am persuaded that the language of the statute reviewed here is insufficient to validate California’s permit procedure. While the “shall” in section 8 of the 1902 *1352 Reclamation Act appears to be mandatory, and while the Bureau of Reclamation’s conduct over nearly three-quarters of a century indicates that it had no doubt of the necessity for compliance with state law, I cannot say that the language of the section is any clearer or less equivocal than that rejected as insufficient in Hancock v. Train, 426 U.S. 167 , 96 S.Ct. 2006 , 48 L.Ed.2d 555 (1976), and EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200 , 96 S.Ct. 2022 , 48 L.Ed.2d 578 (1976). Thus, with reluctance I concur that the statute does not require the Bureau of Reclamation to secure, pursuant to state law, the permit in question.

However, unlike the majority, 1 I would go no further. Nothing in Hancock or EPA necessarily forecloses federal compliance with state-imposed requirements not involving permits. Indeed, the more than 70 years of cooperative development of water resources in the West under the Reclamation Act attest to the wisdom in providing non-exclusive control over this limited asset.

Also, I believe that we must disapprove that portion of the district court’s order that requires the federal government, “in accordance with comity, [to] apply to the California State Water Resources Control Board for a determination by that Board of the availability of unappropriated water” and that requires the Board to “grant such applications if unappropriated waters are available.” United States v. State of California, supra, 403 F.Supp. at 902. By construing section 8 under compulsion of Hancock and EPA as not requiring Bureau of Reclamation compliance with state appropriation procedures, we bring an element of uncertainty to the administration of water resources. Absent some mechanism to convey the information, the states cannot know what amount of unappropriated water remains for private use in a watershed after a portion is appropriated by the Bureau. The “comity” theory and application/notice requirement of the district court are an effort to patch this tear caused by the new construction of section 8.

It is a wayward effort. Comity is a concept of deference and voluntary action. Zink v. Estelle, 403 F.Supp. 656, 659 (S.D. Tex.1975); Galloway v. Watts, 395 F.Supp. 729, 731 (D.Md.1975). To use such a concept as a basis for requiring affirmative federal action seems peculiarly incongruous. Accordingly, I agree with the majority’s disapproval of the district court’s comity theory.

But the majority does no better in its effort for it provides no defensible basis for requiring federal agency action. Accordingly, I must reject that portion of the majority’s opinion which directs the federal government “to comply with the forms of state law” (emphasis added) because “[i]t is a legal requirement of § 8.” Majority op. at 1243. 2

Concededly where two sovereigns, acting independently, administer water rights in the same watershed, there is a great poten *1353 tial for uncertainty. But that is what our Hancock- and EPA -inspired construction of section 8 means. The majority has failed to find a defensible legal basis to give effect to its desire to avoid this problem. Unfortunately, I can see no such basis either. Accordingly, we have, I believe, no alternative but to leave it to the legislative branch to devise a solution. Therefore, I would go no further than to disapprove the permit procedure in question.

. The majority’s approach to the permit issue seems to be premised on the belief that the impermissible aspect of the state’s scheme is not the permit requirement but rather the conditions the state has attached to the permit. California has conceded all along that, although the Bureau must seek and secure a permit, the state has no power to attach to the permit conditions inconsistent with or contradictory to congressional purposes underlying the particular reclamation project. California believes, however, that no such conflict exists in this case.

In a proceeding before a state agency, it was determined that the conditions imposed by California were valid. The federal government did not appeal this decision. Accordingly, the government conceded at oral argument that it is precluded by the doctrine of res judicata from raising the issue anew in this case.

. While the majority fails to provide us with any legal reasoning for requiring compliance with “the forms of state law,” I can only assume that the requirement is derived from federal common law. Before embarking on this new and uncharted course of constructing common law, I would ask: Do we have the legal competency to fashion any rules in this area? Even if we do, is it wise for us to undertake the task? While I entertain doubts that the first question can be answered affirmatively, I am *1353 convinced that we ought not undertake the task of judicial rulemaking in an area as complex and sensitive as state-federal relation over water.

If my assumption regarding the federal character of the application/notice requirement is incorrect, then that requirement must be viewed as one of state law. If derived from state law, there would be an inconsistency with the majority’s initial conclusion that section 8 does not require federal agency compliance with state permit procedures.