Petition for Writ of Certiorari — Alpine Land & Reservoir Co. v. United States

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

ALPINE LAND AND RESERVOIR COMPANY,

Petitioner

UNITED STATES OF AMERICA,

Respondent

Petition for Writ of Certiorari to

United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

REW R. GOODENOW

VARGAS & BARTLETT

201 West Liberty Street

P. O. Box 281

Reno, Nevada 89504

(702) 786-5000

Attorney for Petitioner

QUESTIONS PRESENTED FOR REVIEW

l. Whether the United States' failure to

adhere to a long-standing agreement to abide by

historical practices and customs of water

distribution constitutes extraordinary

circumstances justifying relief under

Fed.R.Civ.P. 60(b)(6).

2. Whether the Court of Appeals

improperly substituted its view of the facts for

the District Court's findings of fact on the

issue of exceptional circumstances.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW or oo a i

TABLE OF AUTHORITIES ... + «© « « « « ce « Sh

- gt it: Ge . 7. Si er 1

e.g 8s 6 te 0 ' & Sie see 2

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, ORDINANCES AND

REGULATIONS INVOLVED IN THE CASE . * ore 2

STATEMENT OF THE CASE ........-«-. 2

A. Statement of Jurisdiction

in the Ninth Circuit Court

Of AppeBiO «+ +s «© «6 we 8 4 2

B. Statement of the Case and Facts 3

REASONS FOR GRANTING THE WRIT ..... . 17

GCOceereeee ltl tl hl hl hla Uhl hl hee ee 30

APPENDICES

United States Court of Appeals

for the Ninth Circuit Opinion

filed January 29, 1993. ....... -1A

United States District Court

for the District of Nevada

Decision entered August 6, 1990 .. . .1B

Federal Rules of Civil Procedure

for the United States District

Court, Rele@ GO. + «+ es 8 * ee 6 8 6 & © ee

TABLE OF AUTHORITIES

Cases Page

Bankers Mortgage Company v. United States,

423 F.2d 73 (5th Cir. 1970) ..... 25

In the Matter of Brown,

68 F.R.D. 172 (D.C.D.C. 1975) oa a

Liljeberg v. Health Services Acquisition Corp.,

486 U.S. 847 (1988) .. + «+ «6 «© «= « « 24

Orr v. Arapaho Water and Sanitation Dist.,

753 P.2d 1217 (Colo. 1988) ...... 2l

Pyramid Lake Paiute Tribe of Indians v. Hodel,

882 F.2d 364 (9th Cir. 1989) ..... 4

Smith Int'l, Inc. v. Hughes Tool Company,

759 F.2d 1572 (Fed.Cir. 1985)... .. ll

Transqgo, Inc. v. Ajac Transmission Parts Corp.,

911 F.2d 363 (9th Cir. 1990) ..... 21

United States v. Alpine Land & Reservoir Co.,

503 F.Supp. 877, 878

(D.Nev. 1980) ..+ +s » Te 16,5 Bie 27

United States v. Alpine Land & Reservoir Co.,

769 F.Supp. 1142

(D.Nev. 1991). . Je 5, 7-10, 12-14, 24-29

United States v. Alpine Land & Reservoir Co.,

984 F.2d 1047

(9th Cir. 1993). - «© © «© «© « « -6, 19, 20

United States v. Morgan, 346 U.S. 502

(1954) © 7 . . 7 . . e . ° t . . e 25, 26

United States v. State of Washington,

761 F.2d 1404 (9th Cir.)

cert. denied, 474 U.S. 1100 (1986) .. 3

Statutes and Rules

Ce» Se). ee ee ee a ae

we viGs Deeeeras) «+. 6 6 we ae sw ee we Se

oe 6s ONE s & 6 s 6 8 ee ke “S Ora ei ee

oe ee | ee a ee ee a es

POG meGavcrs BG 6 se te ee wt hl tt lt ee Se UO

Fed.R.Civ.P. 60(b) .........~. «passim

Section 24 (First) of the

Judicial Code of March 3, 1911,

C.231, 36 Stat. .. ‘s+ + & Se © 8

Supreme Court Rule 14 .........2.e.-. 3

Supreme Court Rule 29... -.« se ewe ec eve 8B

Other Authorities

5 Am.Jur.2d Appeal & Error §744 (1962) .. 11

18 Am.Jur.2d Coram Nobis, 629-30 ..... 25

1B Moore's Federal Practice 40.407

lam Ge Gewese. 625 «2 8 bets 6 se ew ct we BD

6A Moore's Federal Practice 460. PaaS

(26 Gi. SBPhpe 6 6 2 6 o « « 22

6A Moore's Federal Practice 460.19

(oe Gee Beene 6 6 ea ek Hes oc

11 Wright & Miller,

Federal Practice and Procedure: Civil

$2867 (1973 and Supp. 1991) ..... 23

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

No.

ALPINE LAND AND RESERVOIR COMPANY,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

Petition for Writ of Certiorari to

United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The Ninth Circuit Court of Appeals Opinion

has been published. The Ninth Circuit Court of

Appeals Opinion is included as Appendix A. The

District Court Decision is included as Appendix

scant

JURISDICTION

l. The Judgment in the Ninth Circuit

Court of Appeals was entered on January 29,

1993.

2. On March 15, 1993, the Ninth Circuit

Court of Appeals entered an Order denying

Petition for Rehearing filed by Petitioner

Alpine Land and Reservoir Company.

3. The Supreme Court has jurisdiction

pursuant to 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS, TREATIES, STATUTES,

ORDINANCES AND REGULATIONS INVOLVED IN THE CASE

Fed.R.Civ.P. 60 is the only rule involved

in this case for the purpose of Supreme Court

Rule 14(1)(f) and is included as Appendix C.

STATEMENT OF THE CASE

A. Statement of Jurisdiction in the

Ninth Circuit Court of Appeals

This case was originally filed in the

United States District Court District of Nevada

pursuant to Section 24 (First) of the Judicial

Code of March 3, 1911, C.231, 36 Stat. 1087,

1091, the predecessor to 28 U.S.C. §1345. The

District Court's Decision, reported at 769

F.Supp. 1142, was rendered on a Petition of

Alpine Land and Reservoir Company, Petitioner

herein, to amend the Final Decree entered on

December 18, 1980.’

The District Court Judge entered a Final

Decree against the Respondent pursuant to

Fed.R.Civ.P. 54. The Court of Appeals had

jurisdiction under 28 U.S.C. 1291, as construed,

United States v. State of Washington, 761 F.2d

1404, 1406-07 (9th Cir.) cert. denied, 474 U.S.

1100 (1986).

B. Statement of the Case and Facts

Petitioner Alpine Land & Reservoir Company

("Alpine") commenced proceedings in January 1991

to correct an error of fact in the Final Decree

‘pursuant to Supreme Court Rules 14(1)(b)

and 29(1), Petitioner certifies that there is no

parent or subsidiary company to be listed and

that all parties to this supplemental proceeding

appear in the caption.

which the United States Court for the District

of Nevada had earlier entered in this case on

October 28, 1980. The Final Decree erroneously

specified as something less (about one-half)

than actuality the storage capacities of four

very small* reservoirs Alpine built, maintained

and used for many decades. The 1980 judgment

(hereafter "the Final Decree")” erroneously

*They are obviously very small, as

reservoirs go, containing mere hundreds of acre

feet of capacity. By comparison, the capacity

of Lahontan reservoir is around 300,000 acre

feet. ‘Pyramid Lake Paiute Tribe of Indians v.

Hodel, 882 F.2d 364, 370-71 (9th Cir. 1989).

‘The Final Decree, Findings of Fact,

Conclusions of Law, Tabulation and

Administrative Provisions ("Final Decree")

issued October 18, 1980, was not published in

the National Reporter System. However, it

constitutes the basic working document for the

administration of the decree. A tabulation of

Alpine's reservoir rights in the State of

specified about one-half of the actual storage

capacities of the reservoirs rather than the

increased capacity approved by the California

Department of Public Works Division of Water

Resources and utilized by Alpine for the past 40

plus years. Alpine petitioned the United

States District Court for the District of Nevada

on several alternative grounds (including

Fed.R.Civ.P. 60(b)(6)) to amend the Final Decree

by showing the correct storage capacities of the

four reservoirs.

Judge Bruce R. Thompson nevertheless ruled

on August 6, 1991, that, of the alternative

grounds asserted by Alpine, only Rule 60(b) (6)

afforded a legitimate basis for amending the

Final Decree and achieving justice in this case.

See 769 F.Supp. 1142, 1146. Judge Thompson

recognized the res judicata effect the Final

Decree would ordinarily have in this case, but

found that the “exceptional circumstances" of

California, the subject of the present dispute,

appears on page 145 of the Final Decree.

this case justified relief, in light of

applicable authorities, under Fed.R.Civ.P. Rule

60(b) (6). That basis, Rule 60(b)(6), is

sufficient to sustain Judge Thompson's decision.

The three judge panel of the Ninth Circuit Court

of Appeals found that extraordinary

circumstances did not exist and on that basis,

reversed and remanded. See 984 F.2d 1047.

Alpine respectfully submits that this Court

should reverse the Ninth Circuit Court of

Appeals judgment reversing and remanding Judge

Thompson's Decision.

The Decision entered below by Judge

Thompson on August 1, 1991, did not change the

actual status quo but only legitimized what had

been occurring for over 40 years and what should

have been and would have been legitimized in

1980 when Judge Thompson entered judgment in

this case, but for the extraordinary

circumstances described in this Petition.

This case began in 1926 as a quiet title

suit to adjudicate the rights to the use of the

water of the Carson River in Nevada and

California. United States v. Alpine Land &

Reservoir Co., 503 F.Supp. 877, 878 (D.Nev.

1980). The case was tried before the United

States District Court for the District of Nevada

and Special Master, John V. Mueller. Id.

Mueller drafted certain proposed findings of

fact, conclusions of law and decree, which he

submitted in June, 1951, when a temporary

restraining order was entered reflecting that

proposed decree. The United States filed

objections to Mueller's report and the court

held further trial proceedings to resolve those

objections. Id.

Long before this time, one of the many

parties to the action, Alpine Land & Reservoir

Company, had owned four small reservoirs on

upstream tributaries of the East Fork of the

Carson River high in the Sierras in California.

See 769 F.Supp. at 1143. These historic

reservoirs were created in 1895. In the late

1940s and early 1950s, Alpine had expanded the

storage capacities of these reservoirs, after

duly having obtained certificates from the State

of California authorizing it to do so.

At the time Alpine filed its applications

with the California Department of Public Works

and obtained the approvals for the increased

storage, that Department was the only department

or agency which fairly had jurisdiction over

such matters. Judge Thompson stated at the

District Court hearing that he "would have

recognized that proper procedures had been

followed to obtain entitlement to the increased

storage capacity."

From the dates of construction, Alpine has

used the increased reservoir capacities. The

parties agree that Alpine notified the Special

Master of these certificates and these reservoir

expansions. Alpine presented the California

Department of Public Works Division of Water

Resources certificates evidencing the increased

reservoir capacities to the Special Master but

he apparently did not make them part of the

rte neeaaiemeiremmammane

evidentiary record. See 769 F.Supp. at 1146.

The district court, in hearing Alpine's present

petition, concluded that "the proofs persuaded

the Special Master to file amended proposed

findings of fact, conclusions of law and

decree." Id. In fact, the California

certificates still exist, were made part of the

record below, and are valid and incontestible

documentary evidence of the increased reservoir

capacities.

On July 14, 1958, Special Master Mueller

filed with the court amended proposed findings

of fact, conclusions of law and decree. 769

F.Supp. at 1143. Mueller's proposed amended

findings, among many other things, expressly

recognized and adopted the increased reservoir

capacities for the four reservoirs in question

here. In so doing, the Water Master failed to

supplement the evidentiary record with the

California certificates relative to the four

reservoirs. This fact was unknown to Alpine.

769 F.Supp. at 1146. At that time the Special

Master supplemented or modified the restraining

order in effect to permit, among other things,

Alpine's increased storage. 769 F.Supp. at

1142. Over the ensuing years which stretched

into decades, Alpine stored water in the four

reservoirs at the higher capacities in

accordance with the Special Master's 1958

proposed decree.

The United States had a well-known and

much-relied upon agreement with the water users

to abide by historic practices and customs. The

following language from the opinion of Judge

Bruce R. Thompson accurately memorializes the

United States' longstanding agreement with the

other parties to the Alpine litigation:

Exclusive of pressing the depletion

approach, the United States has agreed

with all other parties that this Court

should recognize the historical customs,

practices and agreements by which water

has been distributed in the upper river

areas. The United States stated many

times, both in its briefs and through the

testimony of its expert witnesses, that

the government had no interest in the

daily irrigation practices of the upstream

users but rather desires a reasonable

quantification of the upstream rights so

as to clarify the protection of its

downstream rights.

The expert witness for the United

States stated several times that the

defendants could continue their

historic practices as long as net

depletion was not increased.

United States v. Alpine Land and Reservoir Co.,

503 F.Supp. 877, 889-91 (D.Nev. 1980) (emphasis

added).

The United States agreed to allow these

historical practices to continue and the Federal

Water Master continued to implement and to

monitor these storage practices. The agreement

was ratified by the Court, and the United States

did not appeal the Court's decision.

Consequently, the agreement by the United States

to abide by historical practices and customs

constitutes law of the case. See 503 F.Supp.

877, 889-90. See also Smith Int‘l, Inc. v.

Hughes Tool Company, 759 F.2d 1572, 1576

(Fed.Cir. 1985); 5 Am.Jur.2d Appeal & Error §744

(1962).

Over 15 years later, the United States

finally filed very lengthy objections to the

proposed amended findings of fact and decree on

a variety of mostly unrelated grounds. The

United States included within its objections an

objection to the stated storage capacities of

the four reservoirs in question. However, as

Judge Thompson found below, there was nothing in

the form of any of the United States' objections

which would have given specific notice to Alpine

that its reservoir capacities were in jeopardy.

769 F.Supp. at 1146. For this reason, Alpine

did not participate in any of the proceedings

occurring shortly before and leading up to

adoption of the Final Decree entered by the

court in 1980. Id. As a result of these

objections by the United States in 1980, Judge

Thompson modified the Special Master's proposed

amended findings and decree by, among many other

things, listing the reservoir capacities of

Alpine's four reservoirs at only their original,

lower, amounts when he entered the Final Decree

in 1980. 769 F.Supp. at 1143. He did so

because he could not find the certificates the

Special Master had been given showing that the

reservoirs' capacities had been increased in

accordance with permits from the appropriate

California department.

Alpine did not appeal from the Final Decree

in 1980 because it did not know about the

modifications pertinent to it contained within

that decree. Alpine did not know the Final

Decree stated inaccurate capacities for the

reservoirs. Id. Judge Thompson found below

that Alpine had acted without fault in that

regard. 769 F.Supp. at 1146. He found that

there was nothing in the form of the objections

(going on some hundred pages) made by the

government prior to the entry of the Final

Decree which would have given specific notice to

Alpine that its reservoir capacities were in

jeopardy. 769 F.Supp. at 1146. He ruled that

Alpine's conduct was consistent with the

exercise of ordinary care under the

circumstances. Id.

Had Judge Thompson known of the California

certificates in 1980, and had Judge Thompson

then passed upon that issue at trial in 1980, he

would have overruled the government's objections

and recognized the larger reservoir capacities.

769 F.Supp. at 1146. But the question of the

effect of the California certificates was not

put in issue then nor passed upon by Judge

Thompson. Id.

After Judge Thompson entered the Final

Decree, Alpine innocently continued to store

water in the four reservoirs at the higher

capacities. The United States never objected to

these historical practices, although the court's

own water master is charged with monitoring

them. Therefore, the United States ratified and

continued to adhere to its agreement to abide by

historical customs and practices.

Not until sometime in 1983 did Alpine have

any reason to believe that the Final Decree did

not state the larger capacities for the four

reservoirs. Apparently in that year, Alpine's

president heard that the Final Decree did not

reflect the increased capacities for the four

reservoirs. He consulted a friend and attorney,

Don Springmeyer, who advised that Alpine "should

let sleeping dogs lie, not open up a can of

worms." Not being satisfied with that, Alpine's

board of directors hired an attorney named E. J.

Skeen. Later in 1983, Skeen and Alpine's

corporate secretary, a Mr. Aldax, and president,

Mr. Robert Kimberling, visited Mr. Claude Dukes,

then the court-appointed Water Master charged

with administering the Final Decree and

overseeing administration of the water system.

Dukes stated that the error in the decree could

be "remedied administratively." Mr. Dukes also

told these three representatives of Alpine

"there would be no attempt to stop the

utilization of the reservoirs to their fullest

capacity.”

In early 1984, Mr. Skeen prepared and sent

petitions for Alpine along with copies of the

California certificates approving the capacity

increases to Mr. Dukes. Judge Thompson himself

noted, during the district court hearing, that

Mr. Gary Stone, the federal Water Master who

replaced Mr. Dukes in late 1984, eventually

found these California permits and papers in the

files of the Water Master, and could not explain

why they were never called to the attention of

the court by Mr. Dukes. The United States took

no exception with his statement.

Relying on the Water Master's inaction and

assurances, Alpine continued to operate the

reservoirs as they had during the previous 35

years--at full capacity. They did so without

interference by the Water Master. Not until

late 1990, over five years later, did Claude

Dukes' successor, Water Master Gary Stone,

advise Alpine's board that "he might have to cut

them back" on the storage in the reservoirs.

All these years Mr. Stone had known of Alpine's

operation of these reservoirs at full capacity,

indeed, had even earlier worked for Alpine in

operating these reservoirs. Only then did

government officials seek to thwart Alpine's

efforts to correct the errors.

At that point, Alpine promptly contacted

counsel who filed the petition from which the

present case arises.

REASONS FOR GRANTING THE WRIT

It is important to put the relief requested

into its proper perspective. The amendments

requested amount to a technical change in

storage capacity, not consumptive use, of four

small reservoirs. The total increase in storage

is 1,743 acre feet per year ("AFY"). By

comparison, the total consumptive use of water

allocated to the Upper Carson River alone, as

reflected in the Final Decree, is some 276,400

AFY. See 503 F.Supp. at 890. Obviously, the

relief requested does not greatly affect anyone,

except the Petitioner.

Judge Thompson appropriately employed Rule

60(b)(6) to achieve justice in this case. He

ordered the Final Decree modified as Alpine

requested and, in a well-crafted, principled

decision, showed that the circumstances of this

case under governing law merited such a result.

The doctrine of res judicata does not prevent

the court form granting Alpine the requested

relief. Res judicata does not apply if a party

moves the rendering court to correct or modify

its judgment. Id. at 619. This is exactly the

procedure Alpine followed in the present case.

Rule 60(b) is one of the several exceptions to

the doctrine of res judicata. See 1B Moore's

Federal Practice 90.407 at pp. 282-83 (2d ed.

1991). Since Alpine's petition satisfied the

Rule 60(b) requirements, it was not subject to

res judicata preclusion.

Judge Thompson who decided this case had

overseen the managoment of the Carson River for

over three decades and had no trouble correctly

seeing which result would produce justice in

this case. His conviction that the order he

entered in this case (and from which the

government appealed) was correct, was, to use

his word, "unshakable." With his vast

experience in managing that Carson River system,

he left intact storage rights which Alpine has

exercised for decades with the government's

knowledge, agreement and acquiescence. He

entered an order which would maintain the status

quo and which would not unfairly deprive Alpine

of the benefit of the four small reservoirs it

had paid to construct and maintain. He amended

the decree to achieve a result he would have

reached in 1980, but for an error of fact

extrinsic to the record in the case at that

time. Judge Thompson held that Alpine

established facts which entitled it to relief

under Rule 60(b)(6) and which justified

amendment of the Final Decree he entered in

1980.

In reaching that conclusion, Judge Thompson

did not abuse his discretion. He reached this

result with a principled application of Rule

60(b)(6). How is it, then, that the three judge

panel of the United States Court of Appeals felt

constrained to find that extraordinary

“circumstances do not exist in this case"? 984

F.2d 1047. In other words, in what way did

Judge Thompson abuse his discretion by granting

relief under Rule 60(b)(6)? The answer to these

questions is remarkably inconclusive. Although

Judge Thompson's decision contained a litany of

exceptional circumstances, the Ninth Circuit's

Opinion does not address them.

The Ninth Circuit's Opinion, although

lacking in focus, refers several times to the

perceived delay on Alpine's part in prosecuting

this action. The Ninth Circuit Opinion states:

The record before the district court

does not reflect any irregularities in the

notice provided to Alpine of the

government's 1973 objections. Nor is

there any contention that the district

court's 1980 decision upholding’ the

government's objection to Alpine's storage

entitlement was not properly served on

Alpine. The record does not reveal any

reason for Alpine's failure to respond to

the 1973 objections. Alpine could have

sought timely reconsideration of the 1980

decree pursuant to federal Rule of Civil

Procedure 59 or other provisions of Rule

60. It appears that Alpine's delay is the

result of a misperception of the impact of

the government's objections on Alpine's

interest. As stated above, the district

court nonetheless held that Alpine's

neglect was not the result of a lack of

diligence given the circumstances. The

district court apparently believed that

requiring an employee of Alpine to read

the entire lenathy set of objections and

decree so as to know the decree's adverse

impact was a burden great enough to render

Alpine's delay reasonable. Id.

984 F.2d 1047 (emphasis added). This is mere

hyperbole, not legal reasoning. Rule 60(b) (6)

is intended for cases involving delay - delay

for which the petitioner should not be held

responsible.

Res judicata does not bar an inquiry into

historical practices and customs of water

allocation. See Orr v. Arapaho Water and

Sanitation Dist., 753 P.2d 1217, 1225 (Colo.

1988). Under Transgo, Inc. v. Ajac Transmission

Parts Corp., 911 F.2d 363, 365 (9th Cir. 1990),

cited by Respondents in their opening brief, the

Court of Appeals should have applied, but merely

gave lip service to, an abuse of discretion

standard of review. Since Judge Thompson

specifically found that the requisite

extraordinary circumstances exist in this case

to modify the Final Decree, the Court of Appeals

should not have overturned his ruling unless

there clearly was no factual basis. Judge

Thompson had the benefit of many years of

experience with the Alpine case and the Carson

River system when he made his decision. His

determination that extraordinary circumstances

exist should, accordingly, have been granted

great respect and credibility. The litany of

extraordinary circumstances contained in Judge

Thompson's decision and the agreement of the

United States to abide by historical practices

and the acquiescence in these _ practices

constitute sufficiently extraordinary

circumstances.

The district court properly ruled that Rule

60(b)(6)* constituted sufficient authority to

‘Fed.R.Civ.P. 60(b) was extensively revised

in 1946 due to its deficiencies as originally

promulgated, and amended in formal detail in

1948. 6A Moore's Federal Practice 460.01[1] at

60-8 (2d ed. 1991) (citations omitted). The

sixth "savings clause," as the six clauses of

permit it, as requested by Alpine, to modify the

Final Decree entered earlier in this case. 6A

Rule 60(b) are called, provides:

On Motion and upon such terms as are just,

the court may relieve a party of a party's

legal representative from a final

judgment, order, or a proceeding for the

following reasons:. . . (6) any other

reason justifying relief from the

operation of the judgment.

Fed.R.Civ.P. 60(b)(6). The Notes of Advisory

Committee on 1946 Amendments to Rules applicable

to Rule 60(b) clearly show that the amendments

to this section, the sixth savings clause, were

designed to afford relief in situations where

such relief would have been available under the

common law principles of coram nobis, bills of

review, and so forth. 1l Wright & Miller,

Federal Practice and Procedure: Civil §2867 at

237 (1973 and Supp. 1991).

*There are six subclauses in Rule 60(b).

The first five clauses of Rule 60(b) provide for

Moore's Federal Practice 960.19 at 60-49-52 (2d

ed. 1991). Rule 60(b)(6) comes into play

when "exceptional circumstances" exist. In the

case of Liljeberg v. Health Services Acquisition

Corp., 486 U.S. 847, 863-70 (1988), this Court

reaffirmed that a district court may grant

relief in "exceptional circumstances" from a

final judgment. The facts which will support a

finding of exceptional circumstances are clearly

within the discretion of the Court.

Citing persuasive authority, Judge Thompson

held that the purpose of clause (6) is to

relief from judgments under specific

circumstances. The first three clauses of Rule

60(b) are clearly inapplicable to this case

because of lack of factual support and because

of the lapse of time, as the court ruled below.

769 F.Supp. at 1144. Furthermore, clauses four

and five are inapplicable for the reasons noted

by the court, and need not be discussed herein.

Id. Section (6) is the only applicable clause.

within the remedial scope of Rule 60(b) the

principles justifying relief from a judgment by

use of the procedural writs which were expressly

abolished but were enforceable at common law.

Judge Thompson ruled that the principles

underlying the ancient common law writ of coram

nobis support Alpine's petition. 769 F.Supp. at

1145-46. The writ of coram nobis was available

at common law to correct errors of fact.’

*Judge Thompson recognized that, although

coram nobis has been frequently invoked in a

criminal setting, some courts, including the

Federal Court of Appeals had discussed the

application of Rule 60(b) (6) to civil

litigation. See Bankers Mortgage Company v.

United States, 423 F.2d 73 (5th Cir. 1970). See

also In the Matter of Brown, 68 F.R.D. 172

(D.C.D.C. 1975). He further noted that the

Supreme Court of the United States in United

States v. Morgan, 346 U.S. 502 (1954), had

declared the writ of error coram nobis to be

alive and viable to correct an error of fact in

Coram nobis is now ordinarily employed in

exceptional circumstances where the errcr of

fact:

- is extrinsic to, or does not appear

in the record;

° affects the validity and regularity of

the proceedings;

- was not put in issue at the trial;

- was unknown at the time of the trial

to the party seeking relief without

fault on his part;

- was unknown to the trial court;

- if known, would have prevented

rendition of the judgment.

769 F.Supp. at 1145-46 (quoting 18 Am.Jur.2d

Coram Nobis at 629-30.

The Court of Appeals did not even address the

coram nobis principles in its Opinion.

a criminal case despite the remedies covered by

18 U.S.C. §2255. That the contention had been

made and rejected that Rule 60(b) had expressly

abolished the writ of error coram nobis in both

its procedural and substantive aspects was made

Clear by the first sentence in the dissenting

opinion in the Morgan case, as Judge Thompson

observed. Thus, the underlying principles of

coram nobis remain viable today.

In the present case, as Judge Thompson

held, the error was extrinsic to and did not

appear in the record. 769 F.Supp. at 1143. The

California certificates represented a valid

right to store water at an increased capacity

granted by the State of California which, at the

time, had the power to grant that right. The

certificates were extrinsic to the record. Id.

The question of the validity of the certificates

was not put in issue at the trial. Id. Both

Alpine and the trial court were unaware of the

circumstances, through no fault of Alpine. Id.

Consequently, the court did not pass in 1980 on

the question of the certificates. Id. Had the

court addressed the question, the court would

have upheld the certificated rights, as Judge

Thompson expressly held. Id. The district

court's decision thus satisfied the elements of

the writ of coram nobis.

Exceptional circumstances existed here.

Years before the district court entered the

Final Decree in this case, the proofs of the

increased reservoir capacities for Alpine's four

reservoirs were presented to the Special Master

but, inexplicably, the Special Master failed to

make them part of the voluminous file and

evidentiary record in this case. Those proofs,

and other matters of course as they pertained to

other portions of the proposed decree, persuaded

the Water Master to file amended proposed

findings of fact, conclusions of law and decree.

The temporary restraining order of the court

recognized the increased reservoir capacities,

duly authorized and licensed by the appropriate

government authority, the California Department

of Public Works Division of Water Resources.

769 F.Supp. at 1142. The Water Master correctly

recognized that the certificates presented to

him had legitimately and duly increased the

reservoirs' capacities. For over 20 years after

these certificates were presented to the Special

Master, Alpine filled these four reservoirs and

distributed waters therefrom in accordance with

these increased capacities. 769 F.Supp. at

LE ae ntl SAE Sens c, -

fact TPS Rn

eS m6 at nS LL OPE Mating Oh Cer MBIA ATS Oe nl 8 Bz

1146. The increased capacities are established

by incontestible documentary evidence (the

California certificates), and the correction of

the factual error present in the Final Decree

was therefore not dependant upon the credibility

or quality of memory of the witness. Id.

The Court of Appeals found that exceptional

circumstances did not exist, noting the Alpine

did not pay enough attention to the pleadings.

Alpine, as Judge Thompson specifically found,

had acted with normal and reasonable prudence.

769 F.Supp. at 1146. Judge Thompson did not

abuse his discretion in reaching such

conclusions or in making such factual findings.

Thus, the Court of Appeals impermissibly

substituted its opinion for Judge Thompson's

findings of fact.

CONCLUSION

For all of the reasons set forth above, the

writ of certiorari should be granted.

DATED: This _—‘ day of April, 1993.

Respectfully submitted,

REW R. GOODENOW

VARGAS & BARTLETT

201 West Liberty Street

P. O. Box 281

Reno, Nevada 89504

(702) 786-5000

Attorneys for Petitioner

APPENDICES

UNITED STATES COURT OF APPEALS

_ FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant. No. 91-16555

Vv. D.C. No.

CV-D-183-BRT

ALPINE LAND & RESERVOIR CO.,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Nevada

Bruce R. Thompson, District Judge, Presiding

Argued and Submitted

December 10, 1992--Pasadena, California

Filed January 29, 1993

Before: Mary M. Schroeder and

William C. Canby, Jr.,Circuit Judges,

and Ronald S. Lew,*

District Judge.

Opinion by Judge Schroeder

SUMMARY

Civil Litigation and Procedure/Equitable

Rememdies/Environmental Law/Res

Judicata/Litigation and Procedure (Civil) /Water

The court of appeals reversed and remanded

a district court order granting relief after

*Honorable Ronald S.W. Lew, United States

District Judge for the Central District of

California, sitting by designation.

judgment. The court held on the record, that a

party seeking relief from a judgment on grounds

of manifest injustice failed to show that

circumstances beyond its control prevented

timely action to protect its interests.

Appellee Alpine Land & Reservoir Co.

increased the storage capacities of its upstream

reservoirs under authority of a Special Master's

report, which was based in part on evidence

never formally made part of the record. The

United States filed objections to the Special

Master's findings in 1973. In 1980, the

findings of the Special Master were modified by

the district court, including lowered storage

entitlements for Alpine's reservoirs, without

Alpine's participation. Alpine continued to

operate its reservoirs at full capacity until

1990. When told of possible cutbacks in its

authorized capacities, Alpine sought

extraordinary relief from the 1980 district

court decree.

[1] The court may relieve a party from a

final judgment for any reason justifying relief

from the operation of the judgement. [2] Such

action is used sparingly as an equitable remedy

to prevent manifest injustice, and is to be used

where extraordinary circumstances beyond the

control of the injured party have prevented it

from taking timely action to protect its

interests. [3] Such circumstances did not exist

here. The complexity of water rights litigation

is no reason to hold parties to any lesser

standard than litigants in other proceedings,

and participants in water cases are as entitled

as any other civil litigant to rely on the

finality of decrees.

COUNSEL

Barry M. Hartman and David Shilton, United

States Department of Justice, Washington, D.C.

for the plaintiff-appellant.

Rew R. Goodenow and Robert W. Marshall, Vargas

& Bartlett, Reno, Nevada, for the defendant-

appellee.

OPINION

SCHROEDER, Circuit Judge:

This matter represents yet another chapter

in the litigation over rights to the waters of

the Carson and Truckee Rivers. See, e.q.,

Nevada v. United States, 463 U.S. 110 (1983);

United States v. Alpine Land & Reservoir Co.,

697 F.2d 851 (9th Cir.), cert. denied, 464 U.S.

863 (1983). We are here concerned with a 1980

decree that comprehensively adjudicated rights

to the use of the waters of the Carson River.

That decree set forth, inter alia, the amount of

water that Alpine Land & Reservoir Company

("Alpine"), one of the defendants in the

adjudication, was entitled to store in each of

its four upstream reservoirs. In 1991, Alpine

sought a modification of that decree pursuant to

Rule of Civil Procedure 60(b)(6) so as to

increase its storage rights. The United States

now appeals the district court's decision to

grant that motion. United States v. Alpine Land

& Reservoir Co., 769 F.Supp. 1142 (D.Nev. 1991).

The district court opinion contains most of

the background of this dispute. Briefly

summarized, the record demonstrates that Alpine

has owned the four reservoirs in question since

1895. Alpine increased the storage capacities

of the reservoirs in the late 1940s and early

1950s after obtaining the proper certificates

from the California State Department of Public

Works. The original action regarding the water

rights to the Carson River was handled by a

Special Master. Alpine submitted the

certificates to the Special Master, but they

apparently were never made part of the

evidentiary record. The Special Master's

report, however, contained findings authorizing

Alpine to increase the storage capacity of the

reservoirs. Alpine continued to utilize the

higher capacities.

In 1973, the United States filed objections

to the Special Master's findings. One of the

objections contested Alpine's reservoir capacity

on the ground that there was no evidence in the

record to support the increased capacities. In

1980, the findings of the Special Master were

modified by the district court. See United

States v. Alpine Land & Reservoir Co., 503

F.Supp. 877 (D.Nev. 1980). The modifications

included lowering the storage entitlements of

the four Alpine reservoirs. The court did so

because it could not find the certificates upon

which the Special Master based its finding of

increased storage capacity.

Alpine did not participate in the

proceedings after 1973, and did not appeal or

seek reconsideration of the 1980 judgment until

1991. Alpine argues that it did not know that

its reservoir entitlements were in jeopardy

before that time. The district court agreed,

stating that "[a] careful review [of all the

government's objections] by an employee or agent

of Alpine would have been required" and that

Alpine's failure to do so was "consistent with

the exercise of ordinary care under the

circumstances." Alpine Land, 769 F.Supp. at

1146.

The facts demonstrate that in 1983 Alpine's

president became aware that the 1980 decree

changed the findings of the Special Master with

regard to the storage entitlements of Alpine's

reservoirs. Alpine's board of directors hired

an attorney, who, with Alpine's president, met

with the court-appointed Water Master who

administered the final decree. The Water Master

assured Alpine that the error in the final

decree would be "remedied administratively."

In 1984 a new Water Master took over.

Alpine continued to operate its reservoirs at

full capacity until 1990. At that time, the new

Water Master advised Alpine that authorized

capacity might be cut back. Alpine then

instituted the present action.

The record before the district court does

not reflect any irregularities in the notice

provided to Alpine of the government's 1973

objections. Nor is there any contention that

the district court's 1980 decision upholding the

government's objection to Alpine's. storage

entitlement was not properly served on Alpine.

The record does not reveal any reason for

Alpine's failure to respond to the 1973

objections. Alpine could have sought timely

reconsideration of the 1980 decree pursuant to

Federal Rule of Civil Procedure 59 or other

provisions of Rule 60. It appears that Alpine's

delay is the result of a misperception of the

impact of the government's objections on

Alpine's interest. As stated above, the

district court nonetheless held that Alpine's

neglect was not the result of a lack of

diligence given the circumstances. The district

court apparently believed that requiring an

employee of Alpine to read the entire lengthy

set of objections and decree so as to know the

decree's adverse impact was a burden great

enough to render Alpine's delay reasonable. id.

[1] The issue that we must decide is

whether the district court abused its discretion

by granting relief under Rule 60(b)(6). In

ic naeliainiaeianiliaiaaialiaiaiaidie

relevant part, Rule 60(b) provides "[o]n motion

and upon such terms as are just, the court may

relieve a party or a party's legal

representative from a final judgment, order, or

proceeding for the following reasons. . .(6) any

other reason justifying relief from’ the

operation of the judgment."

[2] Rule 60(b)(6) has been used sparingly

as an equitable remedy to prevent manifest

injustice. The rule is to be utilized only

where extraordinary circumstances prevented a

party from taking timely action to prevent or

correct an erroneous judgment. For example, in

Klapprott v. United States, 335 U.S. 601 (1949),

the Court upheld the use of the rule to set

aside a default judgment in a denaturalization

proceeding because the petitioner had been ill,

incarcerated, and without counsel for the four

years following the judgment. Conversely, in

Ackermann v. United States, 340 U.S. 193 (1950),

the Court held that Rule 60(b)(6) should not be

invoked where the petitioner bypassed his right

to appeal for tactical reasons. In its most

recent discussion of the rule, the Supreme Court

held that Rule 60(b)(6) relief was available to

a litigant against whom judgment was entered by

a judge who had improperly refused to recuse

himself in the proceeding. Liljeberg v. Health

Services Acquisition Corp., 486 U.S. 847 (1988).

The Court reiterated that Rule 60(b)(6) relief

may be had "to accomplish justice," but only

under "extraordinary circumstances." Id. at

864.

Our review of cases in this and other

circuits illustrates that the courts of appeal

have heeded the Supreme Court's admonitions

regarding Rule 60(b)(6); such relief is

available only where extraordinary circumstances

prevented a litigant from seeking earlier, more

timely relief. Although the timeliness of a

Rule 60(b)(6) motion "depends on the facts of

each case," relief may not be had where "the

party seeking reconsideration has ignored normal

legal recourses." In re Pacific Far East Lines,

10A

oe Clete a en ay a

ee ee a ae

Inc., 889 F.2d 242, 249, 250 (9th Cir. 1989)

(holding relief appropriate where new

legislation undermined the soundness of the

judgment). See also United States v. Holtzman,

762 F.2d 720 (9th Cir. 1985)(five year delay

permissible where litigant reasonably

interpreted an injunction to authorize

litigant's conduct and timely relief was sought

upon receipt of notice to the contrary); Rivera

v. Puerto Rico Tel. Co., 921 F.2d 393 (lst Cir.

1990)(twenty-three day delay permitted because

party not properly notified of pending motion);

J.D. Pharmaceutical Distrib., Inc. v. Save-On

Drugs & Cosmetic Corp., 893 F.2d 1201, 1207

(llth Cir. 1990)(relief from judgment granted

because party never served with requests for

admissions or motion for summary judgment).

These cases demonstrate that Rule 60(b) (6)

relief normally will not be granted unless the

moving party is able to show both injury and

that circumstances beyond its control prevented

timely action to protect its interests.

1lA

[3] Those circumstances do not exist -in

this case. At most, excusable neglect might

have been the basis for relief pursuant to Rule

60(b)(1) if Alpine had sought such relief within

a year of the 1980 judgment. However, Rule

69(b)(6) is not a substitute for 60(b)(1).

Moreover, there is no reason for holding

litigants in complex water rights litigation to

any lesser standard than litigants in other

proceedings. Participants in water

adjudications are entitled to rely on the

finality of decrees as much as, if not more

than, parties to other types of civil judgments.

See Nevada v. United States, 463 U.S. at 128-30

(discussing the paramount concerns of finality,

especially in water rights cases).

The order of the district court is reversed

and the matter remanded for entry of an order

denying Rule 60(b)(6) relief.

REVERSED AND REMANDED.

te Behe SPR th

oie tert a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

THE UNITED STATES OF AMERICA,

Plaintiff, CV-D-183 BRT

Vv.

ALPINE LAND & RESERVOIR COMPANY

A corporation, et al.,

Defendants.

DECISION

The Alpine Land & Reservoir Company

(Alpine) has moved to amend the final decree

dated October 28, 1980 to reflect the correct

storage capacities of four reservoirs: Kinney

Meadows (Claim No. 800), Lower Kinney Lake

(Claim No. 802), Wet Meadows (Claim No. 803),

‘and Lower Sunset (Claim No. 804). The United

States has filed objections.

In this action a temporary restraining

order prepared by Special Master John V. Mueller

was entered by the court on September 18, 1951.

That restraining order specified the capacities

of the aforesaid reservoirs as follows: Kinney

Meadows, 435 acre feet; Lower Kinney Lake, 495

acre feet; Wet Meadows, 207 acre feet; Lower

Sunset, 250 acre feet. The four reservoirs in

question are located in the State of California.

The temporary restraining order made no

provision for authorizing construction of or

increasing or decreasing the storage capacities

of such reservoirs.

On August 3, 1950, Alpine filed an

application with the State of California

Department of Public Works Division of Water

Resources to construct works to increase the

capacity of Lower Kinney Lake reservoir to 920

acre feet. The application was approved on

September 8, 1950, and the approved works were

constructed and the capacity increased

accordingly.

On April 3, 1952, Alpine filed a similar

application to increase the capacity of Wet

Meadows reservoir to 450 acre feet and it was

approved.

On July 8, 1949, Alpine filed a similar

application to increase the capacity of Kinney

Meadows reservoir to 900 acre feet and it was

approved. =

On April 3, 1952, Alpine filed a similar

application to increase the capacity of Lower

Sunset reservoir to 860 acre feet and it was

approved.

On July 14, 1958, the Special Master filed

Amended Proposed Findings of Fact, Conclusions

of Law and Decree which expressly recognized and

adopted the increased reservoir capacities at

the four reservoirs in question. Thereafter the

court set and reset the dates for filing

objections to the report of the Special Master

as amended and numerous objections were filed

but the objections were never acted upon and

resolved until the case was reactivated in the

early 1970's. Meanwhile, waters were stored in

and diverted from the four reservoirs in

accordance with the capacities authorized by the

Amended Proposed Findings of Fact, and

Conclusions of Law and Decree filed by the

Special Master. This use of water has continued

from 1958 until today. The present problem is

caused by the fact that when Special Master John

V. Mueller entered the amended findings he made

no supplementary evidentiary record (i.e. the

California certificates) to support the amended

findings.

In 1973, an attorney from the Department of

Justice visited the court and suggested that

this case should be reactivated and concluded.

Accordingly, because such a long time had

expired and the parties in interest had changed,

notices were served and new times were fixed for

filing objections to the report and findings and

amended report and findings of the Special

Master. The United States filed objections to

the amended findings and proposed decree

respecting the storage capacities of the four

reservoirs in question upon the ground that

there was no evidentiary support in the record

for the increased capacities. Interim

proceedings were had and orders entered

resulting in the submission of the objections to

the reports and findings of the Special Master

on a written record consisting of the exhibits

and testimony before the Special Master,

supplemented by affidavits and exhibits filed on

behalf of the parties and written briefs. The

court's rulings on the objections to the Special

Master's Findings on Acreage and Priorities were

filed (with the Final Decree) on October 28,

1980. During all the foregoing proceedings

between 1973 and 1980 Alpine did not participate

and failed to come forward with its proofs of

increased storage capacity. On January 14,

1991, Alpine, having been apprised of the

possibility that it might be restricted to the

storage capacities defined in the 1951 temporary

restraining order, elected to file the instant

petition to amend the Final Decree pursuant to

Rule 60(b) Fed.R.Civ.P. and _ the court's

reservation of jurisdiction.

The objections of the United States are

procedural and jurisdictional - most of them

sound and well reasoned.

Rule 60(b) Fed.R.Civ.P. provides:

On motion and upon such terms as are just,

the court may relieve a party or a party's

legal representative from a final

judgment, order, or proceeding for the

following reasons: (1) mistake,

inadvertence, surprise, or excusable

neglect; (2) newly discovered evidence

which by due diligence could not have been

discovered in time to move for a new trial

under Rule 59(b); (3) fraud (whether

heretofore denominated intrinsic or

extrinsic), misrepresentation, or other

misconduct of an adverse party; (4) the

judgment is void; (5) the judgment has

been satisfied, released, or discharged,

or a prior judgment upon which it is based

has been reversed or otherwise vacated, or

it is no longer equitable that’ the

judgment should have prospective

application; or (6) any other reason

justifying relief from the operation of

the judgment. The motion shall be made

within a reasonable time, and for reasons

(1), (2) and (3) not more than one year

after the judgment, order, or proceeding

was entered or taken. A motion under this

subdivision (b) does not affect the

finality of a judgment or suspend its

operation. This rule does not limit the

power of a court to entertain an

independent action to relieve a party from

a judgment, order, or proceeding, or to

grant relief to a defendant not actually

personally notified as provided in Title

28, U.S.C., § 1655, or to set aside a

judgment for fraud upon the court. Writs

of coram nobis, coram vobis, audita

querela, and bills of review and bills in

the nature of a bill of review, are

abolished, and the procedure for obtaining

any relief from a judgment shall be by

motion as prescribed in these rules or by

an independent action.

Alpine contends that because this court

reserved jurisdiction to “modify, amend,

eliminate, add to or change any provision of

this decree" there is no problem. This is not

so. Such reservation of jurisdiction is

intended to speak prospectively to enable the

court to modify the decree in the light of

changed conditions not pertaining at the time of

its entry. The provision does not permit

relitigation of decided issues, else there would

never be any finality to the proceedings. The

United States correctly contends that the 1980

Final Decree is res judicata. Nevada v. United

States, 463 U.S. 110 (1983).

Alpine suggests that the United State will

not be prejudiced, or adversely affected, by the

remission of the reservoir capacities to their

original entitlement; in a sense, that it has no

standing to object. But this is patently not

so. Any increase of decreed rights upstream

from Lahontan reservoir will adversely impact

the water entitlement of the United States in

and below Lahontan reservoir.

Alpine also argues that it has been mislead

by officers of the court into a posture of

inactivity, and cites inapposite authority in

support. Alpine, however, cannot point to a

single factor of misrepresentation which

resulted in Alpine's failure and neglect to

submit its opposition to the government's

objections to the reservoir capacities prior to

entry of the Final Decree in 1°30.

Nevertheless, every judgment and decree of

a federal court is pervious to a properly

supported motion under Rule 60(b) Fed.R.Civ.P.

and in this case, in the opinion of this court,

Alpine has established facts which entitle it to

relief under Rule 60(b) Fed.R.Civ.P.

There are six (6) subclauses in Rule 60(b).

Admittedly, grounds (1), (2) and (3) are

inapplicable to this case because of lack of

factual support and because of the lapse of

time. Ground (4) "that the judgment is void" is

not relevant. Ground (5) that "it is no longer

equitable that’ the judgment should have

prospective application" cannot be applied in

the light of the decision and discussion in

Transgo, Inc. v. Ajac Transmission Parts Corp.,

911 F.2d 363 at 365 (1990):

Many cases since Swift have reiterated

Swift's restrictions on the district

court's inquiry on a motion to modify a

permanent injunction:

{[Mjodification is only cautiously to

be granted; ... some change is not

enough; ... the dangers which the

decree was meant to foreclose must

almost have disappeared; ... hardship

and oppression, extreme and

unexpected , are significant; and...

the movants' task is to provide close

to an unanswerable case. To repeat:

caution, substantial change,

unforeseenness, oppressive hardship,

10B

and a clear showing are the

requirements.

Humble Oil & Refining Co. v. American Oil

Co., 405 F.2d 803, 813 (8th Cir.), cert.

denied, 395 U.S. 905, 89 S.Ct. 1745, 23

L.Ed.2d 218 (1969) (emphasis added).

So, we are relegated to ground (6) “any

other reason justifying relief from the

operation of the judgment."

The government's position with respect to

Rule 60(b)(6) is ambiguously argued _= and

difficult to understand. The best we can make

of it is that the government contends that the

express abolition of writs of coram nobis, coram

vobis, audita querela and bills of review and

bills in the nature of bills of review abolished

not only those common law remedies but the

principles which generated the remedies as well.

We adopt the opposite viewpoint and agree with

the courts which have held that the purpose of

subdivision (6) “any other reason justifying

relief from the operation of the judgment: is to

bring within the remedial scope of Rule 60(b)

the principles justifying relief froma judgment

by use of the procedural writs which were

expressly abolished and which were enforceable

at common law.

The geneécrl principles are stated in

authoritative texts:

Federal Practice and Procedure, Wright and

Miller, Vol. II, p. 237, § 2867:

Though the rule puts an end to the

niceties of the writs, it retains the

substance. Relief is now available, either

by motion or in an independent section, in

any situation in which it could have been

had by one of the ancient remedies. An

nomenclature is unimportant, so that an

application that is mistakenly designated

as being for one of the old writs will be

treated as a motion under this rule.

18 Am.Jur.2d "Coram Nobis," p. 633, § 13:

Coram nobis may be granted only when the

record discloses errors of fact of such

fundamental character as to render the

proceeding itself irregular and invalid,

or to compel action to achieve justice.

The Supreme Court of the United States in

United States v. Morgan, 346 U.S. 502 (1954),

declared the writ of error coram nobis to be

alive and viable to correct an error of fact in

a criminal case despite the remedies covered by

28 U.S.C. § 2255. That the contention had been

made and rejected that Rule 60(b) Fed.R.Civ.P.

had expressly abolished the writ of error coram

nobis in both its procedural and substantive

aspects is made clear by the first sentence in

the dissenting opinion in the Morgan case.

Although coram nobis has been frequently

invoked in a criminal setting, there are few

opportunities to apply coram nobis in civil

litigation. The application of Rule 60(b)(6) to

civil litigation was discussed in Bankers

Mortgage Company v. United States, 423 F.2d 73

(5th Cir. 1970):

In its present form, 60(b) is a

13B

response to the plaintive cries of

parties who have for’ centuries

floundered, and often succumbed,

among the snares and pitfalls of the

ancillary common law and equitable

remedies. It is designed to remove

the uncertainties and historical

limitations of the ancient remedies

but to preserve all of the various

kinds of reliet which they offered.

In the Matter of Brown, 68 F.R.D. 172

(D.C.D.C. 1975), Rule 60(b)(6) was held

applicable to a motion to set aside commitments

to a mental hospital.

The substantive requirements of a writ of

error coram nobis are correctly stated in 18

Am.Jur.2d "Coram Nobis" pp. 629-30:

A number of general conditions

precedent must exist before coram

nobis relief can be granted,

regardless of the specific ground or

grounds upon which application for

relief is based. Ordinarily coram

nobis is employed, in cases where

there is no other remedy, for the

purpose of reviewing, correcting, or

vacating a judgment in the same court

in which it was rendered, on account

of an error of fact, where such

error:

- is extrinsic to, or does not

appear in, the record;

- affects the validity and

regularity of the proceedings; _

- was not put in issue at the

trial;

- was unknown at the time of the

trial to the party seeking relief

without fault on his part;

- was unknown to the trial

court;

- was not passed upon by the

court;

- if known, would have prevented

rendition of the judgment.

We view this as a proper case for use of coram

nobis. There is no other remedy to correct the

Alpine Decree because of an error of fact. The

error is extrinsic to and does not appear in the

record, it was not put in issue at the trial, it

was unknown to Alpine at the time of the trial

without fault, it was not passed upon by the

trial court, and if known the judgment would

have been different. Also, exceptional

circumstances are here present which "compel

action to achieve justice." U.S. v. Morgan

(supra).

The exceptional circumstances are these:

the proofs of increased reservoir capacities

were presented to the Special Master but were

not made part of the evidentiary record; the

proofs persuaded the Special Master to file

amended proposed findings of fact, conclusions

of law and decree; the reservoirs were filled

and waters therefrom distributed for over twenty

years in accordance with the _ increased

16B

capacities; the increased capacities are

established by incontestable documentary

evidence (the California certificates), and the

correction of factual error is not dependent

upon the credibility or quality of memory of any

witness.

Probably the weakest link in the chain is

a determination of lack of fault or negligence

on the part of Alpine. We find, however, that

the recitation, supra, of exceptional

circumstances establishes justification for

Alpine's failure to contest the government's

objections to the reservoir capacities. There

was nothing in the form of any of the objections

made prior to the entry of the Final Decree in

this action which would have given specific

notice to Alpine that its reservoir capacities

were in jeopardy. A careful review by an

employee or agent of Alpine of every objection

filed would have been required. The standard is

ordinary care of a normally careful and prudent

person, and in the context of the years of

aaa

recognition and compliance with the amended

findi:.gs and decree, we find Alpine's conduct to

be consistent with the exercise of ordinary care

under the circumstances.

The government argues that the Final Decree

is res judicata and cannot lightly be subjected

to Rule 60(b) motions to modify. We agree. It

is a strange and unusual case, indeed, which

will justify the invocation of Rule 60(b)(6) to

correct an error. Only where the correct duty

of water and use of water were recognized by the

temporary restraining order, and the supporting

proofs are documentary and conclusive, will

corrective action be considered. This is such

a case. It represents a very slight breach in

the dike of res judicata.

In consideration of the premises,

IT HEREBY IS ORDERED, ADJUDGED AND DECREED

that the Alpine Final Decree entered on October

28, 1980 hereby is amended as follows:

Claim Number 800 Kinney Meadows Reservoir,

the reservoir capacity acre feet is increased to

18B

900 acre feet.

Claim Number 802 Lower Kinney Lake

Reservoir, the reservoir capacity acre feet is

increased to 920 acre feet.

Claim Number 803 wet Meadows Reservoir, the

reservoir capacity acre feet is increased to 450

acre feet.

Claim Number 804 Lower Sunset Reservoir,

the reservoir capacity acre feet is increased to

860 acre feet.

DATED August l, 1991.

/s/ Bruce A. Thompson

UNITED STATES DISTRICT JUDGE

FEDERAL RULES OF CIVIL PROCEDURE

For The

UNITED STATES DISTRICT COURTS

VII. JUDGMENT

Rule 60. Relief from Judgment or Order

(a) Clerical Mistakes. Clerical mistakes in

judgments, orders or other parts of the record

and errors therein arising from oversight or

ommission may be corrected by the court at any

time of its own initiative or on the motion of

any party and after such notice, if any, as the

court orders. During the pendency of an appeal,

such mistakes may be so corrected before the

appeal is docketed in the appellate court, and

thereafter while the appeal is pending may be so

corrected with leave of the appellate court.

(b) Mistakes; Inadvertence; Excusable Neglect;

Newly Discovered Evidence; Fraud, Etc. On

motion and upon such terms as are just, the

court may relieve a party or a party's legal

representative from a final judgment, order, or

proceeding for the following reasons: (1)

mistake, inadvertence, surprise, or excusable

neglect; (2) newly discovered evidence which by

due diligence could not have been discovered in

time to move for a new trial under Rule 59(b);

(3) fraud (whether heretofore denominated

intrinsic or extrinsic), misrepresentation, or

other misconduct of an adverse party; (4) the

judgment is void; (5) the judgment has been

satisfied, released, or discharged, or a prior

judgment upon which it is based has been

reversed or otherwise vacated, or it is no

longer equitable that the judgment should have

prospective application; or (6) any other reason

justifying relief from the operation of the

judgment. The motion shall be made within a

reasonable time, and for reasons (1), (2), and

(3) not more than one year after the judgment,

order, or proceeding was entered or taken. A

motion under this subdivision (b) dces not

affect the finality of a judgment or suspend its

operation. This rule does not limit the power

of a court to entertain an independent action to

relieve a party from a judgment, order, or

proceeding, or to grant relief to a defendant

not actually personally notified as provided in

Title 28, U.S.C., §1655, or to set aside a

judgment for fraud upon the court. Writs of

coram nobis, coram vobis, audita querela, and

bills of review and bills in the nature of a

bill of review, are abolished, and the procedure

for obtaining any relief from a judgment shall

be by motion as prescribed in these rules or by

an independent action.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.