Amicus Curiae Brief — United States v. District Court in & for the County of Eagle

Statement of Interest

Question Presented

Summary of Argument

Argument ..

I. The United States Should Not Be Allowed By

Reliance Upon An Anachronistic Defense To

Frustrate Legitimate Adjudication Procedures .... 7

Il. The McCarran Amendment Was Enacted To

Allow Joinder Of All Water Users In Proper

Adjudication Procedures 17

lll. Adherence to the Appropriative Doctrine of

Water Rights Forms the Basis for the Economic

Stability of the West 26

Conclusion 31

Appendices .. 32

A. Water Users on Public Lands (In Acre Feet) -.......... 32

B. Responses to National Water Commission -....._....... 34

C. The Trend Toward Sovereign Responsibility -......

Iu the Supreme Court of the United States

OCTOBER TERM, 1969

No. 1178

UNITED STATES, PETITIONER

Vv.

THE DISTRICT COURT IN AND FOR THE COUNTY OF

EAGLE AND STATE OF COLORADO

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF COLORADO

AMICUS CURIAE BRIEF FOR THE STATES OF

COLORADO, OREGON, NEVADA, IDAHO, MONTANA

AND ALASKA IN SUPPORT OF THE DISTRICT COURT

IN AND FOR THE COUNTY OF EAGLE

AND STATE OF COLORADO

STATEMENT OF INTEREST

The aridity of climate and scarcity of water have

always been limitations upon development of the West.

In most areas, there just is not enough water to satisfy

all of the demands. As the West grows and develops,

the demands are continually expanding. Unfortunate-

ly, the available water supply remains fixed. Hence,

the competition for water continually increases.

The true value of water is not measured by its physi-

cal possession. Its value is based upon the expectancy

that a like amount will be available at a particular

place, year after year. It was this desire for a stable

1

— PONE IE ES ae SO ae ae ae

SESE RECS Er Lee ee

PRICE SAIS

Po SMES DL REIRSON, GE eH

2

expectancy that led to the “first come, first served,”

or appropriative doctrine of water rights.

The appropriative doctrine, in one form or another,

is followed in all nineteen Western States, including

Alaska and Hawaii. Under it, a right to the use of

water is initiated by an expression of desire, in proper

form, of utilizing a given amount of water. This must

be followed by a diligent effort leading to the actual

beneficial use of the water. Priority of right dates

from the initial expression of desire for use. In cases

of insufficient water to supply all rights, those rights

with the latest date of priority are denied water until

all senior rights have been satisfied.

Various federal agencies have claimed that the reser-

vation of land for various purposes also reserved

sufficient water necessary to effectuate the purpose

of the Reservation. The acceptance of such a theory

of claims by the federal agencies would, on a fully

utilized stream, create a situation wherein increased

federal uses would deny water to users who had water

rights with priorities established after the Reservation,

but prior to the expanded use.

In the eleven Western States, the United States owns

45.7 percent of the land. Of a total area of approxi-

mately 760,000,000 acres, the United States owns some

350,000,000 acres. Included in that 350,000,000 acres

are approximately 160,000,000 which were reserved

between 1897 and 1903 for National Forest purposes.

These are the high mountain lands that receive and

3

collect the winter snows for summer release. Runoff

from these lands averages 200 million acre feet an-

nually, or approximately 55 percent of the average

annual runoff.’

According to the same study, federal consumptive

uses in 1967 in the eleven Western States totalled

2,255,836 acre feet. By 1980, those agencies estimate

their consumptive use to increase to 2,472,269 acre

feet. Their projected consumptive uses for the year 2000

would total 2,619,474 acre feet.’

Thus, according to their own conservative estimates,

federal uses will increase approximately sixteen per-

cent by the year 2000 in a region that is already notori-

ously water deficient. Such increases, if concentrated

in already water short areas, could be disastrous to

water users who had long been using that water, and

had made vast developmental expenditures based upon

a supply that did not include the expanded federal uses.

The States do not wish to deprive the Federal Govern-

ment of valuable water rights. They know only too

well that related land resources are much less valuable

without the water necessary for their development.

The States ask only an identification of the extent of

the federal rights, so that existing uses might be pro-

tected and future developers, whether federal, state

‘Wheatley, Corker, et al, 1 Study of the Development, Man-

agement and Use of Water Resources on the Public Lands.

8-30 (1969)

*Id at 475, v II. See Appendix A.

4

or private, might better be able to predict the water

supply available for further development.

The United States asserts that “43 U.S.C. does not

consent to adjudications of the reserved water rights

of the United States.” To accept this theory would

allow expansion of federal water uses from dwindling

water supply at the expense of long-established water

rights. Such a theory would subject the billions of

dollars invested in water resource development in the

Western States to the whim of federal administrators

and transfer the future planning and development of

western water resources completely out of the state

and private sectors and into the Federal Government.

It is to this single issue that the signatory states direct

this Brief.’

Whether or not Water District 37 constitutes a

“river system” as defined by 43 U.S.C. 666 is beyond

the scope of this Brief.

Determination of the existence, nonexistence or the

extent of “reserved rights” is not properly before this

Court at this time. Determination of that issue should

only come after the jurisdictional question has been

answered and the Colorado Court has been allowed to

adjudicate the Eagle River System. Then, and only

then, is the proper time for this Court to review the

validity of the Colorado Court’s decision concerning

the Reservation Rights.

*See Appendix B for a compilation of state policy state-

ments on the issue of the McCarran Amendment and state-

federal relations in general.

5

QUESTION PRESENTED

Whether the United States, by reliance upon the

anachronistic defense of sovereign immunity, should be

allowed to avoid the identification of its claims to the

use of water from reserved lands needed for the protec-

tion of existing rights and the establishment of the sta-

bility necessary for meaningful future planning of

water resource development.

SUMMARY OF ARGUMENT

I

The United States should not be permitted by reli-

ance upon the anachronistic doctrine of sovereign

immunity to frustrate effective water rights adjudica-

tions. A vestige of the ancient fiction that a King can

do no wrong, this doctrine has long been castigated by

commentators and, more recently, has been rejected by

the courts. It has no rational, moral or practical under-

pinnings which would justify its retention as a bar to

proper determinations of water rights. Since the doc-

trine was judicially created, it can and should be re-

pudiated by this Court.

Il

The economic health of the arid and semi-arid West

is crucially tied to the available water supply. Since

there is not sufficient water to satisfy all demands, it

is imperative that rights to water be determined and

allocated in an orderly way. This can be accomplished

only by means of proceedings adjudicating the rights

BAP me a ee ae

6

of all claimants to a single water source. Prior to the

passage of the McCarran Amendment, effective deter-

mination of water rights was impossible because the

United States refused adjudication of its rights. Fed-

eral water rights thus remained uncatalogued, leaving

individual water rights intolerably confused and un-

stable. The McCarran Amendment, by authorizing

joinder of the United States in adjudication procedures,

was enacted to eliminate this evil.

Surprisingly, the government now urges this Court

to construe the Amendment to preclude the adjudica-

tion of federal reserved water rights, thereby perpetu-

ating the very instability the Act was designed to

eliminate. Accordingly, this Court should reject this

construction and interpret the Amendment so as to

effectuate its purpose by allowing adjudication of all

U.S. water rights. This can be accomplished by accord-

ing the phrase “the owner of” general application or

by refusing to delimit the scope of the phrase “or other-

wise” to water rights acquired under state appro-

priation laws.

Ill

Much of the wealth of the Western United States

has been built upon the stable foundation of a firm

water supply obtainable under the appropriative doc-

trine of water rights. The states do not wish to take

away precious water rights from the United States

but rather to identify the extent and priorities of such

rights, thus bringing stability into actual and antici-

7

pated water usage and development. They should be

given the opportunity to try.

ARGUMENT

I

The United States Should Not Be Allowed, By Reliance

Upon an Anachronistic Defense, to Frustrate Legitimate

Adjudication Procedures,

The United States asserts that it can be joined as a

party in the instant action only if the McCarran

Amendment has explicitly waived the doctrine of

sovereign immunity. That doctrine is an indefensible

anachronism which has no logical, moral, or practical

underpinning which would justify its continued reten-

tion in the area of water rights determination.

Sovereign immunity harkens back to the days of mon-

archial privilege and the ancient fiction that the King

could do no wrong. The doctrine’s origin in this coun-

try cannot be found in the Constitution, in an inter-

pretation of the Constitution, nor in any specific

enactment of Congress. It is unquestionably judge-

made. In one curious sense, the law of sovereign im-

munity was found and not made, for it developed not

through conscious judicial creation, but through judi-

cial assumption that it already existed.

In 1798, this Court explicitly left open the question

of whether or not the government could be sued with-

out its consent.’ Nonetheless, the doctrine gradually

developed into the case law. In 1882, this Court ac-

knowledged that it had not directly considered the

‘Chisholm v. State of Georgia, 2 U.S. (2 Dall.) 419, 461,

478 (17938)

SPELL RI I IY HI

PAA IS

principle of sovereign immunity and that “the prin.

ciple has never been discussed or the reasons for it

given, but it has always been treated as an established

doctrine.”

The judges who created and molded the doctrine

were often actuated by misunderstanding. Perhaps

the outstanding example of a mistake was the unani-

mous pronouncement of this Court in 1868 that: “No

government has ever held itself liable to individuals

for the misfeasance, laches, or unauthorized exercise

of power by its officers and agents.’”* One eminent

commentator has pointed out that the Court “over.

looked the fact that practically every country of west-

ern Europe had long admitted such liability.’”

Closer to the heart of the probable motivating rea-

sons for the development of sovereign immunity is the

misunderstanding exemplified by another statement

of this Court in 1868: “It is obvious that the public

service would be hindered, and the public safety en-

dangered, if the supreme authority could be subjected

to suit at the instance of every citizen, and conse-

quently controlled in the use and disposition of the

means required for the proper administration of the

government.’ Not only is this proposition not obvious,

* United States v. Lee, 106 U.S. 196, 207, 1 S. Ct. 240, 250,

27 L.Ed. 171 (1882).

* Gibbons v. United States, 75 U.S. (8 Wall.) 269, 274, 19

L.Ed. 453 (1868)

*Borchard, Government Liability in Tort, 34 Yale L.J. 1, 2

(1934).

° The Siren, 74 U.S. (7 Wall.) 152, 154 (1868).

9

but the opposite of this proposition is rapidly becoming

obvious.

Noted commentators, after tracing the development

of the doctrine in American law, have lamented:

Monarchial doctrines of Kings who can do no

wrong and sovereigns above the law were de-

veloped and inflated in the United States to a

point never reached in England, in which they had

their roots, and never even deemed worthy of seri-

ous consideration in the feudal continent so often

and so erroneously deemed the source of govern-

mental irresponsibility. It was left for the demo-

cratic United States to furnish the rationalizations

and unconvincing explanations which gave a mis-

understood major premise the false appearance

of a reasoned and logical conclusion.

But however unjustified the premise of sover-

eign irresponsibility, it has stood rather stub-

bornly, even if not impregnably, in the way of

statutory reform designed to overcome the injus-

tice of these superannuated judicial doctrines.’

2a eee ae

Within a political and social system such as

exists in the United States, one would think that

the touchstone for the legal relationship between

the citizen and the state would not be that ex- ;

pressed by the term “sovereign immunity” but

rather a generous theory of “public responsibility.”

... [Slovereign immunity means much more; its

connotation is that of extensive public irresponsi- '

bility. Any theoretical support for the doctrine f

*Borchard, State and Municipal Liability in Tort — Pro-

posed Statutory Reform, 20 A.B.A.J. 747 (1984). :

10

of sovereign immunity, in the broad sense of the

term, has long ago been discarded; but the doc-

trine itself remains a stumbling block. Writing

in 1959, one critic observed that “roots stretching

out from ancient times have tripped twentieth

century courts in their efforts to reach practical

solutions needed in an age where state activities

dominate society. .... Timid legislators, weaving

psychological straight-jackets have, except in hap-

hazard instances, been similarly unwilling to act.'

Thomas Jefferson said it better than anyone:

“The care of human life and happiness is the first

and only legitimate object of good government.”

Against such a standard, sovereign immunity has

been and is a shibboleth that ought to be eliminated

from legal and political vocabulary."

The trend today is definitely away from sovereign

immunity and towards sovereign responsibility. Al-

though there have been legislative inroads into sover-

eign immunity [e.g., The Federal Tort Claims Act, the

McCarran Amendment under consideration here], the

most recent inroads have been made by the courts.

Recognizing that the doctrine was judicially created,

courageous courts have acted to abolish large chunks

of immunity. This trend has gained considerable mo-

mentum since 1957, particularly in the area of gov-

ernment liability for tort. The states in which judicial

action has been taken to eliminate large areas of im-

"McCord, Sovereign Immunity and Public Responsibility,

University of Illinois Law Forum (Winter 1966) p. 793.

* Mikva, Sovereign Immunity: In a Democracy the Emperor

Has No Clothes, University of Illinois Law Forum (Winter

1966) p. 828.

ll

munity, although some have waivered, are, chronologi-

cally, Florida, Colorado, Illinois, New Jersey, Cali-

fornia, Michigan, Wisconsin, Minnesota, Arizona,

Nevada, and Washington. In addition, the District

of Columbia has also abolished the immunity. While

the specific holdings of these cases are not relevant

to the case at bar, the pervasive judicial distaste

for and repudiation of sovereign immunity is. Many

of these cases are collected in Appendix C and high-

light three major points: (1) The doctrine of sovereign

immunity is an anachronism without rational or mora!

justification; (2) The doctrine was introduced into

American jurisprudence by the courts; and (3) There-

fore, the courts can and should eliminate the doctrine.

Although this Court continues to give lip service to

the doctrine of sovereign immunity by using it as

grounds for dismissal of actions against the United

States, in many cases it has effectively, if not for-

mally, rejected the doctrine and sustained jurisdiction.

In order to do so, the Court has had to indulge in a

fiction — i.e., that a suit against a governmental offi-

cer is not a suit against the government (even though

all concerned are fully aware that it is). Confusion

has often developed because the Court has sometimes

dismissed a suit against the government officer be-

cause it was really a suit against the government, and

sometimes allowed the suit on the fiction that the suit

is against the officer. This confusion has produced a

series of Supreme Court decisions which this Court

acknowledges to be difficult to reconcile.*

* Lend v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91

L.Ed. 1209 (1947).

12

In 1968, this Court decided two companion cases

arising out of the water problems of California’s Cen.

tral Valley — Dugan v. Rank” and City of Fresno

v. California." The Dugan suit was an injunction

against local officials of the United States and against

the United States to prevent diversion of water. The

Court held that the United States had not given consent

to the suit and that the action against the officers was

against the United States. Diversion of the water was

not a trespass but “a partial taking of respondent's

claimed rights.” Since the statute authorized that ac-

quisition by “eminent domain or otherwise,” the water

rights of the plaintiffs were “subject to seizure.”

This Court rejected the claim that the McCarran Act

authorized joinder of the United States because the

proceedings were not a “general adjudication of water

rights.” Thus construed under the Dugan opinion,

sovereign immunity prevents owners from enjoining

government officers from taking their property if the

officers are (1) acting within their statutory authority

and (2) their action is constitutional. This Court also

held that (1) the statute authorized the fiscal seizure

of the property rights in the water and (2) such seizure

is constitutional so long as the Tucker Act allows a

suit for damages.

The Fresno case was brought by the City against the

State, local officers of the United States and the United

States. The suit differed from the Dugan suit in that

a declaration as well as an injunction was sought. The

Court held that the opinion in Dugan controlled the

*° 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed. 2d 15 (1968)

372 U.S. 627, 83 S. Ct. 996, 10 L.Ed. 2d 28 (1963)

13

decision. The Court had stated in Dugan what it called

“the general rule.” That statement is a misleading

summary of what the Court does and will do. After

quoting first from Land and then from Larson v. Do-

mestic and Foreign Commerce Corporation”, the Court

then declared:

The general rule is that a suit is against the

sovereign if the judgment sought would expend

itself upon the public treasury or domain, or inter-

fere with the public administration, . . . or if the

effect of the judgment would be ‘to restrain the

government from acting or compel it to act.’®

This asserted general rule has never been the general

rule. Judgments of this Court have often “expended

themselves on the public treasury or domain,’* have

often “interfered with the public administration,”™

* Larson v. Domestic and Foreign Commerce Corp., 337

US. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949).

‘8 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed. 2d 15 (1963).

In United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed.

171 (1882), this Court upheld a writ of ejectment against

government officers who held possession of land on behalf of

the government. The effect of the Court’s order was to oust

the government from land. The judgment expended itself on

what the government claimed to be the public domain. The

government was restrained from staying, and was compelled

to get off.

** In Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.

2d 1877 (1959), the question was “the validity of the govern-

ment’s revocation of security clearance granted to the peti-

tioner, an aeronautical engineer employed by a private

manufacturer which produced goods for the armed services.”

The Court issued a declaratory judgment that the govern-

ment’s revocation of the security clearance was unlawful. The

effect of the declaration was to “interfere with the public

administration” and “compel the government to act” to with-

draw the revocation.

OTTER i BP SLE ERE PO

AOR RRA if IME APIS

FER LI LITO GLEE TINS, SO) ETNA BEDE LO Re LET RLS GELLER IOIE ALITTLE

14

and have often “restrained the government from acting

or compelled it to act.’

Kenneth Culp Davis summarized what is happening

“in our strange system” in the following language:

When you sue the government for specific relief

or for a declaratory judgment, you must falsely

pretend (in the absence of a special statute) that

the suit is not against the government but that it

is against an officer. You may get relief against

the sovereign if, but only if, you falsely pretend

that you are not asking for relief against the sov-

ereign. The judges often will falsely pretend that

they are not giving you relief against the sover-

eign, even though you know and they know, and

they know that you know that the relief is against

the sovereign. Even when the substance of sover-

eign immunity is gone, the form usually remains.

The courts do not violate the doctrine of sovereign

immunity except in substance.

* * *

The transition stage during which the courts

**In Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82

S.Ct. 1432, 8 L.Ed. 2d 639, (1962), this Court reversed a

denial of injunctive relief against the Post Office Depart-

ment’s refusal to carry certain mail. The effect was to com-

pel the United States to carry the particular mail. The Court’s

decree “interfered with the public administration,” and “com-

pelled the government to act.” In Vitarelli v. Seaton, 359 U-S.

535, 79 S. Ct. 968, 3 L.Ed. 2nd 1012 (1959), the Court ordered

the Secretary of the Interior to reinstate a federal employee

to his government position. Surely in every realistic sense

the Court’s judgment “expended itself against the govern-

ment,” and “compelled the government to act.” The Court’s

judgment required the government to take the employee back,

to allow him to work as a government employee, and to pay

him his salary.

z Be eat a sa an PEPER toh SEES & VEEN ke ee

15

are in the process of unmaking the judicially made

law of soveregin immunity, causes the judges to

grant relief against the sovereign but to deny that

they can grant relief against the sovereign. They

can do justice but they have to pretend that sover-

eign immunity prevents them from doing justice.

They must hide the truth. Judge X hides the truth

from Judge Y who hides the truth from Judge Z,

who hides the truth from Judge X. The litigants

hide the truth from the judges, and the judges

hide the truth from the litigants.

eke oe

The time is surely approaching, perhaps the

time has come, for relinquishing the false pre-

tenses. The courts are allowing the doctrine of

sovereign immunity to be violated in substance,

and the time is coming, perhaps soon, when the

forms of sovereign immunity will seem useless.”

This Court has also acknowledged and responded to

the growing disfavor of the sovereign immunity de-

fense. In the case of National City Bank of New York

v. Republic of China,” this Court observed:

But even the immunity enjoyed by the United

States as territorial sovereign is a legal doctrine

which has not been favored by the test of time. It

has increasingly been found to be in conflict with

the growing subjection of governmental action to

the moral judgment. A reflection of this steady

drift in attitude toward the American sovereign’s

immunity is found in such observations in unani-

mous opinions of this Court as “Public opinion as

.

* Davis, Administrative Law Treatise Vol. 3 (1965 Pocket

Supplement) pp. 151-152.

** 348 U.S. 356, 359, 75 S.Ct. 423, 426, 99 L.Ed. 389 (1955).

16

to the peculiar rights and preferences due to the

sovereign has changed,” Davis v. Pringle, 268 U.S.

315, 318; “There is no doubt an intermittent ten-

dency on the part of governments to be a little less

grasping than they have been in the past .. .”

White v. Mechanics Securities Corp., 269 U.S. 283,

301; “. .. the present climate of opinion . . . has

brought governmental immunity from suit into

disfavor .. .”, Keifer & Keifer v. Reconstruction

Finance Corp., 306 U.S. 381, 391. This chilly feel-

ing against sovereign immunity began to reflect

itself in federal legislation in 1797. At that early

day Congress decided that when the United States

sues an individual, the individual can set off all

debts properly due from the sovereign. And be-

cause of the objections to ad hoc legislation allow-

ances of private causes, Congress a hundred years

ago created the Court of Claims, where the United

States, like any other obliger, may affirmatively

be held to its undertakings. This amenability to

suit has become as commonplace in regard to the

various agencies which carry out “the enlarged

scope of government in economic affairs,” Keifer

& Keifer v. Reconstruction Finance Corp., supra,

at 390. The substantive sweep of amenability to

judicial process has likewise grown apace.

The outlook and feeling thus reflected are not

merely relevant to our problem. They are import-

ant. The claims of dominant opinion rooted in

sentiments of justice and public morality are

among the most powerful shaping forces in law-

making by courts. Legislation and adjudication

are interacting influences in the development of

law. A steady legislative trend, presumably mani-

festing a strong social policy properly makes de-

mands on the judicial process.

_"

17

This Court’s acknowledgement that its decisions in

this area cannot be reconciled gives the Court an op-

portunity, indeed a duty, to clarify the law in a sound

manner. To do so the Court need not break new ground.

It needs only to adhere to the simple and sound obser-

vation it made in 1882: “Courts of Justice are estab-

lished, not only to decide upon controverted rights of

the citizens as against each other, but also upon rights

and controversy between them and the government.’’””

II

The McCarran Amendment Was Enacted to Allow Joinder

of All Water Users in Proper Adjudication Procedures.

Under the laws of the Western States, procedures

exist whereby water users or state officials can initiate

judicial proceedings to obtain a determination of the

respective water rights of water users on a particular

river or other water system. Due to the priority con- 4

cept of the appropriation doctrine, if any such general

adjudication of water rights is to be effective, it is

imperative that all water users from a single source

of supply be joined in the action and bound by the

results.

a ee is

te EF

Unfortunately, prior to the enactment of the Mc-

Carran Amendment,” this was not possible. The

United States, because of sovereign immunity, could

not be joined in such adjudications. Since the United

1° United States v. Lee, 106 U.S. 196, 220, 1 S.Ct. 240, 261,

27 L.Ed. 171 (1882).

*°The McCarran Amendment (43 U.S.C. 666, Act of July

10, 1952, 66 Stat. 560), construction of which is at issue here,

provides in pertinent part: “Suits for adjudication of water

eS eT ee

VELL Fey RCOERD: SRO IS

marae

a a el a ae en ee ee Ne ee ea Os oo |

18

States claims the right to initiate unknown, uncata-

logued and undetermined future uses on National

Forest lands under priority dates ranging from 1897

to 1903, other water users had no assurance or security

that their current water supply would remain intact.

This left the predictability of future water supplies

in an unstable and intolerably confused state. In addi-

tion to potential deprivation of existing users, possible

developers refused to make the substantial investments

necessary to beneficially utilize water resources for

fear of losing their water rights as a result of the

Federal Government subsequently asserting claims to

the water.

The legislative history of the McCarran Amendment

clearly indicates that it was enacted because of this

problem and to allow effective determination of all

rights. (a) Joinder of United States as defendant; costs. Con-

sent is given to join the United States as a defendant in any

suit (1) for the adjudication of rights to the use of water of

a river system or other source, or (2) for the administration

of such rights, where it appears that the United States is the

owner of or is in the process of acquiring water rights by

appropriation under state law, by purchase, by exchange, or

otherwise, and the United States is a necessary party to such

suit. The United States when a party to any such suit shall

(1) be deemed to waive any right to plead that the state laws

are inapplicable or that the United States is not amenable

thereto by reason of its sovereignty, and (2) shall be subject

to the judgments, orders, and decrees of the court having

jurisdiction, and may obtain review thereof, in the same man-

ner and to the same extent as a private individual under like

circumstances: Provided, that no judgment for costs shall be

entered against the United States in any such suit.”

7 rt >, NS Nr, . * on RUTCT LSB Pee be

Re au sone ESS Sie 22, zat Sas, Rte ore ee Met One eee RE ORR REN

19

water rights. In its report, the Senate Judiciary Com-

mittee states :*

In the administration of and the adjudication

of water rights under state laws, the state courts

are vested with the jurisdiction necessary for the

proper and efficient disposition thereof, and by

reason of the interlocking of adjudicated rights

on any stream system, any order or action affect-

ing one right affects all such rights. Accordingly

all water users on the stream, in practically every

case, are interested and necessary parties to any

court proceedings. It is apparent that if any

water user claiming to hold such right by reason

of the ownership thereof by the United States or

any of its departments is permitted to claim im-

munity from suit in, or orders of, a state court,

such claims could materially interfere with the

lawful and equitable use of water for beneficial

use by the other water users who are amenable

to and bound by the decrees and orders of the state

courts.

The absolute necessity of joining the United States

to achieve effective adjudication of water rights was

reiterated later in the report:”

Since it is clear that the states have the control

of the water in their boundaries, it is essential that

each and every owner along a given water course,

including the United States, must be amenable to

the law of the state, if there is to be a proper ad-

** (See Senate Calendar No. 711, Report No. 755, Septem-

ber 17, 1951 quoted in Vol. 98, Part I, Congressional Record

— Senate, 82nd Cong. 2d Sess., pp. 120-122, January 14, 1952)

22 Ibid.

DS hE NE REI ALND FLT ORT BI

ai <i

PAREN TF RoR >

Se OQOOOOOOOO ow a

20

ministration of the water law as it has developed

over the years... .

The committee is of the opinion that there is

no valid reason why the United States should not

be required to join in a proceeding when it is a

necessary party and to be required to abide by the

decision of the court in the same manner as if it

were a private individual.

In discussion of the Act on the Senate floor, Senator

Arthur V. Watkins, (Utah), who was subsequently

designated as a co-sponsor of the measure, illustrated

the bill’s purpose :**

Senator Watkins. I would like to give you one

illustration, which illustrates very well what we

are trying to do.

The Jordan drainage area in Utah has, with the

United States acting as a trustee for one of the

great reclamation projects and holding title to a

certain amount of water out of the stream, a suit

to determine the rights of all the water users on

that stream now in court. The only one that is not

in there is the United States as trustee, and we

cannot get them into court because we do not have

a bill such as S.18 passed.

The United States has not consented to come in

and be sued. How are we going to determine those

rights? We would like to get the matter settled.

In that particular case, the United States owns

property along the stream, yet we cannot get our

*s Jol. 98 Part Three, Congressional Record — Senate, 82nd

Cong. 2d Sess., p. 3042.

21

rights determined because we cannot get into

court.

Now, that is what we would like to be able to

do out in the West.

Finally, the Department of Interior acknowledged

that:*

The interests of the United States in the use of

the waters of its river systems are so many and

so varied that a full enumeration of them could

not be made without a great deal of careful study.

It is enough, I hope, for present purposes to exem-

plify these interests by pointing to those which it

has under the commerce clauses of the Constitu-

tion; those which exist by virtue of the creation of

Indian reservations under the doctrine of the

United States v. Winters (207 U.S. 546 (1908) )

or by virtue of the creation of, for instance, a

national park; those which it has asserted by en-

tering into international treaties; those which it

may have by virtue of its present and prior owner-

ship of the public domain and which have not

vested under [a series of specified acts]; those

with respect to which its officers and employees

have followed the procedure prescribed in Section

8 of the Act of June 17, 1902 (32 Statutes 388,

43 U.S.C. 383) ; and those which it has acquired

by purchase, gift, or condemnation by private

owners. Since the United States can be said, with

varying degrees of accuracy, to be the “owner” of

rights of any or all of these types, it is clear to me

* Letter from Mastin G. White, Acting Assistant Secretary

of the Interior, to Pat McCarran, Chairman of the Commit-

tee on the Judiciary, Aug. 3, 1951.

fad

)»)

that enactment of the bill could lead to a tremen-

dous volume of unwarranted litigation and, in the

absence of a complete and detailed catalogue of all

the rights and interests which the United States

has in the stream systems of the nation, to the

hazard that, by overlooking some, it would be for-

ever precluded from asserting them thereafter,

These observations concerning the scope of the Bill

were not denied, nor were any changes made in the

statutory language in response to them.

tn summary, it seems indisputable that the purpose

of the McCarran Amendment was to make possible

an effective determination of all water rights from a

single source of supply. Under any other interpreta-

tion, the probability remains that any decree determin-

ing priorities and extent of rights will be overturned.

This instability in water rights adjudication was the

very evil the measure was designed to eliminate.

The United States urges this Court to construe the

McCarran Amendment to preclude proper adjudica-

tion of all water rights. It argues that the preposi-

tional phrases referring to modes of acquisition —

that is, (a) “by appropriation under state law,” (b)

“by purchase,” (c) “by exchange,” and (d) “or other-

wise,” —- modify and qualify the phrase “the owner

of.” So construed, federal ownership alone is not suf-

ficient ground to justify joinder of the United States

in a water adjudication suit. Rather, on this view,

the United States may be joined only if it acquired the

pertinent water rights by one of the specified modes

SRE NTP PT INN OLE EIS RENEE IT A

Bek A

23

of acquisition. They claim that reserved water rights

have not been acquired by means of “appropriation,”

“purchase” or “exchange,” which are modes of acqui-

sition under state law, and that the rule of ejusdem

generis limits the denotation of “or otherwise” only to

other means of acquisition under state law. Inasmuch

as reserved water rights are not acquired pursuant to

state laws, the government argues, the Act does not

authorize joinder of the United States in water rights

adjudications concerning reserved rights. Whatever

technical merits this interpretation may have, it is

clearly erroneous. Such an interpretation frustrates

the stated purpose of the McCarran Amendment, per-

petuating the very evil it was designed to correct.

The statutory language is susceptible of a different,

more reasonable interpretation which implements the

purposes of the Act. The phrase “the owner of” should

be accorded general application and not be qualified

by the phrases referring to the specified modes of

acquisition.

Thus construed, the statute would be read as follows:

Consent is given to join the United States as a

defendant in any suit where it appears that the

United States [1] is the owner of [water rights]

or [2] is in the process of acquiring water rights

by [a] appropriations under state law, [b] by pur-

chase, [c], by exchange, or [d] or otherwise.

This interpretation is supported by the doctrine of

the “last antecedent” which holds that relative and

68 EIR PET CLE AG TL I STEELER IPE S

ER RTT TL ERT LAF LIT NT PPO

SS RE eRe SUE RE ETE Ve anaEeS ue

24

qualifying words, phrases, and clauses are to be ap.

plied to the words or phrase immediately preceding,

and are not to be construed as extending to or includ.

ing others more remote.” Under this rule, phrases

{a}, [b], [c], and [d] are applied only to the immediately

preceding phrase: “‘is in the process of acquiring water

rights” and not to the more remote phrase “the owner

of.” This interpretation would allow joinder of the

United States in water rights adjudication on the basis

of ownership alone regardless of the source of that

ownership.

The same result can be achieved by rejecting the

government’s application of the rule of ejusdem generis

to the phrase “or otherwise.” The government’s argu-

ment that this phrase must be limited to modes of

water rights acquisition under state law is not well

founded in that “purchase” and “exchange” are not

peculiarly modes of acquisition under state law as is

appropriation. In fact, the United States has previ-

ously claimed that “when the United States acquired

ownership of the public domain by cession from foreign

sovereigns, it acquired the rights to use waters thereon

within the bundle of rights which ownership of the

lands involves.”** For the most part, those “‘cessions”

** 82 C.J.S., Statutes, 334.

* Nicholas de B. Katzenbach, Deputy Attorney General,

“Memorandum re: 8.1275,” Hearings before the Subcommit-

tee on Irrigation and Reclamation of the Interior and Insular

Affairs, U.S. Senate, on S.1275, p. 11 (1964). ef., Brief for

the United States 20. The validity of this claim is strongly

disputed by the States, but is not before the Court at this

time. See p. ...., supra.

i al - a 3 “—_— A all * > J

25

upon which the reserved rights are based were “pur-

chases.” Surely, if the United States were to “ex-

change” public lands for lands on an Indian reserva-

tion, it would not relinquish whatever water rights

those Indian lands might have. In neither example

were the rights in question acquired “under state law.”

To accept the interpretation of the United States

would render the phrases “by purchase” and “by ex-

change” meaningless, inasmuch as, according to the

United States, these terms are included in “by appro-

priation under state law.” Such a construction would

violate the presumption that the legislature intends

that each word in a statute should have some meaning

all its own, and is included in the statute for a par-

ticular purpose. Thus, it seems more reasonable that

[a], [b], and [c] be construed as members of the general

class of modes of water rights acquisition with [d] “or

otherwise” serving to complete or exhaust that class.

So construed, the Act would extend to adjudication of

all types of federal water rights.

It seems apparent that the language in question is

amenable to more than one interpretation and hence

must be given that which will best effect its purpose

rather than one which would defeat it.” As this Court

has often held in construing a statute, to give effect to

the intent or purpose of the legislature, the Court must

look to the object to be accomplished and/or the evil or

** Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1875, 92

L.Ed. 1787, rehearing denied 335 U.S. 835, 69 S.Ct. 9, 98

L.Ed. 388.

26

mischief sought to be remedied. The McCarran

Amendment was enacted to allow an effective deter.

mination of water rights and to eliminate uncertainty

and confusion as to the existence and extent of one’s

water rights.

The anomalous consequences of the government’s

construction of the Act focus attention on a funda-

mental inconsistency in the government’s position. On

the one hand, the government resists the jurisdiction

of the Colorado District Court on the grounds that the

action is not a general adjudication of all purported

water rights on an entire river system. The United

States, it urges, may not be subjected to piecemeal

litigation in the resolution of its water rights. But

in the next breath, the government argues that the

McCarran Amendment should be construed to allow

determination of only federal appropriative rights and

not federal reserved rights, thus precluding the pos-

sibility of a completely general adjudication.

Ill

Adherence to the Appropriative Doctrine of Water Rights

Forms the Basis for the Economic Stability of the West.

Submission of federal uses of water on reserved

lands to the jurisdiction of state courts would not

* U.S. v. Bryan, 339 U.S. 323, 70 S.Ct. 724, 94 L.Ed. 884,

rehearing denied 339 U.S. 991, 70 S.Ct. 1018, 94 L.Ed. 1391.

In ascertaining the intent and purpose, the court must look

to the purpose to be subserved by the statute and should place

such construction as will, if possible, effect the purpose of the

statute. (U.S. v. Cooper Corporation, 312 U.S. 600, 61 S.Ct.

742, 85 L.Ed. 1071).

2%

“frustrate” “the purposes for which millions of acres

of lands have been withdrawn from the public do-

main,” or make the “reserved rights of the United

States . . . vulnerable to the vagaries of inconsistent

state laws.”

The water laws of the various Western States are not

“vague” or “inconsistent.” While there may be minor

differences in some of the states, much of the law is

now statutory, and is fairly uniformly construed. All

the Western States, either by constitution, statute, or

judicial pronouncement, adhere to the tenet of “bene-

ficial use,” which is the limit and measure of the right.

As Mr. Justice Douglas stated, the doctrine is “as

important to these Western States as the doctrine of

seizin has been to the development of Anglo-American

property law.”

Frank J. Trelease, Dean of the Wyoming Law

School, aptly described the appropriative doctrine in

this manner :°°

Upon it much of the wealth of the West has

been built. Mining was its origin, irrigation has

been its mainstay, but appropriations are made

for all beneficial purposes: domestic and munici-

pal, manufacturing and power production, stock

raising and public recreation.

** Arizona v. California, 373 U.S. 546, 629 (1963)

* Trelease, Arizona v. California, Allocation of Water Re-

sources to People, States and Nation, The Supreme Court

Review, 1963) p. 158.

PED LG ORNS MRT OLR NEEM a NYEIE RIL

SED CO EL Se NEAT sa NS

28

Several features combine to make an appropria-

tion a property right of a high order. An appro-

priation is always defined in terms of the right

to take a specific quantity of water. This, coupled

with the element of priority, gives the western

appropriators right a unique stability. On a typi-

cal western stream where there are many irriga-

tors with water rights initiated at different times,

all may draw water while the mountain snowpacks

melt and the stream is high. As the stream flow

decreases during the dry summer, the diversion

works of appropriators are shut off in inverse

order of priority. The burden of shortage thus

falls on those with the later rights; there is no pro-

ration in times of scarcity. Some observers have

questioned the desirability of this rule. Yet in its

unique fashion it has led to maximization of bene-

fits. The westerners early saw that an equal share

of water that was insufficient for all might lead

to parceling out the waters in shares that were

sufficient for none. The rule of priority is not as

harsh as it sounds. It guarantees a firm supply

to all those for whom the supply is sufficient, and

these people have been able to build an agriculture

unmatched in stability in places where depend-

ence is placed on natural rainfall. The junior

appropriator is encouraged by this law to develop

water resources. Instead of competing for a share

of the available riparian system, the later users

are forced to spend money to develop water from

alternate sources. When senior appropriators had

taken all of the dependable flow of western

streams, further development was inaugurated by

juniors who built dams to store spring floods, built

larger dams that would store the supply of good

years against future droughts, or brought water

SER PART TIN

are RE EAM PAM NANA ABO NT

long distances across or through mountain ranges

: from basins where the supply exceeded the local

demands. The junior appropriator who does face

a risk of shortage is like a farmer in a sub-humid

area who must take his chances on rain. The value

of his enterprise and the worthwhileness of ven-

turing into it will depend upon the forecast he can

make of receiving a supply. If the risk is great,

he may use the land almost as dry land, so that

water, when it comes, is a bonus. The senior ap-

propriator with a firm water right may grow an

orchard; the junior would not risk so substantial

an investment in time and money. He might

gamble on the loss of an annual crop but not of a

permanent investment.

'

.

:

*

RIA MERE IOP LTT NS ER SIN

os ee i li

wae PAS Rare

So long as potential federal developers can retain

the priority date of the original federal reservation

without identifying the amounts needed to effectuate

the original purposes of the reservation, the necessary

accuracy in appraisal of water supply is not possible.”

The resulting uncertainty stymies state and private

development and bars optimum utilization of the ;

West’s most precious resources.

HSL LG SS RES PIR GML)

ga oe te

*}A revealing instance of the kind of problems that have

been generated and aggravated by the government’s position

concerns the proposed Pine Hollow Reservoir Project in Ore-

gon. In a letter to the Regional Director, Bureau of Outdoor

Recreation, Seattle, Washington, under the date of October

24, 1968, from LeonJourolmon, Assistant Regional Solicitor,

the following was stated: “The Pine Hollow Cooperative,

Inc., is planning to build the Pine Hollow Reservoir on land

roughly three-fourths of a mile outside the boundaries of the

Mount Hood National Forest. The reservoir impoundment

will involve largely waters which arise on or flow from the

lands in the Mount Hood National Forest. As you may be

SRL RET OREN SENT. Gt EOS TR SRE eel

30

The Western States do not wish to “destroy” the

productivity of the millions of acres of reserved lands.

They only wish to be afforded a procedure by which

those rights can be identified. Their good faith is

exemplified in a Position Paper submitted to the Public

Land Law Review Commission in which they unani-

mously urged that Commission to recommend legisla-

tion which requires the United States:

to identify all Federal claims to surface and under-

ground water asserted under the Reservation

Doctrine or other theory of paramount right in-

cluding those made on behalf of Indians. Such

aware, the Federal Government may assert its federally derived

right to the use of water on federal lands by reference to

Supreme Court decisions holding that waters traversing or

bounding a reservation are reserved by the legislation or

executive order establishing the reservation’ or withdrawal

of public land. [Citing cases] Thus there is a serious ques-

tion present as to whether or not Pine Hollow Cooperative,

Inc., will be able to appropriate under Oregon State Water

Law Procedures any water rights which can be regarded as

binding upon the United States with respect to the waters

flowing out of the Mount Hood National Forest. It is my

opinion that the Cooperative will not be able to secure water

rights under its application to the Oregon State Engineer for

the 1,200 acre foot minimum sump together with the additional

capacity of 3,500 acre feet for irrigation purposes together

with 15 CFS out of Badger Creek for filling and maintenance,

which rights can be regarded as valid and binding upon the

United States as to the water flowing out of the Mount Hood

National Forest. In these circumstances, it is also my opinion

that the Cooperative will not be able to assign to the Oregon

State Game Commission the rights to the 1,200 acre feet sump

that can be regarded as free from doubt as to warrant assist-

ance to the proposed participant of funds from the L& WCF

for this project.”

31

identification should include a specific recital of

the purpose, location, extent and priority date of

every water right claimed. The United States

should be required to complete such identification

within a reasonable, specified period of time and

should be required to give notice to each affected

state. The legislation should limit such claims to

the effectuation of the original purpose of the

reservation.

There is nothing in the present law or prior appro-

priation that would preclude a state court from reach-

ing the same reasonable result. They should at least

be given a chance to try.

CONCLUSION

For the foregoing reasons, the decision of the Colo-

rado Supreme Court should be affirmed.

Respectfully submitted:

DUKE W. DUNBAR, ROBERT M. ROBSON,

Attorney General Attorney General

State of Colorado State of Idaho

LEE JOHNSON, ROBERT L, WOODAHL,

Attorney General Attorney General

State of Oregon State of Montana

HARVEY DICKERSON, G. KENT EDWARDS,

Attorney General Attorney General

State of Nevada State of Alaska

ey

m3

BENG LMT TG RESON AEP NE SR RR BE

988 PE EE IED WE OD: CEI MEER EN ER FB SRM OE ODM RIE

APPENDIX A

WATER USES ON PUBLIC LANDS*

(in acre feet)

eens

LIVESTOCK BIG GAME RECREATIO0\

1967 1980 2000 1967 1980 2000 1967 1980 9

RM eaten acs 12,450 18,411 25,546 1,222 1,370 1,674 169 242

Forest Serv. ..69,752 96,531 125,061 20,769 23,696 24,387 49,909 35,751 Ty:

Nat'l. Park

Service ...... 330 297 249 98 98 98 1,029 3,560 53%

Fish &

Wildlife ...... 568 578 611 69 72 76 45 116 i

ee 277 290 310 29 33 30 278 790 19

Sc USNR erates

charcarinnes

[eres 404 517 427

Ree

Air Force..........

eee

Corps of Eng 5,922 17,292 26%

83,781 116,624 152,204 22,187 25,269 26,265

57,352 57,751 106,

*Compiled from information supplied by the various federal agencies to

the Public Land Law Review Commission and utilized by Thomas M.

Stetson, and Daniel J. Reid in their “Study of the Development, Man-

agement, and Use of Water Resources on the Public Lands,” prepared

for that Commission.

—_--"-""

LAND OCCUPANCY

1967 1980 2000

TOTAL

1967 1980 2000

20,955 26,376 32,090

447 1,049 1,576

7” 20 29

1333 569 751

2.789 2,789 2,789

124 149 «155

30,350 30,350 30,350

65138 6,513 6,513

10,060 12,276 15,344

625 847 1,006

13,814 20,023 27,220

178,851 200,789 280,468

2,330 5,690 8,294

1,989,121 2,160,344 2,203,850

3,032 3,474 4,572

2,789 2,789 2,789

124 149 155

8,489 9,436 9,345

30,350 30,350 30,350

8,140 8,140 8,140

10,060 12,276 15,344

8,687 18,809 28,609

73,245 80,970 90,635 2,019,249 2,191,655 2,243,422

2,255,814 2,472,269 2,619,136

LE ELEMENT SRE Lo SPREE

Lae

OE et

et ce aaa

34 .

APPENDIX B

RESPONSES TO NATIONAL WATER COMMISSION

In the Summer and Fall of 1969, the National Water

Commission held a series of hearings “to learn what the public

thought about the water situation in the United States." To

indicate the general nature of subjects to be discussed, the

Commission circulated a list of twenty-five questions. State

responses indicated their interest in the MacCarran Amend-

ment and state-federal relations in general.

The National Water Commission asked: ?

In what way does present law regarding the owner-

ship of water rights encourage or discourage wise use of

water? Should changes be made in laws governing feder-

ally-owned water rights?

The Western States responded: *

California

California has consistently urged that Congress clarify

the respective interests of the United States and the states

in the use in certain streams. This is a reaction to a series of

United States Supreme Court decisions which have been ad-

verse to state water rights by holding that on withdrawn or

reserved lands, water rights created by state law are subject

to federal uses on such land. Thus, state-created water rights

subsequent to the reservation of public lands are subordinate

to the reserved water rights, and no compensation need be paid

by the Federal Government when use of the reserved water

right results in an interference (taking) of a state-created

water right.

* * ~~

The cases recognize a priority in favor of the water rights

of these reservations, related to the date of their establishment.

‘The National Water Commission, Interim Report No. 1: Annual Report

for 1969, p. 5.

2Id at 40.

8The National Water Commission circulated a list of 25 questions and 31

tentative programs of studies. Arizona, Colorado, Idaho and Washington

commented on the studies, but did not respond specifically to the 25

questions.

F S88 ARO PE 8 ESE A LIT LILLIA I A fo Re OS TELE EP ER

35

But the quantity of the right is not established unless and until

that water right is litigated, usually many years after creation

of the reservation. When the magnitude of the water right

is finally determined, as it was in Arizona v. California, the

quantity may be fixed by a determination of the reasonabie

requirements of the reservation, but this determination (at

least in the case cited) has been controlled by the standards

of physical and economic feasibility prevailing at the time of

the decision, not those which existed at the time when the

reservation was created. In the interval between establishment

of the reservation and the determination of the quantity of its

water rights (this interval may amount to several decades),

uses may have been built up under state law appropriations, or

conceivably under federal authorizations. These are cut off,

without compensation, to the extent of their conflicts with the

water right subsequently “quantified” for that reservation in

a court decree, which relates the right to that quantity back to

the date of creation of the reservation. It would seem only fair

that the quantity of the right should be established at the time

of the creation of the right, as is required by state appropri-

ation laws.

ok * *

It seems to many of us that Congress, in the Reclamation

Act of 1902 and supplementary legislation, recognized a sound

principle when it directed the Secretary of the Interior to ac-

quire water rights for federal projects in compliance with state

law, whether those rights are initiated by appropriation or are

acquired from prior appropriators. The Supreme Court in

Arizona v. California recognized the power of Congress to

create water rights by authorizing the impounding and disposi-

tion of waters not previously appropriated, and to do so without

compliance with state law. There have been, and will be again,

cases in which this is necessary. But I believe that the Com-

mission should recommend that, in the absence of specific

congressional directions to the contrary, the Federal Govern-

ment should initiate or acquire water rights (at least consump-

tive use rights) in accordance with, and not by supersedure

of, the laws of the state in which the water is diverted or im-

pounded.

Montana

The State of Montana, together with most western states,

has been greatly disturbed by the constant contention of the

PPO RER aa nS Bah LEST NOI AL LOL RR ac eel

WR fF EMDR er OA Gots ee

SR eT ET ATL LS RRR OEP ORE eT ate teiatete

36

Department of Justice that the United States is the actual

owner of all the waters in all of the western streams, and that

the Federal Government, therefor, is supreme and may ignore

the laws of the various states. We, therefore, firmly support

the inherent right and obligation of the people, with or without

assistance from the Federal Government, to develop their water

resources and to protect their right to continued use within the

framework of applicable interstate compacts and the Water

laws of the respective states. We feel that this is of utmost

importance and one which will have to be given an in-depth

study by your Commission with the hope that your leadership

may help to resolve this extremely important problem.

Nevada

In our view one of the most critical problems is a resoly-

tion of the jurisdictional question regarding authority for ad-

ministering water rights and water supplies originating on,

over or beneath the public lands. This issue has been the sub-

ject of much controversy and investigation, including review

by the Public Land Law Review Commission. The seriousness

of the problem has been minimized by those who for one reason

or another object to appropriate federal legislation to clarify

the issue. We urge you to not pass lightly over this matter on

the grounds that no material damage or adverse results have

occurred because of this unresolved question. I think this is

analogous to the very real and practical problem that we all

face in the determination and assignment of benefits to such

factors as aesthetics and environment in consideration of water

development projects. The damage or adverse affects from the

unresolved jurisdictional question may be difficult to quantify

in dollars and cents. However, the “cloud” of the reservation

doctrine and the ever-present effort by some to extend the

interpretation of the reservation doctrine is in a sense an open

ended demand which thwarts development of our resource

water. To our knowledge all past attempts to resolve this issue

through proposed legislation have been restricted to surface

water supplies. Because the ground water resource will be-

come more significant in meeting our future demands, this

source and all sources of supply should be specified in any

action to clarify the question.

37

New Mexico

New Mexico’s water law, as it applies to both underground

and surface sources, is based on the doctrine of prior appro-

priation. Rights to the use of water are based on beneficial

use and priority in time of appropriation gives the better right.

All of the waters of the State belong to the public, and are

subject to appropriation in accordance with law under the

supervision of the State Engineer. Under the established juridi-

cal system, wise use is encouraged and waste is discouraged.

Our statutes permit the change of point of diversion and place

and purpose of use of water rights with the consent of the

owner. Thus, economic competition which tends to move water

to the currently highest economic use is allowed.

We concede the virtue and validity of an overlapping sys-

tem of State and Federal jurisdiction and authority. However,

it is out of this dual sovereignty that some confusion arises.

Much of this uncertainty derives from the assertion of Reser-

vation Doctrine claims by the United States. Under this doc-

trine, the United States claims all the water needed for the

purpose of the reservation with the priority of the date of crea-

tion of the reservation.

We cite here, in the broadest terms, areas of potential

legislative change, designed to bring about a more favorable

climate for furtherance of both state and federal goals in water

resources planning and development. First, there should be a

way to quantify the Reservation Doctrine claims of the United

States. There should be legislation which would require federal

agencies to inventory present water uses and claims of right

to the use of water for a specified time into the future. Such

‘egislation should include provisions making such claims bind-

ing upon the United States by the establishment of a procedure

for settling of those claims. It is important for planners at the

state, local and private levels and for the federal government

itself, that such claims be identified as to quantity and priority

and geographic location.

In addition to the inventory and procedures for definition

discussed above, it is desirable that there be a liberalization

of the so-called McCarran Amendment (48 U.S.C. Section 666)

to clarify the entitlement of the states, or subdivisions thereof,

\

to secure judicial clarification of the nature and extent of all

federal water rights claimed including Indian rights.

Oregon

One of the major questions in the legal area in the western

states is the lack of clarification of state-federal jurisdiction

over water. Primary attention has been focused on the impact

of this on irrigation, but in Oregon, at least, most of our cities

and major water-using industries utilize water that arises from

or flows over federal lands. This matter has been the subject of

extensive hearings before Congressional committees and of

numerous court cases without, at the moment, satisfactory

resolution. We believe this particular matter is worthy of the

Commission’s attention and hopefully leadership in resolution

of the problem.

Utah

There is a long-standing controversy regarding the role

of the Federal and State Governments in the field of water

rights. We believe the Commission should address itself to

this problem and with the help of the federal agencies and the

states, seek to outline a means by which this long-standing

problem can be resolved in a manner that protects the rights

of all of our citizens. Unless this is resolved in the near future,

a major crisis in state-federal relations is likely to arise within

a few years.

Wyoming

One of the most important problems facing the Western

States today relates to the so-called “Reservation Doctrine,”

and the related question of jurisdiction over water use and

water rights. The Public Land Law Review Commission is

studying the problem in depth, and hence it may not be neces-

sary to comment in detail. We feel that federal claims of

reservation of unlimited quantities of water for use on federal

reservations, with a priority as of the date of the reservation,

crente a cloud over state-granted water rights which is in-

tolerable. Such unquantified reservations would limit future

development and discourage investment in water projects.

National Forest Reserves in Wyoming cover most of the high

39

water-producing areas, and these forests were reserved prior

to many of our state-granted water rights. The potential

impact of the Reservation Doctriné on our State is significant.

At its extreme it could seriously damage existing water users,

and as a minimum, it creates a cloud over future water de-

velopment which needs to be removed.

Jurisdiction over water resources and the authority to

issue rights for the use of water must be clearly established

if we hope to maintain an orderly system of water administra-

tion. Dual jurisdiction simply cannot work. The states have

traditionally accepted and fulfilled this responsibility and

there does not appear to be sufficient reason to modify this

arrangement.

The National Water Commission would appear to be an

appropriate entity to study this question. Even though the

Public Land Law Review Commission is expected to make its

recommendations within a year, the non-governmental orien-

tation of your Commission may well indicate the possibility

of a different conclusion being reached. The question is of

sufficient importance to justify a serious effort to resolve

the problem before it becomes more acute.

40

APPENDIX C

THE TREND TOWARD SOVEREIGN RESPONSIBILITY

Florida

The modern movement in State Courts away from sover.

eign immunity and toward sovereign responsibility began jp

Florida in 1957 when the Florida Supreme Court held q

municipality liable for the wrongful death of a jailed inmate

who was suffocated by smoke, stating:

[OJur own feeling is that the courts should be alive

to the demands of justice. We can see no necessity for

insisting on legislative action in a matter which the courts

themselves originated. The problem in Florida has be

come more confusing because of an effort to prune and

pare the rule of immunity rather than to uproot it bodily

and lay it aside as we should any other archaic and out-

moded concept. . . . The great body of our laws is the

product of progressive thinking which attune traditional

concepts to the needs and demands of changing times,

The modern city is a substantial measure of large busi-

ness institution. .. . To continue to endow this type of

organization with sovereign divinity appears to us to

predicate the law of the 20th century upon an 18th cen-

tury anachronism. Hargrove v. Town of Cocoa Beach,

96 So. 2d 130, 60 A.L.R. 2d 1193 (Fla. 1957).

Colorado

The Colorado court declared: “sovereign immunity may

be a proper subject for discussion by students of mythology.

It finds no haven or refuge in this court.” Colorado Racing

Commission v. Brush Racing Association, 136 Colo. 279, 284;

316 P.2d, 582, 585, (1957). Later the court said: “The doc-

trine of sovereignty in Colorado is in limbo, only the memory

lingers on.” Stone v. Currigan, 138 Colo. 442, 448; 334 P.2d.

740, 743, (1959). Subsequently the court by a four to three

decision held that the immunity doctrine had to be followed.

City and County of Denver v. Madison, 142 Colo. 1, 351 P.2d

826, (1960).

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41

Illinois

The Illinois Supreme Court elaborately discussed reasons

for sovereign immunity and announced:

We conclude that the rule of school district tort im-

munity is unjust, unsupported by any valid reasons, and

has no rightful place in modern day society. ... Having

found that doctrine to be unsound and unjust under pre-

sent conditions, we consider that we have not only the

power, but the duty, to abolish that immunity. ... We

have repeatedly held that the doctrine of stare decisis is

not an inflexible rule requiring this court to blindly follow

precedents and adhere to prior decisions, and that when

it appears that public policy and social needs require a

departure from prior decisions, it is our duty as a court

of last resort to over-rule those decisions and establish a

rule consonant with our present day concepts of right

and justice. Monitor v. Kaneland Community Unit Dis-

trict, 18 Ill. 2d 11, 163 N.E. 2d 89, 86 A.L.R. 2d 469

(1959) certiorari denied 362 U.S. 968, 80 S. Ct, 955,

4 L.Ed. 2d 900 (1960).

New Jersey

The New Jersey Court eliminated a large chunk of sov-

ereign immunity when the court rejected the argument that

a change in the law should be left to the legislature: “Surely

it cannot be urged successfully that an outmoded, inequitable,

and artificial curtailment of the general rule of action created

by the judicial branch of the government cannot or should not

be removed by its creator. ... [J]udicial and not legislative

action closed the court doors, and the same hand can, and, in

proper circumstances should, reopen them.” MacAndrew v.

Mularchuk, 33 N.J. 172, 162 A.2d 820, 88 A.L.R. 2d 313

(1960).

Minnesota

A unanimous Minnesota court repudiated the doctrine

of sovereign immunity, stating: “Since we have repeatedly

proclaimed that this defense is based on neither justice nor

reason, the time is now at hand when corrective measures

42

should be taken by either legislative or judicial fiat.” 264

Minn. at page 285, 118 N.W. 2d at page 799. The court de

clared: “Even in jurisdictions which adhere to the immunity

doctrine, seldom is any justification advanced beyond the rule

of stare decisis. Our considerations of the origins of tort

immunity persuade us that its genesis was accidental and was

characterized by expediency, and that its continuation has

stemmed from inertia.” Spaniel v. Mounds View School Dis.

trict, 264 Minn. 279, 281, 118 N.W. 2d 795, 796 (1962).

Wisconsin

The Wisconsin court unanimously abolished sovereign

immunity for tort liability and supported with many quota-

tions its statement that: “There are probably few tenets of

American jurisprudence which have been so unanimously

berated as the governmental immunity doctrine.” 17 Wis.

2d at page 33, 115 N.W. 2d at page 621. The court found that

“it is appropriate for this court to abolish this immunity not-

withstanding the legislature’s failure to adopt corrective

amendments,” announcing that “hence forward .. . the rule

is liability — the exception is immunity.” Holytz v. City of

Milwaukee, 17 Wis. 2d 26, 39, 115 N.W. 2d 618, 625 (1962).

California

Justice Traynor traced the history of sovereign immunity

and declared:

The rule of governmental immunity for tort is an

anachronism, without rational basis, and has existed only

by the force of inertia... . None of the reasons for its

continuance can withstand analysis. ... It has become

riddled with exceptions . . . and the exceptions operate so

illogically as to cause serious inequality.

To the argument that the legislature, not the court, should

remove the immunity, the Court responded that the doctrine

was court-made, that the legislature had enacted various

statutes waiving immunity in some areas, and that the vari-

ous statutes “leave the court whether it should adhere to its

own rule of immunity in other areas.” Muskopf v. Corning

Hospital District, 55 Cal. 2d 211, 11 Cal. Rptr. 89, 359 P.2d

457 (1961).

—_—

43

Michigan

The Michigan court announced:

From this date forward the judicial doctrine of gov-

ernmental immunity from ordinary torts no longer exists

in Michigan. In this case, we over-rule preceding court-

made law to the contrary. We eliminate from the case

law of Michigan an ancient rule inherited from the days

of absolute monarchy which has been productive of great

injustice in our courts. By so doing, we join a major

trend in this country toward the righting of an age-old

wrong. Williams v. City of Detroit 364 Mich, 231, 250,

111 N.W. 2d 1, 20 (1961).

Arizona

In 1963, the Arizona court declared: “We are of the

opinion that when the reason for a certain rule no longer

exists, the rule itself should be abandoned. After a thorough

re-examination of the rule of governmental immunity from

tort liability, we now hold that it must be disregarded as a

rule of law in Arizona and all prior decisions to the contrary

are hereby overruled.” Stone v. Arizona Highway Commis-

sion, 93 Ariz. 384, 387, 381 P.2d 107, 109 (1963).