# Amicus Curiae Brief — United States v. District Court in & for the County of Eagle > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0252%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1971 - **Citation:** 401 U.S. 520 ## Text 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 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). S&S op cml OUTS wT Se Ss SB il 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). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0252%3A13. Public record. Not legal advice.