LibGuides: Administrative Law: Water Rights & Resources in Utah by Tasha Warnock: CASES

COLORADO RIVER WATER CONSERVATION DISTRICT V. UNITED STATES

Decided March 24, 1976.

United States brought suit, in its own behalf and on behalf of two Indian tribes, seeking a declaration of its rights to waters in certain rivers and their tributaries located in Colorado water division No. 7. The United States District Court for the District of Colorado granted motion to dismiss, stating that the doctrine of abstention required deference to proceedings in water division No. 7, and United States appealed. The Court of Appeals, Tenth Circuit, 504 F.2d 115, reversed, and certiorari was granted. The Supreme Court, Mr. Justice Brennan, held that the McCarran amendment did not divest the district court of jurisdiction under statute giving the district courts “Except as otherwise provided by Act of Congress” original jurisdiction of all civil actions, suits or proceedings commenced by the United States; that the McCarran amendment includes consent to determine in state court reserved water rights held by the United States on behalf of Indians; that the exercise of state jurisdiction does not imperil those rights or breach the Government's special obligation to protect Indians; that dismissal on the basis of abstention would be inappropriate; but that dismissal was warranted by a number of factors clearly counselling against concurrent federal proceedings, most significantly the fact that dismissal would further the policy expressed by the McCarran amendment.

Judgment of Court of Appeals reversed and judgment of District Court affirmed.

Colorado River Water Conservation Dist. v. U. S., 424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483 (1976)

Great Basin Water Network v. Nevada State Engineer and Southern Nevada Water Engineer

In 1991, SNWA was formed to address and secure the water needs for the millions of residents of and visitors to the Las Vegas valley. SNWA acquired LVVWD's rights to the 1989 groundwater applications as a successor in interest. Thereafter, between 1991 *915 and 2002, LVVWD withdrew some of the 1989 applications, and the State Engineer held hearings and issued rulings on several other 1989 applications. This appeal concerns 34 of SNWA's remaining 1989 groundwater applications in the Spring, Snake, Cave, Dry Lake, and Delamar Valleys. Although there are 54 appellants to this appeal, we have identified five groups of appellants. First, there are 11 “original protestants,” who filed original protests in 1989 and 1990, but argue that because of the 16–year delay following the filing of the applications, they did not receive adequate notice of the 2005 prehearing conference or the 2006 hearings. Second, there are the “new” property owners, who moved to or established themselves in affected valleys after 1989. Third, there are five property owners who either inherited or purchased their property interest from an original protestant. Fourth, there are residents of Utah who live on the Utah side of Snake Valley, and argue that they never received notice of the applications in 1989 and thus did not file protests. Fifth, there are at least three national environmental and wildlife organizations that have evolved since 1989, and argue that the State Engineerhas effectively blocked them from protecting their interests because they did not file protests in 1989 and 1990.

Great Basin Water Network v. State Eng'r, 234 P.3d 912, 914-15 (Nev. 2010)

Salt Lake City v. Gardner

The claim that there is no unappropriated water in the lake is equally as unfounded as the claim that the plaintiffs have acquired a vested right to a continuous flow therefrom of 800 cubic feet per second during the irrigation season. Not only does the record conclusively show that there are unappropriated waters in the lake far in excess of the amount the defendants are entitled to take therefrom, but that the supply of water in the lake will, in all probability, be greatly augmented on the completion of what is known as the “Strawberry Project,” which is being constructed by the government. The evidence shows that when this project is completed at least 50,000 acre feet of water per annum now flowing into the Colorado river will be applied to arable lands adjacent to the lake. This water is to be taken from streams, tributaries of said Colorado river, and conveyed by means of a tunnel through the mountains to the Utah Lake basin.

Salt Lake City v. Gardner, 39 Utah 30, 114 P. 147, 156 (1911)

SNAKE RIVER VALLEY ELECTRIC ASSOCIATION V. PACIFICORP

Background: Electric cooperative brought suit alleging that utility violated antitrust laws by refusing to allow cooperative to “wheel” and supply power to cooperative's members who were also utility's customers through utility's electric transmission facilities. The United States District Court for the District of Idaho, B. Lynn Winmill, Chief Judge, granted summary judgment for utility based on state action immunity. Cooperative appealed. The Court of Appeals, 238 F.3d 1189, reversed and remanded. On remand, The District Court, Winmill, Chief Judge, entered judgment in favor of utility in light of jury's answers on special verdict form and cooperative again appealed.

Holdings: The Court of Appeals, Gould, Circuit Judge, held that:

1 utility was entitled to state action immunity under Idaho's amended Electric Supplier Stabilization Act (ESSA) with regard to its denial of cooperative's request to “wheel” power to cooperative's members through utility's transmission facilities;

2 utility's refusal to sell wholesale power to cooperative was not monopolization violation;

3 whether cooperative was harmed by district court's in limine ruling excluding as irrelevant utility's stipulation was waived on appeal; and

4 cooperative waived objection to jury instruction.

Affirmed.

Snake River Valley Elec. Ass'n v. PacifiCorp, 357 F.3d 1042 (9th Cir. 2004)

UNITED STATES V. STATE OF UTAH

The State of Utah was admitted into the Union on January 4, 1896. (29 Stat. 876.) The title to the river bed is determined as of that date. In conformity with the constitutional principle of State equality, the title to the beds of the rivers within the State passed to the State, if the rivers were navigable, as of that date, provided the beds had not already been disposed of by the United States. If the rivers were not then navigable, the title to the beds remained in the United States. (See page 7, this brief.)

The question whether the rivers were navigable is to be determined according to the general rule recognized and applied in the Federal Courts. (See page 7, this brief.)

In determining the issue of navigability, the history of a river as to early use by fur traders, emigrants, merchants, etc., is entitled to great weight. The San Juan, Green, and Colorado Rivers, in Utah, were not used by the pioneers as highways for transportation or travel. Such lack of use in the days of difficult overland travel is weighty evidence of the *5 nonnavigability of the rivers. The head of navigation of the Colorado River was far below Lees Ferry, Arizona. (See page 8, this brief.)

The physical characteristics of a river must be considered in determining its navigability. These rivers can not be used as highways of commerce within the State of Utah. During most months of the year their stream flow changes greatly from day to day; they carry a large amount of sand and silt which form sand bars, and the tortuous courses of the rivers and their changing velocity and volume cause the bars to change in size and shape from day to day. Because of these and other conditions these streams are not navigable within the State of Utah. (See page 52, this brief.)

Rivers, which are classed as navigable rivers, are those which are used or are capable or susceptible to being used as highways of commerce. Boating in these rivers in Utah has always been difficult due to the physical characteristics of the river. No merchant in any town on or near these rivers has ever used them for the purpose of transportation. Such use as has been made of the rivers has been confined principally to small boats and rafts of miners, prospectors, explorers, and engineers. Commercial experiments with larger boats have failed because of inability to cope with natural river conditions. At the time of trial there were no boats in operation on any of the rivers in Utah.

*6 By Executive Order dated May 17, 1884, President Arthur set aside certain lands, a part of which were in Southern Utah, as a reservation for Indian purposes. This Order described one course as running to the middle of the channel of the Colorado River, and thence up and along the middle channel of the Colorado and San Juan Rivers. The Order includes all of the San Juan River involved in this suit, and that part of the Colorado River between the mouth of the San Juan and the Utah-Arizona Boundary Line.

U.S. v. Utah, 1931 WL 32538 (U.S.), 4-6 (U.S., 2006)

In re Uintah Basin

1 This appeal probes whether jurisdiction should lie in the federal district court or in the courts of the State of Utah. The dispute centers around competitive applications filed by the Strawberry Water Users1 and the United States with respect to water imported from the upper reaches of the Duchesne River, a Colorado River tributary, into the Great Basin. The water is collected in the Strawberry Reservoir as part of the Strawberry Valley Project2 and delivered through a transbasin diversion tunnel for use primarily in the southern end of Utah County. The parties before the court are the Strawberry Water Users, the United States, and the Utah State Engineer.

¶ 2 The Strawberry Water Users argue that the water rights in question are the product of following the application and beneficial use requirements of Utah law and that Utah courts have exclusive jurisdiction to adjudicate claims relating thereto. “[T]he United States disagrees and contends that Strawberry's rights to use water derive solely from its contracts with the United States.” It asserts “the proper forum for resolution of Strawberry's contract-based claims is federal district court.” The State Engineer has submitted memoranda in partial support of the position of the United States.

¶ 3 The parties have not always been so certain about jurisdiction. This litigation began on April 24, 2001, when the Strawberry Water Users filed a petition for an interlocutory decree in the general adjudication of water rights pending since 1936 in Utah's Third Judicial District Court in and for Salt *413 Lake County.3 Strawberry named the United States Bureau of Reclamation as respondent. One day later, Strawberry filed an identical petition in the general adjudication of water rights pending since 1956 in Utah's Eighth Judicial District Court in and for Duchesne County.4 One day after that, it filed an action seeking essentially the same relief in the United States District Court for the District of Utah.5

¶ 4 Strawberry's uncertainty has been matched if not exceeded by that of the United States. In support of its motion to dismiss the consolidated case in the federal district court, the United States asserted, “[N]either the state engineer nor the court in this action has jurisdiction to adjudicate title to water rights under Utah law.” Further evidence of the uncertainty of the United States is found in its protest of Strawberry's change application filed with the State Engineer:

[A]n adjudication of the [ownership of] water rights is required before a change of use application can be processed by the state engineer for this applicant. However, the authority to adjudicate water rights is vested by the Utah Constitution in the [Utah] courts and not given to the state engineer.... Thus, the applications must be dismissed pending the necessary adjudication.

¶ 5 After Strawberry filed its petitions in the state courts seeking adjudication, the United States made a complete reversal and urged dismissal for failure to exhaust administrative remedies. It later withdrew this argument when the State Engineer granted conditional approval of change applications for both Strawberry and the United States. The condition was that the parties obtain a judicial determination establishing who has the right to file such applications. We think it fair to conclude that the parties have struggled with how best to proceed and that the State Engineer, in particular, both needs and seeks direction. We note that it is not possible to flesh out the jurisdictional issue and provide appropriate guidance without a more extensive discussion of the substance of the dispute than would normally be required at this stage of the proceedings.

In re Uintah Basin, 2006 UT 19, 133 P.3d 410, 412-13

In re: The APPLICATION FOR WATER RIGHTS of UNITED STATES of America

Before the McCarran Amendment was enacted, the United States could not be joined in state water court adjudications without its consent. See Bell, 724 P.2d at 640–1. Because of the prevalence of federal reserved water rights, particularly in the western United States, it was thought that state court procedures for the allocation and determination of water rights were being thwarted by the inability of state courts to ascertain or adjudicate federal water rights with finality. Id. at 641. As a result, meaningful stream adjudications proceeded only when the United States consented to participate. See John E. Thorson, State Watershed Adjudications: Approaches and Alternatives, 42 Rocky Mtn. Min. L. Inst. 22–1, 22–13 (1996).

9 In 1952, Congress enacted the McCarran Amendment, allowing state courts to involuntarily join the United States as a necessary party in comprehensive state adjudications of water rights.² 43 U.S.C. § 666. The legislative history of the McCarran Amendment reveals its dual purposes: 1) to promote certainty and finality, and 2) to avoid needless waste or controversy by requiring the federal government to assert any and all claims to the use of water in a comprehensive state adjudication of water rights. See S.Rep. No. 82–755, at 4–6 (1951).³ Subsequent cases from the United States and Colorado Supreme Courts implementing the McCarran Amendment have confirmed these parameters and purposes. See, e.g. Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 807–08, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976); United States v. Dist. Court, 401 U.S. 520, 525, 91 S.Ct. 998, 28 L.Ed.2d 278 (1971) (Eagle County II ); Bell, 724 P.2d at 641–42; United States v. Dist. Court, 169 Colo. 555, 563–65, 458 P.2d 760, 763–64 (Colo.1969) (Eagle County I ).

10 It is clear both from the language of the amendment itself, as well as its legislative history and interpretive precedent that, although McCarran proceedings are intended to be all-inclusive, the waiver of sovereign immunity is limited to proceedings to determine or administer the rights to the use of the water. Colorado River, 424 U.S. at 819, 96 S.Ct. 1236. By its terms, the McCarran Amendment provides:

*1080 Consent 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 have waived 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 manner and to the same extent as a private individual under like circumstances ....

43 U.S.C. § 666 (emphasis added). The McCarran Amendment does not assert or imply that a state court would have jurisdiction to review the decision making process of federal entities, such as Interior or the Park Service, for compliance with federal law.

Indeed, such a conclusion would run contrary to the Administrative Procedure Act, the federal statute which establishes the practices and procedures followed by administrative agencies in rulemaking and adjudication. The language and legislative history of the APA's judicial review provisions make clear that Congress intended to hold federal administrative agencies answerable for their conduct only in federal courts. 5 U.S.C. §§ 702, 706 (2004). Section 706 provides that a reviewing court shall “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). Section 702 defines the scope of that review: “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute” is entitled to judicial review and may bring suit against the agency. 5 U.S.C. § 702. However, the suit must be brought “in a court of the United States.” Id. Thus, the waiver of sovereign immunity is expressly limited to federal court. See id.; see also Aminoil USA v. Calif. State Water Res. Control Bd., 674 F.2d 1227, 1233 (9th Cir.1982). The APA's legislative history underscores this intent, explicitly stating that the United States will remain immune from suit in state courts. Nat'l State Bank of Elizabeth v. Gonzalez, 266 N.J.Super. 614, 630 A.2d 376, 381 (A.D.1993) (citing H.R.Rep. No. 94–1656, at 11 (1976), U.S.Code Cong. & Admin.News 1976 at pp. 6121, 6131).

The scope of the waiver of sovereign immunity under the McCarran Amendment is not so broad that it allows state courts to evaluate or adjudicate the federal agency decision making processes leading the United States to make a particular water application in a given case. The Environmental Opposers have brought claims in federal court that can only be decided by that court. Thus, there is no question that there will be both state and federal proceedings before the United States' reserved water right for the Black Canyon can be fully resolved. The federal case will decide whether the United States' amended application complied with the applicable federal law, and the state case will quantify the reserved water right. We recognize that the federal case may have an impact on the water court proceeding. Indeed, if the federal case had no impact on the state case, there would be no need for a stay. However, the water court will decide the quantification of the federal reserved right even if the federal court finds that the agency decision making was flawed and must be redone.

The only question remaining is whether the water court's decision to stay the proceedings and allow the federal case to be resolved first constituted an abuse of discretion. To answer this question, we examine the standard for determination of a stay, and consider whether the water court met it.

In re Application for Water Rights of U.S., 101 P.3d 1072, 1079-80 (Colo. 2004)