United States v. Hennen

• Decision Date: 02 May 1968
• Docket Number: Civ. No. LV-927.
• Citation: 300 F. Supp. 256
• Parties: UNITED STATES of America, Plaintiff, v. George W. HENNEN, State Engineer for the State of Nevada, et al., Defendants.
• Court: U.S. District Court — District of Nevada

300 F. Supp. 256

UNITED STATES of America, Plaintiff, v. George W. HENNEN, State Engineer for the State of Nevada, et al., Defendants.

Civ. No. LV-927.

United States District Court D. Nevada.

May 2, 1968.

Joseph L. Ward, U. S. Atty., Las Vegas, Nev., Martin Green, U. S. Dept. of Justice, Washington, D. C., for plaintiff.

Harvey Dickerson, Atty. Gen. for State of Nevada, Carson City, Nev., Singleton, De Lanoy & Jemison, Las Vegas, Nev., Gray, Horton & Hill, Reno, Nev., for defendants.

OPINION

ROGER D. FOLEY, District Judge.

This action has been submitted for decision to the Court upon cross-motions for summary judgment, pursuant to Rule 56, F.R.Civ.P., the parties having presented points and authorities and evidence in support of their respective motions.

In 1919, a proceeding was initiated under what is now codified as Chapter 533 of Nevada Revised Statutes, for the determination of relative rights in and to the waters of Pahranagat Lake and its tributaries in Lincoln County, Nevada. In accordance with said statute, the State Engineer made an investigation of the stream system and took proofs of the various claims thereto. From the proofs and evidence taken or given before him, the State Engineer prepared a preliminary Order of Determination, establishing the several rights of claimants to waters of the stream system. After hearing objections to said preliminary Order of Determination, and in accordance with said statute, the State Engineer prepared an Order of Determination, and on March 10, 1927, filed it with the District Court of Nevada, in and for Lincoln County, and thus, commenced Case No. 3160¹ in said State Court, entitled "In the Matter of the Determination of the Relative Rights in and to Waters of Pahranagat Lake and its Tributaries in Lincoln County, State of Nevada".

Paragraphs 6 and 7 of the Order of Determination read as follows:

"6. That in addition to water used during the irrigating season each user shall be entitled to divert sufficient water for stock and domestic purposes, the amount diverted not to exceed a flow of 0.025 of a cubic foot per second at each point of use, such diversion to be made during the nonirrigating season, subject to the provisions of paragraph 3. The point of measurement of stock water shall be at the same point as selected and approved by the State Engineer for the measurement of irrigation water.

"7. That in addition to the water allowed for irrigation, stock and domestic purposes, each user in his proper proportion and priority shall also be entitled to an economical bimonthly diversion of water for washing mineral salts from his land; such diversion to be permitted from October 1 to March 14 of each year in accordance with custom long prevailing."

The State Engineer procured an order of said State Court, setting the hearing of said Order of Determination for June 21, 1927, and duly noticed all claimants according to said statute. On June 21, 1927, certain exceptions having been taken and evidence received, and the Court having made certain corrections not here involved, a minute order was entered directing that a decree be entered in accordance with the Order of Determination of the State Engineer.² The State Engineer prepared and the Court entered a formal decree on October 14, 1929, which substantially followed the Order of Determination except that paragraphs 6 and 7 of the Order of Determination were omitted from the decree.

One of the claimants whose rights were adjudicated in said suit was Gardner Ranch Company. In August, 1963, Plaintiff, United States of America, acquired lands and water rights formerly owned by the Gardner Ranch Company. In March, 1964, most, if not all, of the water users, or their successors in interest, along the stream system filed a motion in said Case No. 3160 to correct the decree nunc pro tunc as of the date of its entry, October 14, 1929, pursuant to Rule 60, Nevada Rules of Civil Procedure.³ The United States of America was served with said motion as provided in Title 43, U.S.C. § 666.⁴ At the hearing of said motion, the United States appeared and raised the objection that the State Court was without jurisdiction on the grounds that the sovereign immunity of the United States had not been waived, that the proceeding to correct clerical error was not a suit for adjudication of rights to the use of water of the stream system or other source or for the administration of such rights under 43 U.S.C. § 666. The State Court found that it had jurisdiction over the United States, but denied the motion to correct the decree of 1929, holding that the omission of the two paragraphs was not clerical but judicial error.

The Supreme Court of Nevada, on July 15, 1965, 81 Nev. 390, 404 P.2d 5, found the omissions to be clerical errors. The State District Court was reversed with instructions to correct the decree so as to include paragraphs 6 and 7 of the Order of Determination and the said decree was corrected accordingly nunc pro tunc for October 14, 1929. Under mandate from the Nevada Supreme Court, the State District Court added paragraphs (f) and (g) to the decree. These paragraphs are identical in language with paragraphs 6 and 7 of the Order of Determination. The Government did not petition for certiorari to the United States Supreme Court from the decision of the Nevada Supreme Court.⁵

Thereafter, on March 2, 1966, the State Engineer issued an order implementing distribution of the waters of the stream system in accordance with paragraph (g) of the amended decree and gave due notice thereof to all claimants and water users on the stream system, including Plaintiff.⁶ No appeal was taken from the order of the State Engineer as is provided by Nevada law.

On June 20, 1966, this action was initiated by the United States to have both paragraphs (f) and (g) of the decree and the order of the State Engineer of March 2, 1966, declared null and void, to enjoin the enforcement of the added paragraphs and the State Engineer's order, to enjoin all of the named defendant water users from diverting water to the extent that such diversions might diminish or extinguish the flow into Pahranagat Lake of the water needed to satisfy the Plaintiff's water rights, and to quiet the title of the United States to specific adjudicated, as well as certificated, water rights.

This Court must decide whether or not, by the provisions of 43 U.S.C. § 666, Congress has waived the sovereign immunity of the United States and subjected the Government to the jurisdiction of the courts of Nevada in the proceedings begun in March of 1964 in Case No. 3160.

There are really two questions:

1. Were the Nevada proceedings a suit for the adjudication of rights to the use of water of a river system or other source within the meaning of 43 U.S.C. § 666(a) (1)?

2. Were such proceedings a suit for the administration of such rights within the meaning of 43 U.S.C. § 666(a) (2)?

This Court believes that the first question must be answered in the negative and the second question, in the affirmative.

QUESTION I

Both the Plaintiff and the Defendants agree that the proceedings begun by the State Engineer in 1919 and concluded in 1929 by the entry of the formal decree was a suit for the adjudication of water rights of a river system within the meaning of § 666(a) (1). Defendants urged that the entire proceedings through 1965, when the 1929 decree was amended nunc pro tunc was such an adjudication. The Government argues that the adjudication proceedings terminated in 1929. The Government concedes that its water rights are no better or no worse than the rights of its predecessors in interest and that Nevada water law controls.

There is no body of Federal water law. United States v. Fallbrook Public Utility District, D.C., 165 F.Supp. 806, 831.

What rights the United States has and the extent thereof must be determined by the law of Nevada. California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 55 S.Ct. 725, 79 L.Ed. 1356 (1935). United States v. Humboldt Lovelock Irr. Light & Power Co., 9 Cir., 1938, 97 F.2d 38.

Acts of Congress waiving the sovereign immunity of the United States are strictly construed. The courts are confined to the letter of the statute waiving immunity. The liability and the remedy are created by statute, a limitation of the remedy is a limitation of the right. The terms of the consent of Congress to be sued in any court defines that court's jurisdiction to entertain the suit. The Harrisburg (Lewis v. Rickards), 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886). Schillinger v. United States, 155 U.S. 163, 15 S.Ct. 85, 39 L.Ed. 108 (1894). United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). Uarte v. United States, D.C., 7 F.R.D. 705 (1948).

It is clear from the cases dealing with the language of § 666(a) (1) that a suit for adjudication of rights to use of water of a river system or other source means precisely that and no more. The adjudication, that is, the determination of the relative rights, must be general and encompass all water claimants. Although, as conceded, the proceedings begun in 1919 and concluded in 1929 were adjudication proceedings contemplated by § 666(a) (1), the proceedings commenced thirty-five years later, in 1964, are not embraced within the language waiving immunity as found in § 666(a) (1). People of State of California v. United States, 9 Cir., 1956, 235 F.2d 647; Miller v. Jennings, 5 Cir., 1957, 243 F.2d 157; State of Nevada ex rel. Shamberger v. United States, 9 Cir., 1960, 279 F.2d 699. Dugan v. Rank, 372 U.S. 609, at 617, 83 S.Ct. 999, 10 L.Ed. 2d 15 (1963); State of California v. Rank, 9 Cir., 1961, 293 F.2d 340; Green River Adjudication v. United States, 1965, 17 Utah 2d 50, 404 P.2d 251; Turner v. Kings River Conservation District, 9 Cir., 1966, 360 F.2d 184.

QUESTION II

However, it appears to ...