United States v.

• Decision Date: 24 March 1971
• Docket Number: No. 87,87
• Citation: 28 L.Ed.2d 278,91 S.Ct. 998,401 U.S. 520
• Parties: UNITED STATES, Petitioner, v.
• Court: U.S. Supreme Court

401 U.S. 520

91 S.Ct. 998

28 L.Ed.2d 278

UNITED STATES, Petitioner,

v DISTRICT COURT IN AND FOR the COUNTY OF EAGLE and State of COLORADO, et al.

No. 87.

Argued March 2, 1971.

Decided March 24, 1971.

Syllabus

This case arises from the attempted joinder pursuant to 43 U.S.C. § 666 of the United States as a defendant in a proceeding in state court for the adjudication of water rights covering the Eagle River system in Colorado. Under § 666(a) '(c)onsent 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 (owns) or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise. * * *' The United States contended that § 666 applies only to water rights that it had acquired under state law and does not constitute consent to have adjudicated in a state court the Government's reserved water rights arising from withdrawals of land from the public domain. Its objection was overruled by the trial court and the Colorado Supreme Court denied the Government's motion for a writ of prohibition. Held: Section 666(a) is an allinclusive statutory provision that subjects to general adjudication in state proceedings all rights of the United States to water within a particular State's jurisdiction regardless of how they were acquired. Any conflict between adjudicated rights and reserved rights of the United States, if preserved in the state proceeding, can ultimately be reviewed in this Court. Pp. 522—526.

Colo., 458 P.2d 760, affirmed.

Walter Kiechel, Jr., Washington, D.C., for petitioner.

Kenneth Balcomb, Glenwood Springs, Colo., for respondents.

Mr. Justice DOUGLAS delivered the opinion of the Court.

[amici curiae information intentionally omitted.]

Eagle River is a tributary of the Colorado River; and Water District 37 is a Colorado entity encompassing all Colorado lands irrigated by water of the Eagle and its tributaries. The present case started in the Colorado courts and is called a supplemental water adjudication under Colo.Rev.Stat.Ann. 148—9—7 (1963). The Colorado court issued a notice which, inter alia, asked all owners and claimants of water rights in those streams 'to file a statement of claim and to appear * * * in regard to all water rights owned or claimed by them.' The United States was served with this notice pursuant to 43 U.S.C. § 666. ¹ The United States moved to be dismissed as a party, asserting that 43 U.S.C. § 666 does not constitute consent to have adjudicated in a state court the reserved water rights of the United States.

The objections of the United States were overruled by the state District Court and on a motion for a writ of prohibition the Colorado Supreme Court took the same view. 169 Colo. 555, 458 P.2d 760. The case is here on a petition for certiorari, which we granted. 397 U.S. 1005, 90 S.Ct. 1238, 25 L.Ed.2d 419.

We affirm the Colorado decree.

It is clear from our cases that the United States often has reserved water rights based on withdrawals from the public domain. As we said in Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542, the Federal Government had the authority both before and after a State is admitted into the Union 'to reserve waters for the use and benefit of federally reserved lands.' Id., at 597, 83 S.Ct. at 1496. The federally reserved lands include any federal enclave. In Arizona v. California we were primarily concerned with Indian reservations. Id., at 598—601, 83 S.Ct. 1496—1498. The reservation of waters may be only implied and the amount will reflect the nature of the federal enclave. Id., at 600—601, 83 S.Ct., at 1497 1498. Here the United States is primarily concerned with reserved waters for the White River National Forest, withdrawn in 1905, Colorado having been admitted into the Union in 1876.

The United States points out that Colorado water rights are based on the appropriation system which requires the permanent fixing of rights to the use of water at the time of the adjudication, with no provision for the future needs, as is often required in case of reserved water rights.² Ibid. Since those rights may potentially be at war with appropriative rights, it is earnestly urged that 43 U.S.C. § 666 gave consent urged that 43 U.S.C. § 666 gave consent to join the United States only for the adjudication of water rights which the United States acquired pursuant to state law.

The consent to join the United States 'in any suit (1) for the adjudication of rights to the use of water of a river system or other source' would seem to be all-inclusive. We deem almost frivolous the suggestion that the Eagle and its tributaries are not a 'river system' within the meaning of the Act. No suit by any State could possibly encompass all of the water rights in the entire Colorado River which runs through or touches many States. The 'river system' must be read as embracing one within the particular State's jurisdiction. With that to one side, the first clause of § 666(a)(1), read literally, would seem to cover this case for 'rights to the use of water of a river system' is broad enough to embrace 'reserved' waters.

The main reliance of the United States appears to be on Clause 2 of § 666(a) which reads:

'* * * 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.'

This provision does not qualify § 666(a)(1), for (1) and (2) are separated by an 'or.' Yet even if 'or' be read as 'and', we see no difficulty with Colorado's position. Section 666(a)(2) obviously includes water rights previously acquired by the United States through appropriation or presently in the process of being so acquired. But we do not read § 666(a)(2) as being restricted to appropriative rights acquired under state law. In the first place 'the administration of such rights' in § 666(a)(2) must refer to the rights described in (1) for they are the only ones which in this context 'such' could mean; and as we have seen they are all-inclusive, in terms at least. Moreover, (2) covers rights acquired by appropriation under state law and rights acquired 'by purchase' or 'by exchange,' which we assume would normally be appropriative rights. But it also includes water rights which the United States has 'otherwise' acquired. The doctrine of ejusdem generis is invoked to maintain that 'or otherwise' does not encompass the adjudication of reserved water rights, which are in no way dependent for their creation or existence on state law.³ We reject that conclusion for we deal with an all-inclusive statute concerning 'the adjudication of rights to the use of water of a river system' which in § 666(a)(1) has no exceptions and which, as we read it, includes appropriate rights, riparian rights, and reserved rights.

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