Rank v. Krug

• Decision Date: 13 April 1950
• Docket Number: 832-ND.,Civ. No. 685-ND,681-ND,668-ND,680-ND
• Court: U.S. District Court — Southern District of California
• Parties: RANK et al. v. KRUG et al., and four other cases.

90 F. Supp. 773

RANK et al. v. KRUG et al., and four other cases.

Civ. Nos. 685-ND, 668-ND, 681-ND, 680-ND, 832-ND.

United States District Court S. D. California, N. D.

April 13, 1950.

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Claude L. Rowe, Fresno, Cal., for plaintiffs Hollister Land & Cattle Co., Everett G. Rank, Northern California Fisheries and others.

Kellas, Lamberson & Thomas, Fresno, Cal., by Edward L. Kellas, Fresno, Cal., for plaintiff Josephine Jasper.

N. Lindsay South, Fresno, Cal. and James C. Janjigian, Fresno, Cal., for plaintiffs Cervelli.

Ernest A. Tolin, United States Attorney, Los Angeles, Cal., Francis B. Critchlow, Special Assistant to the Attorney General, Irl D. Brett, Special Assistant to the Attorney General, Ralph S. Boyd, Attorney, Department of Justice, Washington, D. C., for defendants Michael W. Straus, Richard Boke, Martin Blote, R. K. Durant, Julius A. Krug.

Stephen W. Downey, Sacramento, Cal., for defendant Madera Irr. Dist.

Edwin P. Jacobsen, Delano, Cal., for defendant South San Joaquin Municipal Utilities Dist.

HALL, District Judge.

On September 25, 1947, the plaintiff, Rank, and eleven others filed this suit in the Superior Court of the State of California, in Fresno County. On motion of the United States Attorney the case was removed to this court on October 6, 1947. No motion for remand has ever been made. And it appears, upon examination of the complaint, that the case was properly removed and should not be remanded. Amendments to the complaint were filed September 16, 1949, September 30, 1949, and on March 8, 1950. Motions to dismiss had been filed previous to the amendments, but by agreement of the parties the motions to dismiss were deemed to be filed and to apply to the complaint as amended. They were thus treated in the briefs and in the arguments, and will be so considered in this decision.

The complaint, as originally filed, alleged violation of the plaintiffs' constitutional rights. Upon the briefs the precise constitutional questions relied upon were not clear. The matter was set down for hearing for clarification and counsel for both parties agreed that constitutional questions were raised which required a three-judge court. The three-judge court was convened and hearing set for March 8, 1950, at which time the amendment of March 8th to the complaint was filed, which specifically challenged various Acts of Congress listed therein. After argument on the question as to whether or not it was properly a case for a three-judge court, that court held it was not, as no substantial question concerning the enforcement, operation, or execution of any Act of Congress for repugnance to the Constitution was involved. The three-judge court then dissolved, leaving this case and the related ones pending before this court.¹ It will be necessary, however, to consider said Acts of Congress in the determination of the questions involved herein. The material portions of the challenged acts, as well as others, are set forth in Appendix A.

The complaint named as defendants, in their official capacity as well as individually, Julius A. Krug, the then Secretary of the Interior of the United States, and the following persons holding the following offices in the United States Bureau of Reclamation, viz.: Michael W. Straus, Commissioner; Richard Boke, Regional Director; Martin Blote, Regional Water Master; Jack Rodner, District Manager; R. K. Durant, Construction Engineer and Resident Engineer. Also named as defendants were the Madera Irrigation District and its Directors; the South San Joaquin Municipal Utility District and its directors, as well as various Doe districts and Doe directors. Service of process in this case was not made or attempted upon Krug, Straus, Boke or Blote, or any of the Doe defendants, but was made upon Rodner, Durant, the Madera Irrigation District and the South San Joaquin Municipal Utility District, all in the State of California.

The United States Attorney filed motions to dismiss on behalf of the above named persons who are officials of the Bureau of Reclamation. The Madera Irrigation District, on stipulation of the plaintiffs and the consent of the court, filed an oral motion to dismiss on March 9, 1950. The South San Joaquin Municipal Utility District, after submission, filed motions to dismiss on the identical grounds designated by the United States Attorney, and, without objection by plaintiff, they are submitted on the record made at time of submission of the other motions.

The plaintiffs orally joined in a motion for preliminary injunction which had been made in related cases and set and noticed for March 8, 1950, along with said motion to dismiss in this and related cases before the three-judge court which dissolved as above stated, and the matters proceeded before this single judge beginning March 9, 1950.² The motions to dismiss were submitted on the briefs and the previous arguments. The motions for interlocutory injunction were argued and submitted on the briefs, arguments, files, records, and evidence taken at the hearing.

Before considering the motions for interlocutory injunction in either this or the related cases, it is necessary to consider and dispose of the matters raised by the motion to dismiss in this case for the reason that, whether or not a cause of action is or can be stated, will, or may, affect the result of the motions for injunction; but more importantly for the reason that the motion to dismiss postures the basic issues raised, the determination of which will affect all of the pending cases and the whole course of the litigation.

The motion to dismiss is made on the following grounds:

1. The complaint fails to state a claim upon which relief can be granted;

2. This is in fact a suit against the United States; the United States is an indispensable party and has not consented to be sued;

3. The Secretary of the Interior is an indispensable party, and this court cannot obtain jurisdiction over him; and

4. Plaintiffs have a plain, speedy and adequate remedy at law.

In considering the motions to dismiss, it is axiomatic that well-pleaded and material allegations of the complaint must be taken to be true, as well as matters which may be judicially noticed, which include public facts, geographical positions, reports to Congress, proceedings thereon, public activities within the common experience of men, and the like. And the judge may resort to any means the judge deems safe to refresh his memory. Greeson v. Imperial Irrigation District, 9 Cir., 1932, 59 F.2d 529; Nev-Cal Electric Securities Co. v. Imperial Irrigation District, 9 Cir., 1936, 85 F.2d 886. And upon a motion to dismiss under the Federal Rules of Civil Procedure, 28 U.S.C.A., the complaint should be construed in the light most favorable to the plaintiff with all doubts resolved in plaintiffs favor. Cool v. International Shoe Co., 8 Cir., 1944, 142 F.2d 318.

I turn then to the allegations of the complaint as amended, which will be stated more or less in substance, and to the matters judicially noticed which will be indicated throughout this memorandum as they arise.

It is alleged that: each of the twelve plaintiffs is an owner of a separate parcel or parcels of farm land, a description of each of which is attached to the complaint as part of its Exhibit "A". They sue for themselves and all members of the same class consisting of approximately 125 other owners of farms totaling approximately 47,500 acres of land which lie along or are otherwise riparian to the San Joaquin River below Friant Dam and above Mendota Dam, and of approximately 1000 other ranchers owning approximately 600,000 acres of land likewise situated between Friant and Mendota Dams, all of which overlay underground waters, and have similar rights to those of plaintiffs, and to each other, and will suffer similar damage or taking by the acts of the defendants; that they are the owners and each of said members of said class is the owner of riparian, prescriptive and appropriative rights to the waters of said river; that all of said lands have, from time immemorial, overlaid and contained underground and percolating waters, water stratas and subterranean streams which are, and at all times prior to the acts of the defendants were, and have been, fed, supplied, sustained, supported and replenished by the waters of the San Joaquin River as it flowed, seeped and percolated; that none of the plaintiffs have consented to a taking of their water rights or land, and that none of the members of the class have consented to such taking;³ "that plaintiffs are now engaged, and plaintiffs and their predecessors in title and interest in said lands described in Exhibit `A' have continuously been engaged for more than 60 years last past and long before any of the dams, diversions, works and other structures of plaintiffs hereinafter mentioned were either begun, started or conceived of, in reasonably and beneficially using all of said waters of said San Joaquin River by means of reasonable methods of use and by means of reasonable methods of diversion for domestic, poultry, cattle and animal drinking water, and in farming all of said lands of plaintiffs more particularly described in Exhibit `A' (with the exception of a small amount of timber and brush land which plaintiffs are shortly intending to cut down and turn into irrigated pasture and crop lands) to crops of grapes, peaches, plums and other fruits, cotton, alfalfa, grain, corn, melons, potatoes, vegetables and to natural and irrigated pasturage (upon which pasturage plaintiffs and their predecessors in interest and title have, during all times herein mentioned, raised cattle, horses, sheep, hogs and poultry, and some of which said natural pasturage plaintiffs, within a reasonable time, intend to and will plant to irrigated pastuarge and crops), by...