Cherry v. Steiner

• Decision Date: 22 September 1983
• Docket Number: No. 82-5765,82-5765
• Citation: 716 F.2d 687
• Parties: 14 Envtl. L. Rep. 20,676 Clifton N. CHERRY, et ux., et al., Plaintiffs-Appellants, v. Wesley E. STEINER, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 687

716 F.2d 687

14 Envtl. L. Rep. 20,676

Clifton N. CHERRY, et ux., et al., Plaintiffs-Appellants, v. Wesley E. STEINER, et al., Defendants-Appellees.

No. 82-5765.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 11, 1983.

Decided Sept. 22, 1983.

Daniel J. McAuliffe, Snell & Wilmer, Phoenix, Ariz., for plaintiffs-appellants.

James W. Johnson, Fennemore, Craig, von Ammon, Udall & Powers, Phoenix, Ariz., for defendants-appellees.

Appeal from the United States District Court for the District of Arizona.

Before PECK, ^* FLETCHER and PREGERSON, Circuit Judges.

FLETCHER, Circuit Judge:

Various Arizona landowners appeal an order of the district court granting summary judgment for defendants in a suit challenging the constitutionality of the Arizona Groundwater Management Act of 1980 (the Act), Ariz.Rev.Stat.Ann. Secs. 45-401 to 45-637 (West Supp.1982). Plaintiffs' central contention is that prior to the enactment of the Act, they owned the groundwater beneath their property and that the Act's imposition of conditions upon the use and enjoyment of that groundwater is constitutionally infirm. We have jurisdiction under 28 U.S.C. Sec. 1291 (1976) and affirm.

I

Plaintiffs are several married couples, two corporations, and a private water company. All own land in the State of Arizona within the Upper Aqua Fria Subbasin of the Prescott Initial Active Management Area. They allege that there are substantial quantities of groundwater beneath their several properties and that the Act has diminished the value of the land by taking their ownership in the water without compensation. They further allege that the Act establishes arbitrary classifications which are not rationally related to the goals of the legislation, that the law contains impermissible irrebuttable presumptions, and that the legislation is void for making an impermissible reference to certain extrinsic documents not in existence at the time of enactment of the Act. They seek to enjoin State officials from enforcing the statute and quieting title in their names to the groundwater underlying their properties.

The defendants are Wesley E. Steiner, Director of the Arizona Department of Water Resources, who is charged with enforcement of the Act, and other public officials responsible for the filing of maps, that designate the groundwater management areas established by the legislation. In response to the complaint, the defendants deny that the statutory scheme offends any constitutional provisions or makes any impermissible extrinsic reference. They assert that the law is the result of a valid exercise of the State's police power. They specifically deny that the plaintiffs have any ownership interest, according to Arizona law, in percolating groundwater underlying their realty.

The district court exercised jurisdiction under 28 U.S.C. Sec. 1331 (Supp. IV 1980). Upon cross-motions for summary judgment, the district court determined that there were no issues of disputed fact and granted defendants' cross-motion for summary judgment. Plaintiffs took this timely appeal.

II

We are indebted to the district court for its careful exposition of the Arizona statutes and case law in respect to rights in groundwater. 543 F.Supp. 1270 (D.Ariz.1982). We find the district court's analysis persuasive and in most respects adopt the opinion of the district court as the opinion of this court. See, e.g., Pfizer Inc. v. International Rectifier Corp., 685 F.2d 357, 358 (9th Cir.1982). We find it necessary to address only the following issues in greater detail: (a) whether the Supreme Court's dismissal of the appeal in Chino Valley v. Prescott, 457 U.S. 1101, 102 S.Ct. 2897, 73 L.Ed.2d 1310 (1982), dismissing appeal from 131 Ariz. 78, 638 P.2d 1324 (1981) (Chino Valley II ), forecloses the constitutional challenges raised in this case; (b) whether the district court improperly relied on the law of states other than Arizona and other sources in determining the plaintiffs' constitutionally protected property rights; and (c) whether the Act is void for having made an improper reference to extrinsic documents. We examine these issues in turn.

A

The defendants assert that most of the issues plaintiffs raise have been decided against them by the United States Supreme Court in Chino Valley II. In Chino Valley II, the Supreme Court summarily dismissed an appeal from the Arizona Supreme Court for "want of a substantial federal question." 457 U.S. at 1101, 102 S.Ct. at 2898. The Arizona Supreme Court affirmed the denial of an injunction to prevent the City of Prescott from withdrawing water from under its land and transporting it elsewhere. As part of its holding it sustained the constitutionality of the Act. See 131 Ariz. at 82, 638 P.2d at 1328. The defendants contend that the Supreme Court's summary dismissal of the appeal from that decision constitutes a decision by the Court that the Act is in all relevant respects constitutional and that that decision is binding on this court as to each of the constitutional claims raised here. We disagree.

A party challenging the constitutionality of a state statute in state court may appeal an adverse holding as of right to the Supreme Court of the United States. See 28 U.S.C. Sec. 1257(2) (1976). If the Supreme Court grants plenary review of the state court decision, the decision the Court makes as to the constitutionality of the statute is, of course, binding on this and every other court in the land. See United States ex rel. Lawrence v. Woods, 432 F.2d 1072, 1075-76 (7th Cir.1970). Even a summary disposition by the Supreme Court can have such binding effect but only if the issue was (1) actually decided in the state court, (2) necessary to the state court's decision, (3) presented in the jurisdictional statement, and (4) necessarily decided by the Court in making its summary disposition. See, e.g., Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 199 (1977); Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). We agree with appellants that the district court should have determined whether any of the constitutional issues raised in this case were addressed in Chino Valley II and, if so, whether under Mandel, they were decided by the Court.

We conclude, however, that the district court's failure to consider the extent to which Chino Valley II constituted a binding precedent does not require reversal. Our independent examination persuades us that none of the constitutional issues raised in this case, whether or not they were addressed in Chino Valley II, meet all four Mandel criteria.

We first consider the procedural posture in which the relevant issues were raised in Chino Valley II. In Chino Valley II, the Town of Chino Valley and others sought to enjoin the City of Prescott from withdrawing huge quantities of water from the acquifer beneath land Prescott owned in Chino Valley and from pumping it to customers 17 miles away in Prescott. 131 Ariz. at 79, 638 P.2d at 1325. Prescott moved for dismissal on the ground that Ariz.Rev.Stat. Sec. 45-541(A) authorized it to withdraw groundwater and transport the water to its customers. Id. at 680, 638 P.2d at 1326. The trial court granted the motion, but gave leave to plaintiffs to amend their complaint to pray for damages. Id. Chino Valley did not amend but instead appealed, asserting that the Act was unconstitutional. Id.

The Arizona Supreme Court affirmed the dismissal of the injunction. The court went on to state that "appellants' position that the 1980 Act violates the Fifth and Fourteenth Amendments ... as a taking of private property without due process of law and just compensation cannot be sustained." 131 Ariz. at 82, 638 P.2d at 1328. It is unclear why the Arizona court reached out for the constitutional issues since the trial court had limited its order to a denial of the injunction and specifically authorized an amendment of the complaint to pray for damages. The plaintiffs in Chino Valley II then appealed to the United States Supreme Court, raising in the jurisdictional statement not only the issues addressed by the Arizona Supreme Court, but also new ones.

With this background in mind, we proceed to apply the Mandel criteria to Chino Valley II. The only legal issues that were necessary to the Supreme Court's summary dismissal were the federal constitutional issues, for it is only as to those issues that the Chino Valley appellants had a right of appeal to the Supreme Court. See 28 U.S.C. Sec. 1257(2) (1976). Moreover, the only federal constitutional issues that the Arizona Supreme Court itself purported to decide were whether the Act violated the due process clause of the fourteenth amendment and whether the Act violated the takings clause of the fifth and fourteenth amendments. See 131 Ariz. at 82, 638 P.2d at 1328. Both of these issues were presented to the Supreme Court in the jurisdictional statement in Chino Valley II.

Although the issue of the overall constitutionality of the Act under the due process and takings clauses therefore meets three of the four Mandel criteria, it fails to satisfy the second, but perhaps most significant, criterion: to wit, that the issue be necessary to the state court decision. This criterion requires us to look behind what the Arizona Supreme Court said in Chino Valley II to determine what actually was necessary to the decision. See Kastigar v. United States, 406 U.S. 441, 454-55, 92 S.Ct. 1653, 1661-1662, 32 L.Ed.2d 212 (1972) ("broad language ... unnecessary to the Court's decision ... cannot be considered binding authority"). In considering the state court opinion, we are not free, of course, to craft a different analysis by which the state court could have resolved the case before it, but for whatever reasons chose not to use. Nonetheless, we must carefully determine exactly what the state court necessarily decided in order to dispose of the particular case before it and...