IN RE GEN. ADJUDICATION OF ALL RIGHTS TO USE WATER

• Decision Date: 19 January 1982
• Docket Number: Civ. No. 80-3031
• Citation: 531 F. Supp. 449
• Parties: In re the GENERAL ADJUDICATION OF ALL RIGHTS TO USE WATER AND WATER RIGHTS ON the MISSOURI RIVER, STATE OF SOUTH DAKOTA. STATE OF SOUTH DAKOTA ex rel. Mark V. MEIERHENRY, Attorney General, Plaintiff, v. RIPPLING WATER RANCH, INC., et al., Defendant.
• Court: U.S. District Court — District of South Dakota

531 F. Supp. 449

In re the GENERAL ADJUDICATION OF ALL RIGHTS TO USE WATER AND WATER RIGHTS ON the MISSOURI RIVER, STATE OF SOUTH DAKOTA STATE OF SOUTH DAKOTA ex rel. Mark V. MEIERHENRY, Attorney General, Plaintiff, v. RIPPLING WATER RANCH, INC., et al., Defendant.

Civ. No. 80-3031

United States District Court, D. South Dakota, C. D.

January 19, 1982.

Mark V. Meierhenry, Atty. Gen., John P. Guhin, John J. Smith, Asst. Attys. Gen., Pierre, S. D., for plaintiff.

Philip N. Hogen, U.S. Atty., Sioux Falls, S. D., for defendant.

Reid Peyton Chambers, William R. Perry, Sonosky, Chambers & Sachse, Washington, D.C., for Standing Rock Sioux Tribe.

W. Richard West, Fried, Frank, Harris, Shriver & Kampelman, Washington, D.C. and Marvin Amiotte, Oglala Sioux Tribe, Pine Ridge, S. D., for Oglala Sioux Tribe of the Pine Ridge Indian Reservation, South Dakota.

Thomas W. Fredericks Boulder, Colo., for Crow Creek Sioux Tribe.

James McCurdy, Vermillion, S. D., for Yankton Sioux Tribe.

R. Dennis Ickes, Stringham, Larsen, Mazuran & Sabin, Salt Lake City, Utah, for Lower Brule Sioux Tribe.

Joseph Troisi, Eagle Butte, S. D., for Cheyenne River Sioux Tribe.

Richard Dauphinais, Anita Remerowski, Native American Rights, Boulder, Colo., for Rosebud Sioux Tribe.

MEMORANDUM OPINION

DONALD J. PORTER, District Judge.

CASE SUMMARY

The State of South Dakota commenced this case in the Circuit Court of the Sixth Judicial Circuit, Hughes County, South Dakota, on March 17, 1980. The United States removed this case to this court on April 15, 1980, and the State thereafter moved to remand.¹ This Court finds that although nothing in the McCarran Amendment, 43 U.S.C. § 666, compels this Court to grant the State's motion, and does perceive that there are federal questions here over which it would otherwise have jurisdiction, the case must nevertheless be remanded to state court because of the failure of all defendants to join in the United States' removal petition.

FACTUAL BACKGROUND

The facts surrounding this case need only a brief allusion. The State of South Dakota has a semi-arid climate like its other western neighbors, and water is in short supply. Much of this water is claimed by private users under a doctrine of "prior appropriation", each such right being gained by diverting the water from its natural source and applying it to a beneficial use. Priority is determined by the first date of continuous use. At the same time, due to the state's large Indian reservations, there are also significant, if somewhat undefined, "reserved rights" to the water belonging to the various Tribes in South Dakota. These rights, stemming from the doctrine announced in Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908), take as their priority the date of the creation of the reservations. The United States itself has large tracts of land belonging to it, and claims reserved water rights for these.

In 1980, the South Dakota legislature amended Chapter 46-10 of the South Dakota Compiled Laws to give the State Attorney General the power "to bring an action for the general adjudication of the nature, extent, content, scope and relative priority of the water rights and the rights to use water of all persons, or entities, public or private, on any river system and on all other sources...." SDCL 46-10-1 (1980 S.D. Session Laws). This action was filed pursuant to this authority, and the United States, both in its own capacity and as Trustee for the Indian Tribes in the state, was joined by virtue of 43 U.S.C. § 666. The Tribes have since entered the case as amici curiae.

The scope of the lawsuit is, in a word, enormous. It seeks to determine all rights in the state to the Missouri River system, which includes the Missouri, Grand, Moreau, Cheyenne, Bad, White, Little Missouri, Keya Paha, and Ponca Rivers, and all surface and ground waters tributary thereto. It thus involves what is roughly the western two-thirds of South Dakota, and approximately 60,000 landowners.

ISSUES

1. Whether removal of state water adjudications is prohibited by 43 § 666?

2. Whether the presence of significant Indian water rights obliges this court to retain jurisdiction?

3. Whether a federal question appears on the face of the State's complaint?

4. Whether all defendants were required to join in the United States' removal petition?

DISCUSSION

I.

The state devotes the greatest portion of its brief to the argument that the McCarran Amendment, 43 U.S.C. § 666, implicitly prohibits the removal of a water adjudication suit such as this to federal court. After a review of that statute and the case law interpreting it, this court can unearth no such prohibition.

First, the State points to the fact that the original text of 43 U.S.C. § 666 contained a provision which would have specifically allowed removal when the United States was joined in water adjudications. Adjudication of Water Rights: Hearing on S.B. 18 Before a Senate Comm. on the Judiciary, 82d Cong., 1st Sess. 5, 54. Several witnesses spoke in opposition to this provision, and § 666 was in fact enacted without any reference to removal in its language. From this, the State asserts, there is an "obvious" implication that Congress did not intend the United States to be able to remove general adjudication suits brought in state court.

This position cannot be sustained. It fails to take into account the general removal statute itself, 28 U.S.C. § 1441(a), which states that actions brought in state court over which a federal court would have jurisdiction may be removed "except as otherwise expressly provided by Act of Congress" (emphasis supplied.) The silence of § 666 on the subject of removal hardly brings this exception into play.

This same question was before the court in the case of In re Green River Drainage Area, 147 F.Supp. 127 (D.Utah 1956). That case noted that at the time § 666 was being considered by Congress, the National Reclamation Association was advocating a provision which would have barred removal in every case. This language was, of course, also not adopted. The Green River case concluded from this that "Congress did not intend to foreclose the jurisdiction of the federal courts, either in the first instance or by way of removal, over suits in which the United States was a party defendant, or a party plaintiff, where such jurisdiction would exist under other federal laws, sovereignty being waived." 147 F.Supp. 138. This court must agree with that conclusion. See also National Audubon Society v. Department of Water, 496 F.Supp. 499 (D.E.D.Cal.1980).

Second, the state argues that the holding in Colorado River Water Cons. Dist. v. U.S., 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), also implicitly prohibits removal of a general water adjudication. While that case does include a detailed discussion of § 666, it is not factually in point. In that case, the United States had brought suit in federal court in Colorado, seeking a declaration of its reserved rights to water in Colorado Water Division No. 7. The United States had previously participated in state proceedings to determine its water rights based on state law in several other of Colorado's water divisions. Following the commencement of the United States' action in federal court, an application was filed in state court to make the United States a party to state adjudication proceedings in Division 7 to determine both its state and federal claims. The defendants to the federal proceeding moved to dismiss the action brought by the United States, and the federal court granted the motion. This dismissal was upheld by the United States Supreme Court on the basis of what it called "considerations of `wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.'" 424 U.S. 817, 96 S.Ct. 1246. The State in this case contends that this very narrow holding is decisive authority to remand a state action which was removed to federal court. Even accepting that Colorado River has any relevance to a motion to remand, this court finds that the factors set forth in Colorado River do not compel remand in this case.

These factors are:

1) The Desirability of Avoiding Piecemeal Litigation. This factor was given by the Supreme Court as the most important single factor. The problem that was present in the Colorado River case, however, is absent here. Instead of two parallel proceedings taking place at the same time, the one in federal court being intended to determine only the rights of the United States while the one in state court had the purpose of determining the rights of all water users, here there is but one unified action. The only question presented by the State's motion to remand is where that one action will be tried.

2) The Order in Which Jurisdiction Was Obtained by State and Federal Courts. As the United States points out, all removed actions commence in state court. This factor would thus seem to have little, if any, relevance to the determination of this remand motion. In any event, the federal lawsuit in Colorado River interrupted a statewide process of state water adjudication that has been continuing for several years.² The State of South Dakota has had no general river system adjudications prior to this case.

3) Absence of Proceeding in Federal Court Beyond the Filing of a Complaint. The action has not progressed beyond the filing of a complaint in either state or federal court. Thus, while there is no particular need to preserve the continuity of proceedings in this court, neither does this factor provide any strong reason to send this case back to state court. As mentioned before, in Colorado River, there were ongoing state proceedings, compared here with only the filing of a complaint in state court and the removal of this same complaint to federal court.

4) Extensive Involvement of State Water Rights. It is quite obvious that there is an extremely...