In re Green River Drainage Area

• Citation: 147 F. Supp. 127
• Decision Date: 07 December 1956
• Docket Number: No. C-7-56.,C-7-56.
• Parties: In re GREEN RIVER DRAINAGE AREA. In the Matter of the General Determination of the Rights to the Use of All the Water, both Surface and Underground, Within the Drainage Area of the Green River Above the Confluence of Pot Creek, Including Pot Creek, in Daggett, Summit, and Uintah Counties, Utah.
• Court: U.S. District Court — District of Utah

147 F. Supp. 127

In re GREEN RIVER DRAINAGE AREA.

In the Matter of the General Determination of the Rights to the Use of All the Water, both Surface and Underground, Within the Drainage Area of the Green River Above the Confluence of Pot Creek, Including Pot Creek, in Daggett, Summit, and Uintah Counties, Utah.

No. C-7-56.

United States District Court D. Utah, Central Division.

December 7, 1956.

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Walter Kiechel, Jr., Atty., Dept. of Justice, Washington, D. C., A. Pratt Kesler, U. S. Atty. for Dist. of Utah, Salt Lake City, Utah, for United States.

E. R. Callister, Atty. Gen. for State of Utah, Robert B. Porter, Asst. Atty. Gen. for State of Utah, for the State of Utah.

CHRISTENSON, District Judge.

An action for the "general determination" of certain water rights under state law was initiated by the petition of the State Engineer in the District Court of the Third Judicial District in and for Daggett County, State of Utah, pursuant to the provisions of Chapter 4, Title 73, Utah Code Annotated 1953. In accordance with procedure specified therein, the State Engineer also prepared and filed a statement of the names and addresses of all claimants to the waters involved as they were determinable from the records in his office. Listed, among others, were "United States of America, Bureau of Land Management", "United States of America, Forest Service", and "United States Department of Interior, Bureau of Reclamation", with addresses indicated. Thereafter, there was duly served upon the United States a summons entitled in the state court with the cause described as indicated in the above title. This summons required the United States to appear and defend said action and further stated:

"* * * Upon the service of this summons upon you, you will thereafter be subject to the jurisdiction of the above entitled court and it shall be your duty to follow further proceedings in the above entitled action and to protect your rights therein. The necessary surveys are being made by the State Engineer as required by law to collect data for use in preparing his report, recommendations and proposed determination. In accord with the provisions of Chapter 4 of Title 73, Utah Code Annotated, 1953, you are required to file with the State Engineer and with the Clerk of the above entitled court, within ninety (90) days after the service of this summons upon you, a written statement of water user's claim, under oath, setting forth the facts relating to your rights in and to the water of the Green River Drainage Area above described, a blank form for which is furnished herewith. If this summons is served by publication, a blank form will be provided by the Clerk of the District Court or the State Engineer upon request. Your failure to file your statement of claim within the time herein limited will constitute your default in the premises and a judgment may be entered against you declaring and adjudging that you have no right in or to the waters of the above described water sources and drainage area, except as your right is included as a stockholder in an incorporated irrigation company or as a resident within a municipality, and forever barring and estopping you from asserting any right or claim to the use of the said waters of the Green River."

Within twenty days from service of summons, the United States filed its petition for removal of the action to this court. A motion to remand has been interposed by Joseph M. Tracy, State Engineer of the State of Utah, on the grounds that the action is one for the adjudication of rights to the use of water; that there are approximately five hundred water users within the drainage area involved, none of whom joined in the Government's petition for removal; that the petition does not take into consideration Section 208(a) of the Department of Justice Appropriation Act, 1953 (sic) 43 U.S.C.A. § 666; and that the cause is not removable to this court because it could not have been originally commenced herein.

Oral arguments and briefs have been submitted in which the State of Utah contends that the mere fact that the United States is a "party defendant" does not raise a federal question; that none of the special statutes conferring jurisdiction upon the United States district courts is applicable; that there is no federal question involved and that the federal statute by which the United States waived its immunity in such actions recognizes the continuing jurisdiction of the state court. The United States contends that this court is vested with jurisdiction by virtue of the federal questions raised in the Government's petition for removal; that in any event, the federal courts have original jurisdiction over all cases wherein the United States is a party defendant; that this court has jurisdiction under 28 U.S.C.A. § 1347, the proceedings being essentially one for the partition of real estate; that 43 U.S.C.A. § 666 does not grant exclusive jurisdiction to the state courts to determine the water rights of the United States; that if it purports to do so its constitutionality is questionable; that the State Engineer has not made any showing that the United States is a necessary party or is the owner of water rights under state law by sale, exchange, or otherwise, and that in these and other respects an interpretation of the federal statute waiving immunity from suit in such proceedings and other acts of Congress involve federal questions affording original jurisdiction to this court.

The Act of July 10, 1952, c. 651, Title 2, § 208, 66 Stat. 560, 43 U.S.C.A. § 666, provides:

"(a) Consent 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 is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit. The United States, when a party to any such suit, shall (1) be deemed to have waived any right to plead that the State laws are inapplicable or that the United States is not amendable thereto by reason of its sovereignty, and (2) shall be subject to the judgments, orders, and decrees of the court having jurisdiction, and may obtain review thereof, in the same manner and to the same extent as a private individual under like circumstances: Provided, That no judgment for costs shall be entered against the United States in any such suit.

"(b) Summons or other process in any such suit shall be served upon the Attorney General or his designated representative.

"(c) Nothing in this section shall be construed as authorizing the joinder of the United States in any suit or controversy in the Supreme Court of the United States involving the right of States to the use of the water of any interstate stream."

Thus far, only a few reported cases have touched upon this statute. In State of California v. United States District Court, 9 Cir., 1954, 213 F.2d 818, its construction was not deemed called for in the denial of writs of certiorari, mandamus and prohibition. Rank v. (Krug) United States, D.C.S.D.Cal.N.D.1956, 142 F.Supp. 1 involved the same proceeding on the merits. This was an exceedingly extended and complicated case. Much in Judge Hall's opinion is instructive. But it does not purport to solve the basic problem raised here. Removal to the federal court was accomplished prior to the enactment of Section 666, in a class suit against Bureau of Reclamation officials to prevent interference with common rights to the flow of San Joaquin River alleging, inter alia, that the defendant officials were violating federal laws requiring recognition of state water rights. This was held to present a "federal question" warranting removal by the defendant officials. No petition to remand was filed. It was after jurisdiction thus attached that the United States, as such, was made a party defendant by virtue of Section 666. Strangely enough, the Government there contended that the United States District Court had no jurisdiction over it, while it now premises its claim that the instant action is removable upon the theory that this court would have original jurisdiction of such proceedings because the United States is a party defendant.

Counsel for the Government have called attention to several unreported decisions which they assert support the Government's position. United States district courts for the districts of Oregon, Colorado, the Western District of Texas, and Nevada are said to have denied petitions to remand suits brought against the United States under Section 666. In only the Oregon case has a memorandum decision been filed. The conclusion there apparently was based upon the theory that Article III, Section 2 of the Constitution of the United States is self-executing as regards the jurisdiction of United States district courts. For reasons hereinafter noted, the position of the Government may not thus be supported. Whether the circumstances involved in the other cases mentioned, the points therein considered, or the rationale of the decisions would render them persuasive, does not appear. However, the nature of the original Texas litigation out of which grew Miller v. Jennings and the United States of America, relied upon by the Government, as that original litigation is reported on appeal in Hudspeth County Conservation & Reclamation Dist. No. 1 v. Robbins, 5 Cir., 1954, 213 F.2d 425, certiorari denied 348 U.S. 833, 75 S.Ct. 56, 99 L.Ed. 657, indicates that the Miller case probably is not in point. As a further indication of this, the original case did involve removal from the state court, a denial of a motion to remand, and a subsequent dismissal for want of jurisdiction, but it was not one for the adjudication of...