Metropolitan Water Dist. of Southern California v. U.S., s. 86-6332

• Decision Date: 14 October 1987
• Docket Number: 86-6741,Nos. 86-6332,s. 86-6332
• Citation: 830 F.2d 139
• Parties: The METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA, a public agency of the State of California, and the Coachella Valley Water District, a public agency of the State of California, Plaintiffs-Appellees, v. The UNITED STATES of America; Donald P. Hodel, Secretary, U.S. Department of Interior, Defendants-Appellants, and QUECHAN INDIAN TRIBE; Fort Mojave Indian Tribe, and Colorado River Indian Tribes, Defendants-Intervenors-Appellants, v. STATE OF CALIFORNIA and State of Arizona, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 139

830 F.2d 139

The METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA, a

public agency of the State of California, and the Coachella

Valley Water District, a public agency of the State of

California, Plaintiffs-Appellees, v. The UNITED STATES of America; Donald P. Hodel, Secretary, U.S. Department of Interior, Defendants-Appellants, and QUECHAN INDIAN TRIBE; Fort Mojave Indian Tribe, and Colorado River Indian Tribes, Defendants-Intervenors-Appellants, v. STATE OF CALIFORNIA and State of Arizona, Defendants-Appellees.

Nos. 86-6332, 86-6741.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 7, 1987.

Decided Oct. 14, 1987.

Dale T. White (argued), Fredericks & Pelcyger, Boulder, Colo., for Fort Mojave Indian Tribe.

William Strickland, Strickland & Altaffer, Tucson, Ariz., for Quechan Tribe.

Scott B. McElroy, Melody L. McCoy, Native American Rights Fund, Boulder, Colo., William G. Lavell, Pamela S. Williams, Colorado River Indian Tribe, Parker, Ariz., for Colorado River Indian Tribes.

Warren J. Abbott, Karen Tachiki, James F. Roberts, Metropolitan Water Dist. Los Angeles, Cal., Jerome C. Muys (argued), Washington, D.C., for Metropolitan Water Dist.

Sarah P. Robinson (argued), F. Patrick Barry, Land & Natural Resources Div., Washington, D.C., for U.S.

Anthony Ching, Sol. Gen., State of Ariz., Phoenix, Ariz., for State of Ariz.

Justin McCarthy, Redwine & Sherrill, Riverside, Cal., for Coachella Valley Water Dist.

Douglas Noble, Anthony M.Summers, Kenneth R. Williams, Deputy Atty. Gens., Office of the Atty. Gen., Los Angeles, Cal., for State of Cal.

Appeal from the United States District Court for the Southern District of California.

Before BROWNING, Chief Judge, FLETCHER and POOLE, Circuit Judges.

PER CURIAM:

Appellants, the United States and the intervenors, Indian Tribes, ¹ bring this interlocutory appeal to challenge the district court's holding (1) that the Secretary of the Interior lacks authority to resurvey the boundary between the Fort Mojave Reservation and other public land; and (2) that, the district court has authority and intends to conduct a trial de novo to determine the boundaries of the Reservation. ² We remand

to the district court with direction to dismiss for lack of jurisdiction.

FACTS

The Secretary of the Interior determined that the original survey of the Fort Mojave Reservation was incorrect and that the Reservation's corrected boundaries contained 3500 more acres than the old boundaries. The challenge is to the Secretary's order establishing the new boundary, but the actual dispute between the parties is over the Tribe's claim that it is entitled to an increase of water rights in the Colorado River because of the increase in the Reservation's acreage.

Appellees, the Metropolitan Water District of Southern California (MWD), and the Coachella Valley Water District are California public corporations engaged in the development, storage, and delivery of water to their member public agencies for municipal and domestic use. We refer only to MWD but the references are applicable equally to the Coachella Valley Water District. A major portion of MWD's water supply is obtained under contracts with the Secretary of the Interior for Colorado River water. Under the contracts, MWD's entitlement to water is subject to the satisfaction of entitlements belonging to entities, such as the Fort Mojave Indian Tribe (Tribe), that hold higher priorities.

In Arizona v. California, 373 U.S. 546, 600, 83 S.Ct. 1468, 1497, 10 L.Ed.2d 542 (1963) (Arizona I ) the Supreme Court established priorities of users of Colorado River water. It held that the Tribe's priority dates from the time of the creation of its reservation and based the amount of its entitlement on the "practicably irrigable acreage" in its reservation. Id. at 600-601, 83 S.Ct. at 1498. Contract purchasers such as MWD have lower priorities.

In Arizona I, although the Special Master had heard evidence and made recommendations as to the correct boundary for the Reservation, the court reserved the issue for later determination. The dispute as to where the boundary lies arises from inconsistencies in the 1870 legal description of the Hay and Wood Reserve, a portion of the Reservation. The Court allocated to the Tribe the quantity of water necessary to irrigate the practicably irrigable acreage of the reservation as calculated by the Special Master based on the old boundaries. However, the Court provided that: "[T]he quantities fixed ... shall be subject to appropriate adjustment by agreement or decree of this Court in the event that the boundaries of the respective reservations [including the Fort Mojave Indian Reservation] are finally determined." Arizona v. California, 376 U.S. 340, 345, 84 S.Ct. 755, 758, 11 L.Ed.2d 757 (1964) (Court Decree). The Court retained jurisdiction for the purpose of further modifications and orders that it might deem proper. In 1979 the Court entered a supplemental decree identifying the then perfected rights to the use of the mainstream water in each state and their priority dates as agreed by the parties. Arizona v. California, 439 U.S. 419, 99 S.Ct. 995, 58 L.Ed.2d 627 (1979) (Supplemental Decree). Before the Supplemental Decree was entered, new questions arose. Consequently, the Court appointed Judge Elbert Tuttle to conduct hearings on the various motions.

In June 1974, the Secretary of the Interior, pursuant to a resurvey he had ordered, determined that the original survey of the Fort Mojave Reservation was incorrect and readjusted the Reservation boundaries to enclose 3500 additional acres. Judge Tuttle, as Special Master, after hearing found that this was a final determination. Based on the Special Master's finding, the United States applied to the Supreme Court for a reallocation of water rights to increase the Tribe's share. Arizona v. California, 460 U.S. 605, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983) (Arizona II ). Recognizing that the Special Master's finding threatened to diminish its water allocations from the Colorado River, MWD filed this action in the district court for the Southern District of California challenging the Secretary's order. The district court initially In Arizona II the Court, finding that the Secretary's determination of the Reservation boundary was not a final determination, apparently because it was made ex parte by the Secretary, id. at 636, 103 S.Ct. at 1400, declined to decide the case, suggesting that the dispute possibly could be decided in another forum. It specifically referred to this case then pending in the district court as a potential vehicle, stating: "At this juncture, we are unconvinced that the United States District Court for the Southern District of California, in which the challenge to the Secretary's actions has been filed, is not an available and suitable forum to settle these disputes." Id. at 638, 103 S.Ct. at 1401. The Court, however, recognized that there might be obstacles to the district court litigation:

stayed this case pending the Supreme Court's decision in Arizona II.

We note that the United States has moved to dismiss the action filed by the agencies based on lack of standing, the absence of indispensable parties, sovereign immunity, and the applicable statute of limitations. There will be time enough, if any of these grounds for dismissal are sustained and not overturned on appellate review, to determine whether the boundary issues foreclosed by such action are nevertheless open for litigation in this Court.

Id.

After the Court's decision in Arizona II, the district court lifted its stay in this case. It found that it had jurisdiction, and that the Secretary had exceeded his statutory authority and had not complied with due process in ordering the resurvey. The district court decided it would hold a trial de novo to determine the correct boundary. Metropolitan Water District v. United States, 628 F.Supp. 1018, 1025 (S.D.Cal.1986). We granted the Tribe's motion for interlocutory review pursuant to 28 U.S.C. Sec. 1292(b).

JURISDICTION ³

The Government and the Tribe assert that the Quiet Title Act, 28 U.S.C. Sec. 2409a ⁴ governs this action and, that by its terms, the United States is immune from suit. MWD responds that the Government has waived its claim of sovereign immunity because it did not raise it before the district court and because it has litigated in Arizona I and II. Additionally, MWD claims that the Quiet Title Act does not apply to this action in any event, and asserts that the district court has jurisdiction under the Administrative Procedure Act and the McCarran Amendment.

A. Waiver

The United States does not waive sovereign immunity by implication; any waiver must be unequivocally expressed. Chemehuevi Indian Tribe v. California State Bd. of Equalization, 757 F.2d 1047, 1052-53 (9th Cir.) rev'd on other grounds MWD suggests that by participating in the Arizona I and II litigation to obtain water rights for the Tribe, the United States has waived its sovereign immunity to any ancillary proceeding that might affect those rights. ⁵ It claims that the United States is litigating in the district court the identical claim it presented and litigated (unsuccessfully) before the Supreme Court. In Arizona II, at issue, however, was the allocation of water rights. Although the Court declined the reallocation and found that the Secretary's boundary determination was not a final determination that could serve as a basis for the allocation of additional water rights, it did not void the Secretary's action in ordering the resurvey. The authority of the Secretary to issue such orders was not litigated. An application to the Supreme Court under a continuing decree for a reallocation of water rights cannot be viewed, under any stretch of the imagination, as consent by the Secretary to suit by third parties to challenge the Secretary's authority and procedures in establishing Indian reservation boundaries....