National Audubon Soc. v. DEPARTMENT OF WATER, ETC.

• Decision Date: 17 July 1980
• Docket Number: Civ. No. S-80-127 LKK.
• Citation: 496 F. Supp. 499
• Court: U.S. District Court — Eastern District of California
• Parties: NATIONAL AUDUBON SOCIETY et al., Plaintiffs/Cross-Defendants, v. DEPARTMENT OF WATER & POWER OF the CITY OF LOS ANGELES, Defendant/Cross-Complainant, v. UNITED STATES of America et al., Cross-Defendants.

496 F. Supp. 499

NATIONAL AUDUBON SOCIETY et al., Plaintiffs/Cross-Defendants, v. DEPARTMENT OF WATER & POWER OF the CITY OF LOS ANGELES, Defendant/Cross-Complainant, v. UNITED STATES of America et al., Cross-Defendants.

Civ. No. S-80-127 LKK.

United States District Court, E. D. California.

July 17, 1980.

COPYRIGHT MATERIAL OMITTED

F. Bruce Dodge, Palmer Brown Madden, Morrison & Foerster, San Francisco, Cal., for plaintiffs/cross-defendants.

Burt Pines, City Atty., Edward C. Farrell, Chief Asst. City Atty., for Water & Power, Kenneth W. Downey, Asst. City Atty., Edward A. Schlotman, Deputy City Atty., Los Angeles, Cal., Donald D. Stark, Irvine, Cal., for defendant/cross-complainant.

George Deukmejian, Atty. Gen., N. Gregory Taylor, Jan S. Stevens, Asst. Attys. Gen., Bruce S. Flushman, Deputy Atty. Gen., San Francisco, Cal., for cross-defendants State of California, State Lands Comm.

Herman Sillas, U. S. Atty., Robert Browning Miller, Asst. U. S. Atty., Sacramento, Cal., for cross-defendant United States of America.

ORDER

KARLTON, District Judge.

On May 21, 1979, plaintiffs, NATIONAL AUDUBON SOCIETY, FRIENDS OF THE EARTH, the MONO LAKE COMMITTEE, the LOS ANGELES AUDUBON SOCIETY, and four individuals, filed suit against the Los Angeles Department of Water and Power (hereinafter sometimes referred to as the "DEPARTMENT" or "DWP") in the Superior Court of the State of California for the County of Alpine. The gravamen of that lawsuit is plaintiffs' assertion that the defendant's diversion of water from the Mono Lake Basin is having a serious deleterious effect on the Basin's environment. The complaint seeks relief under five causes of action: Violation of the public trust, violation of California Constitution Article XVI, section 6 (prohibiting a gift by the state of a state asset), a quiet title action to establish the public trust rights in the water of the Basin, public and private nuisance (in the form of mud and dust resulting from the lowering of the lake level), and violation of California Constitution, Article X, section 4 (which prohibits obstruction of navigable waters).

On June 22, 1979, the defendant answered the complaint in the superior court. After extensive discovery and the setting of tentative pretrial and trial dates, the DEPARTMENT sought and was granted leave to file a cross-complaint. It is this cross-complaint naming the United States, among others, as a cross-defendant which gave rise to a petition to remove the matter to this court, the instant motion to remand, and the government's motion to amend the removal petition.

The DEPARTMENT'S cross-complaint asserts four causes of action. The first cause of action seeks adjudication of the Basin's water rights, and the second is an action to quiet title to those rights.¹ These two causes of action are brought against all plaintiffs and all appropriators of water within the Basin. In all, 117 cross-defendants are joined in these first two causes of action. Among the appropriators are alleged to be two federal agencies, the Forest Service and the Bureau of Land Management.

The Third Cause of Action requests declaratory relief relative to the propriety of the DEPARTMENT'S use of the water under the California Constitution. The DEPARTMENT also seeks a declaration that if the United States has jurisdiction over California's navigational trust, that by statute and executive order the United States has consented to the impairment of the so-called navigational trust. The final cause of action is for declaratory relief regarding plaintiffs' nuisance cause of action. In essence the DEPARTMENT seeks a declaration that the alleged nuisance created by the exposed bed is not attributable to the DEPARTMENT but to the owner of the bed who it is alleged is the State of California. The United States is not named in this cause of action.

The United States originally sought removal pursuant to 28 U.S.C. § 1441 asserting that the cross-complaint seeks adjudication of water rights, that the government claims title to the lake bed, and that original jurisdiction exists under 28 U.S.C. § 1346(f). The DEPARTMENT then moved for remand asserting that a joint cause of action was alleged and that all defendants failed to join in the petition for removal. See Chicago R. I. & Pacific RR Co. v. Martin (1900) 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055.

In addition to filing an opposition to remand, the United States filed a motion to amend the petition for removal. The amendment seeks to predicate removal pursuant to 28 U.S.C. § 1442(a), the United States having abandoned § 1441 as a basis for removal at oral argument on the remand motions.

The issues presented are both complex and subtle. First, the Court is called upon to determine whether, under the circumstances, the government may amend its petition to remove. I have determined that it may. Secondly, I have determined that the McCarren Amendment does not preclude removal. Finally, I have determined that because three of the four causes of action relate only to title and rights of the government, they could not be independently removed; however, since one cause of action is predicated upon "acts" of an "agency" and that for § 1442(a)(1) purposes an agency is a person, the entire action is removable and remand will be denied at this time.

A. MOTION TO AMEND

Section 1653 of Title 28 provides that "defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." This section has been authoritatively construed to apply "to removed action sic as well as those initiated in the United States District Courts." Barrow Development Co. v. Fulton Insurance Co. (9th Cir. 1969) 418 F.2d 316, 317. Although this section has been liberally construed where cases originate in the district courts, see, e. g., Moore v. Coats Co. (2d Cir. 1959) 270 F.2d 410; McGovern v. American Airlines, Inc. (5th Cir. 1975) 511 F.2d 653; Brennan v. University of Kansas (10th Cir. 1971) 451 F.2d 1287, the Ninth Circuit has held that a somewhat different approach is required in a removal context. Barrow, supra. Reasoning that "since removal must be effected by a defendant within 30 days after receiving a copy of the complaint (28 U.S.C. § 1446)," the circuit court determined that "the removal petition cannot be thereafter amended to add allegations of substance but solely to clarify `defective' allegations of jurisdiction previously made." 418 F.2d 316, 317.

The DEPARTMENT argues that the amendment, shifting as it does from one provision of the code to another, implicating as it must different legal theories and different parties, cannot be viewed as merely clarifying defective allegations. Superficially the DEPARTMENT'S argument has appeal, nonetheless it cannot be sustained.

The essential problem with the DEPARTMENT'S argument is the narrowness of its focus relative to what the court may consider in determining whether the amendment seeks to clarify defective allegations or whether it seeks to add allegations of substance. In essence, the DEPARTMENT seeks to limit review for remand purposes to the petition and the motion to amend the petition. It appears that such a limited examination is erroneous. In Willingham v. Morgan (1969) 395 U.S. 402, 89 S.Ct. 1813, 23 L.Ed.2d 396, the Supreme Court reviewed the entire file including the material appearing in petitioners' affidavits in support of their motion for summary judgment in order to determine whether the facts of the case came within the provisions of the removal statute there in question (there, as here, Section 1442(a)(1)). In a footnote the Court noted that "this material should have appeared in the petition for removal. However, for purposes of this review it is proper to treat the removal petition as if it had been amended to include the relevant information contained in the later filed affidavits." Id. at 407 n.3, 89 S.Ct. at 1816 (emphasis added.) It has been observed that for purposes of examining the propriety of amendment, the court's determination is made "upon the face of the petition and of the whole record of the state court . . .." Powers v. Chesapeake and Ohio RR (1898) 169 U.S. 92, 101, 18 S.Ct. 264, 267, 42 L.Ed. 673. See also Heckleman v. Yellow Cab (1942) 45 F.Supp. 984. Thus in determining whether the amendment seeks merely to cure defects in form rather than alleging new substance, the court must review the entire file to determine what the file fairly reflects at the time it considers the motion to amend.

The United States proposes essentially two additions to its present petition. As noted, it first asserts that the controlling section is not Section 1441 but rather Section 1442(a)(1). In order to support its Section 1442(a)(1) allegation, the government alleges in its amended petition that the Bureau of Land Management acts under the direction of the Secretary of Interior and the Forest Service acts under the direction of the Secretary of Agriculture. It is true that neither fact is alleged either in the cross-complaint or in the original petition for removal. It is equally clear however that the court may take judicial notice that the two federal agencies act under the direction of the Secretaries of Interior and Agriculture, FRE 201. The Federal Rules of Evidence, of course "govern proceedings in the courts of the United States," FRE 101, and "Judicial notice may be taken at any stage of the proceedings." FRE 201(f).²

Once it is recognized that the necessary "factual allegations" omitted from the petition are inherent in the allegations of the cross-complaint, the change from Section 1441 to Section 1442(a)(1) is no more than a shifting of legal theory and thus may be properly viewed as merely a clarification of a defective allegation. (See 28 U.S.C. § 1653; Wright & Miller, Federal Practice and Procedure § 3733, p. 736. See also Wright & Miller, § 1206, pp. 77-78.)

The DEPARTMENT also argues that amendment should be...