OGDEN RIVER WATER USERS'ASS'N v. Weber Basin W. Cons., 5345.

• Decision Date: 10 December 1956
• Docket Number: No. 5345.,5345.
• Parties: OGDEN RIVER WATER USERS' ASSOCIATION, a corporation, Appellant, v. WEBER BASIN WATER CONSERVANCY, E. O. Larson, individually and as Regional Director of the Bureau of Reclamation, United States Department of Interior; Clinton D. Woods, individually, and as Projects Manager of the Weber Basin Project of the United States Department of the Interior; The Utah Construction Company, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

238 F.2d 936 (1956)

OGDEN RIVER WATER USERS' ASSOCIATION, a corporation, Appellant, v. WEBER BASIN WATER CONSERVANCY, E. O. Larson, individually and as Regional Director of the Bureau of Reclamation, United States Department of Interior; Clinton D. Woods, individually, and as Projects Manager of the Weber Basin Project of the United States Department of the Interior; The Utah Construction Company, Appellees.

No. 5345.

United States Court of Appeals Tenth Circuit.

October 27, 1956.

Rehearing Denied December 10, 1956.

COPYRIGHT MATERIAL OMITTED

David K. Holther, Ogden, Utah, and John W. Cragun, Washington, D. C. (John S. Boyden, Salt Lake City, Utah, on the brief), for appellant.

Neil R. Olmstead, Odgen, Utah (E. J. Skeen, Salt Lake City, Utah, on the brief), for appellee Weber Basin Water Conservancy Dist.

William H. Veeder, Atty. Dept. of Justice, Washington, D. C. (J. Lee Rankin, Asst. Atty. Gen., and A. Pratt Kesler, U. S. Atty., for the District of Utah, Salt Lake City, Utah, on the brief), for appellees E. O. Larson and Clinton D. Woods.

Before BRATTON, Chief Judge, and PHILLIPS and LEWIS, Circuit Judges.

LEWIS, Circuit Judge.

Appellant Ogden River Water Users' Association¹ is a nonprofit corporation organized and existing under and by virtue of the laws of the State of Utah with its principal place of business at Ogden, Utah. In May, 1934, appellant entered into a contract with the United States, such contract being superseded and amended by subsequent agreements culminating in an amendatory contract dated May 23, 1950,² under the terms of which the United States acquired certain lands and water rights necessary for the construction of an irrigation project in Weber County, Utah, known as the Ogden River Project.³

This contract further provides that the initial cost of acquisition and construction of the Ogden River Project (the heart of which is the Pine View Dam and Reservoir) was to be financed by the United States but to be repaid by appellant through annual installment payments.

Appellant acquired a permanent right to the annual yield of the project as constructed⁴ and, subject to certain supervisory rights of the United States, was given possessory rights to the lands and appurtenances for operational purposes. Legal title to the project works in their entirety was to remain in the United States "until the Congress otherwise provides".

At the time of the alleged grievances complained of herein appellant was in possession of the project and supervising both operation and maintenance at its sole expense. Annual payments to the United States were current and all other obligations of the appellant to the United States were being fulfilled.

In December, 1952, pursuant to the Congressional authority of the Reclamation Act as amended,⁵ the United States contracted with the appellee Weber Basin Water Conservancy District,⁶ a Utah corporation, for the construction of the Weber Basin Project.⁷ This project was broad in scope but included as one of its essentials the enlargement of the Pine View Dam and Reservoir, which as previously noted constituted the core of the Ogden River Project and which was being maintained and operated by appellant. The contract with the Conservancy District contained a provision that "The United States shall be under no obligation to commence, or having commenced, to continue construction of the (Weber Basin) project works until * * * (e) the United States and the (Conservancy) district make a contract with the Ogden River Water Users' Association in connection with the enlargement of Pine View Dam and Reservoir, if the Secretary (of the Interior) determines that such contract is necessary". No such contract was made nor were any condemnation proceedings instituted.

Alleging all these matters and the grievances hereinafter noted appellant filed its complaint in the United States District Court for the Central District of Utah under 28 U.S.C. § 1331 and the Federal Declaratory Judgments Act, 28 U.S.C. § 2201, and naming the Conservancy District; E. O. Larson individually and as Regional Director of the Bureau of Reclamation, United States Department of Interior; Clinton D. Woods individually and as Projects Manager of the Weber Basin Project of the United States Department of Interior;⁸ and the Utah Construction Company as parties defendant. The complaint recites that in August, 1955, the appellees did, without appellant's permission and over their protest, enter upon the Pine View Dam and began stripping the same to accomplish the construction which is contemplated by the terms of the Weber Basin contract; that by so doing, and by executing the contract itself, the appellee E. O. Larson purported to act in his official capacity, but in fact acted wrongfully and in excess of any right, title, or jurisdiction in the Conservancy District or the United States, and in disregard of appellant's rights under the Fifth Amendment to the Constitution of the United States; that as a result appellant is in danger of being deprived of its rights and properties without just compensation or any compensation, all in violation of the provisions of the Fifth Amendment; and that, alternatively, should the Reclamation Act as amended by the Act of August 29, 1949, be construed to authorize the appellees to take the appellant's interest in the Ogden River Project without their permission and without paying them just compensation that then in that event such statutes are unconstitutional as being contrary to the provisions of the Fifth Amendment of the Constitution. The prayer of the complaint asks that the district court decree and adjudge (1) that appellant "owns the equitable title in and to the lands comprising the Ogden River Project, including the Pine View Dam and Reservoir", (2) that the appellees and each of them are without lawful right, title or interest to enter upon or make use of any portion of the Ogden River Project under the contract of the Conservancy District relative to the Weber Basin Project, (3) that to the extent that the statutory law of the United States authorizes, if it does so authorize, the acts of the appellees that such statutes are unconstitutional and void under the Fifth Amendment, (4) that the court grant preliminary and permanent injunctions enjoining the appellees from entering upon the Ogden River Project, specifically Pine View Dam and Reservoir, without first having acquired from appellant a lawful right to do so; (5) that the court grant a mandatory injunction requiring appellees to restore appellant's property in the Ogden River Project to the condition in which it was prior to the alleged intrusion; (6) and for general relief.

Appellees made separate motions to dismiss upon the several grounds that the United States was an indispensable party; the Secretary of Interior was an indispensable party; that the complaint failed to state a claim upon which relief could be granted. The trial court, without specifying its grounds granted the several motions. No answers were filed and no trial was had upon the merits.

For the purpose of determining whether or not appellant has stated a claim under the Declaratory Judgments Act we assume, as we must, that all the allegations of the complaint are true. Chicago Metallic Manufacturing Co. v. Edward Katzinger Co., 7 Cir., 123 F.2d 518; Consolidation Coal Co. v. Martin, 6 Cir., 113 F.2d 813. And a similar assumption is made as against a motion to dismiss when injunctive relief is sought. Polk Co. v. Glover, 305 U.S. 5, 59 S.Ct. 15, 83 L.Ed. 6. Conclusions of law and unwarranted inferences of fact are excluded from consideration. Zeligson v. Hartman-Blair, Inc., 10 Cir., 126 F.2d 595. Newport News Shipbuilding & Dry Dock Co. v. Schauffler, 303 U.S. 54, 58 S. Ct. 466, 82 L.Ed. 646.

This court has recently considered the essence of appellant's contentions in two cases, State of New Mexico v. Backer, 10 Cir., 199 F.2d 426, and Oyler v. McKay, Secretary of the Department of Interior, 10 Cir., 227 F.2d 604. In the New Mexico case, that state sought to restrain Backer, a construction engineer, and certain employees of the United States Bureau of Reclamation from lowering the water level of the Elephant Butte Dam and Reservoir alleging certain resultant damages should Backer's acts continue. This court upheld the order of the trial court in dismissing the action upon the grounds that the suit was, in contemplation of law, a suit against the United States and could not be maintained without sovereign consent; and further that the Secretary of the Interior was an indispensable party.

In the Oyler case we held that the United States was an indispensable party in an action wherein the appellant sought to restrain...