People of the State of California v. United States

• Decision Date: 06 February 1950
• Docket Number: No. 12184.,12184.
• Citation: 180 F.2d 596
• Parties: PEOPLE OF THE STATE OF CALIFORNIA v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

180 F.2d 596 (1950)

PEOPLE OF THE STATE OF CALIFORNIA v. UNITED STATES.

No. 12184.

United States Court of Appeals Ninth Circuit.

February 6, 1950.

Fred N. Howser, Atty. Gen., H. H. Linney, Chief Asst. Atty. Gen., State of Calif., for appellant.

A. Devitt Vanech, Asst. Atty. Gen., Frank J. Hennessy, U. S. Atty., San Francisco, Cal., Emmet J. Seawell, Asst. U. S. Atty., Sacramento, Cal., Roger P. Marquis and Fred W. Smith, Atty. Dept. of Justice, Washington, D. C., for appellee.

Before GOODRICH and POPE, Circuit Judges, and HALL, District Judge.

HALL, District Judge.

This appeal involves the limited questions arising from the order of the trial court denying the motion of the State of California to intervene under Federal Rules of Civil Procedure, rule 24, 28 U.S.C.A., in a suit where the United States, as plaintiff, seeks to quiet title as against the defendant, Sierra Valley Water Company (a public service corporation of the State of California) to 60 c. f. s. of the Little Truckee River, which arises and flows wholly within the State of California, but which empties into the Truckee River, an interstate stream so far as California and Nevada are concerned.

After denial of motions to dismiss, the Water Company filed its answer and counter-claim, and, by leave of court, a cross-complaint, naming as defendants therein the United States, the Washoe County Irrigation District, alleged to be organized under the laws of the State of Nevada and doing business and owning and holding property in the State of California, and the Sierra Pacific Power Company, alleged to be a Maine corporation, doing business and owning and holding property in the State of California. Thereafter, the State of California filed its motion for leave to intervene, on the ground that the subject matter of the action could not be "adequately protected by the defendant, Sierra Valley Water Company, and, that the proposed intervenor would be adversely affected by a decree awarding plaintiff herein the relief prayed for in its complaint, or any relief." In accordance with the procedural requirements of F.R.C.P. 24(c), the State of California accompanied its motion with a copy of its proposed pleading, designated to be an answer.

The fact that the litigation in the District Court is in its preliminary stages, and that the questions brought here for review are narrowed to a determination of whether or not the State of California may be heard as a party in suit, either as of right or in the exercise of sound judicial discretion, suggests the inadvisability of any extended statement of the conflicting claims appearing in the limited record¹ before us.

It is necessary, however, to briefly state the contentions of the State and the United States as appears from the pleadings and briefs.

It is asserted that the defendant Water Company, as licensee of the State of California, diverts 60 c. f. s. of water of the Little Truckee River just above its confluence with the Truckee River, and takes the water from the watershed into another watershed (the Sierra Valley) wholly within the State of California, where it is used for irrigation purposes upon the lands of the shareholders of the Water Company and others, and such as remains re-enters the waters of the Feather River system, being wholly within the State of California, for use downstream.

The United States claims ownership² and seeks to quiet title to such waters by virtue of prior right, (1) as trustee of the lands and waters of the Pyramid Lake Indian Reservation lying entirely within the State of Nevada, (2) as appropriator of waters in the Truckee River for reclamation of the Newlands Reclamation Project located entirely in the State of Nevada, and, (3) as riparian owner of the waters of the Little Truckee River by virtue of its ownership of public lands for forest or other purposes which lie along and border upon the Little Truckee River in the State of California.

The State of California claims its right to intervene as parens patriae, and as prior absolute owner³ of the water in suit by virtue of its constitution and the laws of the State of California relating to water and water rights which latter were codified in 1943 in what is now known as the Water Code of California, the pertinent provisions of each are set forth in the margin.⁴

As will be observed, the Constitution of the State of California provides in Art. XIV, Sec. 1, that the use of all water then or thereafter appropriated is a public use subject to regulation and control of the State in the manner provided by law; and, in the same article by Sec. 3, it is declared that because of conditions existing in the State, the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent to which they are capable and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. The Water Code provides, among other things (Sec. 102), that "all water within the State is the property of the people of the State," and that a license to use water is "effective for such time as the water actually appropriated under it is used for a useful and beneficial purpose in conformity with this division but no longer." (Sec. 1627)

It is alleged in the answer of the State that the use of the diverted water by the Water Company is for irrigation purposes upon lands of the stockholders of the Water Company (a mutual company), and "after such use it becomes available for and is used upon a large acreage of land in Sierra Valley," which latter acreage belongs to landowners who are not members of the Water Company and cannot be represented by it and are not parties to the action; that the lands of Water Company landowners and of such non-party landowners constitute nearly one-half of the irrigated lands within the applicable Watermaster Service Area set up under the State Water Code; that the State has no other source of water to substitute for the water in suit; that the loss of the water involved would put such an amount of land out of production as to seriously affect a California population of 15,000 people and the economy of two counties of the State of California and their tax structure, as well as the dairying industries and other businesses and establishments located in six towns within the area, the success of which is dependent upon successful agriculture in Sierra Valley, which is basically dependent upon the water in suit. And further; that such loss of water would so seriously affect the State Watermaster service as to make the cost prohibitive to maintain that service for such lands as might be able to obtain any water within the Watermaster area. It is further alleged that after such use by the Water Company and other landowners in Sierra Valley, about 60% of the water in suit enters the headwaters of the Feather River System and is used in that System entirely within the State of California. All these matters are alleged to be of public interest and State concern, and, that it is the right, if not the duty, of the State, under the above-mentioned requirements of the Constitution and laws of the State of California, to protect them in this litigation as they are necessarily involved in any decree which might award the plaintiff the relief asked for in the complaint, or any relief, and, that the Water Company can only assert in court the rights of its shareholders and cannot adequately protect the State's interest in its public welfare as above described. In addition to the foregoing allegations, the State alleged that the real party in interest in the litigation is not the United States, but the Sierra Pacific Power Company⁵ whose interest does not lie in getting the water into Nevada for the Pyramid Indians, nor for the Newlands Reclamation Project, but solely to have the continuous flow of the Little Truckee River over Boca Dam (below the Water Company's diversion on the Little Truckee River) for the purpose of generating electric power for sale in the State of Nevada.

It is contended by the United States that, (1) the order denying intervention is not appealable; (2) the State cannot intervene as of right, and that there was no abuse of discretion in disallowing the intervention; and, (3) the pleading filed by the State in effect is a claim against the Government and the United States has not consented to be sued.

The order denying intervention is a final order under Title 28 U.S.C.A. § 1291 (1948), and is appealable. State of Washington v. United States, 9 Cir., 1936, 87 F.2d 421, 431. The only apparent remedy open to the State, if intervention is denied, and if the United States would prevail, would be to then sue the State of Nevada in the Supreme Court of the United States, but by that time the water would be gone and the damage done to the State. For all practical purposes there is no "other appropriate proceeding" open to the intervenor than to assert the rights of the State in the present suit. Thus the order denying intervention is a "final" order, and is appealable.

The contention of the United States that the State of California cannot intervene as a matter of right must be rejected. The State of California is entitled to intervene as of right on each of the claimed grounds, not only in its proprietary capacity as asserted absolute owner of the water in suit, but also in its capacity as parens patriae.

This is a quiet title suit. Water is property. In California it is regarded as one of the most valuable species of property. The State, by its declaration of ownership, in its Constitution and laws, is in no lesser position than a private individual would be who had a recorded deed to property. A plaintiff seeking to quiet title in such instance could not do so by merely suing a tenant without joining the owner. If such were attempted, the owner would have a...