State Engineer of Nv v. South Fork Band of Te-Moak

Decision Date28 July 2003
Docket NumberNo. 00-17172.,No. 00-17175.,No. 00-17173.,No. 00-17146.,00-17146.,00-17172.,00-17173.,00-17175.
PartiesSTATE ENGINEER, OF the STATE OF NEVADA; Water Commissioners, of the Sixth Judicial District Court, Plaintiffs-Appellees, v. SOUTH FORK BAND OF the TE-MOAK TRIBE OF WESTERN SHO-SHONE INDIANS OF NEVADA; Marvin McDade, in his capacity as Chairman of the South Fork Band Council, Defendants, and United States of America, as Trustee for the South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada, Defendant-Appellant. State Engineer, of the State of Nevada; Water Commissioners, of the Sixth Judicial District Court, Petitioners-Appellees, Pershing County Water Conservation District, Petitioner-Intervenor-Appellee, v. South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada; Marvin McDade, in his capacity as Chairman of the South Fork Band Council, Respondents-Appellants, United States of America, as Trustee for the South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada, Respondent-Appellee. State Engineer, of the State of Nevada; Water Commissioners, of the Sixth Judicial District Court, Petitioners-Appellees, Pershing County Water Conservation District, Petitioner-Intervenor-Appellee, v. South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada; Marvin McDade, in his capacity as Chairman of the South Fork Band Council, Respondents, and United States of America, as Trustee for the South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada, Respondent-Appellant. State Engineer, of the State of Nevada; Water Commissioners, of the Sixth Judicial District Court, Petitioners-Appellants, and Pershing County Water Conservation District, Petitioner-Intervenor, v. South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada; Marvin McDade, in his capacity as Chairman of the South Fork Band Council; United States of America, as Trustee for the South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada, Respondents-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Raymond Rodriguez, Nevada Legal Services, Inc., Carson City, NV, for the South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada.

David C. Shilton, U.S. Department of Justice, Washington, DC, argued for the United States. John C. Cruden, Acting Assistant Attorney General, Environmental & Natural Resources Division, Patrick Barry and William B. Lazarus, U.S. Department of Justice, Washington, DC, joined him on the briefs.

Paul G. Taggart, Deputy Attorney General, Carson City, NV, argued for the State Engineer of the State of Nevada.

Frankie Sue Del Papa, Attorney General, Carson City, NV, joined him on the briefs.

Laura A. Schroeder, Schroeder Law Offices, Portland, OR, for Pershing County Water Conservation District.

Appeal from the United States District Court for the District of Nevada; Edward C. Reed, Jr., District Judge, Presiding. D.C. No. CV-99-00624-ECR(VPC).

Before KOZINSKI and KLEINFELD, Circuit Judges, and BEISTLINE, District Judge.*

KOZINSKI, Circuit Judge.

We consider whether a state court that has adjudicated a water decree retains exclusive jurisdiction over its administration.

I

Like many Western states, Nevada follows a two-step process in determining and enforcing rights to the use of water in its river systems. First is the adjudication phase. The state engineer makes an initial determination of the relative usufructuary rights to water among different claimants and files an order with the state district court having jurisdiction over the geographic region. Nev.Rev.Stat. §§ 533.090, 533.160. After holding a hearing, the court enters a decree either affirming or modifying the engineer's order. Id. § 533.185. Barring later modifications, the judicial decree defining the distribution of water rights is "final" and "conclusive upon all persons and rights lawfully embraced within [it]." Id. § 533.210(1).

Next comes the administration phase, where the state engineer and water commissioners give practical effect to the judicial decree and distribute water rights as "officers of the court." Id. § 533.220(1). To carry out their official duties, water commissioners have the "right of ingress and egress across and upon public, private or corporate lands at all times." Id. § 533.305(3). Moreover, to help defray the costs of operating the stream system and to pay water commissioners' salaries, the county assessor is authorized to collect special assessments from water claimants. Id. § 533.285. "Any person feeling himself aggrieved by any order or decision of the state engineer ... or the water commissioner... may have the same reviewed by a proceeding for that purpose.... [O]n stream systems where a decree of court has been entered, the action shall be initiated in the court that entered the decree." Id. § 533.450(1). Similarly, the state engineer "may petition the district court having jurisdiction of the matter ... and cause to be issued ... an order to show cause why the order and decision should not be complied with." Id. § 533.220(2). Violations of the court's decree amount to contempt of court, punishable by fine, imprisonment or both under state law. See id. § 22.100.

Nevada's Sixth Judicial District Court completed an adjudication of the Humboldt River and its tributaries nearly seventy years ago and entered a final decree defining various claimants' rights to the use of water in the stream system. The Humboldt Decree encompassed five ranches that were later purchased by the federal government to create an Indian reservation for the South Fork Band of the Te-Moak Tribe of Western Shoshone Indians. Although the tribe is the beneficial user of the ranches, the federal government remains the fee owner. The deeds to the ranches specifically refer to the Humboldt Decree, stating that all water rights run with the land. Under both Nevada law and the deeds, the Decree defines "the basis, the measure and the limit of the right to the use of water" by the Indian tribe. Id. § 533.035.

Until the dispute that gave rise to this litigation, the federal government paid the state-levied assessments on behalf of the tribe, and the tribe allowed the state water commissioner onto the reservation to ensure that all beneficiaries of the Humboldt Decree were receiving their share of water. Troubles began, however, when the federal money dried up. For a while, the tribe agreed to pay its own way — but not for long. Soon it passed resolutions challenging the state's authority to regulate the river on its reservation. When a state water commissioner entered the reservation in the course of his duties, the tribe handcuffed him and charged him with trespass.

After failing to persuade the tribe to rescind its resolutions and allow the water commissioner access, Nevada began contempt proceedings against the tribe for violating the Humboldt Decree. The United States was soon joined as a necessary party, and it removed the action to federal court under 28 U.S.C. § 1442. The case quickly took on a surreal quality, as the state and federal courts enjoined each other from conducting further proceedings. The logjam was finally broken when the federal district court held that, although it had concurrent jurisdiction over the contempt action, it would abstain under Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), and remanded the case to state court. All parties appealed. The United States and the tribe challenge the district court's abstention ruling. Nevada argues that the district court should have dismissed the case outright for want of jurisdiction.

II

Although the district court's order does not "end[ ] the litigation on the merits and leave[ ] nothing for the court to do but execute the judgment," Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945), it put the litigants "effectively out of court," Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 714, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (internal quotation marks omitted), and the district court "retain[ed] nothing of the matter on the federal court's docket," id. Accordingly, we have appellate jurisdiction to review the remand order under 28 U.S.C. § 1291. Id. at 713, 116 S.Ct. 1712; Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 8-13, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983).

We review de novo the district court's conclusion that it had subject matter jurisdiction. Nike, Inc. v. Comercial Iberica de Exclusivas Deportivas, S.A., 20 F.3d 987, 990 (9th Cir.1994). If the district court lacked subject-matter jurisdiction, we can correct the jurisdictional error, but cannot entertain the merits of the appeal. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (per curiam). Nevada's attempts to preclude the exercise of federal jurisdiction, see, e.g., Nev.Rev.Stat. § 533.450(1); State v. Sustacha, 108 Nev. 223, 826 P.2d 959, 961 (1992) (per curiam) ("[L]itigation concerning Humboldt Stream System water rights should be carried out and resolved only in the Sixth Judicial District Court." (emphasis added)), are not binding on us, as "the jurisdiction of the [federal] court ... is not subject to State limitation." Ry. Co. v. Whitton's Adm'r, 80 U.S. (13 Wall.) 270, 286, 20 L.Ed. 571 (1871).

III

We begin our jurisdictional inquiry with 28 U.S.C. § 1442(a)(1), the federal removal statute on which the United States places heavy reliance. The relevant part reads:

A civil action or criminal prosecution commenced in a State court against any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: (1) The United States or any agency thereof or any officer (or any person acting under that officer) of...

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