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

• Citation: 66 F.Supp.2d 1163
• Decision Date: 20 August 1999
• Docket Number: No. CV-N-00679-ECR (RAM).,CV-N-00679-ECR (RAM).
• Parties: STATE ENGINEER OF THE STATE OF NEVADA, and Water Commissioners of the Sixth Judicial District Court, Petitioners, v. SOUTH FORK BAND OF THE TE-MOAK TRIBE OF WESTERN SHOSHONE INDIANS OF NEVADA; Marvin McDade, in his capacity a Chairman of the South Fork Band Council; and the United States of America, as Trustee for the South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada, Respondents.
• Court: U.S. District Court — District of Nevada

66 F.Supp.2d 1163

STATE ENGINEER OF THE STATE OF NEVADA, and Water Commissioners of the Sixth Judicial District Court, Petitioners, v. SOUTH FORK BAND OF THE TE-MOAK TRIBE OF WESTERN SHOSHONE INDIANS OF NEVADA; Marvin McDade, in his capacity a Chairman of the South Fork Band Council; and the United States of America, as Trustee for the South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada, Respondents.

No. CV-N-00679-ECR (RAM).

United States District Court, D. Nevada.

August 20, 1999.

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

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

Shirley Smith, AUSA, Reno, NV, Patrick Barry, Attorney Department of Justice, Washington, DC, for USA.

Raymond Rodriguez, Carson City, NV, for South Fork Band of the Te-Moak Tribe and Marvin McDade in his capacity as Chairman of the South Fork Band Council.

AMENDED ORDER

EDWARD C. REED, Jr., District Judge.

The Order (# 41) filed on July 1, 1999, is amended to read as follows.

Presently before the Court is a motion to remand (# 6A) filed by the State Engineer and Water Commissioners of the Sixth Judicial District Court on December 10, 1998. This action was removed to this Court by Respondent United States (# 1), pursuant to 28 U.S.C. § 1441, on November 16, 1998. In response to the Petitioners' motion to remand, Respondent South Fork Band of the Te-Moak Tribe filed an opposition (# 14) on January 8, 1999, and Respondent United States filed an opposition (# 15) on January 11, 1999.

On December 9, 1998, Respondent United States filed an amended notice of removal (# 6) pursuant to 28 U.S.C. § 1442. Petitioners then filed, on December 11, 1998, a motion to strike (# 8) Respondent United States' amended notice of removal, and an amended motion to remand (# 16). On June 2, 1999, this Court denied (# 32) Petitioners' motion to strike Respondent United States' amended notice of removal. By filing an amended notice of removal, the U.S. has substituted § 1442 as its primary basis for removal, while continuing to argue that removal under § 1441 is also valid. The arguments raised in Petitioners' original motion to remand, which were solely directed against the applicability of § 1441, are now moot. Therefore, we deny Petitioners' original motion to remand (# 6A) as moot.

However, remaining before the Court is the amended motion to remand (# 16) filed by Petitioners, which is directed against Respondent United States' amended notice of removal (# 8). Two parties have opposed the Petitioners' amended motion to remand: Respondent South Fork Band of the Te-Moak Tribe filed its response (# 17) on January 20, 1999, and Respondent United States filed its response (# 20) on February 1, 1999. Petitioners have replied (# 21) on February 16, 1999. For the reasons outlined below Petitioners' amended motion to remand (# 16) is DENIED.

BACKGROUND

This action was removed from the Sixth Judicial District Court of the State of Nevada, in and for the County of Humboldt, by Respondent United States. Prior to removal, Petitioners State Engineer and Water Commissioners had filed a petition for an amended order to show cause why the South Fork Band of the Te-Moak Tribe of Western Shoshone Indians, and the United States of America, should not be held in contempt for violating the Humboldt Decree. The asserted violations of the Decree were based upon the South Fork Band's refusal to allow the Water Commissioners of the Sixth Judicial District Court onto its reservation to regulate the Humboldt River, and its refusal to pay assessment fees.

Between 1937 and 1942, the United States of America purchased land in Nevada for the South Fork Band of the Te-Moak Tribe of the Western Shoshone Indians ("Tribe"). The land had appurtenant water rights that were adjudicated in the Humboldt Decree, a stream system adjudication decree that was issued in 1931 and amended in 1935 by the Sixth Judicial District Court of the State of Nevada. Since the purchase of lands for the Tribe, the United States and the Tribe have received their appurtenant water rights pursuant to the Humboldt Decree. During those years, the Water Commissioners have entered upon the Tribe's reservation to regulate the Humboldt River system pursuant to the decree, and have collected an annual assessment fee as provided in the decree.

On October 17, 1997, all water right holders in the South Fork of the Humboldt River were given their annual assessment for Humboldt water distribution for the period July 1, 1998, to June 30, 1999. The Tribe's assessment totaled $2,717.72. On March 8, 1998, the South Fork Band Council of the Tribe resolved that the Water Commissioners would not be allowed to regulate any of the upstream turnouts that supply the South Fork Reservation with irrigation water, and that the Council will not pay for water with money allocated to the Tribe for its use. Since the date of this resolution, Nevada State Water Commissioners have not been permitted access to the South Fork Reservation and the Tribe has failed to pay its assessment for water distribution.

On June 11, 1998, the Nevada State Engineer filed a Motion for Order to Show Cause with the Sixth Judicial District Court of Nevada. On August 17, 1998, the Sixth Judicial District Court held a hearing to show cause why the Tribe should not be held in contempt and compelled to comply with State Engineer's Order 1145, which ordered the Tribe to permit the Water Commissioners of the Sixth Judicial District Court access to regulate the upstream turnouts that supply the Tribe with water, and to pay the October 17, 1997 assessment. On August 21, 1998 the court issued an Order granting the Tribe fourteen days in which to rescind its March 8 resolution, to allow the Water Commissioners access to the upstream turnouts, and to pay the annual assessment. The Tribe was warned that if it did not comply, the Sixth Judicial District Court would find it in contempt.

On September 18, 1998 the Tribe filed a motion to vacate the Order on the grounds that the State Engineer failed to join the United States as an indispensable party pursuant to Nevada Rules of Civil Procedure 19b. On October 19, 1998, the Nevada State Engineer filed a Petition for Amended Order to Show Cause in the Sixth Judicial District Court of Nevada joining the United States as a party. On November 16, 1998, Respondent United States removed the action from the Sixth Judicial District Court of Nevada to this Court (# 1). Subsequently, on December 16, 1998, Respondent Tribe filed a notice of removal joinder (# 9) joining in Respondent United States' notice of removal.

DISCUSSION

There are three jurisdictional thresholds to cross in our consideration of the question of the propriety of Respondent's removal. First, there must be statutory authority granting removal under the removal provisions of 28 U.S.C. §§ 1441-1452. Nebraska Dept. of Soc. Serv. v. Bentson, 146 F.3d 676, 679 (9th Cir.1998) ("A defendant's power to remove a case to federal court is independent of the federal court's power to hear it. These are analytically distinct inquiries and should not be confused.").

Second, once statutory authority for removal has been established, the subject matter jurisdiction of the district court must then be determined. Id. ("Once a case is properly removed, a district court has the authority to decide whether it has subject matter jurisdiction over the claims.").

Third, a district court having subject matter jurisdiction over the claims must then determine if it should exercise that jurisdiction, in light of the doctrines of abstention and comity. Burford v. Sun Oil Co., 319 U.S. 315, 332, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943) ("[This] reflect[s] a doctrine of abstention appropriate to our federal system whereby the federal courts, [upon having subject matter jurisdiction] ... restrain their authority because of scrupulous regard for the rightful independence of the state governments and for the smooth working of the federal judiciary."). We examine each of these questions in turn.

I. Statutory Authority Granting Removal

The statutory authority granting removal of cases from state court to federal district court is set forth in the removal provisions of 28 U.S.C. §§ 1441-1452. Respondent United States originally removed pursuant to § 1441(# 1), and subsequently filed an amended notice of removal (# 6) asserting removal under § 1442. In Respondent's response (# 15) to Petitioner's motion to remand (# 6A) they argue that removal is valid under both § 1441 and § 1442.

Prior to 1996, the United States as a defendant could not remove a case from state to federal court. See 28 U.S.C § 1442(a)(1) (1991). However, Congress subsequently enacted the Federal Courts Improvement Act of 1996, Pub.L. 104-317, 110 Stat. 3847, 3850, which amended the removal statute to expressly allow for removal by the United States as a defendant. See 28 U.S.C. § 1442(a)(1) (1997) (stating that a civil action brought against "[t]he United States or any agency thereof" is removable). See Nebraska Dept. of Soc. Serv., 146 F.3d at 678. See also Refvem v. Mirch, 1999 WL 183621, *1 (N.D.Cal.1999) ("Mirch's third-party complaint seeks indemnity and contribution from the United States .... [T]he United States removed Mirch's complaint to this Court, pursuant to 28 U.S.C. § 1442(a)(1)."); Porter v. Rathe, 1998 WL 355499, *2 (D.Or.1998) (in its removal petition, the United States as intervenor-defendant "properly relies upon 28 U.S.C. § 1442(a)(1)"); Clark v. United States, 1997 WL 732611, *2 (D.Alaska 1997) ("Removal was proper under 28 U.S.C. § 1442(a)(1), which permits removal of any civil action against the United States ...."); Floyd v. District of Columbia, 129 F.3d 152, 155 (D.C.Cir.1997) (holding that "Federal removal jurisdiction would have been available under 28 U.S.C. § 1442(a)(1)" for...