State of California v. United States District Court, 14243

• Decision Date: 03 June 1954
• Docket Number: No. 14243,14284.,14244,14243
• Citation: 213 F.2d 818
• Parties: STATE OF CALIFORNIA v. UNITED STATES DISTRICT COURT IN AND FOR SOUTHERN DISTRICT OF CALIFORNIA et al. UNITED STATES v. UNITED STATES DISTRICT COURT IN AND FOR SOUTHERN DISTRICT OF CALIFORNIA, NORTHERN DIVISION et al. CHOWCHILLA WATER DIST. et al. v. UNITED STATES DISTRICT COURT IN AND FOR SOUTHERN DISTRICT OF CALIFORNIA et al.
• Court: U.S. Court of Appeals — Ninth Circuit

213 F.2d 818 (1954)

STATE OF CALIFORNIA v. UNITED STATES DISTRICT COURT IN AND FOR SOUTHERN DISTRICT OF CALIFORNIA et al.

UNITED STATES v. UNITED STATES DISTRICT COURT IN AND FOR SOUTHERN DISTRICT OF CALIFORNIA, NORTHERN DIVISION et al.

CHOWCHILLA WATER DIST. et al. v. UNITED STATES DISTRICT COURT IN AND FOR SOUTHERN DISTRICT OF CALIFORNIA et al.

Nos. 14243, 14244, 14284.

United States Court of Appeals Ninth Circuit.

June 3, 1954.

No. 14243:

Edmund G. Brown, Atty. Gen., of California, B. Abbott Goldberg, Asst. Atty. Gen. of California, for petitioner.

Claude L. Rowe, Fresno, Cal., for real parties in interest herein.

J. E. Simpson, Fred Horowitz, William H. Nichols, Los Angeles, Cal., for respondents.

Robert H. Mullen, City Atty., Lodi, Cal., F. A. Silviera, City Atty., Merced, Cal., William Biddick, Jr., City Atty., Stockton, Cal., Allen Grimes, City Atty., Modesto, Cal., amici curiae.

No. 14244:

Herbert Brownell, Jr., Atty. Gen., J. Lee Rankin, Asst. Atty. Gen., William H. Veeder, Sp. Asst. to Atty. Gen., for petitioner.

Claude L. Rowe, Fresno, Cal., for real parties in interest herein.

J. E. Simpson, Fred Horowitz, William H. Nichols, Los Angeles, Cal., for respondents.

Robert H. Mullen, City Atty., Lodi, Cal., F. A. Silviera, City Atty., Merced, Cal., William Biddick, Jr., City Atty., Stockton, Cal., Allen Grimes, City Atty., Modesto, Cal., amici curiae.

No. 14284:

Maddox & Abercrombie, Erling H. Kloster, Visalia, Cal., Edmund G. Brown, Atty. Gen. of California, B. Abbott Goldberg, Asst. Atty. Gen. of California, Green, Green & Plumley, Madera, Cal., Peckinpah & Peckinpah, Fresno, Cal., Harold M. Child, Selma, Cal., John R. Locke, Jr., Visalia, Cal., Henry & Kuney, Tulare, Cal., Leroy McCormick, Visalia, Cal., Jas. R. McBride, Lindsay, Cal., for petitioners.

J. Edward Simpson, Fred Horowitz, William H. Nichols, Los Angeles, Cal., for respondents.

Before STEPHENS, BONE and POPE, Circuit Judges.

STEPHENS, Circuit Judge.

We are entertaining petitions for a writ of prohibition or mandamus or certiorari arising out of the consolidated case of Rank v. Krug, Civ. Nos. 685, 668, 681, 680, and 832 ND, which is pending in the United States District Court for the Southern District of California.¹ Three separate petitions were filed, one by the United States,² one by the State of California,³ and one by certain water districts⁴ which we shall designate collectively as "Chowchilla".⁵ Since each petition poses some different questions, we shall treat each one separately.

A brief historical statement of the basic facts of this litigation will assist in the understanding of the issues treated herein.⁶

As part of the Central Valley Project in California, the United States has built Friant Dam on the upper reaches of the San Joaquin River. From Millerton Lake, which is formed by the river waters behind Friant Dam, water is being diverted either north into the Madera Canal or south into the Friant-Kern Canal for use outside the San Joaquin River drainage basin. The water users on the lower San Joaquin River are being, or by the plan of the Project are to be, supplied with water brought from the Sacramento River to the Mendota Pool via the Delta-Mendota Canal. The case of Rank v. Krug was brought by persons taking and using or claiming the right to take and use water of the San Joaquin River between Friant Dam and the Mendota Pool.

Rank v. Krug was originally filed in the Superior Court for the State of California in and for the County of Fresno. The named defendants were the United States Secretary of the Interior, certain officials of the United States Bureau of Reclamation who were in positions of responsibility at Friant Dam and in the Central Valley Project, and certain California water districts which had entered into contracts with the United States to purchase quantities of water impounded by it at Millerton Lake.⁷ On motion of the defendant officials, the case was removed to the United States District Court for the Southern District of California.

The complaint in Rank v. Krug contains three alternative prayers for relief.⁸ The first prayer seeks an injunction against the named bureau officials to prevent them from impounding and diverting the waters of the San Joaquin River. The second prayer asks that the court make a "physical solution"⁹ of the water controversy. The third prayer is that the court order an "inverse or reverse condemnation".¹⁰

Before trial on the merits, plaintiffs joined in a motion for a preliminary injunction to prevent the cutting off of the flow of the San Joaquin River below Friant Dam. The defendant irrigation districts by their attorneys and the defendant bureau officials by an attorney designated by the Attorney General of the United States, filed motions to dismiss the action for failure to state a cause of action, and on the additional grounds that: This is in fact a suit against the United States; the United States is an indispensable party, and has not consented to be sued; further, that the Secretary of the Interior is an indispensable party over whom the court cannot obtain jurisdiction; and finally that there is a plain, speedy and adequate remedy at law.

The district court denied the motions to dismiss and in the course of its memorandum opinion declared that neither the United States nor the Secretary of the Interior were indispensable parties and in fact were not parties to the action. Thereafter, the case went forward without the appearance of the United States and the Secretary of the Interior upon the theory that the issue was whether or not the defendant bureau officials were unlawfully performing or refusing to perform acts for which they were individually, and not as agents of the sovereign, subject to mandatory or prohibitory injunction by the court. See United States v. Lee, 1882, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171; Williams v. Fanning, 1947, 332 U.S. 490, 68 S.Ct. 188, 92 L.Ed. 95, and other cases cited by the district court as reported at 90 F.Supp. 773 at page 802.

The State of California intervened as a party plaintiff seeking to compel the defendants to release enough water from Friant Dam to preserve the fish resources in the San Joaquin River. Subsequently, the State abandoned its policy in regard to the fish upon the determination that the water was more beneficially useful for irrigation under the Central Valley Project.¹¹ On August 3, 1951, California filed an amended complaint in which it opposed the issuance of an injunction compelling the release of water from Friant, and in which it prayed for a "physical solution" and suggested that plaintiffs should in any event be relegated to monetary damages. And on October 16, 1951, pursuant to an order of the district court, California filed a pleading, apparently as a party defendant, denominated "Intervenor's Answer".

The City of Fresno and the Tranquility Irrigation District also intervened as parties-plaintiff.

Prior to the completion of the trial and before judgment the district court issued a temporary injunction ordering the defendant officials to release specified amounts of water from Friant Dam. In response to a petition made by the United States Attorney this court restrained the enforcement of the temporary injunction pending the return of an order to show cause why an extraordinary writ should not be issued, and after hearing this court declared that it would issue the appropriate writ unless the district court within ten days withdrew its temporary injunction. This court acted upon the ground that the United States was in possession and in claimed legal control of the waters of the San Joaquin in Millerton Lake behind Friant Dam; and that this court's appellate jurisdiction was threatened since the res of a potential appeal might be dissipated under the court's order. United States v. U. S. Dist. Court, 9 Cir. 1953, 206 F.2d 303. On August 12, 1953, the district court withdrew its temporary mandatory injunction.

In the meantime, on July 10, 1952, Congress enacted Title 43 U.S.C.A. § 666 granting consent to the joining of the United States in certain suits:

§ 666. "(a) Consent is given to join the United States as a defendant in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit. The United States, when a party to any such suit, shall (1) be deemed to have waived any right to plead that the State laws are inapplicable or that the United States is not amenable thereto by reason of its sovereignty, and (2) shall be subject to the judgments, orders, and decrees of the court having jurisdiction, and may obtain review thereof, in the same manner and to the same extent as a private individual under like circumstances: Provided, That no judgment for costs shall be entered against the United States in any such suit. * * *"

Rule 19(b) of the Federal Rules of Civil Procedure, Title 28 U.S.C.A. provides:

"When persons who are not indispensable, but who ought to be parties if complete relief is to be accorded between those already parties, have not been made parties and are subject to the jurisdiction of the court as to both service and process and venue and can be made parties without depriving the court of jurisdiction of the parties before it, the court shall order them summoned to appear in the action. * * *"

And Rule 21 of the Federal Rules of Civil Procedure, Title 28 U.S.C.A. provides:

"* * * Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. * * *"

Plaintiffs in Rank v. Krug, acting under authority of these provisions, moved to make the...