State of Nevada v. United States, 1247.

• Citation: 165 F. Supp. 600
• Decision Date: 27 August 1958
• Docket Number: No. 1247.,1247.
• Parties: The STATE OF NEVADA ex rel. Hugh A. SHAMBERGER, State Engineer, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Nevada

165 F. Supp. 600

The STATE OF NEVADA ex rel. Hugh A. SHAMBERGER, State Engineer, Plaintiff, v. UNITED STATES of America, Defendant.

No. 1247.

United States District Court D. Nevada.

August 27, 1958.

Harvey Dickerson, Atty. Gen. of Nevada, for plaintiff.

J. Lee Rankin, Asst. Atty. Gen., Howard W. Babcock, U. S. Atty., Reno, Nev., for defendant.

ROSS, District Judge.

The question here involved is whether or not the Federal Government must first secure permission of and from a state agency—here the State Engineer's Office—before it can make use of the ground or percolating water developed in its own wells, drilled at its own expense, upon its reserved lands constituting the Hawthorne Naval Ammunition Depot, situate about the Town of Hawthorne, Mineral County, Nevada. Or, to put the question another way, can the State of Nevada, at the instance of its State Engineer, enjoin the Federal Government from the use of the waters of its wells because of the fact that its officers, agents, and representatives failed and refused to comply with the statutory procedural law and regulation in force covering the field of appropriation and use of water.

Both on reason and, as we shall see in a moment, on authority, this Court is forced to the conclusion that there is no mandate in constitutional, statutory, or decisional law that compels the Federal Government to bend its knee to this type of state law and regulation, whether it be arbitrary or benign.

1. The Stipulation of Facts.

Greatly abridged, the stipulation of facts is as follows:

For the purpose of national defense, prior to 1935 the defendant established near Hawthorne, Mineral County, Nevada, a United States Naval Ammunition Depot, hereinafter the Depot, which at all times has been maintained by the Department of the Navy as a major installation in the program of that Department. It covers an area of more than 200,000 acres.

In 1848, by the Treaty of Guadalupe Hidalgo, Mexico, 9 Stat. 922, ceded to the defendant the lands included within the Depot. At all times since such cession by Mexico, full title to all such lands, except only a few isolated tracts, has resided in the defendant. After the admission of Nevada into the Union, those few isolated tracts passed into ownership by others, and title thereto was reacquired by the defendant from time to time after the establishment of the Depot. None of the wells hereinafter mentioned are situated upon land that was at one time owned by others, but each of them is located on land title to which has been in the defendant at all times since the cession by Mexico in 1848, supra.

The lands in question from time to time before February 4, 1935, were withdrawn by executive order, under Congressional authority, from settlement, location, sale, entry, and all forms of appropriation, for the exclusive use and benefit of the United States Navy, for the development of, and use in connection with, the Depot. The first of such executive orders was dated October 27, 1926, and the last was dated February 4, 1935. At all times since the dates of the respective withdrawal orders, the lands covered thereby have been held and administered by the defendant as essential parts of the Depot.

By the Act of March 21, 1864 (13 Stat. 30; Nevada Compiled Laws, 1929, Sections 1, 4, 5, 11), entitled "An Act to enable the People of Nevada to form a Constitution and State Government, and for the Admission of such State into the Union on an equal Footing with the original States," the Congress provided for the admission of Nevada into the Union and prescribed certain terms and conditions with respect thereto. The act provided in part as follows:

"Sec. 4.

* * * * * *

"Third. That the people inhabiting said territory do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States; * * *

"Sec. 5. * * *; whereupon it shall be the duty of the President of the United States to issue his proclamation declaring the State admitted into the Union on an equal footing with the original states, without any further action whatever on the part of congress."

The Constitutional convention provided for in the Enabling Act did, as part of the Constitution of Nevada adopted on July 28, 1864, enact the ordinance required by Section 4 of the Enabling Act, providing in part as follows:

"§ 3. * * *

"Third. That the people inhabiting said Territory do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within said Territory, and that the same shall be and remain at the sole and entire disposition of the United States; * * *". Nevada Compiled Laws, 1929, Sections 18, 19, 20.

By an act of its legislature approved March 28, 1935 (Chapter 144, Statutes of Nevada, 1935), Nevada ceded to the defendant exclusive jurisdiction "upon and over the land and within the premises" of the Depot, subject only to the reservations therein made. The full text of the Act is as follows:

"An Act ceding to the federal government jurisdiction over the land and within the premises of certain federal buildings at or near Hawthorne, in Mineral County, Nevada, commonly known as the `U.S.N. Ammunition Depot.'

"(Approved March 28, 1935)

"The People of the State of Nevada, represented in Senate and Assembly, do enact as follows:

"Section 1. The State of Nevada, except as hereinafter reserved and provided, hereby cedes jurisdiction to the United States upon and over the land and within the premises of that certain area situated near Hawthorne, Nevada, in Mineral County, commonly known as the `U. S. N. Ammunition Depot,' comprising all of that certain area now occupied by the federal government in connection with said plant, or to be hereafter acquired or annexed thereto, or to be used in connection therewith, including all the buildings and improvements thereon.

"Sec. 2. It is hereby reserved and provided by the State of Nevada that any private property upon said lands or premises shall be subject to taxation by the state, or any subdivision thereof having the right to levy and collect such taxes, but any property upon or within such premises which belongs to the government of the United States shall be free of taxation by the state, the county of Mineral, or any of its subdivisions.

"Sec. 3. The State of Nevada reserves the right to serve or cause to be served, by any of its proper officers, any criminal or civil process upon such land or within such premises for any cause there or elsewhere in the state arising, where such cause comes properly under the jurisdiction of the laws of this state or any subdivision thereof.

"Sec. 4. This act shall be in full force and effect from and after its passage and approval."

The cession of jurisdiction thereby made has at all times since March 28, 1935, been and it now is in full force and effect.

Beginning on or about February 15, 1942, and from time to time thereafter to and including on or about September 15, 1945, the defendant drilled and put into operation certain wells within the boundaries of the depot in order to provide a water supply for beneficial uses necessary to accomplishment of the purposes of said depot. These wells were designated as U. S. Navy Wells Numbers 1, 2, 3, 4, 5 and 6. The waters tapped and developed thereby were and are percolating waters.

The area wherein such wells are situated has not been designated by the State Engineer as a basin or sub-basin, as provided in Section 4 of Chapter 178, Statutes of Nevada, 1939, as amended, nor is the area a proved artesian basin. The development and operation of the wells does not interfere, and has at no time interfered, with anyone's vested right.

Although the wells were constructed and theretofore operated by the defendant without regard to Nevada statutes relating to the appropriation and use of underground waters, on or about July 29, 1949, the commanding officer of the Depot filed in the office of the State Engineer an application for permit to appropriate to beneficial use the waters of each of those wells.

On or about September 26, 1949, a corrected application was similarly filed with respect to each well. On or about January 9, 1950, the State Engineer approved and granted each of the applications.

On or about June 5, 1950, the commanding officer of the Depot filed in the office of the State Engineer with respect to each well "Proof of Commencement of Work" and "Proof of Completion of Work."

Notwithstanding the work essential to the actual diversion of water from each well was completed long prior to the filing of the applications with the State Engineer on July 29, 1949, supra, and notwithstanding the defendant had in fact been diverting water from each well and applying it to beneficial use for the purposes of the Depot since the respective dates of completion of the work, the Depot's commanding officer on or about September 18, 1952, filed in the office of the State Engineer an application for an extension of time of one year within which to file proof of beneficial use with respect to Navy Well No. 1.

On or about December 11, 1953, and on or about July 27, 1954, similar applications, each for an additional extension of time of one year to make proof of beneficial use, were similarly filed. Like applications for extension of time to file proof of beneficial use were filed at the same times with respect to each of the other wells. Each of these applications were granted by the State Engineer.

Proofs of application to beneficial use of the waters of the wells were not filed by July 27, 1955, and the State Engineer notified the commanding officer of the Depot by registered mail that unless such proofs or application for extension of time were filed within 30 days from receipt of the notice, the permits granted upon the original applications would be...