State of Nevada v. United States, 16389.
| Decision Date | 29 May 1960 |
| Docket Number | No. 16389.,16389. |
| Citation | 279 F.2d 699 |
| Parties | STATE of NEVADA ex rel. Hugh A. SHAMBERGER, State Engineer, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Roger D. Foley, Atty. Gen., W. T. Mathews, Reno, Nev., William N. Dunseath, Sp. Asst. Atty. Gen., for appellant.
Perry W. Morton, Asst. Atty. Gen., Howard W. Babcock, U. S. Atty., Reno, Nev., David R. Warner, Charles G. Luellman, Attys., Dept. of Justice, Washington, D. C., for appellee.
Before HAMLEY, HAMLIN and MERRILL, Circuit Judges.
Nevada seeks a declaration that the United States may not make use of underground waters developed by wells located on the Hawthorne Naval Ammunition Depot without applying therefor pursuant to state law. Nevada takes this appeal from judgment of the District Court dismissing its complaint.
Many issues are raised by the appeal. The ultimate question upon which Nevada desires our expression is: which sovereign entity, the United States or a state of the Union, is vested with control over the appropriation to beneficial consumptive use by the United States of non-navigable waters, including underground waters, within the boundaries of a state? We find, however, that our disposition of the matter must turn upon the first point raised by the United States: that it has not consented to the bringing of this suit and that the suit is therefore barred by the sovereign immunity of the defendant.
Nevada contends that congressional consent to suit has been given by 43 U.S.C. § 666(a).1 Our construction of that section, in the light of its legislative history, is that it cannot be made to apply to the case at bar.
The Hawthorne Naval Ammunition Depot, located in Mineral County, Nevada, is maintained by the Department of the Navy and constitutes a major installation in the defense program of that department. The land embraced within the depot, some 200,000 acres, was withdrawn from entry by various executive orders issued from 1926 to 1935. In 1935, the Nevada legislature ceded to the United States all jurisdiction over the lands comprising the depot, reserving only the power to tax private property situated therein and to serve process therein. Chapter 144, Statutes of Nevada, 1935.
In 1939, the legislature of Nevada enacted a comprehensive underground water law providing that those who would appropriate such waters to beneficial use must make application therefor to the state engineer and thereafter make proof of such beneficial use. Nev.Rev.Stat. 534.020-534.190.
From 1942 to 1945, the United States drilled and put into operation six wells, all located within the boundaries of the depot. They are needed to provide a water supply for the depot. It is stipulated that the development and operation of the wells "does not interfere and has at no time interfered with any vested right of any person."
In 1949 the commanding officer of the depot applied for a permit to appropriate the waters developed by the wells. The application was approved by the state engineer. Further steps were taken by the commanding officer until all that remained to be done prior to the securing of the permit was filing of proof that the waters had been put to beneficial use. After securing three extensions of time for the making of such proof, the commanding officer advised the state...
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