State of Washington v. Udall, 22413.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtHAMLIN, ELY, and CARTER, Circuit
Citation417 F.2d 1310
PartiesSTATE OF WASHINGTON, Appellant, v. Stewart L. UDALL, Secretary of the Interior, et al., Appellees.
Docket NumberNo. 22413.,22413.
Decision Date24 December 1969

Harold T. Hartinger (argued), Asst. Atty. Gen., John J. O'Connell, Atty. Gen., J. R. Pritchard, Asst. Atty. Gen., Olympia, Wash., for appellant.

Roger P. Marquis (argued), Clyde O. Martz, Asst. Atty. Gen., Washington, D. C., Smithmoore P. Myers, U. S. Atty., Spokane, Wash., Ronald R. Hull, Asst. U. S. Atty., Yakima, Wash., for appellee.

Before HAMLIN, ELY, and CARTER, Circuit Judges.

ELY, Circuit Judge:

The State of Washington instituted this suit in an attempt to secure judicial review of an administrative determination by the Secretary of the Interior, acting through subordinate officials in the Bureau of Reclamation. The federal officials had determined that Washington was not entitled to the delivery of water from the Columbia Basin Project to more than 160 irrigable acres of certain state-owned lands within the South Columbia Basin Irrigation District. The District Court, relying on the Supreme Court's decision in Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963), and holding that the United States was an indispensable party and had not consented to such a suit against it, dismissed the State's complaint upon the basis of the doctrine of sovereign immunity. The State appeals, contending that the United States has waived its immunity through the Administrative Procedure Act, 5 U.S.C. §§ 701-706, or the mandamus statute, 28 U.S.C. § 1361. For reasons that follow, we have concluded that the doctrine of sovereign immunity did not operate to require dismissal of the State's complaint.

The State also urges that jurisdiction was vested in the District Court under the Tucker Act, 28 U.S.C. § 1346(a) (2), to the extent that it was empowered to award damages that were not in excess of $10,000. As to this, we have concluded that the State attempted, impermissibly, to split its cause of action in its effort to invoke Tucker Act jurisdiction.

In the South Columbia Basin Irrigation District the State of Washington owns, in trust for the benefit of the common public educational institutions of the state, fourteen tracts of school lands containing 1,594 irrigable acres. In July of 1966, the State paid all current assessments on 252.3 of these acres, designated as Farm Units 34 and 35, and demanded delivery of water. The Government's Project Manager for the Columbia Basin Project denied delivery of the water to more than 160 irrigable acres because of the "excess land" or "160-acre limitation" imposed by Congress in 43 U.S.C. § 423e upon "all irrigable land held in private ownership by any one owner * * *."1 The State argues that its school lands are not, in the terms of 43 U.S.C. § 423e, "held in private ownership" and that, therefore, the 160-acre limitation for delivery of water from the federal project is inapplicable.2 The State thus contends that the Project Manager's withholding of water from the portion in excess of 160 acres within Farm Units 34 and 35 "was without lawful justification, constituted arbitrary and capricious action, and violated a plain legal duty."

The source of the disagreement between state and federal authorities lies in their conflicting interpretations of the effect of Public Law 87-728 § 3, 76 Stat. 677, enacted in 1962. Under the earlier provisions of the Columbia Basin Project Act,3 the State was precluded from receiving federal project water for its school lands unless it executed recordable contracts providing (1) for the conforming, by purchase, sale, or exchange, of its land into farm units platted by the Secretary of the Interior in sizes, not more than 160 acres, for the support of an average family and (2) for the sale of excess lands under procedures specified in the Act. The State faced a dilemma because it was precluded by the Washington Enabling Act4 and the Washington Constitution5 from executing recordable contracts for land sales in the manner specified by the Columbia Basin Act. Congress dealt with the dilemma by legislation in 1950 which authorized the State and the Secretary of the Interior to enter into an agreement for disposition of the State's school and other public lands in a manner comporting with the requirements of the Washington Constitution and provided that purchasers of State lands would not be disqualified from executing the required recordable contracts by reason of the purchase price paid to the State. Accordingly, the State and the Secretary entered into a formal agreement in 1951 providing for a plan of disposal of excess State lands and for the execution of recordable contracts by purchasers from the State. After the agreement was executed, the necessary precondition for delivery of water to school lands was fulfilled. Subsequently, however, on Oct. 1, 1962, Congress repealed the 1950 legislation which authorized the agreement by the enactment of Public Law 87-728, § 3, 76 Stat. 678, and, in the same section, directed that the Columbia Basin Project should thenceforth be governed by the general Federal Reclamation Laws,6 including 43 U.S.C. § 423e and its 160-acre limitation for "land held in private ownership."

Following the enactment of the 1962 legislation, which withdrew legislative authorization for the 1951 contractual agreement, federal officials refused to deliver irrigation water to the State's excess school lands and refused to acknowledge any continuing obligation under the 1951 contract. The State argues that the only effect of the 1962 legislation was to conform the regulatory program for the Columbia Basin to that of other reclamation areas under the general Federal Reclamation Laws, under which, the State contends, its school lands are not subject to the excess land restrictions applied to private landowners. The State submits that, since the disposal of excess school lands is no longer necessary for the delivery of project water, the 1950 legislation which authorized the 1951 contract was no longer necessary and that this was the reason for its repeal.

The State sought a declaration by the District Court that the 160-acre limitation does not apply to Farm Units 34 and 35 and that all school lands are eligible for water from the Columbia Basin Project, an injunction restraining federal officials from requiring the execution of recordable contracts as a precondition to delivery of water to excess lands, and mandatory relief ordering federal officials to deliver federal project water to all irrigable acres in Farm Units 34 and 35. The State also sought monetary damages for the failure of federal officials to deliver water to the excess lands in these farm units. Since each unit by itself contained less than 160 acres, the combined excess was designated to lie in Farm Unit 35. The State, in an attempt to preserve jurisdiction over this issue in the District Court, waived any claim for damages to Farm Unit 35 in excess of $10,000.

The appellees argue, in support of the judgment of dismissal below, that the suit was essentially one for specific performance of contractual obligations of the United States, an indispensable party, and that the United States has not consented to such a suit. The State, however, responds that it did not seek specific performance of the 1951 contract but, rather, relief based on the failure of federal officials to conform their actions to statutory requirements. To resolve the problem, we review the numerous Supreme Court opinions regarding the doctrine of sovereign immunity.

In Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1928 (1949), the respondent corporation had sought to compel the War Assets Administrator to deliver certain surplus coal in accordance with a contract that the Administrator had made with the respondent. The Supreme Court directed the dismissal of the suit because of the sovereign immunity of the United States, an indispensable party that had not consented to the suit.7 The Court reasoned that the suit against the War Assets Administrator was in reality a suit against the United States since it sought a court order concerning the disposition of property of the United States directed to all officials acting under the authority of the Administrator. Id. at 688-689, 69 S.Ct. 1457. The Court announced that it would indulge in the legal fiction that a suit against a government officer in his official capacity was not a suit against the sovereign, and hence not subject to defeat by the doctrine of sovereign immunity, only if (1) the officer's powers are limited by statute and his actions were ultra vires, or (2) the officer was acting unconstitutionally or pursuant to an unconstitutional grant of power from the sovereign. Id. at 689-691, 69 S.Ct. 1457. The Court decided that the War Assets Administrator was not alleged to have acted unconstitutionally or in excess of his delegated statutory powers, but rather to have made an erroneous and tortious decision within the general area of his authority, the executing and performing of government contracts. If the Administrator's withholding of the coal was erroneous, it was a wrong committed within the valid authority delegated by the sovereign, and upon that theory the Court dismissed the suit. Id. at 691-704, 69 S.Ct. 1457.

The Supreme Court reaffirmed Larson in Malone v. Bowdoin, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962), stating that it was not necessary to resolve the large number of apparently conflicting Supreme Court decisions prior to Larson. The Court in Malone explained, at 646, 82 S.Ct. at 983.

"For in Larson the Court, aware that it was called upon to `resolve the conflict in doctrine\' (337 U.S., at 701 69 S.Ct. at 1467) thoroughly reviewed the many prior decisions, and made an informed and carefully

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