Turner v. Kings River Conservation District

• Citation: 360 F.2d 184
• Decision Date: 08 June 1966
• Docket Number: No. 19426.,19426.
• Parties: Max E. TURNER et al., Appellants, v. KINGS RIVER CONSERVATION DISTRICT et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

360 F.2d 184 (1966)

Max E. TURNER et al., Appellants, v. KINGS RIVER CONSERVATION DISTRICT et al., Appellees.

No. 19426.

United States Court of Appeals Ninth Circuit.

March 8, 1966.

As Modified on Denial of Rehearing June 8, 1966.

COPYRIGHT MATERIAL OMITTED

Wilmer W. Morse, Sacramento, Cal., for appellants.

Barrett, Wagner & Dietrich, Richard W. Dietrich, Fresno, Cal., for Liberty Farms Mutual Water Co.

Crowe, Mitchell, Hurlbutt & Clevenger, J. Thomas Crowe, Visalla, Cal., for Alta Irrigation Dist.

William F. Docker, of Docker, Docker, Perkins & Shelton, Fresno, Cal., for Burrel Ditch Co., Kings River Conservation Dist., Liberty Canal Co., and Reed Ditch Co.

John M. Fleharty, of Fleharty, Berg & Guntner, Fresno, Cal., for Crescent Canal Co.

Walter M. Gleason, San Francisco, Cal., for Salyer Water Dist.

Denslow Green, of Green & Green, Madera, Cal., for Tranquillity Irrigation Dist.

Dan Hadsell, Berkeley, Cal., J. G. McCain, Corcoran, Cal., for Tulure Lake Basin Water Storage Dist.

Pat S. McInturff, of Hagen & McInturff, Hanford, Cal., for John Heinten Mutual Water Co.

Charles W. Jennings, Lemoore, Cal., for Laguna Irrigation Dist., Empire West Side Irrigation Dist., Riverdale Irrigation Dist., Liberty Mill Race Co., Stratford Irrigation Dist., and Clarks Fork Reclamation Dist. No. 2069.

J. G. McCain, Corcoran, Cal., for J. G. Boswell Co., Corcoran Irrigation Co., Peoples Ditch Co., Southeast Lake Water Co., and Tulare Lake Canal Co.

William M. Miles, of Miles, Sears & Franson, Fresno, Cal., for Consolidated Irrigation Dist. and Kings River Water Dist.

Richard H. Peterson, F. T. Searls, W. B. Kuder, John B. Gibson, San Francisco, Cal., for Pacific Gas & Electric Co.

Robert R. Rosson, of Rosson & Pearson, Hanford, Cal., Walter M. Gleason, San Francisco, Cal., for Lemoore Canal & Irrigation Co.

Rowell, Lamberson & Thomas, Breckinridge Thomas, Fresno, Cal., for Kings River Water Ass'n.

Richard L. Shepard, of Savage & Shepard, Fresno, Cal., for Stinson Canal & Irrigation Co., James Irrigation Dist., and Dick Lovelace.

Stammer, McKnight, Barnum, Bailey & Barnett, Galen McKnight, Fresno, Cal., for Fresno Irrigation Dist.

Lyman Griswold, of Walch, Griswold, Braden & Dittman, Hanford, Cal., for Last Chance Water Ditch Co.

Ramsey Clark, Asst. Atty. Gen., Roger P. Marquis, David R. Warner, Attys., Dept. of Justice, Washington, D. C., for appellees Arthur R. Frye, Jr., Robert E. Mathe, Alfred E. Plummer, and R. J. Pafford, Jr.

Before HAMLIN, BROWNING, and DUNIWAY, Circuit Judges.

BROWNING, Circuit Judge.

This litigation arises out of the operation of the Pine Flat dam and reservoir, built by the United States on the Kings River in California pursuant to the Flood Control Act of 1944, 58 Stat. 901. Plaintiffs, appellants here, claim rights under state law to use Kings River water on their riparian and overlying lands. Four of the defendant-appellees are employees of the Bureau of Reclamation and Corps of Engineers and are responsible for storing and releasing waters at Pine Flat dam. The remaining defendant-appellees claim rights under state law to use Kings River water on non-riparian lands on the basis of appropriation. Appellants alleged that the appellee government employees and appellee water appropriators stored and released water at Pine Flat dam in such a way as to interfere with appellants' riparian water rights. They sought an injunction. The district court dismissed the action on the complaint alone. We affirm.

Appellants attempted to state three causes of action.¹

The first cause of action named only the appellee government officials as defendants. It alleged that Pine Flat dam was owned by the United States and was operated by the defendant officials. It alleged that these officials "wrongfully and unlawfully" diverted waters of Kings River to storage in Pine Flat reservoir for irrigation purposes, thus reducing the flow of the river, presenting waters of the river from flowing as they had in a state of nature, and depriving appellants of the reasonable and beneficial use of the waters in violation of their rights as riparian and overlying landowners. Appellee officials were alleged to have exceeded their authority in the following respects: First, it was alleged that they interfered with appellants' vested water rights under state law contrary to section 8 of the Flood Control Act of 1944, 58 Stat. 891, 43 U.S.C.A. § 390. Second, it was alleged that they stored water in Pine Flat reservoir for purposes other than flood control without a permit required by sections 225 and 1252 of the Water Code of California, in violation of section 8 of Reclamation Act of 1902, 32 Stat. 390, 43 U.S.C.A. § 383. And, third, it was alleged that they diverted water to lands held in private ownership by a single owner in excess of 160 irrigable acres, in violation of section 5 of the Reclamation Act of 1902, 32 Stat. 389, 43 U.S.C.A. § 431, and of section 46 of the Omnibus Adjustment Act of May 25, 1926, 44 Stat. 650, 43 U.S.C.A. § 423e.

Appellants' second cause of action added as defendants the appellee water appropriators and the Kings River Water Association. It alleged that a contract to store and release water at Pine Flat dam was entered into between appellee Dugan, who was "purporting to act" as Regional Director of the Bureau of Reclamation, and appellee Kings River Conservation District, which was representing the appellee water appropriators. Certain provisions of the contract were alleged in the complaint and are set out below.² It was alleged that pursuant to this contract, the Kings River Water Association notified the United States of the quantities of water the Association desired to be stored and released in Pine Flat reservoir, and that appellee officials stored and released water accordingly. The second cause of action repeated the allegation that these diversions adversely affected appellants' water rights. The diversions were alleged to be beyond the authority of the appellee officials for the three reasons stated in the first cause of action, and for the additional reason that the appellee officials were prohibited from contracting with local interests for operation of the reservoir by section 10 of the Flood Control Act of 1944, 58 Stat. 901.³

Appellants' third cause of action was one to quiet title to their water rights under state law. It was alleged to be within the district court's pendent jurisdiction.⁴

The district court dismissed the complaint because the United States was an indispensable party, and because it had not consented to be sued in the district court for injunctive relief. Leave was granted to file an amended complaint under the McCarran Act, 66 Stat. 560, 43 U.S.C.A. § 666, joining the United States as a defendant and seeking an adjudication of all water rights in the Kings River. Appellants declined to replead, and the action was dismissed.

The district court did not determine whether the alleged acts of appellee officials were within their authority. Instead, the court stated that even if their conduct were unauthorized the suit could not be maintained in the absence of the United States because the injunction which the appellants sought "would inevitably restrain the Government from acting or require it to act in such a way as to deprive it of the full use and control of its facilities at the dam."

The United States urges us to affirm on the same basis. It relies upon Chief Justice Vinson's statement in footnote 11 of his opinion in Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 691, 69 S.Ct. 1457, 1462, 93 L.Ed. 1628 (1949), that "a suit may fail, as one against the sovereign, even if it is claimed that the officer being sued has acted unconstitutionally or beyond his statutory powers, if the relief requested cannot be granted by merely ordering the cessation of the conduct complained of but will require affirmative action by the sovereign or the disposition of unquestionably sovereign property." The government argues from this, and from its reading of Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963), that there exists a broad rule that a suit may not be maintained against government officers for unauthorized or unconstitutional acts if the relief would "expend itself on the property of the United States" or would "require affirmative action by the sovereign."

Giving full scope to Justice Vinson's statement, it does not control this case. Appellants' water rights could be fully protected simply by enjoining the government officials from interfering with the natural flow of the river to the extent necessary to satisfy those rights. And such an injunction would not involve "the disposition of unquestionably sovereign property."

Moreover, we think the Supreme Court's more recent statement of the rule in Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999 (1963), casts doubt upon Justice Vinson's formulation, at least as broadened by the government's argument here. In Dugan v. Rank Justice Clark said, "The general rule is that a suit is against the sovereign if `the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,' or if the effect of the judgment would be `to restrain the Government from acting, or to compel it to act.'" 372 U.S. at 620, 83 S.Ct. at 1006.⁵ Justice Clark analyzed the decree entered by the district court in Dugan v. Rank in the light of this "general rule" and concluded that the decree "operates against the United States." He then continued, "Nor do we believe that the action of the Reclamation Bureau officials falls within either of the recognized exceptions to the above general rule * * *. Those exceptions are (1) action by officers beyond their statutory powers and (2) even though within the scope of their authority, the powers themselves or the manner in which they are exercised are constitutionally void. In either of such cases the officer's...