U.S. v. State of Or.

• Decision Date: 28 December 1994
• Docket Number: 92-36985,92-36987 and 92-37001,Nos. 92-36983,s. 92-36983
• Citation: 44 F.3d 758
• Parties: 25 Envtl. L. Rep. 20,531 UNITED STATES of America, Plaintiff-Appellant, and Klamath Allottees Water Users Association; Klamath Tribe, Plaintiffs-Intervenors, v. STATE OF OREGON, Water Resources Department, and William H. Young, Director, Defendants-Appellees. UNITED STATES of America, Plaintiff, and Klamath Allottees Water Users Association, Plaintiff-Intervenor, and Klamath Tribe, Plaintiff-Intervenor-Appellant, v. STATE OF OREGON, Water Resources Department, and William H. Young, Director, Defendants-Appellees. UNITED STATES of America, Plaintiff, and Klamath Allottees Water Users Association, Plaintiff-Intervenor-Appellant, v. STATE OF OREGON, Water Resources Department, and William H. Young, Director, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellee, and Klamath Allottees Water Users Association; Klamath Tribe, Plaintiffs-Intervenors, v. STATE OF OREGON, Water Resources Department, and William H. Young, Director, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 758

44 F.3d 758

25 Envtl. L. Rep. 20,531

UNITED STATES of America, Plaintiff-Appellant, and Klamath Allottees Water Users Association; Klamath Tribe, Plaintiffs-Intervenors, v. STATE OF OREGON, Water Resources Department, and William H.

Young, Director, Defendants-Appellees.

UNITED STATES of America, Plaintiff,

and

Klamath Allottees Water Users Association, Plaintiff-Intervenor, and Klamath Tribe, Plaintiff-Intervenor-Appellant, v. STATE OF OREGON, Water Resources Department, and William H.

Young, Director, Defendants-Appellees.

UNITED STATES of America, Plaintiff, and Klamath Allottees Water Users Association, Plaintiff-Intervenor-Appellant, v. STATE OF OREGON, Water Resources Department, and William H.

Young, Director, Defendants-Appellees.

UNITED STATES of America, Plaintiff-Appellee, and Klamath Allottees Water Users Association; Klamath Tribe, Plaintiffs-Intervenors, v. STATE OF OREGON, Water Resources Department, and William H.

Young, Director, Defendants-Appellants.

Nos. 92-36983, 92-36985, 92-36987 and 92-37001.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 2, 1994.

Decided Dec. 28, 1994.

Gary B. Randall, Michael A. Gheleta, John P. Lange, Robert L. Klarquist, and William B. Lazarus, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, for plaintiff-appellant-cross-appellee U.S.

Carl Ullman, Water Adjudication Project, Chiloquin, OR and Melody McCoy, Walter Echo-Hawk, Native American Rights Fund, Boulder, CO, for intervenor-appellant-cross-appellee Klamath Tribe.

Dale T. White, Fredericks, Pelcyger, Hester & White, Boulder, CO, for intervenor-appellant-cross-appellee Klamath Allottees Water Users Ass'n.

Rives Kistler, Asst. Atty. Gen., Salem, OR, for defendants-appellees-cross-appellants State of Or. and William H. Young.

Appeals from the United States District Court for the District of Oregon.

Before: ALARCON, NORRIS, and LEAVY, Circuit Judges.

WILLIAM A. NORRIS, Circuit Judge:

These consolidated appeals arise out of the State of Oregon's attempts to adjudicate the rights of various claimants to the waters of the Klamath River Basin through a complex procedure created by state statute. We are called upon to address whether the State may compel the United States, the Klamath Indian Tribe and other owners of former reservation land to comply with certain terms of the state statute governing the Klamath Basin adjudication.

I Facts and Procedural History

In 1975, the Oregon Water Resources Department (OWRD) invoked Oregon's statutory procedure for the mass adjudication of water rights in order to determine all claims to surface water in the Klamath River Basin. The United States claims water rights in this basin on behalf of several federal agencies and as trustee for the Klamath Tribe. The State notified over 25,000 potential claimants, including appellants United States, the Klamath Tribe and members of the Klamath Allottees Water Users Association (Association), a group of individuals who own former reservation land in fee. That same year, the United States filed a suit in federal district court seeking a declaration of the water rights of the United States and the Klamath Tribe in certain tributaries within the Klamath Basin. In 1983, this court heard an appeal from the district court's decision in that case. See United States v. Adair, 723 F.2d 1394 (9th Cir.1983), cert. denied, 467 U.S. 1252, 104 S.Ct. 3536, 82 L.Ed.2d 841 (1984). We held that the United States and Klamath Tribe possessed reserved water rights to the rivers at issue in the litigation, but left the quantification of those rights to a comprehensive state adjudication of water rights under the provisions of the McCarran Amendment, 43 U.S.C. Sec. 666. Id. at 1406. We further stated, "although the Oregon water rights adjudication system is initially administrative and need not be judicial in nature, we will assume, without deciding, for the purposes of this case that it is not too informal to qualify as a 'suit' within the meaning of McCarran Amendment or a 'comprehensive state adjudication' within the meaning of Colorado River and San Carlos Apache Tribe. " Id. at 1405 n. 9 (citations omitted).

In 1990, the State reissued notices of its intention to adjudicate water rights in the Klamath Basin. In response, the United States, as owner of federal land in the Klamath Basin and as trustee for the Klamath Tribe, filed the present action in federal district court seeking a declaratory judgment that the United States has not waived its sovereign immunity and that it need not register its water claims or pay any filing fees to preserve its water rights. The Klamath Tribe intervened, joining the claims of the United States to the protection of sovereign immunity and also asserting that subjecting the Tribe to an adjudication by the State of Oregon deprived the Tribe of due process because the State had a history of hostility to the Tribe's treaty rights, including its claims to water in the Klamath Basin. The State countered that the McCarran Amendment waived the United States' sovereign immunity and that the Tribe's claims of bias were baseless.

After hearing cross-motions for summary judgment, the district court held that in enacting the McCarran Amendment, Congress had waived sovereign immunity on behalf of the United States and Klamath Tribe and consented to their participation in the Klamath Basin adjudication. The court held that the United States could be compelled to pay filing fees for the adjudication, but could not be forced to register all of its water claims throughout the state. The court further held that an 1864 Treaty between the United States and the Tribe precluded the State from requiring filing fees from the Tribe, ¹ but that otherwise subjecting the Tribes to the state procedure did not violate their due process rights.

After the court issued its summary judgment decision, United States v. Oregon Water Resources Dept., 774 F.Supp. 1568 (D.Or.1991), the Klamath Allottees Water Users Association intervened, claiming to hold the same rights as the Tribe. Members of the Association own property that was once held in trust for the Tribe, but later transferred to individual tribe members in fee pursuant to federal statutes. Without explanation, the district court declined to extend the ruling to the Association's members. These appeals followed, raising the issues we left undecided in Adair. We affirm the summary judgment, with the exception of the district court's ruling that the United States can be required to pay filing fees. We further dismiss the Association's appeal for lack of jurisdiction.

II Sovereign Immunity

Unless the McCarran Amendment waived the sovereign immunity of the federal government and the Tribe, neither may be required to participate in a state adjudication in order to preserve water rights that have accrued under federal law. See Colorado River Water Conservation District v. United States, 424 U.S. 800, 809-13, 96 S.Ct. 1236, 1242-44, 47 L.Ed.2d 483 (1976). The McCarran Amendment provides:

Sec. 666. Suits for adjudication of water rights

(a) Joinder of United States as defendant; costs

Consent is hereby 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.... 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.

(b) Service of summons

Summons or other process in any such suit shall be served upon the Attorney General or his designated representative.

43 U.S.C. Sec. 666.

The United States argues that Oregon's mass adjudication scheme is not the sort of "comprehensive suit" contemplated by the statute because much of the proceedings are before an administrative agency rather than a court and because the adjudication is insufficiently comprehensive. In order to decide whether Congress intended to waive the United States' sovereign immunity for water rights proceedings such as those held under Oregon's statute, we must examine both the McCarran Amendment and the Oregon statute, paying particular attention to their historical contexts.

In the nineteenth century, water rights in Oregon were acquired by appropriation or riparian right, or accrued to the United States and Indian Tribes under federal law as federal reserved rights. See 1 Robert E. Beck, Waters and Water Rights Sec. 8.02(c) (1991). Under an appropriation system, as such systems developed in the West, the first party to divert water for a beneficial use has the right to continue to divert that amount of water without interference from subsequent appropriators so long as the water continues to be put to beneficial use. In case of shortages, the entire share of the most recent appropriator is lost before the share of the next latest appropriator is diminished. Under such a system, the date of appropriation and the amount of water appropriated are the critical facts in the determination of the relative rights of water users.

As was traditional in Western states, the relative rights of various claimants to water from a river system were determined piecemeal, as conflicts arose, in traditional lawsuits in equity. See 2 Beck, supra Sec. 15.01; Samuel C. Wiel, Water Rights in the Western States Sec. 624 (3d ed. 1911). As the West became more populated, conflicts over water rights increased. As the interrelation of water rights became more apparent, a dilemma emerged: the nature of traditional civil...