U.S. v. State of Cal.
| Decision Date | 01 April 1977 |
| Docket Number | No. 75-3554,75-3554 |
| Citation | 558 F.2d 1347 |
| Parties | , 9 ERC 2062, 7 Envtl. L. Rep. 20,351, 7 Envtl. L. Rep. 20,801 UNITED STATES of America, Plaintiff-Appellee, v. The STATE OF CALIFORNIA, State Water Resources Control Board, W. W. Adams, Chairman, Ronald B. Robie, Vice Chairman, Roy E. Dodson, Jean Auer, and W. Don Maughan, as members of the State Water Resources Control Board, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Evelle J. Younger, Atty. Gen., Carl Boronkay, Asst. Atty. Gen., Rokerick E. Walston, argued, and Richard C. Jacobs, Deputy Attys. Gen., San Francisco, Cal., for defendants-appellants.
Carl Strass, Atty., argued, Land & Natural Resources Div., Dept. of Justice, Washington, D. C., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of California.
Before DUNIWAY, CARTER and WALLACE, Circuit Judges.
The State of California and its State Water Resources Control Board appeal from judgment for the United States entered by the District Court for the Eastern District of California. The opinion and judgment of that court was reported in United States v. State of California, E.D.Cal., 1975, 403 F.Supp. 874. The judgment of the district court appears at 403 F.Supp. 902-03. The principal questions are (1) whether Section 8 of the Reclamation Act of 1902, 32 Stat. 388, now 43 U.S.C. § 383, requires that the United States apply to the California State Water Resources Control Board for a permit to appropriate unappropriated water from the Stanislaus River for the New Melones project, and, (2) if so, what conditions, if any, the Board can attach to a permit that it grants. The questions are of great importance, and we have given them careful attention.
Our study of the record and the law convinces us that the judgment must be affirmed, substantially for the reasons stated by Judge MacBride in his opinion.
Two recent decisions of the Supreme Court strengthen our conviction. In Hancock v. Train, 1976, 426 U.S. 167, 96 S.Ct. 2006, 48 L.Ed.2d 555, the question was whether § 118 of the Clean Air Act, 42 U.S.C. § 1857f, permits a state to require federally owned or operated installations to obtain a permit to operate, as required by the state's federally approved plan for assuring air quality. The pertinent language of § 118 reads:
Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge of air pollutants, shall comply with Federal, State, interstate, and local requirements respecting control and abatement of air pollution to the same extent that any person is subject to such requirements.
The Court states its holding as follows:
Kentucky, like the Court of Appeals for the Fifth Circuit in Alabama v. Seeber, 502 F.2d 1238, 1247-1248 (1974), finds in § 118 a sufficient congressional authorization to the States, not only to establish the amount of pollutants a federal installation may discharge, but also to condition operation of federal installations on securing a state permit. We disagree because we are not convinced that Congress intended to subject federal agencies to state permits. We are unable to find in § 118, on its face or in relation to the Clean Air Act as a whole, or to derive from the legislative history of the Amendments any clear and unambiguous declaration by the Congress that federal installations may not perform their activities unless a state official issues a permit. Nor can congressional intention to submit federal activity to state control be implied from the claim that under Kentucky's EPA-approved implementation plan it is only through the permit system that compliance schedules and other requirements may be administratively enforced against federal installations. Id. at 180-81, 96 S.Ct. at 2013.
In view of the undoubted congressional awareness of the requirement of clear language to bind the United States, our conclusion is that with respect to subjecting federal installations to state permit requirements, the Clean Air Act does not satisfy the traditional requirement that such intention be evinced with satisfactory clarity. Should this nevertheless be the desire of Congress, it need only amend the Act to make its intention manifest. Id. at 198, 96 S.Ct. at 2021.22 (footnotes omitted).
In Environmental Protection Agency v. California ex rel. State Water Resources Control Board, 1976, 426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d 578, the Court reached a similar conclusion as to the effect of § 313 of the Water Pollution Control Act Amendments of 1972, 86 Stat. 816, 33 U.S.C. § 1323. That section provides that federal installations must "comply with Federal, State, interstate, and local requirements respecting control and abatement of pollution to the same extent that any person is subject to such requirements." California and Washington sought to apply the permit requirements of their programs. We held that they could do so (511 F.2d 963), but the Supreme Court reversed. Applying the principles of Hancock, supra, the Court said:
Our decision in this case is governed by the same fundamental principles applied today in Hancock v. Train, ante, (426 U.S.) at 179 (, 96 S.Ct. 2006, 48 L.Ed.2d 555): federal installations are subject to state regulation only when and to the extent that congressional authorization is clear and unambiguous. Id. at 211, 96 S.Ct. at 2028.
Except for the reference to service charges, § 313 is virtually identical to § 118 of the Clean Air Act, 42 U.S.C. § 1857f. Taken alone, § 313, like § 118 of the Clean Air Act, states only to what extent the same as any person federal installations must comply with applicable state requirements. Section 313 does not expressly provide that federal dischargers must obtain state NPDES permits. Nor does § 313 or any other section of the Amendments expressly state that obtaining a state NPDES permit is a "requirement respecting control or abatement of pollution." Id. at 212-13, 96 S.Ct. at 2028 (footnotes omitted).
The language of § 8 of the Reclamation Act of 1902, set out in the opinion of the district court, 403 F.Supp. 885, is no more specific in subjecting federal projects to state permit requirements than are the statutes construed in the foregoing cases. Our view that the judgment in this case should be affirmed is, we think, supported by the principles applied in those cases. Indeed, we find that California's claim in this case that the United States must obtain a permit and comply with conditions embodied in it is less supportable than the claims of Kentucky in Hancock, supra, and of California and Washington in Environmental Protection Agency, supra. In each of those cases, it could more plausibly be argued that Congress did intend to subject federal installations to state permit requirements than in this case. When the Congress enacted § 118 of the Clean Air Act and § 313 of the Water Pollution Control Act Amendments of 1972, the use by the state of the permit device as a means of enforcing their laws in these areas was well known. The language of the two acts, subjecting federal instrumentalities to state laws, is very broad. Yet the Court declined to read either section as requiring compliance with state permit requirements.
On the other hand, when § 8 of the Reclamation Act was adopted in 1902, California's permit requirement did not exist. At that time, under the Civil Code of 1872, §§ 1410-1422, surplus water was appropriated by the physical act of taking and diverting it to beneficial use. An appropriator could post a notice of taking at the point of diversion and record a copy with the county recorder. If the appropriator was diligent in completing the work for the diversion, his rights would date back to the posting of the notice. The statute did not create appropriative rights; it merely provided evidence of the date of appropriation. A fortiori, then, we cannot read § 8 as requiring compliance with California permit requirements that did not exist when § 8 was adopted.
In 1913, California enacted the Water Commission Act (Cal.Stats.1913, c. 586) which created the State Water Commission and provided a statutory procedure that could be followed in the appropriation of unappropriated water flowing in any natural channel "for useful and beneficial purposes." The Act became effective, following a referendum vote, in 1914. In 1923, an amendment made the statutory procedure the exclusive method of appropriating water. (Cal.Stats.1923, c. 87.) The Act, as amended, is now part of the California Water Code, Divisions 1 and 2.
As the district judge concluded, a major purpose of § 8 of the 1902 Act was to recognize and protect state water law, particularly the state law doctrine of appropriative rights to water. 403 F.Supp. at 888. Similarly, the Clean Air Act and the Water Pollution Control Act amendments give effect to state law and require compliance with it by federal installations. Indeed, those acts are more specific than § 8 of the 1902 Act. Yet the Court has declined to read them as subjecting federal installations to state permit requirements, even though the use of permits by the states as a means of enforcing their clean air and water pollution laws was known. To read § 8 of the 1902 Act as requiring compliance with laws that did not then exist and procedures not made compulsory by California until 1923 over 20 years later would fly in the face of the Hancock and Environmental Protection Agency decisions. We could only do so if the language of § 8 were much more specific than it is.
In one respect, however, we disagree with Judge MacBride's decision. He says, 403 F.Supp. 889-90:
Indeed, while the Congressional history of the 1902 Act indicates broad...
To continue reading
Request your trial
-
Town of Springfield, Vt. v. McCarren
...the precept in judicial proceedings."). Cf. United States v. California, 403 F.Supp. 874, 900-01 (E.D.Cal.1975), aff'd, 558 F.2d 1347 (9th Cir. 1977), rev'd on other grounds, 438 U.S. 645, 98 S.Ct. 2985, 57 L.Ed.2d 1018 Where a state court exercises jurisdiction over a matter entrusted to e......
-
California v. United States
...congressional directives as to the New Melones Dam and issues involving the consistency of the conditions remain to be resolved. P. 679. 558 F.2d 1347, reversed and Roderick E. Walston, San Francisco, Cal., for petitioners. Stephen R. Barnett, Washington, D. C., for respondent. Mr. Justice ......
-
County of Trinity v. Andrus
...development, or operation of the project. United States v. State of California, 403 F.Supp. 874, 902-903 (E.D.Cal.1973), aff'd 558 F.2d 1347 (9 Cir. 1977). Thus, when the United States applies to the California State Water Resources Control Board for a permit to appropriate water, the Board......
-
Murdoch v. Castro
...overlooked the unaddressed issues. It's not as though judges are immune from making this kind of mistake. E.g., United States v. California, 558 F.2d 1347, 1353 (9th Cir.1977) (noting on rehearing that “we overlooked” an argument made “in [the] briefs on appeal”), rev'd, 438 U.S. 645, 98 S.......