United States v. Alpine Land & Reservoir Co.

• Decision Date: 28 October 1980
• Docket Number: Civ. No. D-183 BRT.
• Citation: 503 F. Supp. 877
• Parties: The UNITED STATES of America, Plaintiff, v. ALPINE LAND & RESERVOIR COMPANY, a corporation et al., Defendants.
• Court: U.S. District Court — District of Nevada

503 F. Supp. 877

The UNITED STATES of America, Plaintiff, v. ALPINE LAND & RESERVOIR COMPANY, a corporation et al., Defendants.

Civ. No. D-183 BRT.

United States District Court, D. Nevada.

October 28, 1980.

Scott B. McElroy and Rembert A. Gaddy, Attys., U. S. Dept. of Justice, Washington, D. C., for plaintiff United States.

Joseph F. DePietro, Sacramento, Cal., for U. S. Dept. of Interior.

James W. Johnson, Jr., Reno, Nev., and Frederick G. Girard, Kronick, Moskovitz, Tiedemann & Girard, Sacramento, Cal., for defendants Truckee-Carson Irr. Dist. and Class defendants.

Ross E. de Lipkau, Hill, Cassas, de Lipkau & Erwin, Reno, Nev., for Rufus W. Adams.

George K. Folsom, Reno, Nev., for John B. Anderson, Edith Anderson, Edith Anderson & Nevis Industries, Inc., a Nevada corporation, J. B. Dangberg Land Co., a Nevada Corp.

John Madariaga, Susan L. Oldham and Patrick T. Kinney, Reno, Nev., for Sierra Pac. Power Co.

Roger A. Bergmann, P. C., Reno, Nev., for Water Master, Claude Dukes.

Richard Bryan, Atty. Gen., Harry W. Swainston, Deputy Atty. Gen., Carson City, Nev., for State of Nevada.

Harold L. Eisenberg and Kathleen E. Gnekow, Sacramento, Cal., for State of Cal.

E. J. Skeen, Salt Lake City, Utah, for Various Upper Carson River Water Users.

Martin McDonough, McDonough, Holland & Allen, Sacramento, Cal., for County of Alpine, California & Markleville Public Utility Dist.

OPINION

BRUCE R. THOMPSON, District Judge.

This is a quiet title suit to adjudicate the rights to the use of the water of Carson River in Nevada and California. The case was tried before the Court and John V. Mueller, a Special Master, the Master having heretofore submitted proposed findings of fact, conclusions of law and decree. Objections to the Master's report have been filed by the parties and further trial proceedings to resolve those objections have been held before the Court as provided by the proposed preliminary pretrial order heretofore filed and approved by the Court on October 20, 1977.

This Court has jurisdiction over this matter under 28 U.S.C. § 1345 and the Act of September 19, 1922, 42 Stat. 849. The question of the jurisdiction of the Court over successors in interest to the original defendants, including those in California, was briefed. On February 15, 1974, the Court concluded in open court:

that the Court does continue to have jurisdiction over the successors in interest of all parties who were originally parties to this litigation.

As provided in the proposed preliminary pre-trial order, the proposed Mueller findings of fact, conclusions of law and decree, submitted in June 1951 and later amended, shall, except where modified and supplemented in resolving the issues hereinafter set out, constitute the final findings of fact, conclusions of law and decree in this case.

The following is the Court's opinion regarding various issues of law and fact and mixed law and fact covered by the evidence received and the extensive briefs of the parties. If certain contentions made or issues stated in the pre-trial orders are not discussed, they are considered irrelevant.

THE WATER RIGHTS FROM THE UNITED STATES' APPROPRIATION FOR THE NEWLANDS PROJECT.

The water rights on the Newlands Project covered by approved water right applications and contracts are appurtenant to the land irrigated and are owned by the individual land owners in the Project. These rights have a priority of July 2, 1902. The United States may have title to the irrigation works, but as to the appurtenant water rights it maintains only a lien-holder's interest to secure repayment of the project construction costs.

Section 8 of the Reclamation Act of 1902, 43 U.S.C. § 372, states:

"The right to the use of water acquired under the provisions of this Act 5 § 485, §§ 372, 373, 381, 383, 391, 392, 411, 416, 419, 421, 431, 432, 439, 461, 491, 498 of this title shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right."

43 U.S.C. § 542 states:

"Every patent and water-right certificate issued under this Act §§ 541-546 of this title shall expressly reserve to the United States a prior lien on the land patented or for which water right is certified, together with all water rights appurtenant or belonging thereto ..." (Emphasis added.)

Furthermore, 43 U.S.C. § 498 empowers the Secretary of the Interior to transfer the operation and management of irrigation works to project landowners once payments for a major portion of the project lands are made. Section 498 specifically states that despite any transfer of operation and management responsibilities, title to the reservoirs and works remains in the government. The lack of mention of water right title in this section implies that title to the water right had already passed to the farmers with their land patents. The Supreme Court discussed the Reclamation Act in conjunction with the western doctrine of appropriative water rights in Ickes v. Fox, 300 U.S. 82, 57 S.Ct. 412, 81 L.Ed. 525 (1937). The court emphatically stated that although the government diverted, stored and distributed the water, the ownership of the water or water rights did not vest in the United States. "Appropriation was made not for the use of the government, but, under the Reclamation Act, for the use of the land owners ...." Id. at 95, 57 S.Ct. at 416. Thus any property right of the government in the irrigation works is separate and distinct from the property right of the land owners in the water right itself. In California v. United States, 438 U.S. 645, 98 S.Ct. 2985, 57 L.Ed.2d 1018 (1978), the court concluded, after an extensive survey of the older cases and the legislative history of the Reclamation Act, that state law was supposed to control the Act in two major ways:

"First ... the Secretary would have to appropriate, purchase or condemn necessary water rights in strict conformity with state law.

* * * * * *

"Second, once the waters were released from the dam, their distribution to individual landowners would again be controlled by state law."

Id. at 665-7, 98 S.Ct. at 2996. In all the arid states, including Nevada, it is settled state law that the right to use water is acquired by an appropriation to some beneficial use. In Fox the court held that this type of right is a property right, which, "when acquired for irrigation, becomes, by state law and here by express provision of the Reclamation Act as well, part and parcel of the land upon which it is applied." 300 U.S. at 95-6, 57 S.Ct. at 416-17.

In Nebraska v. Wyoming, 325 U.S. 589, 65 S.Ct. 1332, 89 L.Ed. 1815 (1945), the court reiterated the Fox analysis, once more defeating the government's claim to project water rights. More recently, in the California case, the court pointed out that an important unifying factor in the long working relationship between the United States and the several arid western states in the area of reclamation projects is the "purposeful and continued deference to state water law by Congress." California v. United States, id. at 653, 98 S.Ct. at 2989. The only area where state law may not control is where it conflicts with explicit congressional directives in the Reclamation Act, a concern not relevant to this case. It cannot be disputed that under Nevada's appropriative water right statutes the water appropriated and beneficially used on the land is appurtenant to that land and those water rights are owned by the land owner.

The United States relies upon Ide v. United States, 263 U.S. 497, 44 S.Ct. 182, 68 L.Ed. 407 (1924), and United States v. Humboldt Lovelock Irrigation Light & Power Co., 97 F.2d 38 (9th Cir. 1938), as supporting its claim to title to the project water rights. These cases reveal little, if any, support for the government's position. The plaintiff land owners in Ide had acquired parcels of a former school site owned by the state of Wyoming but located in the midst of a federal reclamation project. These land owners got patents from Wyoming with no water rights; the surrounding lands were sold to farmers by the federal government with a project water right. The plaintiff land owners, all of whom got patents from Wyoming, attempted to assert appropriation of seepage water from the irrigation of the surrounding project lands.

In discussing the general nature of the entire project, the court clearly stated that a water right vests in the holder of a project land patent from the federal government. "The lands are disposed of in small tracts ... each disposal carrying with it a perpetual right to water from project canals." Ide v. United States at 499, 44 S.Ct. at 182. The court held that there could be no appropriation of the seepage water because, although the federal government passed water rights with the project land patents, it did not give up all incidents of control, and so could collect and redistribute seepage water as against the land owners with Wyoming patents and no original project water rights. This holding is merely a slightly different way of stating what was said in Fox, that the government diverts, stores and distributes water but the project farmers with government patents, not the government itself, have title to the water right.

In United States v. Humboldt Lovelock Irrigation Light & Power Co., the question was whether a motion to dismiss for failure to state facts sufficient to constitute a cause of suit was proper where the United States sought an injunction against a private reservoir company to prevent diversions of water allegedly in violation of earlier priorities owned by the government. The government owned no land; the defendant maintained that the government could own no water rights without owning land, and thus that the government did not state facts establishing a property right. The water rights in question had originally been appurtenant to private irrigated lands and had been conveyed to the United States by the private...