United States v. United States District Court

• Decision Date: 04 August 1953
• Docket Number: No. 13891.,13891.
• Citation: 206 F.2d 303
• Parties: UNITED STATES v. UNITED STATES DISTRICT COURT IN AND FOR SOUTHERN DIST. OF CALIFORNIA, NORTHERN DIVISION, et al.
• Court: U.S. Court of Appeals — Ninth Circuit

206 F.2d 303 (1953)

UNITED STATES v. UNITED STATES DISTRICT COURT IN AND FOR SOUTHERN DIST. OF CALIFORNIA, NORTHERN DIVISION, et al.

No. 13891.

United States Court of Appeals Ninth Circuit.

August 4, 1953.

William H. Veeder, Sp. Asst. to Atty. Gen., Washington, D. C., for appellant.

Claude L. Rowe, Fresno, Cal., for appellees.

Before STEPHENS, ORR, and POPE, Circuit Judges.

STEPHENS, Circuit Judge.

This case originated in this court and arises from the pendency in the United States District Court for the Southern District of California, Northern Division, of the case entitled Rank v. Krug (See 90 F. Supp. 773.) The United States pursuant to leave granted filed its petition with us for the issuance of the writ of prohibition or in the alternative for a writ of mandamus, to be directed to Judge Hall, the presiding judge in the Rank v. Krug case. We granted an order to show cause why an order of Judge Hall's, made April 24, 1953, which amended a former order, should not be vacated, and we further ordered that, pending hearing on the show cause order, the order of April 24, 1953 should be vacated in part.¹

Thereafter, Judge Hall filed a motion to strike certain portions of Petitioner's (United States') motion for permission to file. Respondents filed a motion to dismiss the motion for permission to file the petition for the writ of prohibition etc. Respondents also filed their motion to vacate portions of our order. We granted leave to the State of California and fourteen irrigation districts and a municipal utility district to file an amicus curiae brief. Upon our suggestion, but not our request, the United States made an oral motion that Martin H. Blote be made a party-petitioner which motion was thereafter put in writing and filed with the clerk.

On July 10, 1953, we heard argument on all matters before our court and they were submitted for decision.

The petition of the United States that Martin H. Blote be joined as a party petitioner is denied without prejudice, because the written petition contains conditions or reservations which we decline to consider at this time.

All other motions and petitions, except the relief requested in the petition of the United States, are denied without prejudice because we do not deem them of importance at this juncture.

The case of Rank v. Krug was originally filed in the Superior Court of the State of California in and for the County of Fresno, on or about September 24, 1947, and was thereafter removed to the United States District Court and is now pending in that court. That case arose from the institution and operation of what is commonly termed "The Central Valley Project".

The great Central Valley of California extends from the Siskiyou Mountains in the north to the Tehachapi Mountains in the south and lies between the foothills of the Sierra on the east and the foothills of the Coast Range on the west. The southerly part of this valley is often called "San Joaquin Valley" and the northerly part "Sacramento Valley". The rainfall is comparatively high in the Sierra, moderate in the Coast Range, and slight and short-seasoned in the Valley. By far, the greater part of the natural water-run-off of the easterly range of mountains, with a much smaller portion of the run-off from the westerly range, form the two rivers, the San Joaquin flowing westerly and then northerly in the San Joaquin Valley, and the Sacramento flowing southerly in the valley of that name. These rivers join near the City of Stockton and their combined waters flow westerly into the world-renowned Bay of San Francisco.

There is a surplus of water in the Sacramento Valley and a deficit of water in the San Joaquin Valley, measured economically. It was and is the purpose of the governments of the United States and of the State of California to transport surplus Sacramento River water into the watershed of the San Joaquin River for economic reasons. In accomplishing the desired ends, dams and transmission conduits have been constructed for the storage and transportation of water to the places of its use. The natural flows of streams have been altered and efforts have been made to adjust and equate the supply of water. As the San Joaquin River emerges from the Sierra easterly form the City of Fresno and cuts through the foothills, its flow is interrupted by the Friant Dam, and the accumulating water forms the "Millerton Lake". From this lake, with its accumulation of regular and flash run-offs of the river, water is equated and distributed for beneficial uses.

The Rank v. Krug suit concerns the legal right to distribution of the water impounded in Millerton Lake in relation to certain water rights of claimants below the dam, and down to "Mendota Pool", a stretch of about forty miles. The dam is the property of the United States and it, with the water back of it, is, and since the water has accumulated, has been in the possession of the United States and actually controlled by the United States under its claim of right.

The plaintiffs' claim in the Rank v. Krug action, briefly stated, is that they have the present right to a flow down the San Joaquin River between the named points and that those in charge of the dam and its outlets have and are preventing a sufficient amount of water to flow into the river to adequately supply their rightful beneficial uses.

The project, the law by which it was initiated and constructed, the applicable water law of California and the issues involved in the Rank v. Krug action, may be found described and documented in Rank v. Krug, D.C.1950, 90 F.Supp. 773, in an opinion rendered by Judge Peirson M. Hall upon decision as to a motion for injunction pendente lite. See, also, United States v. Gerlach Live Stock Co., 1950, 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231.

Insofar as it is useful to mention here, the defendants in the pending district court case of Rank v. Krug, being sued individually and officially are: Julius A. Krug, the then Secretary of the Interior of the United States; and the following persons holding the following offices in the United States Bureau of Reclamation, viz.: Michael W. Straus, Commissioner; Richard Boke, Regional Director; Martin Blote, Regional Water Master; Jack Rodner, District Manager; R. K. Durant, Construction Engineer and Resident Engineer; also named as defendants are: Madera Irrigation District and its Directors; Southern San Joaquin Municipal Utility District and its Directors; as well as various Doe districts and Doe directors.

As is seen, the United States is not named as a party and the court throughout its entertainment of the action has conducted the case upon its holding that the United States is not a party and is not a necessary or indispensable party to the maintenance of the action. The court has, however, made the suggestion that the United States voluntarily come into the action as a party; and at the time the instant proceeding was submitted, a motion by plaintiffs to make the United States a party had been made but remained unruled upon. (See Title 43 U.S.C.A. § 666, a statute permitting the United States to be made a party to water cases, enacted however, after the institution of the Rank v. Krug suit.) An Assistant Attorney General is the attorney of record for all of the named United States officials and employees who have appeared in the case, and throughout the proceedings he has actively participated in the interests of the Project as directed by the Attorney General of the United States.

There is nothing new, irregular, or improper in the fact that government attorneys have been and are attorneys for the government officers and employees who have appeared in the case, and that fact, standing alone, does not bring the United States into the case as a party.²

That the United States is interested in the issues pending in the district court case is patent, and especially is it interested in the water impounded behind Friant Dam; and the issues, when decided, including interlocutory orders, are subject to and with little doubt will be appealed to the United States Court of Appeals. It is the claim of the United States that there is irreparable waste under the court's order of April 24, 1953, and that waste of water is destruction of the res of the case. We have a duty to preserve our appellate jurisdiction in the district court case since we may well have to exercise it. Title 28 U.S. C.A. § 1651; Ex parte Republic of Peru, 1943, 318 U.S. 578, 582, 63 S.Ct. 793, 87 L.Ed. 1014; Gulf Research & Development Co. v. Harrison, 9 Cir., 1950, 185 F.2d 457; Roche v. Evaporated Milk Ass'n, 1943, 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185. Our jurisdiction to entertain the United States' petition depends upon the necessity of our order to preserve the res in the appeal. It is obvious that the res, to the extent that water is wasted because of the district court's order, is destroyed. We therefore, hold that the United States has the right to petition us and that we have the right to entertain the petition of the United States in prohibition or mandamus. See Ex parte State of New York, No. 1, 1921, 256 U.S. 490, 503, 41 S.Ct. 588, 65 L.Ed. 1057; Ex parte Republic of Peru, 1943, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 1014.

The Rank v. Krug action has been on trial for aproximately two hundred court days, and the relevant water problems have been presented in detail with governmental experts and counsel actively participating. However, the United States is not a party to the action, and no judgment in the case can be entered against it, and no judgment that may be entered in the case can be res judicata as to the United States. See United States v. Dollar, 9 Cir., 1952, 196 F.2d 551; United States v. Lee, 1882, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171, and the line of cases following the Lee case.

The showing to us is conclusive of the fact that the agencies, officials, and employees of the United States whose duties...