US v. State of Or. Water Resources Dept., Civ. No. 90-1329-FR.
| Citation | 774 F. Supp. 1568 |
| Decision Date | 30 September 1991 |
| Docket Number | Civ. No. 90-1329-FR. |
| Parties | UNITED STATES of America, Plaintiff, and The Klamath Tribe, Plaintiff-Intervenor, v. STATE OF OREGON WATER RESOURCES DEPARTMENT and William H. Young, its Director, Defendants. |
| Court | U.S. District Court — District of Oregon |
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Charles H. Turner, U.S. Atty., D. Or., Portland, Or., Gary B. Randall, Michael A. Gheleta, Peter Monson, John P. Lange, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, D.C., for plaintiff.
Carl Ullman, Water Adjudication Project, The Klamath Tribe, Chiloquin, Or., Melody McCoy, Walter Echo-Hawk, Native American Rights Fund, Boulder, Colo., for plaintiff-intervenor.
Dave Frohnmayer, Atty. Gen., Stephanie L. Striffler, Eric J. Bloch, Asst. Attys. Gen., Salem, Or., for defendants.
The matters before the court are:
1) the motion for summary judgment of plaintiff, the United States of America (# 52);
2) the motion for summary judgment of plaintiff-intervenor, the Klamath Tribe (# 55); and
3) the motion for summary judgment of defendants, the Water Resources Department of the State of Oregon and William H. Young, its Director (# 54).
In its complaint, the United States seeks a judicial declaration that it has not waived its sovereign immunity under the McCarran Amendment, 43 U.S.C. § 666, so as to vest the State of Oregon with jurisdiction to compel the United States to appear and submit claims for rights to water in the Klamath Basin Adjudication being conducted by the Water Resources Department of the State of Oregon. The United States seeks a permanent injunction prohibiting the State of Oregon from proceeding against the rights of the United States to water in the Klamath Basin in the proceedings before the Water Resources Department of the State of Oregon, or from otherwise affecting the rights of the United States to water in the Klamath Basin in any manner whatsoever.
The United States also seeks a declaration that it has not waived its sovereign immunity under the McCarran Amendment so as to vest the State of Oregon with jurisdiction to compel the United States to file registration statements of claims of "federal reserved" and "vested" rights to water in the State of Oregon outside of the Klamath River Basin, and a permanent injunction prohibiting the State of Oregon from compelling the United States to file such registration statements or from otherwise affecting the rights of the United States to water in the State of Oregon through the requirement of filing "registration statements."
In its complaint in intervention, the Klamath Tribe (the Tribe) adopts the complaint of the United States and alleges two additional claims for relief: 1) to subject the water rights of the Tribe to quantification under the processes used by the State of Oregon is to deny the Tribe its right to an unbiased decision maker in violation of the Fifth and Fourteenth Amendments to the United States Constitution; and 2) to impose upon the Tribe the fees required by the State of Oregon in conjunction with the filing of claims for water rights is impermissible because federal law, including the Treaty of 1864 and federal common law, preempts the imposition of such fees on its federal rights.
Since February 24, 1909, the Water Resources Department of the State of Oregon has issued permits and certificates for uses of water in the Klamath Basin. In 1975, the State of Oregon initiated the Klamath Basin Adjudication by sending notices to approximately 30,000 potential claimants of water rights. A claimant of water rights who was notified of the Klamath Basin Adjudication was also notified that the claimant must participate in the adjudication of water rights or the State of Oregon would conclude that the claimant had abandoned its claim to water rights.
The Attorney General of the United States was served with notice of the Klamath Basin Adjudication on December 21, 1990. Approximately 220 claims to water rights have been submitted to the State of Oregon in the Klamath Basin Adjudication; 56 of the claims are the claims of allottees who are members of the Tribe, and the remaining 164 claims are non-federal and non-Indian claims.
The only claims that may be filed in the Klamath Basin Adjudication are those based on water usage initiated before February 24, 1909 and rights to water reserved by the federal government. The State of Oregon has threatened to treat the rights reserved by the federal government as forfeited if the United States fails to participate in the proceedings before the Water Resources Department of the State of Oregon in the Klamath Basin Adjudication. The Water Resources Department of the State of Oregon has in the past refused to file claims to water rights that were not accompanied by statutory filing fees. The Water Resources Department of the State of Oregon will refuse to accept claims filed by the federal government if these claims are not accompanied by the applicable filing fees.
The State of Oregon also seeks to compel the United States to file with the Water Resources Department of the State of Oregon "registration statements" of all "federal reserved" and "vested" claims to water throughout the State of Oregon except for the Klamath Basin.
A treaty between the government of the United States and the Tribe reserves to the Tribe certain water rights, including agricultural water rights and streamflow water rights. Streamflow water rights are nonconsumptive rights to an amount of water in streams to support the resources required for the fishing, hunting, trapping and gathering activities allowed to the Tribe by treaty with the United States.
The quantification of water rights in the Klamath Basin that has been initiated by the State of Oregon includes areas where the federal government has granted water rights to the Tribe. The Water Resources Department of the State of Oregon has served notice on the Tribe that the Tribe must file its claims to these federally-granted water rights with the State of Oregon or these claims will be deemed forfeited by the State of Oregon.
The United States contends that it is entitled to summary judgment in its favor on all claims because:
1) the proceedings that the State of Oregon is employing to determine water rights are administrative and do not constitute a "suit" within the meaning of the McCarran Amendment; and
2) the Klamath Basin Adjudication being conducted by the State of Oregon is not "comprehensive" within the meaning of the McCarran Amendment because a) it does not include adjudication of water rights on other previously adjudicated tributaries of the Klamath River or afford the United States an opportunity to contest those previously adjudicated rights; b) it does not include post-1909 water rights and does not afford the United States an opportunity to contest those rights; and c) it does not include adjudication of rights to groundwater; and 3) the State of Oregon cannot compel the United States to file registration statements covering all of the water rights that the United States claims in the State of Oregon because a) the scheme of filing registration statements is not a "suit" within the meaning of the McCarran Amendment; b) the scheme of filing registration statements is not a "comprehensive general adjudication" within the meaning of the McCarran Amendment; and c) there is no authority for the State of Oregon to require the United States to file registration statements; and
4) the State of Oregon cannot compel the United States to pay filing fees to cover the costs incurred by the State of Oregon in registering and adjudicating claims to water rights because a) the United States has not waived sovereign immunity with respect to such a requirement; b) the filing fee requirement is barred by the supremacy clause of the United States Constitution; c) the filing fee requirement is barred by the property clause of the United States Constitution; and d) the filing fee requirement is barred by 28 U.S.C. § 2408.
The Tribe contends that it is entitled to summary judgment on each of its claims for the reasons stated by the United States and for the following additional reasons:
1) to require the Tribe to submit to the adjudication procedures of the State of Oregon regarding water rights would deprive the Tribe of its due process right to an impartial decision maker; and
2) the imposition of filing fees on the water rights of the Tribe, which rights were granted by treaty with the federal government, is preempted by federal law.
The State of Oregon contends that it is entitled to summary judgment in its favor on the claims of the United States and the Tribe because:
1) the stipulated consent decree entered in United States v. Adair, 478 F.Supp. 336 (D.Or.1979), bars the Tribe and the United States from obtaining a declaration that the process used by the State of Oregon to adjudicate the water rights of the United States and the Tribe does not meet the requirements of the McCarran Amendment for waiving the sovereign immunity of the United States; and
2) the procedure followed by the State of Oregon to adjudicate the water rights of the Tribe and the United States meets the requirements of the McCarran Amendment for waiving sovereign immunity of the United States because the Attorney General of the United States has been served with notice of the Klamath Basin Adjudication, and the Klamath Basin Adjudication is a "comprehensive" system that constitutes a "suit" for the purpose of determining water rights; and
3) the process of the State of Oregon in determining the water rights of the United States and the Tribe does not violate the due process clause of the fourteenth amendment because the water rights of the Tribe will not be adjudicated by decision makers who are biased; and
4) the United States and the Tribe are required to file...
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