UNITED STATES v. NEVADA et al.
No. 59,
Orig.
Argued April 16, 1973
Decided June 11, 1973
Solicitor General Griswold argued the cause for the United States. With him on the briefs were Assistant Attorney General Frizzell, Deputy Assistant Attorney General Kiechel, and Harry R. Sachse.
E. Barrett Prettyman, Jr., argued the cause for defendant State of Nevada. With him on the brief were Robert F. List, Attorney General, Timothy James Bloomfield, and Edward C. Reed, Jr. Roderick Walston, Deputy Attorney General, argued the cause for defendant State of California. With him on the brief were Evelle J. Younger, Attorney General, Carl Boronkay, Assistant Attorney General, and Bertram G. Buzzini and Dennis Antenore, Deputy Attorneys General.
Briefs of amici curiae in support of motion for leave to file bill of complaint were filed by Robert S. Pelcyger, David H. Getches, and Robert D. Stit&er for the Pyramid Lake Paiute Tribe of Indians, and by Arthur Lazarus, Jr., for the Association on American Indians Affairs, Inc.
James W. Johnson, Jr., and E. J. Skeen filed a brief for Truckee-Carson Irrigation District as amicus curiae in opposition to motion for leave to file bill of complaint.
Per Curiam.
The United States asks leave to file a bill of complaint pursuant to this Court’s original jurisdiction against the States of California and Nevada seeking a declaration of the respective rights of the States and of the United States in the Truckee River, a navigable interstate stream. The Truckee rises in the High Sierra, flows into Lake Tahoe, through which the California-Nevada boundary runs, exits on the California side of the Lake, and flows 20 miles before crossing into Nevada. It then continues another 65 miles, through Reno and beyond, to its termination in Pyramid Lake, a desert lake 20 miles long and five miles wide, with no outlet and a water level determined by the balance or imbalance between inflow and evaporation.
The bill of complaint sought to be filed states that in 1859 the United States created a reservation for the Paiute Indian Tribe that included Pyramid Lake and an extensive area surrounding it. Allegedly, the United States intended at the time to reserve sufficient water from the Truckee River to maintain Pyramid Lake and the lower reaches of the river as a viable fishery on which the Indians could depend for their subsistence and livelihood. The level of the Lake, however, is said to have declined some 70 feet since 1906, due chiefly to upstream uses and diversions which make it imperative that the prior right of the United States to sufficient water to maintain Pyramid Lake be judicially declared as against each of the defendant States.
It appears from the bill of complaint that the United States has several other interests in the waters of the Truckee River, chief among which is the right to divert at its Derby Dam, some distance upstream from Pyramid Lake, large amounts of water from the Truckee River for transportation and use in connection with the Newlands Reclamation Project, initiated and completed by the United States pursuant to the Reclamation Act of 1902, 32 Stat. 388. Judicial approval for this diversion was sought by the United States in a suit brought by it in 1913 in the United States District Court for the District of Nevada. United States v. Orr Water Ditch Co., Equity No. A-3 (1944). The decree entered in this action in 1944 authorized the United States to divert Truckee River water at Derby Dam for delivery to the Newlands Project; it also declared the prior right of the United States to sufficient Truckee River water to irrigate some 3,130 acres of bottom land and 2,745 acres of bench land on the Pyramid Lake Indian Reservation. App. D to Motion for Leave to File Complaint.
The foremost purpose of the United States in seeking to institute the present litigation is to perfect a prior water right against all upstream uses that will maintain Pyramid Lake at its current level and so prevent further deterioration of the lake and the river as a habitat for the native fish that have historically thrived in the lake and that have provided sustenance for the Tribe.
The motion for leave to file a bill of complaint is denied. The States of California and Nevada have entered into a compact with respect to their respective shares in the Truckee River water, and that compact is the subject of pending bills in Congress. H. R. 15, S. 24, 93d Cong., 1st Sess. There is now no controversy between the two States with respect to the Truckee River. The complaint, therefore, as the United States concedes, is not one alleging a case or controversy between two States within the exclusive jurisdiction of this Court, under 28 U. S. C. § 1251 (a), but a dispute between the United States and two States over which this Court has original but not exclusive jurisdiction under § 1251 (b)(2).
We seek to exercise our original jurisdiction sparingly and are particularly reluctant to take jurisdiction of a suit where the plaintiff has another adequate forum in which to settle his claim. Illinois v. City of Milwaukee, 406 U. S. 91 (1972); Ohio v. Wyandotte Chemicals Corp., 401 U. S. 493 (1971); Massachusetts v. Missouri, 308 U. S. 1 (1939). Here, Nevada disputes the right of the United States to sufficient water to maintain Pyramid Lake at any particular level. It also asserts that the United States is bound by the 1944 Orr Ditch decree to respect the private water rights of hundreds of landowners who are served by the Newlands Project and whose rights are dependent upon the right of the United States to divert Truckee River water, the decree authorizing that diversion, and a contract with the United States to deliver the water to the project. This dispute over the Orr Ditch decree and the existence and extent of the prior water rights of the United States with respect to the Pyramid Lake Indian Reservation is within the jurisdiction of the District Court. We need not employ our original jurisdiction to settle competing claims to water within a single State. This is particularly the case where the individual users of water in the Newlands Project, who ordinarily would have no right to intervene in an original action in this Court, New Jersey v. New York, 345 U. S. 369, 373-375 (1953), would have an opportunity to participate in their own behalf if this litigation goes forward in the District Court.
We recognize that the United States will not be able to join California as a defendant in a suit in Nevada to perfect Pyramid Reservation water rights and that, absent California’s voluntary appearance, a Nevada decree would not bind that State. Hinderlider v. La Plata Co., 304 U. S. 92, 103 (1938). But these are not determinative considerations. Under the proposed interstate compact, California and Nevada have agreed upon their respective shares of Truckee River water. Nevada has also agreed that any rights to the use of water in Nevada by the United States or its wards are to be charged against Nevada’s share of Truckee water. For the purposes of dividing the waters of an interstate stream with another State, Nevada has the right, parens patriae, to represent all the nonfederal users in its own State insofar as the share allocated to the other State is concerned. It is therefore doubtful at best that there is now any dispute at all between California and the United States with respect to the latter’s claim to water rights at Pyramid Lake. New Jersey v. New York, supra, at 372-373; Hinderlider v. La Plata Co., supra, at 106; Nebraska v. Wyoming, 295 U. S. 40, 43 (1935); 325 U. S. 589, 612-615, 629 (1945). It is true that upstream or downstream water uses and priorities are important considerations when the judiciary equitably apportions an interstate stream, Hinderlider v. La Plata Co., supra, at 102; Nebraska v. Wyoming, 325 U. S., at 617; Wyoming v. Colorado, 259 U. S. 419, 470 (1922), but the United States would appear to have occasion to object to upstream diversions in California on the grounds of interference with its Pyramid Lake water rights only if the compact between the two States is not approved or Nevada, prior to such approval, disowns the agreed-upon division of Truckee River water. In that event, a dispute between the two States may arise, and the United States would then perhaps have some ground to participate and assert that California’s share must be reduced in order to accommodate a prior, long-established use by the United States in the State of Nevada. Cf. Arizona v. California, 373 U. S. 546 (1963); Nebraska v. Wyoming, supra. Any possible dispute with California with respect to United States water uses in that State can be settled in the lower federal courts in California; and the possibility of a ripe controversy between the United States and California with respect to Pyramid Lake water rights appears too remote to warrant granting the Government’s motion for leave to file the instant complaint. We deny the motion, but without prejudice to refiling it should the posture of the litigation change in a manner that presents a more substantial basis for the exercise of our original jurisdiction.
So ordered.
Mr. Justice Douglas dissents.
The United States also operates the Washoe Reclamation Project in Nevada and California which was established under the Washoe Project Act of 1956, 70 Stat. 775. The Act provides, inter alia, for establishing facilities to permit increased releases of water from Lake Tahoe and restoration of the Pyramid Lake fishery, 43 U. S. C. § 614c.
In addition to the right claimed for Pyramid Lake, the United States seeks to have rights decreed for it to the use of waters in and on national forests within the Truckee River watershed, to waters reserved as public water holes and hot springs, to the use of waters in and on public lands where the waters have heretofore been put to beneficial use on those lands, and to the use of runoff waters from the Newlands Project for use in a wildlife refuge.
attorney general of the United States, or his office specified state board or department of education city, town, township, village, or borough government or governmental unit state commission, board, committee, or authority county government or county governmental unit, except school district court or judicial district state department or agency governmental employee or job applicant female governmental employee or job applicant minority governmental employee or job applicant minority female governmental employee or job applicant not listed among agencies in the first Administrative Action variable retired or former governmental employee U.S. House of Representatives interstate compact judge state legislature, house, or committee local governmental unit other than a county, city, town, township, village, or borough governmental official, or an official of an agency established under an interstate compact state or U.S. supreme court local school district or board of education U.S. Senate U.S. senator foreign nation or instrumentality state or local governmental taxpayer, or executor of the estate of state college or university United States State person accused, indicted, or suspected of crime advertising business or agency agent, fiduciary, trustee, or executor airplane manufacturer, or manufacturer of parts of airplanes airline distributor, importer, or exporter of alcoholic beverages alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked American Medical Association National Railroad Passenger Corp. amusement establishment, or recreational facility arrested person, or pretrial detainee attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association author, copyright holder bank, savings and loan, credit union, investment company bankrupt person or business, or business in reorganization establishment serving liquor by the glass, or package liquor store water transportation, stevedore bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines brewery, distillery broker, stock exchange, investment or securities firm construction industry bus or motorized passenger transportation vehicle business, corporation buyer, purchaser cable TV car dealer person convicted of crime tangible property, other than real estate, including contraband chemical company child, children, including adopted or illegitimate religious organization, institution, or person private club or facility coal company or coal mine operator computer business or manufacturer, hardware or software consumer, consumer organization creditor, including institution appearing as such; e.g., a finance company person allegedly criminally insane or mentally incompetent to stand trial defendant debtor real estate developer disabled person or disability benefit claimant distributor person subject to selective service, including conscientious objector drug manufacturer druggist, pharmacist, pharmacy employee, or job applicant, including beneficiaries of employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan electric equipment manufacturer electric or hydroelectric power utility, power cooperative, or gas and electric company eleemosynary institution or person environmental organization employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. farmer, farm worker, or farm organization father female employee or job applicant female movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of fisherman or fishing company food, meat packing, or processing company, stockyard foreign (non-American) nongovernmental entity franchiser franchisee lesbian, gay, bisexual, transexual person or organization person who guarantees another's obligations handicapped individual, or organization of devoted to health organization or person, nursing home, medical clinic or laboratory, chiropractor heir, or beneficiary, or person so claiming to be hospital, medical center husband, or ex-husband involuntarily committed mental patient Indian, including Indian tribe or nation insurance company, or surety inventor, patent assigner, trademark owner or holder investor injured person or legal entity, nonphysically and non-employment related juvenile government contractor holder of a license or permit, or applicant therefor magazine male medical or Medicaid claimant medical supply or manufacturing co. racial or ethnic minority employee or job applicant minority female employee or job applicant manufacturer management, executive officer, or director, of business entity military personnel, or dependent of, including reservist mining company or miner, excluding coal, oil, or pipeline company mother auto manufacturer newspaper, newsletter, journal of opinion, news service radio and television network, except cable tv nonprofit organization or business nonresident nuclear power plant or facility owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels shareholders to whom a tender offer is made tender offer oil company, or natural gas producer elderly person, or organization dedicated to the elderly out of state noncriminal defendant political action committee parent or parents parking lot or service patient of a health professional telephone, telecommunications, or telegraph company physician, MD or DO, dentist, or medical society public interest organization physically injured person, including wrongful death, who is not an employee pipe line company package, luggage, container political candidate, activist, committee, party, party member, organization, or elected official indigent, needy, welfare recipient indigent defendant private person prisoner, inmate of penal institution professional organization, business, or person probationer, or parolee protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer public utility publisher, publishing company radio station racial or ethnic minority person or organization protesting racial or ethnic segregation or discrimination racial or ethnic minority student or applicant for admission to an educational institution realtor journalist, columnist, member of the news media resident restaurant, food vendor retarded person, or mental incompetent retired or former employee railroad private school, college, or university seller or vendor shipper, including importer and exporter shopping center, mall spouse, or former spouse stockholder, shareholder, or bondholder retail business or outlet student, or applicant for admission to an educational institution taxpayer or executor of taxpayer's estate, federal only tenant or lessee theater, studio forest products, lumber, or logging company person traveling or wishing to travel abroad, or overseas travel agent trucking company, or motor carrier television station union member unemployed person or unemployment compensation applicant or claimant union, labor organization, or official of veteran voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) wholesale trade wife, or ex-wife witness, or person under subpoena network slave slave-owner bank of the united states timber company u.s. job applicants or employees Army and Air Force Exchange Service Atomic Energy Commission Secretary or administrative unit or personnel of the U.S. Air Force Department or Secretary of Agriculture Alien Property Custodian Secretary or administrative unit or personnel of the U.S. Army Board of Immigration Appeals Bureau of Indian Affairs Bonneville Power Administration Benefits Review Board Civil Aeronautics Board Bureau of the Census Central Intelligence Agency Commodity Futures Trading Commission Department or Secretary of Commerce Comptroller of Currency Consumer Product Safety Commission Civil Rights Commission Civil Service Commission, U.S. Customs Service or Commissioner of Customs Defense Base Closure and REalignment Commission Drug Enforcement Agency Department or Secretary of Defense (and Department or Secretary of War) Department or Secretary of Energy Department or Secretary of the Interior Department of Justice or Attorney General Department or Secretary of State Department or Secretary of Transportation Department or Secretary of Education U.S. Employees' Compensation Commission, or Commissioner Equal Employment Opportunity Commission Environmental Protection Agency or Administrator Federal Aviation Agency or Administration Federal Bureau of Investigation or Director Federal Bureau of Prisons Farm Credit Administration Federal Communications Commission (including a predecessor, Federal Radio Commission) Federal Credit Union Administration Food and Drug Administration Federal Deposit Insurance Corporation Federal Energy Administration Federal Election Commission Federal Energy Regulatory Commission Federal Housing Administration Federal Home Loan Bank Board Federal Labor Relations Authority Federal Maritime Board Federal Maritime Commission Farmers Home Administration Federal Parole Board Federal Power Commission Federal Railroad Administration Federal Reserve Board of Governors Federal Reserve System Federal Savings and Loan Insurance Corporation Federal Trade Commission Federal Works Administration, or Administrator General Accounting Office Comptroller General General Services Administration Department or Secretary of Health, Education and Welfare Department or Secretary of Health and Human Services Department or Secretary of Housing and Urban Development Interstate Commerce Commission Indian Claims Commission Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement Internal Revenue Service, Collector, Commissioner, or District Director of Information Security Oversight Office Department or Secretary of Labor Loyalty Review Board Legal Services Corporation Merit Systems Protection Board Multistate Tax Commission National Aeronautics and Space Administration Secretary or administrative unit of the U.S. Navy National Credit Union Administration National Endowment for the Arts National Enforcement Commission National Highway Traffic Safety Administration National Labor Relations Board, or regional office or officer National Mediation Board National Railroad Adjustment Board Nuclear Regulatory Commission National Security Agency Office of Economic Opportunity Office of Management and Budget Office of Price Administration, or Price Administrator Office of Personnel Management Occupational Safety and Health Administration Occupational Safety and Health Review Commission Office of Workers' Compensation Programs Patent Office, or Commissioner of, or Board of Appeals of Pay Board (established under the Economic Stabilization Act of 1970) Pension Benefit Guaranty Corporation U.S. Public Health Service Postal Rate Commission Provider Reimbursement Review Board Renegotiation Board Railroad Adjustment Board Railroad Retirement Board Subversive Activities Control Board Small Business Administration Securities and Exchange Commission Social Security Administration or Commissioner Selective Service System Department or Secretary of the Treasury Tennessee Valley Authority United States Forest Service United States Parole Commission Postal Service and Post Office, or Postmaster General, or Postmaster United States Sentencing Commission Veterans' Administration War Production Board Wage Stabilization Board General Land Office of Commissioners Transportation Security Administration Surface Transportation Board U.S. Shipping Board Emergency Fleet Corp. Reconstruction Finance Corp. Department or Secretary of Homeland Security Unidentifiable International Entity