In this companion case to
U.S. v. District Court for Eagle
County, ante, p.
401 U. S. 520, the
United States had been served with notice pursuant to 43 U.S.C. §
666 of a proceeding in state court for the adjudication of water
rights affecting areas of the State in the drainage basins of the
Colorado River system. In addition to its claim that § 666 does not
apply to state court suits against the Government for adjudication
of its reserved water rights, the Government contended that the
state statutory proceedings involved in this case, which
contemplated monthly proceedings before a water referee on water
rights applications filed within a particular month, do not
constitute general adjudications of water rights under § 666
because all the water users and all water rights on a stream system
are not implicated in the referee's determinations. The
Government's contentions were rejected by the state courts.
Held:
1. The state court has jurisdiction to adjudicate the reserved
water rights of the United States.
Eagle County, supra. P.
401 U. S.
529.
2. The state statutory proceedings are within the scope of §
666, and reach all claims in their totality, although the
adjudication is made on a monthly basis. Pp.
401 U. S.
529-530.
Affirmed.
MR. JUSTICE DOUGLAS delivered the opinion for a unanimous Court.
MR. JUSTICE HARLAN, though joining in the opinion, filed a
concurring statement,
post, p.
401 U. S.
530.
Page 401 U. S. 528
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This is a companion case to the
Eagle County case,
ante, p.
401 U. S. 520, and
involves an action brought under a different state statute
[
Footnote 1] in the District
Court of Colorado for Water Division No. 5. [
Footnote 2] That court was given responsibility
for water rights determinations affecting "all lands in the state
of Colorado in the drainage basins of the Colorado river and all of
its tributaries arising within Colorado, with the exception of the
Gunnison river," [
Footnote 3]
which includes the area of the Eagle River system.
Notice was served on the United States pursuant to 43 U.S.C. §
666(b), and it moved to quash the service. That motion was denied.
A writ of prohibition was sought in the Supreme Court, and it was
also denied. The case is here on a petition for a writ of
certiorari, which we granted. 400 U.S. 940.
The area covered by this suit includes vastly more extensive
water rights than those involved in the Eagle County case. The
Forest Service administers four separate national forests in the
area: the White River, Arapaho, Routt, and Grand Mesa-Uncompahgre.
The Department of the Interior, through the Bureau of Reclamation,
the National Park Service, the Bureau of Land Management, the
Bureau of Mines, and the Bureau of
Page 401 U. S. 529
Sport Fisheries and Wildlife, makes use of water in Water
Division No. 5 for national recreational and other purposes. The
Department of the Navy administers certain naval petroleum and oil
shale reserves which, if ever developed, would require water to
accomplish the federal purpose for which the reservations were
made.
The major issue -- the scope of the "consent to be sued"
provision in 43 U.S.C. § 666 -- has been covered in the Eagle
County opinion, and need not be repeated here.
It is emphasized, however, that the procedures under the new Act
are much more burdensome on the Government than they were under the
older Act. It is pointed out that the new statute contemplates
monthly proceedings before a water referee on water rights
applications. These proceedings, it is argued, do not constitute
general adjudications of water rights, because all the water users
and all water rights on a stream system are not involved in the
referee's determinations. The only water rights considered in the
proceeding are those for which an application has been filed within
a particular month. It is also said that the Act makes all water
rights confirmed under the new procedure junior to those previously
awarded.
It is argued from those premises that the proceeding does not
constitute a general adjudication which 43 U.S.C. § 666
contemplated. As we said in the
Eagle County case, the
words "general adjudication" were used in
Dugan v. Rank,
372 U. S. 609,
372 U. S. 618,
to indicate that 43 U.S.C. § 666 does not cover consent by the
United States to be sued in a private suit to determine its rights
against a few claimants. The present suit, like the one in the
Eagle County case, reaches all claims, perhaps month by
month but inclusively in the totality; and, as we said in the other
case, if there is a collision between prior adjudicated
Page 401 U. S. 530
rights and reserved rights of the United States, the federal
question can be preserved in the state decision, and brought here
for review.
Affirmed.
[
Footnote 1]
The Colorado Water Rights Determination and Administration Act
of 1969, Colo.Rev.Stat.Ann. § 1421-1
et seq.,
Colo.Rev.Stat.Ann. § 148-21-18(3) (Supp. 1969).
[
Footnote 2]
The 1969 Act here in question abolished the 70 water districts
previously exiting and replaced them with seven water
divisions.
[
Footnote 3]
Colo.Rev.Stat.Ann. § 148-21-8(6).
MR. JUSTICE HARLAN, concurring.
*
I join in the opinions of the Court in these cases, explicitly
disclaiming, however, the intimation of any view as to the
existence and scope of the so-called "reserved water rights" of the
United States, either in general or in the particular situations
here involved.
* This statement applies also to No. 87,
United States v.
District Court in and for the County of Eagle et al., ante, p.
401 U. S. 520.
