ELR Citation: ELR 20821
No(s). 92-190 (U.S. May 3, 1993)

The Court holds that the McCarran Amendment does not waive the United States' sovereign immunity in Idaho water rights adjudication proceedings for filing fees that Idaho uses to finance adjudication costs. Idaho legislation provided for a state court adjudication "within the terms of the McCarran Amendment" of all water rights in the Snake River basin and required all water rights claimants to pay a filing fee, which the state uses to pay the administrative and judicial expenses attributable to water rights adjudications. Idaho refused to accept the federal government's notices of claims in a water rights adjudication because they were not submitted with the required fees, estimated to exceed $10 million.

The court holds that the McCarran Amendment does not waive the United States' sovereign immunity from payment of fees of the kind sought by Idaho. Although critical language of the Amendment submits the United States generally to state water rights law, the Court requires a specific waiver of sovereign immunity before the United States may be held liable for monetary exactions. While "fees" and "costs" generally mean two different things in the context of lawsuits, the line is blurred in the context of this proceeding. Whereas Idaho courts used to proportionately tax the "costs" against all parties to a water rights adjudication at the time final judgment was entered, many of the items formerly taxed as "costs" are now denominated as "fees," and required to be paid into court at the outset. The Supreme Court has been particularly alert to require a specific waiver of sovereign immunity before the United States may be held liable for monetary exactions in litigation, and the Amendment's language is not sufficiently specific to meet this requirement.

Counsel for Petitioner
Hon. Drew S. Days III, Solicitor General
Office of Solicitor General
U.S. Department of Justice, Rm. 5143, Washington DC 20530
(202) 514-2201

Counsel for Respondent
Larry Echo Hawk, Attorney General
Attorney General's Office
State House, Boise ID 83720
(208) 334-2400