ELR Citation: ELR 20531
No(s). s. 92-36983 et al (9th Cir. Dec 28, 1994)

The court holds that the McCarran Amendment waives U.S. sovereign immunity to an adjudication of water rights in Oregon's Klamath River Basin that involves administrative and judicial determinations. The McCarran Amendment consents to the joinder of the United States as a defendant in any suit for the adjudication of rights to the use of water of a river system or other source. The court first addresses the federal government's argument that the McCarran Amendment allows joinder of the United States only in traditional lawsuits initiated in court and tried exclusively before a judge. The court notes that in United States v. Idaho, 23 ELR 20821 (1993), the U.S. Supreme Court considered Colorado's statutory scheme for adjudicating water rights to be one of the comprehensive state systems Congress had in mind when passing the McCarran Amendment. Like Oregon's system, the Colorado system involves an initial adjudication by nonjudicial officers, subject to state court review. Thus, the Supreme Court recognized that Congress had in mind not only traditional suits in equity but also hybrid adjudications taking advantage of the expertise of nonjudicial officials. The court finds that the active participation of administrative agencies is at the core of most of the comprehensive state systems for adjudication of water rights contemplated by the McCarran Amendment. In addition, when Congress passed the McCarran Amendment, Oregon's adjudicatory scheme was firmly established in its present form. The court rejects the federal government's argument that Oregon's water rights adjudications are not sufficiently comprehensive to fall under the McCarran Amendment because the rights of some claimants are not subject to attack. The court holds that the comprehensiveness standard requires the consolidation of existing controversies, not the reopening of settled determinations. Quoting the U.S. Supreme Court's opinion in United States v. District Court for Eagle County, 1 ELR 20189 (1971), the court notes that questions involving previously decreed rights can be reviewed in federal court after final judgment by the state court.

The court next addresses the federal government's argument that failure to include groundwater claims in the adjudication deprives the adjudication of the comprehensiveness Congress intended. The court notes that the McCarran Amendment applies to the "water of a river system or other source" and that the use of "or" strongly suggests that the adjudication may be limited to either a river system or some other source of water, like groundwater, but need not cover both. The court holds that the adjudication of water rights need not determine the rights of users of all hydrologically related water sources. In addition, the court notes that the legal recognition of the connection between ground and surface waters is too recent and too incomplete to infer that Congress intended to require comprehensive stream adjudications under the McCarran Amendment to include the adjudication of groundwater rights as well as rights to surface water.

The court next notes that the state concedes that the U.S. Supreme Court's decision in United States v. Idaho requires the reversal of the district court's decision that the United States is liable for certain filing fees required by Oregon law. In Idaho, the Supreme Court held that the McCarran Amendment did not permit Idaho to require the United States to pay filing fees essentially identical to those at issue in this case. Also, the court holds that the state may not require the United States or the Klamath Tribe to register their water rights claims before the adjudication of those claims and may not prejudice those claims if no registration statements are filed. The court holds that the connection between registration and adjudication is too tenuous for the registration provisions to be characterized as part of the adjudications to which the United States has consented to be joined.

The court next affirms the district court's summary judgment that requiring the Klamath Tribe to submit to the Klamath Basin adjudication would not deprive the tribe of due process. The tribe claimed that submitting to the adjudication would deprive it of due process because the state agencies involved in adjudicating its claims have allegedly shown a persistent bias against tribal treaty rights. The court holds that to prevail on this claim, the tribe must show an unacceptable probability of actual bias on the part of those who have actual decisionmaking power over its claims. It is not enough to show that the state, through the acts of certain departments or officials, has taken positions adverse to the tribe's claims in this case. Also, assuming that prior litigating positions reveal that the Oregon Department of Justice (ODJ) is biased against the tribe's water rights claims, the tribe must connect these prior actions to the tribunal that will adjudicate its claims. The tribe asserts that the ODJ will provide legal advice to the Oregon Water Resources Department (OWRD) during its preliminary quantification of the tribe's water rights and that a state court will make its ruling based on an administrative record developed by the OWRD. The court holds that this is insufficient to demonstrate an unacceptable probability that the decisionmakers in the Klamath Basin adjudication will be biased against the tribe's claim. The tribe failed to show that the ODJ will have any significant role in the adjudication or any impact on its outcome. Finally, the court dismisses for lack of jurisdiction an appeal by an association of individuals who own former reservation land. The district court denied the association's motion to amend the district court's judgment to extend to the association relief granted to the tribe, leaving the association's complaint unadjudicated. Thus, the district court's order is not a final judgment.

Counsel for Plaintiff
Gary B. Randall, Michael A. Gheleta
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Rives Kistler, Ass't Attorney General
Attorney General's Office
100 Justice Bldg., Salem OR 97310
(503) 378-6002

Before Alarcon, Norris, and Leavy, J.: