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CALIFORNIA ET AL. v. UNITED STATES

decided: July 3, 1978.

CALIFORNIA ET AL
v.
UNITED STATES



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Blackmun, Powell, and Stevens, JJ., joined. White, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 679.

Author: Rehnquist

[ 438 U.S. Page 647]

 MR. JUSTICE REHNQUIST delivered the opinion of the Court.

The United States seeks to impound 2.4 million acre-feet of water from California's Stanislaus River as part of its Central Valley Project. The California State Water Resources Control Board ruled that the water could not be allocated to the Government under state law unless it agreed to and complied with various conditions dealing with the water's use. The Government then sought a declaratory judgment in the District Court for the Eastern District of California to the effect that the United States can impound whatever unappropriated water is necessary for a federal reclamation project without complying with state law. The District Court held that, as a matter of comity, the United States must apply to the State for an appropriation permit, but that the State must issue the permit without condition if there is sufficient unappropriated water. 403 F.Supp. 874 (1975). The Court of Appeals for the Ninth Circuit affirmed, but held that § 8 of the Reclamation Act of 1902, 32 Stat. 390, as codified, 43 U. S. C. §§ 372, 383, rather than comity, requires the United States to apply for the permit. 558 F.2d 1347 (1977). We granted certiorari to review the decision of the Court of Appeals insofar as it holds that California cannot condition its allocation of water to a federal reclamation project. 434 U.S. 984 (1977). We now reverse.

[ 438 U.S. Page 648]

     I

Principles of comity and federalism, which the District Court and the Court of Appeals referred to and which have received considerable attention in our decisions, are as a legal matter based on the Constitution of the United States, statutes enacted by Congress, and judge-made law. But the situations invoking the application of these principles have contributed importantly to their formation. Just as it has been truly said that the life of the law is not logic but experience, see O. Holmes, The Common Law 1 (1881), so may it be said that the life of the law is not political philosophy but experience.

The very vastness of our territory as a Nation, the different times at which it was acquired and settled, and the varying physiographic and climatic regimes which obtain in its different parts have all but necessitated the recognition of legal distinctions corresponding to these differences. Those who first set foot in North America from ships sailing the tidal estuaries of Virginia did not confront the same problems as those who sailed flat boats down the Ohio River in search of new sites to farm. Those who cleared the forests in the old Northwest Territory faced totally different physiographic problems from those who built sod huts on the Great Plains. The final expansion of our Nation in the 19th century into the arid lands beyond the hundredth meridian of longitude, which had been shown on early maps as the "Great American Desert," brought the participants in that expansion face to face with the necessity for irrigation in a way that no previous territorial expansion had.

In order to correctly ascertain the meaning of the Reclamation Act of 1902, we must recognize the obvious truth that the history of irrigation and reclamation before that date was much fresher in the minds of those then in Congress than it is to us today. "[The] afternoon of July 23, 1847, was the true date of the beginning of modern irrigation. It was on that afternoon that the first band of Mormon pioneers built a small

[ 438 U.S. Page 649]

     dam across City Creek near the present site of the Mormon Temple and diverted sufficient water to saturate some 5 acres of exceedingly dry land. Before the day was over they had planted potatoes to preserve the seed."*fn1 During the subsequent half century, irrigation expanded throughout the arid States of the West, supported usually by private enterprise or the local community.*fn2 By the turn of the century, however, most of the land which could be profitably irrigated by such small-scale projects had been put to use. Pressure mounted on the Federal Government to provide the funding for the massive projects that would be needed to complete the reclamation, culminating in the Reclamation Act of 1902.*fn3

The arid lands were not all susceptible of the same sort of reclamation. The climate and topography of the lands that constituted the "Great American Desert" were quite different from the climate and topography of the Pacific Coast States. As noted in both United States v. Gerlach Live Stock Co., 339 U.S. 725 (1950), and Ivanhoe Irrigation District v. McCracken, 357 U.S. 275 (1958), the latter States not only had a more pronounced seasonal variation and precipitation than the intermountain States, but the interior portions of California had climatic advantages which many of the intermountain States did not.

"The prime value in our national economy of the lands of summer drought on the Pacific coast is as a source of

[ 438 U.S. Page 650]

     plant products that require mild winters and long growing seasons. Citrus fruits, the less hardy deciduous fruits, fresh vegetables in winter -- these are their most important contributions at present. Rainless summers make possible the inexpensive drying of fruits, which puts into the market prunes, raisins, dried peaches, and apricots. In its present relation to American economy in general, the primary technical problem of agriculture in the Pacific Coast States is to make increasingly more effective use of the mild winters and the long growing season in the face of the great obstacle presented by the rainless summers. To overcome that obstacle supplementary irrigation is necessary. Hence the key position of water in Pacific Coast agriculture."*fn4

If the term "cooperative federalism" had been in vogue in 1902, the Reclamation Act of that year would surely have qualified as a leading example of it. In that Act, Congress set forth on a massive program to construct and operate dams, reservoirs, and canals for the reclamation of the arid lands in 17 Western States. Reflective of the "cooperative federalism" which the Act embodied is § 8, whose exact meaning and scope are the critical inquiries in this case:

"[ Nothing ] in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof: Provided, that the

[ 438 U.S. Page 651]

     right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right." 32 Stat. 390 (emphasis added).

Perhaps because of the cooperative nature of the legislation, and the fact that Congress in the Act merely authorized the expenditure of funds in States whose citizens were generally anxious to have them expended, there has not been a great deal of litigation involving the meaning of its language. Indeed, so far as we can tell, the first case to come to this Court involving the Act at all was Ickes v. Fox, 300 U.S. 82 (1937), and the first case to require construction of § 8 of the Act was United States v. Gerlach Live Stock Co., supra, decided nearly half a century after the enactment of the 1902 statute.*fn5

The New Melones Dam, which this litigation concerns, is part of the California Central Valley Project, the largest reclamation project yet authorized under the 1902 Act.*fn6 The Dam, which will impound 2.4 million acre-feet of water of California's Stanislaus River, has the multiple purposes of flood control, irrigation, municipal use, industrial use, power, recreation, water-quality control, and the protection of fish and wildlife. The waters of the Stanislaus River that will be impounded behind the New Melones Dam arise and flow solely in California.

[ 438 U.S. Page 652]

     The United States Bureau of Reclamation, as it has with every other federal reclamation project, applied for a permit from the appropriate state agency, here the California State Water Resources Control Board, to appropriate the water that would be impounded by the Dam and later used for reclamation.*fn7 After lengthy hearings, the State Board found that unappropriated water was available for the New Melones Dam during certain times of the year. Although it therefore approved the Bureau's applications, the State Board attached 25 conditions to the permit. California State Water Resources Control Board, Decision 1422 (Apr. 14, 1973). The most important conditions prohibit full impoundment until the Bureau is able to show firm commitments, or at least a specific plan, for the use of the water.*fn8 The State Board

[ 438 U.S. Page 653]

     concluded that without such a specific plan of beneficial use the Bureau had failed to meet the California statutory requirements for appropriation.

"The limited unappropriated water resources of the State should not be committed to an applicant in the absence of a showing of his actual need for the water within a reasonable time in the future. When the evidence indicates, as it does here, that an applicant already has a right to sufficient water to meet his needs for beneficial use within the foreseeable future, rights to additional water should be withheld and that water should be reserved for other beneficial uses." Id., at 16.

II

The history of the relationship between the Federal Government and the States in the reclamation of the arid lands of the Western States is both long and involved, but through it runs the consistent thread of purposeful and continued deference to state water law by Congress. The rivers, streams, and lakes of California were acquired by the United States under the 1848 Treaty of Guadalupe Hidalgo with the Republic of Mexico, 9 Stat. 922. Within a year of that treaty, the California gold rush began, and the settlers in this new land quickly realized that the riparian doctrine of water rights that had served well in the humid regions of the East would not work in the arid lands of the West. Other settlers coming into the intermountain area, the vast basin and range country which lies between the Rocky Mountains on the east and the Sierra Nevada and Cascade Ranges on the west, were forced to the same conclusion. In its place, the doctrine of prior appropriation, linked to beneficial use of the water, arose through local customs, laws,

[ 438 U.S. Page 654]

     and judicial decisions. Even in this early stage of the development of Western water law, before many of the Western States had been admitted to the Union, Congress deferred to the growing local law. Thus, in Broder v. Water Co., 101 U.S. 274 (1879), the Court observed that local appropriation rights were "rights which the government had, by its conduct, recognized and encouraged and was bound to protect." Id., at 276.

In 1850, California was admitted as a State to the Union "on an equal footing with the original States in all respects whatever." 9 Stat. 452. While § 3 of the Act admitting California to the Union specifically reserved to the United States all "public lands" within the limits of California, no provision was made for the unappropriated waters in California's streams and rivers. One school of legal commentators held the view that, under the equal-footing doctrine, the Western States, upon their admission to the Union, acquired exclusive sovereignty over the unappropriated waters in their streams. In 1903, for example, one leading expert on reclamation and water law observed that "[it] has heretofore been assumed that the authority of each State in the disposal of the water-supply within its borders was unquestioned and supreme, and two of the States have constitutional provisions asserting absolute ownership of all water-supplies within their bounds." E. Mead, Irrigation Institutions 372 (1903).*fn9 Such commentators were not without some support from language

[ 438 U.S. Page 655]

     in contemporaneous decisions of this Court. See S. Wiel, Water Rights in the Western States §§ 40-43, pp. 84-95 (2d ed. 1908). Thus, in Kansas v. Colorado, 206 U.S. 46 (1907), the Court noted:

"While arid lands are to be found mainly, if not only in the Western and newer States, yet the powers of the National Government within the limits of those States are the same (no greater and no less) than those within the limits of the original thirteen.

"In the argument on the demurrer counsel for plaintiff endeavored to show that Congress had expressly imposed the common law on all this territory prior to its formation into States. . . . But when the States of Kansas and Colorado were admitted into the Union they were admitted with the full powers of local sovereignty which belonged to other States, Pollard v. Hagan, [3 How. 212]; Shively v. Bowlby, [152 U.S. 1]; Hardin v. Shedd, 190 U.S. 508, 519; and Colorado by its legislation has recognized the right of appropriating the flowing waters to the purposes of irrigation." Id., at 92 and 95.

And see United States v. Rio Grande Dam & Irrig. Co., 174 U.S. 690, 702-703, and 709 (1899).

As noted earlier, reclamation of the arid lands began almost immediately upon the arrival of pioneers to the Western States. Huge sums of private money were invested in systems to transport water vast distances for mining, agriculture, and ordinary consumption. Because a very high percentage of land in the West belonged to the Federal Government, the canals and ditches that carried this water frequently crossed

[ 438 U.S. Page 656]

     federal land. In 1862, Congress opened the public domain to homesteading. Homestead Act of 1862, 12 Stat. 392. And in 1866, Congress for the first time expressly opened the mineral lands of the public domain to exploration and occupation by miners. Mining Act of 1866, ch. 262, 14 Stat. 251. Because of the fear that these Acts might in some way interfere with the water rights and systems that had grown up under state and local law, Congress explicitly recognized and acknowledged the local law:

"[Whenever], by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same." § 9, 14 Stat. 253.

The Mining Act of 1866 was not itself a grant of water rights pursuant to federal law. Instead, as this Court observed, the Act was "'a voluntary recognition of a pre-existing right of possession, constituting a valid claim to its continued use.'" United States v. Rio Grande Dam & Irrig. Co., supra, at 705. Congress intended "to recognize as valid the customary law with respect to the use of water which had grown up among the occupants of the public land under the peculiar necessities of their condition."*fn10 Basey v. Gallagher, 20 Wall. 670, 684 (1875). See Broder v. Water Co., supra, at 276; Jennison v. Kirk, 98 U.S. 453, 459-461 (1879).*fn11

[ 438 U.S. Page 657]

     In 1877, Congress took its first step toward encouraging the reclamation and settlement of the public desert lands in the West and made it clear that such reclamation would generally follow state water law. In the Desert Land Act of 1877, Congress provided for the homesteading of arid public lands in larger tracts

"by [the homesteader's] conducting water upon the same, within the period of three years [after filing a declaration to do so], Provided however that the right to the use of water by the person so conducting the same . . . shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation: and all surplus water over and above such actual appropriation and use, together with the water of all, lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights." Ch. 107, 19 Stat. 377 (emphasis added).

This Court has had an opportunity to construe the 1877 Desert Land Act before. In California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935), Mr. Justice Sutherland*fn12 explained that, through this language, Congress

[ 438 U.S. Page 658]

     "effected a severance of all waters upon the public domain, not theretofore appropriated, from the land itself." Id., at 158. The nonnavigable waters thereby severed were "reserved for the use of the public under the laws of the states and territories." Id., at 162. Congress' purpose was not to federalize the prior-appropriation doctrine already evolving under local law. Quite the opposite:

"What we hold is that following the act of 1877, if not before, all non-navigable waters then a part of the public domain became publici juris, subject to the plenary control of the designated states, including those since created out of the territories named, with the right in each to determine for itself to what extent the rule of appropriation or the common-law rule in respect of riparian rights should obtain. For since 'Congress cannot enforce either rule upon any state,' Kansas v. Colorado, 206 U.S. 46, 94, the full power of choice must remain with the state. The Desert Land Act does not bind or purport to bind the states to any policy. It simply recognizes and gives sanction, in so far as the United States and its future grantees are concerned, to the state and local doctrine of appropriation, and seeks to remove what otherwise might be an impediment to its full and successful operation. See Wyoming v. Colorado, 259 U.S. 419, 465." Id., at 163-164.

See also Gutierres v. Albuquerque Land & Irrig. Co., 188 U.S. 545, 552-553 (1903); Ickes v. Fox, 300 U.S. 82, 95 (1937); Brush v. Commissioner, 300 U.S. 352, 367 (1937).

[ 438 U.S. Page 659]

     Congress next addressed the task of reclaiming the arid lands of the West 11 years later. The opening of the arid lands to homesteading raised the specter that settlers might claim lands more suitable for reservoir sites or other irrigation works, impeding future reclamation efforts. Congress addressed this problem in the Act of Oct. 2, 1888, 25 Stat. 527, which provided:

"[All] the lands which may hereafter be designated or selected by such United States surveys for sites for reservoirs, ditches or canals for irrigation purposes and all the lands made susceptible of irrigation by such reservoirs, ditches or canals are from this time henceforth hereby reserved from sale as the property of the United States, and shall not be subject after the passage of this act, to entry, settlement or occupation until further provided by law."

Unfortunately, this language, which had been hastily drafted and passed, had the practical effect of reserving all of the public lands in the West from settlement.*fn13 As a result, "there came a perfect storm of indignation from the people of the West, which resulted in the prompt repeal of the extraordinary [1888] provision." 29 Cong. Rec. 1955 (1897) (statement of Cong. McRae). In the Act of Aug. 30, 1890, 26 Stat. 391, Congress repealed the 1888 provision except insofar as it reserved reservoir sites. Then, in the Act of Mar. 3, 1891, 26 Stat. 1101, as amended, 43 U. S. C. § 946, Congress provided for rights-of-way across the public lands to be used by "any canal or ditch company formed for the purpose of irrigation." The apparent purpose of the 1890 and 1891 Acts was to reserve reservoir sites from settlement but to open them for use in reclamation projects.*fn14 As before, Congress expressly indicated

[ 438 U.S. Page 660]

     that the reclamation would be controlled by state water law:*fn15

"[The] right of way through the public lands and reservations of the United States is hereby granted . . . for the purpose of irrigation . . . , to the extent of the ground occupied by the water of the reservoir and of the canal and its laterals . . . ; Provided, That . . . the privilege herein granted shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective States or Territories." 26 Stat. 1101 (emphasis added).

The Secretary of the Interior, unfortunately, interpreted the 1890 and 1891 Acts as reserving governmentally surveyed reservoir sites from use rather than for use. Congress rectified this interpretation in the Act of Feb. 26, 1897, ch. 335, 29 Stat. 599, which provided:

"[All] reservoir sites reserved or to be reserved shall be open to use and occupation under the right-of-way Act of March third, eighteen hundred and ninety-one. And any State is hereby authorized to improve and occupy such reservoir sites to the same extent as an individual or

[ 438 U.S. Page 661]

     private corporation, under such rules and regulations as the Secretary of the Interior may prescribe: Provided, That the charges for water coming in whole or part from reservoir sites used or occupied under the provisions of this Act shall always be subject to the control and regulation of the respective States and Territories in which such reservoirs are in whole or part situate."

The final provision of the 1897 Act was proposed as a floor amendment by Representative, later Speaker, Cannon to expressly preserve States' control over reclamation within their borders. It was clearly the opinion of a majority of the Congressmen who spoke on the bill, however, that such an amendment was unnecessary except out of an excess of caution.*fn16 According to ...


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