FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BAKER RANCHES, INC.; DAVID No. 24-5713
JOHN ELDRIDGE; RUTH
D.C. No.
ELDRIDGE, as Co-Trustees of the
3:21-cv-00150-David John Eldridge and Ruth
GMN-CSD
Eldridge Family Living Trust dated
January 31, 2007; ZANE JORDAN;
JUDEE SCHALEY,
OPINION
Plaintiffs - Appellants,
v.
DOUG BURGUM, in his official
capacity as Secretary of the United
States Department of the Interior;
UNITED STATES DEPARTMENT
OF THE INTERIOR; SHAWN
BENGE, in his official capacity as
Acting Director of the National Park
Service; NATIONAL PARK
SERVICE; ASHLEY ADAMS, in
her official capacity as
Superintendent of the Great Basin
National Park,
Defendants - Appellees.
2 BAKER RANCHES, INC. V. BURGUM
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, District Judge, Presiding
Argued and Submitted March 24, 2026
Pasadena, California
Filed September 30, 2026
Before: Johnnie B. Rawlinson and John B. Owens, Circuit
Judges, and Sidney A. Fitzwater, District Judge. *
Opinion by Judge Owens;
Dissent by Judge Rawlinson
SUMMARY **
Sovereign Immunity / McCarran Amendment
The panel reversed the district court’s dismissal of a suit against federal defendants (“the United States”) for lack of subject matter jurisdiction based on sovereign immunity.
In 1934, a Nevada state court entered the BakerLehmann Decree, setting out the water rights for the BakerLehman Creeks, which flow through what is now the Great
Basin National Park. Under the Baker-Lehmann Decree,
*
The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
BAKER RANCHES, INC. V. BURGUM 3
Plaintiffs, including Baker Ranches, Inc., own downstream water rights. Plaintiffs alleged that the Park engaged in activities that reduced water flow and jeopardized their water rights. They sued the United States to enjoin such activities and enforce their rights under the Decree.
Plaintiffs argued that the United States’ sovereign
immunity was waived by the McCarran Amendment, which
waives the sovereign immunity of the United States “in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights.” 43 U.S.C. § 666(a). The McCarran Amendment was enacted in
1952 but retroactively applies to the administration of
previously acquired water rights. The district court
determined that sovereign immunity was not waived by the McCarran Amendment and dismissed Plaintiffs’ case for
lack of jurisdiction.
Reversing, the panel held that the McCarran Amendment
waived the United States’ sovereign immunity. First, the McCarran Amendment waives sovereign immunity for the
administration of rights determined in a “comprehensive” adjudication, and the Baker-Lehmann Decree was
comprehensive. The Baker-Lehman Adjudication was
meant to serve as a final determination of all relative water rights upon the Baker-Lehman Creeks. Second, the
McCarran Amendment controls in cases adjudicating or
administering water rights, and Baker Ranches is suing for the administration of water rights they hold under the BakerLehmann Decree. Accordingly, the panel held that the
McCarran Amendment waived the United States’ sovereign
immunity from this suit.
4 BAKER RANCHES, INC. V. BURGUM
Dissenting, Judge Rawlinson would affirm the district
court’s determination that the sovereign immunity of the United States was not waived by the McCarran
Amendment. Under the language of the McCarran
Amendment, expressed legislative intent, Supreme Court
authority, and this Court’s precedent, the United States did not waive its sovereign immunity for the Baker-Lehman
Creeks adjudication. Thus, the Baker Lehman Decree does
not bind the United States.
COUNSEL
Benjamin J. Hogan (argued), Bryan Cave Leighton Paisner
LLP, Denver, Colorado; Jean-Claude Andre, Bryan Cave
Leighton Paisner LLP, Santa Monica, California; Seth M.
Reid, Bryan Cave Leighton Paisner LLP, St. Louis,
Missouri; Debbie Leonard, Leonard Law PC, Reno, Nevada;
Kole W. Kelley and Ivan L. London, Mountain States Legal Foundation, Lakewood, Colorado; for Plaintiffs-Appellants. Ezekiel Peterson (argued) and Katharine Laubach,
Attorneys, Environment & Natural Resources Division;
Adam R.F. Gustafson, Acting Assistant Attorney General;
United States Department of Justice, Denver, Colorado;
Karen Glasgow, Supervisory Attorney-Advisor, Office of
the Solicitor, United States Department of Interior, Denver, Colorado; Andrew M. Bernie and Jason Lee, Trial
Attorneys; United States Department of Justice,
Washington, D.C.; Holly A. Vance, Assistant United States Attorney, Office of the United States Attorney, United States Department of Justice, Reno, Nevada; for DefendantsAppellees.
BAKER RANCHES, INC. V. BURGUM 5
J. Gregory Cloward, Deputy Attorney General; Jeffrey M.
Connor, Chief Deputy Solicitor General; Aaron M. Ford,
Nevada Attorney General; Office of the Nevada Attorney
General, Carson City, Nevada; for Amicus Curiae State of Nevada.
Laura A. Schroeder, Therese A. Ure Stix, and Caitlin R.
Skulan, Schroeder Law Offices PC, Portland, Oregon, for
Amici Curiae Central Nevada Regional Water Authority,
Humboldt County, Humboldt River Basin Water Authority,
Nevada Association of County Commissioners, Nevada
Land Action Association, Nevada Grazing Board of District No. 4, Pershing County, Pershing County, Pershing County Water Conservation District, The Rose of Snowville LLC,
Washoe County, and White Pine County.
David H. Rigdon, Taggart & Taggart LTD, Carson City,
Nevada, for Amici Curiae Western State Farm Bureau
Federations (Nevada Farm Bureau Federation, Idaho Farm
Bureau Federation, and California Farm Bureau Federation). Karen A. Peterson and Keith H. Ketola, Carson City,
Nevada; Theodore Beutel, Eureka County District Attorney, Eureka, Nevada; for Amicus Curiae Eureka County.
6 BAKER RANCHES, INC. V. BURGUM
OPINION
OWENS, Circuit Judge:
Baker Ranches, Inc., David John Eldridge, Ruth
Eldridge, Zane Jordan, and Judee Schaley (collectively
“Plaintiffs”) appeal from the district court’s dismissal of their suit against federal defendants (“the United States”) for lack of jurisdiction based on sovereign immunity. We have jurisdiction under 28 U.S.C. § 1291, and we reverse and
remand.
I. BACKGROUND
In 1934, a Nevada state court entered a decree that set
out the water rights for the Baker-Lehman Creeks, which
flow through what is now Great Basin National Park (“the Park”), created in 1986. Under the so-called “BakerLehman Decree” (“Decree”), Plaintiffs own downstream
water rights. Baker Ranches has long used the water to
support its extensive ranch operations.
Plaintiffs allege that the Park has engaged in activities— ranging from water diversion to planting vegetation—that have reduced water flow and jeopardized their downstream water rights, threatening to put Baker Ranches out of
business. Plaintiffs sued the United States to enjoin such activities and enforce their rights under the Decree.
After extensive litigation in multiple forums, the district court held that the United States enjoyed sovereign
immunity, meaning the state and federal courts lack subject matter jurisdiction to enforce the Decree against the United States. Plaintiffs have contended throughout that sovereign immunity was waived by the McCarran Amendment, which
was enacted in 1952 but retroactively applies to the
BAKER RANCHES, INC. V. BURGUM 7
administration of previously acquired water rights. See State Eng’r v. S. Fork Band of the Te-Moak Tribe of W. Shoshone Indians of Nev. (Te-Moak), 339 F.3d 804, 811–13 (9th Cir. 2003). We agree. To understand why, we begin with a brief history of the development of water rights in the West and the role of the McCarran Amendment.
A. Development of Federal and Nevada Water Law
Water rights—crucial to the development of the landrich, water-poor American West—were initially adjudicated through individual private actions. See 1 Robert E. Beck, Waters & Water Rights § 15.01 (2026). A claimant would
file a complaint asserting rights to a particular water source and alleging interference by defendants, who would file
answers and cross-complaints asserting their own rights. But because the rights of all claimants to a particular water source are closely interrelated, “[e]ach claimant is therefore directly and vitally interested, not only in establishing the validity and extent of his own claim, but in having
determined all of the other claims” to that water source. Pac. Live Stock Co. v. Or. Water Bd., 241 U.S. 440, 449 (1916) (citation omitted). As settlement boomed in the West,
conflicts over water rights increased, resulting in
voluminous piecemeal litigation.
The rights of all claimants to a particular water source are “so closely related that the presence of all is essential” for a final determination of any rights to that water source. Id. But joinder of the “hundreds or thousands” of individual claims to a water source would have been “extremely
cumbersome and inefficient.” United States v. Oregon, 44 F.3d 758, 763–64 (9th Cir. 1994). Several Western states, including Nevada, attempted to solve the problem by
8 BAKER RANCHES, INC. V. BURGUM
establishing statutory procedures to adjudicate all water rights on entire stream systems at once.
In 1913, Nevada created its present statutory system for the mass adjudication of surface water rights. See Act of Mar. 22, 1913, ch. 140, 1913 Nev. Stat. 192 (codified as amended at Nev. Rev. Stat. ch. 533) (“1913 Nevada Water
Law”). Under this system, adjudication would proceed as
follows. The State Engineer initiates the process. Nev. Rev. Stat. Ann. § 533.090. He provides notice of the proceedings, gathers relevant stream flow data, collects proofs of
appropriation, hears objections, and enters an order of
determination “defining the several rights to the waters of the stream or stream system.” Id. §§ 533.090, 533.095,
533.100, 533.160. After further notice and hearings, the state district court affirms or modifies the Engineer’s order in a decree setting out a “final” and “conclusive” distribution of water rights. Id. §§ 533.185, 533.210. The rights set out in that decree may then be enforced and administered by the Engineer and state water commissioners acting as officers of the court. Id. § 533.220.
But one issue remained. “While these statutory
adjudications seemed to promise an end to the confusing and conflicting adjudication of water rights in multiple cases, the system was impaired by the refusal of the federal
government to participate.” Oregon, 44 F.3d at 765. The
United States claimed extensive water rights in the West, yet—shielded by sovereign immunity—could refuse states’
attempts to adjudicate and administer those rights. States found themselves unable to secure a final and conclusive determination of rights whenever the United States appeared in a watershed. See S. Rep. No. 755, 82d Cong., 1st Sess. 4 (1951). And the United States’ refusal to submit to state
BAKER RANCHES, INC. V. BURGUM 9
court adjudication and administration provoked significant political backlash. 1
In 1952, Congress took action. It passed the McCarran
Amendment, which waives the sovereign immunity of the
United States “in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights.” 43 U.S.C. § 666(a). The statute “applie[s] retroactively and thus waive[s] the United States’ immunity from suit for the administration of water rights acquired before the law came into effect.” Am. Indian Law Deskbook § 8:18 (2024) (citing Te-Moak, 339 F.3d at 813); see also
1
One notable example was the federal government’s attempt to acquire water rights in the Santa Margarita River watershed to support the military establishment at Camp Pendleton. Locals who depended on the water felt “subversively exploited” by the federal government’s water grab. A Bill to Authorize Suits Against the United States to Adjudicate & Administer Water Rights: Hearings on S.18 Before a Subcomm. of the S. Comm. on the Judiciary, 82d Cong. 77 (1951) (letter of George F. Yackey, general manager of the Fallbrook Public Utility District). The matter resulted in public outcry, spawning multiple articles and even a short film produced and directed by Frank Capra. See, e.g., Stanley High, Washington Tyranny: Another Case Study, Reader’s Digest, Dec. 1951, reprinted in 98 Cong. Rec. 124 (1952); Frank Capra, The Fallbrook Story (1952).
The United States was also involved in highly contentious water controversies on the Quinn River in Nevada, and in several Colorado water districts. See Hearings on S.18, 82d Cong. 47 (1951) (statement of W.T. Mathews, Attorney General of the State of Nevada); id. at 26– 27 (statement of Glenn G. Saunders, representing the National Reclamation Association). These controversies, caused by the United States’ use of its sovereign immunity to preclude the adjudication and administration of the water rights it claimed, formed the backdrop to Congress’ consideration of the McCarran Amendment.
10 BAKER RANCHES, INC. V. BURGUM
United States v. Puerto Rico, 287 F.3d 212, 217 (1st Cir. 2002) (“[T]he McCarran Amendment applies to water rights acquired prior to 1952 . . . .”); United States v. Dist. Ct. in & for Eagle Cnty. (Eagle Cnty.), 401 U.S. 520, 522–23 (1971) (applying the McCarran Amendment when the United States
claimed reserved rights acquired in 1905).
The McCarran Amendment was introduced to correct the
“chaotic condition” caused by the United States’ refusal to participate in the statutory procedures designed to adjudicate and administer at once all the interlocked water rights on a stream system, which threatened “a throw-back to the
conditions that brought about the enactment of the statutory water laws.” S. Rep. No. 755, 82d Cong., 1st Sess. 5 (1951). Being focused on the “evils growing out of [the United
States’] immunity” from proceedings in which “all water
users on a stream . . . are interested and necessary parties,” the bill was not intended to waive the United States’
immunity from private suits. Id.
For instance, in response to concerns that individuals
might use the bill to block the construction of projects by the Bureau of Reclamation, Senator Pat McCarran—the bill’s
Senate sponsor and namesake—assured that it was “not
intended to be used for the purpose of obstructing or
delaying Bureau of Reclamation projects.” Id at 9. Indeed, he clarified that the Amendment’s waiver of immunity was “not intended to be used for any other purpose than to allow the United States to be joined in a suit wherein it is necessary to adjudicate all of the rights of various owners on a given stream.” Id. at 9. Adopting this intended limit, our courts have since held that the McCarran Amendment only allows
the United States to be joined in suits involving a
“comprehensive water right adjudication.” Oregon, 44 F.3d at 766 (quoting United States v. Idaho, 508 U.S. 1, 9 (1993)).
BAKER RANCHES, INC. V. BURGUM 11
B. Water Rights on the Baker-Lehman Creeks
1. The Baker-Lehman Adjudication and Decree
More than two decades before the passage of the
McCarran Amendment, the State Engineer of Nevada in
1925 initiated a determination of water rights on the BakerLehman Creeks (“Baker-Lehman Adjudication”). The
adjudication took place according to the procedures laid out in the 1913 Nevada Water Law, Nevada’s statutory system
for the mass adjudication of water rights. See Nev. Rev. Stat. ch. 533. The United States did not participate or assert any claims. After publishing notices and collecting claimants’ proofs of appropriation, the State Engineer issued his order of determination nearly eight years after the adjudication began. A copy of the order of determination was mailed to all claimants, and to the United States.
After the State Engineer filed the order of determination in the Seventh Judicial District Court of Nevada, the state court scheduled a hearing for interested parties to raise exceptions to the order of determination. Copies of the
scheduling order were mailed to the claimants and to the United States, and published in a local newspaper. Again, the United States did not participate.
Finally, on October 16, 1934, the state court entered the Baker-Lehman Decree. Applications to modify the decree
were to be submitted within three years of its entry. See Nev. Rev. Stat. § 533.210. Under Nevada law, this decree was to be a final determination of water rights on the BakerLehman Creeks. Id. Any future rights claimed on the BakerLehman Creeks could only be adjudicated in a
“supplemental adjudication,” which under state law may not disturb any existing rights under the 1934 Baker-Lehman
Decree. See Mineral County v. Lyon County, 473 P.3d 418, 12 BAKER RANCHES, INC. V. BURGUM
429 (Nev. 2020) (observing that Nevada’s water law
“expressly prohibits reallocating adjudicated water rights”).
The Baker-Lehman Decree provided, in part, that “each
and every water user of the Baker and Lehman Creeks
stream system . . . be perpetually enjoined and restrained” from “diverting or using or preventing or obstructing the flow . . . of any of the water” except in the manner provided for by the Decree. It further required every water user to “keep . . . the main stream channel through his land[ ]
reasonably clean of weeds, vegetation, and deposits of silt” and “maintain” the channels to facilitate “minimum loss of conveyed water.”
2. The Parties’ Water Rights
Under the Baker-Lehman Decree, Baker Ranches holds
adjudicated water rights with a priority date between 1872 and 1904; David John Eldridge and Ruth Eldridge hold
rights with a priority date of 1872; and Zane Jordan and Judee Schaley hold water rights with a priority date of 1876.
The United States claims two types of water rights on the Baker-Lehman Creeks. First, it holds appropriative rights set out in the Baker-Lehman Decree, which it acquired from private appropriators. Second, the United States now claims reserved water rights, which it never asserted before the instant litigation and were not adjudicated or recognized in the Baker-Lehman Decree. These reserved water rights stem from various reservations of land made in the twentieth
century. 2 The earliest of these reservations dates to 1909,
2
When the United States withdraws land from the public domain and reserves it for a federal purpose, we understand it to reserve enough water to carry out the purpose of the reservation. See Winters v. United States, 207 U.S. 564, 577 (1908). Reserved water rights vest, or have a
BAKER RANCHES, INC. V. BURGUM 13
when the federal government reserved approximately
556,000 acres to establish the Nevada National Forest. See Proclamation No. 839, 35 Stat. 2220 (Feb. 10, 1909).
Additional reservations were made in 1922, for the Lehman Caves National Monument, and in 1986, to create Great
Basin National Park. See Proclamation No. 1618, 42 Stat. 2260 (Jan. 24, 1922); Great Basin National Park Act of 1986, Pub. L. No. 99-565, § 2, 100 Stat. 3181 (Oct. 27, 1986).
3. The Instant Litigation
When Plaintiffs first began appropriating water from the Baker-Lehman Creeks, the streams flowed through land in
the public domain. Now, the streams originate in and run through Great Basin National Park. Plaintiffs allege that the Park’s activities—diverting water for campgrounds and dust suppression, felling logs that block creek channels, and planting vegetation—have reduced water flow, impairing
the rights of downstream water users like themselves.
In 2021, Plaintiffs filed suit in Nevada state court to
enjoin these activities and enforce the water rights they hold under the Baker-Lehman Decree. The United States
removed the suit to federal district court and claimed
sovereign immunity, and litigation commenced regarding
the proper forum for the case. In an earlier unpublished disposition, we held that the state court had prior exclusive jurisdiction only if the United States had waived sovereign immunity, and directed the district court to consider whether sovereign immunity was waived under the McCarran
Amendment. See Baker Ranches, Inc. v. Haaland, Nos. 22-priority date, on the date of the federal reservation. See Cappaert v. United States, 426 U.S. 128, 138 (1976).
14 BAKER RANCHES, INC. V. BURGUM
15765, 22-15846, 2023 WL 6784357 (9th Cir. Oct. 13,
2023). 3
The district court determined that sovereign immunity
was not waived by the McCarran Amendment and dismissed
the case for lack of jurisdiction. It concluded that because the United States did not participate in the 1934 BakerLehman Adjudication, it was not a “comprehensive
adjudication” for which the McCarran Amendment waives
sovereign immunity. It did not reach the United States’
separate argument that the McCarran Amendment did not
apply because Plaintiffs’ suit was not one for the
“administration” of water rights. Plaintiffs timely appealed the district court’s dismissal. We take up the question of whether the McCarran Amendment waives the United
States’ sovereign immunity in this case, and we hold that it does.
II. DISCUSSION
A. Standard of Review
“We review de novo the district court's dismissal for lack of subject matter jurisdiction, including whether the United States has waived its sovereign immunity.” Harger v. Dep’t
3
Litigation has since proceeded concurrently in federal and state court. The state court found that the McCarran Amendment waived sovereign immunity and ultimately issued orders holding the United States in contempt of the Baker-Lehman Decree and granting Baker Ranches access to Park land to maintain the streams. The United States appealed these orders to the Nevada Supreme Court, which held that it lacked jurisdiction due to this court’s previous decision vacating the district court’s remand to state court. See Haaland v. Baker Ranches Inc., 560 P.3d 664 (Nev. 2024) (unpublished table decision). It dismissed the appeal without prejudice, and the United States may move for reinstatement should the case be remanded back to state court from the federal district court. Id.
BAKER RANCHES, INC. V. BURGUM 15
of Lab., 569 F.3d 898, 903 (9th Cir. 2009). A waiver of
sovereign immunity “must be unequivocally expressed,” and the party suing the United States “bears the burden of
pointing to such an unequivocal waiver of immunity.”
Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983) (per curiam) (quoting United States v. Mitchell, 445 U.S. 535, 538 (1980)).
B. The Baker-Lehman Decree Was Comprehensive
The McCarran Amendment waives sovereign immunity
only for the administration of rights determined in a
“comprehensive” adjudication. See Eagle Cnty., 401 U.S. at 524 (“‘[T]he administration of such rights’ in § 666(a)(2) must refer to the rights described in” § 666(a)(1).); Idaho, 508 U.S. at 3 (the United States may be joined “as a
defendant in a comprehensive water right adjudication”). Plaintiffs sued to enforce rights determined by the BakerLehman Adjudication between 1925 and 1934, years before
the passage of the McCarran Amendment would have
required the United States to participate. Because the United States was not a party and the reserved rights it asserts today were not determined in the adjudication, the United States and the dissent argue that the Baker-Lehman Adjudication was not “comprehensive.”
But this reasoning distorts the meaning and purpose of
the requirement that adjudications be “comprehensive.”
This requirement—which does not appear in the text of the statute—was imposed by courts to reflect the purpose of the McCarran Amendment. See Dugan v. Rank, 372 U.S. 609,
618 (1963) (citing S. Rep. No. 755, 82d Cong., 1st Sess. 9 (1951)); see also Oregon, 44 F.3d at 766. “The clear federal policy evinced by [the McCarran Amendment] is the
avoidance of piecemeal adjudication of water rights in a 16 BAKER RANCHES, INC. V. BURGUM
river system . . . . [T]he McCarran Amendment bespeaks a policy that recognizes the availability of comprehensive state systems for adjudication of water rights as the means for achieving these goals.” Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 819 (1976) (emphasis added). Because the McCarran Amendment exists to
support “comprehensive state systems for adjudication,” its waiver of sovereign immunity is construed to extend only to adjudications that take place in that context. Id. By contrast, “piecemeal, private water rights litigation”—the types of suits that the McCarran Amendment was intended to help
comprehensive state systems replace—sit outside the scope the McCarran Amendment. Oregon, 44 F.3d at 768.
The 1913 Nevada Water Law is clearly one of those
“comprehensive state systems” that the McCarran
Amendment was meant to support. Our caselaw has
recognized it as such. See Te-Moak, 339 F.3d at 811
(describing the law as “Nevada’s comprehensive system for adjudicating water rights”). It replaced piecemeal adjudications by providing a comprehensive procedure for the collection, adjudication, and final determination of all rights to water on a stream system. See Nev. Rev. Stat.
§§ 533.087-533.320. Those claiming a right to water must submit proof of their claim, or the claim will be deemed abandoned. See id. § 533.087. Nor could the system
function any other way: claims that are not asserted cannot be allowed to linger, as that would undermine the certainty and finality that these adjudications were meant to establish.
Over the course of nine years, the Baker-Lehman
Adjudication was conducted scrupulously according to the procedures laid out in the 1913 Nevada Water Law. The
State Engineer and the Seventh Judicial District Court of Nevada repeatedly provided notice to all claimants and to the
BAKER RANCHES, INC. V. BURGUM 17
United States. The United States chose not to assert any claims, raise any exceptions, or apply for any modifications to the resulting Baker-Lehman Decree. A claimant’s failure to assert its alleged water rights during an adjudication does not render the adjudication any less “comprehensive,” in the sense that the drafters of the McCarran Amendment
intended.
Regardless of the United States’ failure to claim the
reserved rights that it alleges today, the Baker-Lehman
Adjudication was meant to serve as a final determination of all relative water rights upon the Baker-Lehman Creeks,
meaning it was “necessary to adjudicate all of the rights of various owners” to avoid the sort of piecemeal litigation that existed before such statutory mass adjudications were
possible. Eagle Cnty., 401 U.S. at 525 (quoting S. Rep. No. 755, 82d Cong., 1st Sess., 9). It was therefore precisely the sort of “comprehensive” adjudication that the McCarran
Amendment was meant to support. See id.
According to the United States, an adjudication is not
comprehensive unless it is “able to determine all claims in a river system, including those of the United States where it has some water rights.” The dissent goes even further,
asserting that an adjudication is not comprehensive unless it in fact did “resolve the rights of all claimants to a stream of water.” Under these readings, the Baker-Lehman
Adjudication was not comprehensive because it took place while the United States still enjoyed sovereign immunity from water rights adjudications, and the United States’
reserved water rights went unadjudicated. The United States argues that applying the McCarran Amendment here would
be unfair, as it would “cause the retroactive forfeiture of all federal claims and defenses . . . that the United States could 18 BAKER RANCHES, INC. V. BURGUM
have presented had there been a waiver of sovereign
immunity at the time of the adjudication.”
But the United States’ argument runs headlong against
the purpose of the McCarran Amendment and our caselaw,
which has repeatedly warned against narrowing the
Amendment based on “extremely technical” constructions
of the comprehensiveness requirement. Eagle Cnty., 401
U.S. at 525; see also Oregon, 44 F.3d at 768. The McCarran Amendment was motivated by Congress’ concern that “the
United States not be subjected to piecemeal, private water rights litigation,” and “[t]he comprehensiveness standard requires the consolidation of existing controversies, not the reopening of settled determinations.” Oregon, 44 F.3d at 768 (first citing Eagle Cnty., 401 U.S. at 525; and then citing United States v. Dist. Ct. for Water Div. No. 5, 401 U.S. 527, 529 (1971)).
The United States would instead have us reopen a settled determination that has stood for decades. Indeed, sixtyseven decrees in Nevada pre-date the McCarran
Amendment’s waiver of sovereign immunity, and the United States’ argument undermines the finality of each of them. The United States suggests that because these adjudications took place before the passage of the McCarran Amendment, it has the right to assert, at any time—even centuries from now—any previously-unadjudicated claim to water rights,
regardless of how long it has sat on those alleged rights. This would mean that none of those sixty-seven pre-McCarran
Amendment decrees can be considered settled. It would be absurd to wring this result out of a requirement crafted by courts to further the McCarran Amendment’s purpose of
ending piecemeal adjudications and the interminable water rights conflicts they engendered. See, e.g., Oregon, 44 F.3d at 768; Eagle Cnty., 401 U.S. at 525.
BAKER RANCHES, INC. V. BURGUM 19
Furthermore, retroactively applying the McCarran
Amendment is no issue. The United States argues that it
cannot be bound to respect water rights determined in an adjudication where it did not have the opportunity to raise potential claims and defenses. But the Supreme Court
rejected that argument in Eagle County, holding that the United States could be joined in a supplemental adjudication despite not being a party to the preceding adjudication. See 401 U.S. at 525-26. Because the supplemental adjudication could not unsettle rights determined in the preceding
adjudication, the United States was bound to respect the water rights determined in the preceding adjudication, where it—like here—did not have the opportunity to raise potential claims or defenses. 4 See id.
Moreover, we have squarely held, for decades, that “the
McCarran Amendment waives the United States’s immunity
from suit, not only for the administration of water rights acquired after the statute’s enactment, but also for the
4
That supplemental adjudications may not unsettle rights determined under previous mass adjudications further undermines the United States’ argument that it is unfair to bind it to the results of an adjudication it chose not to take part in. The United States suggests that anyone who owns water rights under the sixty-seven pre-McCarran Amendment decrees should simply seek a supplemental adjudication to determine the United States’ reserved rights. But because rights determined in those supplemental adjudications could not supplant any previously adjudicated rights, this would place the United States in precisely the same position—bound to respect the results of the preceding adjudications, which it did not participate in. See Nev. Rev. Stat. § 533.210(1) (decrees entered pursuant to the 1913 Water Law are “final” and “conclusive”); Mineral County, 473 P.3d at 429 (Nevada’s water law “expressly prohibits reallocating adjudicated water rights that have not been abandoned, forfeited, or otherwise lost pursuant to an express statutory provision”).
20 BAKER RANCHES, INC. V. BURGUM
administration of water rights acquired before the law came into effect.” Te-Moak, 339 F.3d at 813. In that case, we found no issue with applying the McCarran Amendment to
waive the United States’ immunity from administration of the pre-McCarran Amendment Humboldt Decree. Id. at
811-13. The Supreme Court likewise found the McCarran
Amendment applicable even when the underlying federal
water rights were acquired in 1905, nearly a half-century before the passage of the McCarran Amendment. See Eagle
Cnty., 401 U.S. at 523. And the First Circuit has
independently come to a similar conclusion, holding that “the McCarran Amendment applies to water rights acquired prior to 1952, as long as the suit against the government is commenced subsequent to that date.” Puerto Rico, 287 F.3d at 217.
The dissent acknowledges that Te-Moak holds “that the
McCarran Amendment applies retroactively.” But it claims that Orff v. United States, 358 F.3d 1137 (9th Cir. 2004), a case that “[t]ellingly . . . did not discuss or distinguish TeMoak,” constitutes binding precedent requiring “that the McCarran Amendment does not apply absent adjudication
of the claims of all parties.”
Orff and Te-Moak are in fact distinguishable for an
important reason: Orff, unlike Te-Moak, is not a McCarran Amendment case. The plaintiffs in Orff “did not even plead jurisdiction under the McCarran Amendment.” 358 F.3d at
1144. Tellingly, neither the United States nor the district court found it necessary to discuss Orff’s implications on the instant litigation.
Orff involved a 1963 contract between the Westlands
Water District and the United States. See id. at 1141. The dispute was whether the United States had waived its
BAKER RANCHES, INC. V. BURGUM 21
sovereign immunity under a different statute, 43 U.S.C.
§ 390uu. See id. at 1144. We discussed the McCarran
Amendment solely to reject the plaintiffs’ argument that a prior McCarran Amendment case precluded the United
States from asserting sovereign immunity under this
different statute. 5 See id. at 1142-43. We explained that the McCarran Amendment did not apply in Orff because it
concerned a “private lawsuit for damages between the
farmers and the government.” Id. at 1143. Simply put, we conclude that the clear retroactivity language of Te-Moak, which is a McCarran Amendment case, speaks far louder
than anything in Orff, which is not.
The dissent cites Metropolitan Water Dist. and Dugan
for the same proposition as Orff: that the McCarran
Amendment applies solely to adjudications of the rights of all claimants on a stream. But those cases clarify only that, consistent with the McCarran Amendment’s purpose, the
private lawsuits involved in those cases were not
comprehensive. See Metro. Water Dist. of S. Cal. v. United States, 830 F.2d 139, 144 (9th Cir. 1987) (holding that the McCarran Amendment “does not authorize private suits to
decide priorities between the United States and particular claimants”); Dugan, 372 U.S. at 618 (holding that the
McCarran Amendment does not apply to “a private suit to
determine water rights solely between the respondents and the United States”). Neither case imposes a requirement that a comprehensive adjudication include all possible claimants. These cases did not involve adjudications of the rights of
5
In that prior case, the district court applied the McCarran Amendment, rejecting the United States’ argument that it did not apply “because all of the claimants to water from a given stream [were] not defendants in the action.” Barcellos & Wolfsen, Inc. v. Westlands Water Dist., 491 F. Supp. 263, 266 (E.D. Cal. 1980).
22 BAKER RANCHES, INC. V. BURGUM
multiple parties like those at issue in Te-Moak and Eagle Cnty.
Like the dissent, the United States also attempts to limit Te-Moak, arguing that it applies only to cases in which the United States is a later purchaser of previously adjudicated rights. It insists that the McCarran Amendment cannot be retroactive in the instant case, where the United States is claiming unadjudicated reserved rights. This argument fails twice over.
First, the United States is a later purchaser of previously adjudicated rights, which it holds in addition to the reserved rights it now claims. In Te-Moak, the United States acquired rights that had previously been adjudicated under the
Humboldt Decree, so it was subject to suits for the
administration of the Humboldt Decree; here, the United
States acquired rights that had been previously adjudicated under the Baker-Lehman Decree, so it should be subject to suits for the administration of the Baker-Lehman Decree. 6 See Te-Moak, 339 F.3d at 807. Indeed, forcing the United States to take the bitter with the sweet was one of the key purposes of the McCarran Amendment: in stripping the
United States of sovereign immunity in state water rights
6
The district court found the United States’ acquisition of decreed rights “irrelevant to this case” because Baker Ranches’ claims “relate[d] to the United States’ reserved water rights” and “do not stem from the United States’ acquired decreed rights.” We disagree with this reasoning. Plaintiffs are suing to enforce their own rights under the Baker-Lehman Decree. Plaintiffs are not bringing any claims regarding the United States’ reserved rights; it is the United States that now alleges the existence of reserved water rights to claim that the Baker-Lehman Adjudication was not comprehensive. The water rights that Plaintiffs seek to enforce are interconnected with all other water rights on the Baker-Lehman Creeks.
BAKER RANCHES, INC. V. BURGUM 23
proceedings, Congress sought to prevent it from receiving the protection of state water law on one hand while flouting it with impunity on the other. See, e.g., Hearings on S.18, 82d Cong. 44 (1951) (statement of Rep. Yorty) (the United States “should take the same disabilities as well as take the benefits” of private appropriators). The United States’ own water rights enjoy the protection of the Baker-Lehman
Decree; the United States must therefore respect the water rights of others under the very same Decree.
Second, even if the United States had not purchased
rights adjudicated under the Baker-Lehman Decree, the
distinction that the United States attempts to draw between reserved rights and adjudicated rights is untenable. The Supreme Court had no issue applying the McCarran
Amendment when the United States held pre-McCarran
Amendment reserved rights, just as it does here. See Eagle Cnty., 401 U.S. at 523 (holding that the McCarran
Amendment waived sovereign immunity where the United
States held “reserved waters for the White River National Forest, withdrawn in 1905”). And nothing in Te-Moak’s
reasoning limited its holding to cases where the United
States is a later purchaser of adjudicated rights. See 339 F.3d at 812–13 (reasoning that a waiver of sovereign immunity does not implicate the fair notice concerns associated with retroactively applying laws governing the conduct of private citizens, and the Amendment’s use of the present tense
indicates that Congress intended it to be applied
retroactively). No courts or commentators have read TeMoak as the government suggests.
24 BAKER RANCHES, INC. V. BURGUM
C. Baker Ranches is Suing for the Administration of
Water Rights
The McCarran Amendment “only controls in cases
‘adjudicati[ng]’ or ‘administ[ering]’ water rights.” Klamath Irrigation Dist. v. U.S. Bureau of Reclamation, 48 F.4th 934, 946 (9th Cir. 2022) (alterations in original). The United States argues that even if the Baker-Lehman Adjudication was comprehensive, the McCarran Amendment does not
apply because Plaintiffs’ “requested relief far exceeds waterrights administration.” See 43 U.S.C. § 666(a).
It is clearly administration of a decree “to execute [that decree], to enforce its provisions, to resolve conflicts as to its meaning, to construe and to interpret its language.” S. Delta Water Agency v. U.S. Dep’t of the Interior, 767 F.2d 531, 541 (9th Cir. 1985) (emphasis added) (quoting United States v. Hennen, 300 F. Supp. 256, 263 (D. Nev. 1968)). Many of Plaintiffs’ requests for relief are simply requests to enforce provisions of the Baker-Lehman Decree. The
Decree provides that “each and every water user of the Baker and Lehman Creeks stream system” is enjoined “[f]rom at
any time diverting or using or preventing or obstructing the flow, in whole or in part, in or along its natural channel, of any of the water or said stream system.” Plaintiffs ask that the United States “shall refrain from diverting and using tributary water from Baker and Lehman Creeks at the
campgrounds,” and “refrain from diverting water in any
manner other than as allowed under the Decree.”
Plaintiffs also request more extensive relief, including requiring the United States “move rocks and debris to block caves, sinks and seeps” and “redirect water back into the channel,” and enjoining it from “planting vegetation in the riparian corridors of Baker and Lehman Creeks.” According
BAKER RANCHES, INC. V. BURGUM 25
to the United States, Plaintiffs seek not to administer their decreed water rights, but to “enjoin federal landmanagement practices that do not implicate the
administration of water rights.” But even this more
extensive relief is merely a means of enforcing Baker
Ranches’ decreed water rights, and in fact one that the
Decree itself contemplated. To protect decreed rights, the Baker-Lehman Decree required every water user to
“keep . . . the main stream channel through his land[ ]
reasonably clean of weeds, vegetation, and deposits of silt” and “maintain” the channels to facilitate “minimum loss of conveyed water.” Blocking caves, sinks and seeps is a form of “maintaining” channels to facilitate “minimum loss of conveyed water,” and planting vegetation in riparian
corridors is inconsistent with keeping the channel
“reasonably clean” of vegetation.
III. CONCLUSION
The Baker-Lehman Adjudication was “comprehensive,”
and Plaintiffs sue for the “administration” of the water rights they hold under the Baker-Lehman Decree. We therefore
hold that the McCarran Amendment waives the United
States’ sovereign immunity from this suit.7
REVERSED AND REMANDED.
7
The dissent suggests that our interpretation of the McCarran Amendment’s scope serves to “sanction . . . unprecedented disruption of the national park system.” We do not opine in any way on the merits of Plaintiffs’ claims, but merely hold that the suit is not barred by sovereign immunity.
26 BAKER RANCHES, INC. V. BURGUM
Rawlinson, Circuit Judge, dissenting:
I respectfully but emphatically dissent from the majority opinion reversing the decision of the district court, which faithfully applied the law governing this case in determining that the sovereign immunity of the United States was not waived by the McCarran Amendment. The plain language
of the statute, Ninth Circuit precedent, and Supreme Court precedent support the district court=s decision.
This case involves competing water rights originating
from the Baker-Lehman Creeks in northern Nevada. As the
majority notes, although the water initially flowed through public lands, in more recent years the streams flow through Great Basin National Park, a part of the federal park system. See Majority Opinion, p. 6.
In 1925, and in accordance with applicable Nevada
statutes, the Nevada State Engineer commenced a
proceeding to determine the respective water rights of
claimants to streams of water flowing through the BakerLehman Creeks. The State Engineer published notice to
anyone having an interest in water rights flowing through the Baker-Lehman Creeks that they were required to file a claim with the State Engineer. The United States did not file a claim. 1 Nevertheless, the Nevada proceedings continued,
1
The majority opinion repeatedly references the absence of the United States from the Nevada proceedings. See e.g., Majority Opinion, p. 11 (AThe United States did not participate or assert any claims@); id. (AAgain, the United States did not participate@); id. p. 12 (A[T]he United States now claims reserved water rights, which . . . were not adjudicated or recognized in the Baker-Lehman Decree.@); id. pp. 16-17 (noting that in the ABaker-Lehman Adjudication@ in the Nevada administrative system and Nevada courts, A[t]he United States chose not to assert any claims, raise any exceptions or apply for any modifications to the . . . BakerBAKER RANCHES, INC. V. BURGUM 27
culminating in the Baker-Lehman Decree issued on October 16, 1934. 2 It is this Decree that forms the basis for the claims of Baker Ranches in this case.
Under the auspices of the Baker-Lehman Decree, Baker
Ranches has trespassed onto United States park land and
engaged in extensive construction activities, including
moving rocks and debris, and cleaning and straightening the creek channel. These activities are sometimes conducted
with heavy equipment such as bulldozers. 3
Prior to removal of these proceedings to federal court,
Baker Ranches sought an order in Nevada state court to
prohibit the Park Service=s fire suppression activities and other authorized Park Service activities that, according to Baker Ranches, obstruct waterflow. Baker Ranches also
sought permission to trespass onto federal park lands and
Lehman Decree@). However, because these proceedings occurred prior to the express waiver of the United States= sovereign immunity in the McCarran Amendment, the Nevada courts had no jurisdiction to adjudicate water rights belonging to the United States. See Orff v. United States, 358 F.3d 1137, 1142 (9th Cir. 2004) (AAny claim for which sovereign immunity has not been waived must be dismissed for lack of jurisdiction.@) (citation omitted) (emphasis added). Because any action involving the United States would have been dismissed for lack of jurisdiction, these references to the United States= lack of participation in the Nevada proceedings are red herrings. See id.
2
It is undisputed that the Baker-Lehman Decree did not adjudicate the water rights of the United States. See Majority Opinion, p. 12 (commenting that the reserved water rights of the United States Awere not adjudicated or recognized in the Baker-Lehman Decree@). 3
The United States makes a plausible argument that the trespass onto federal land and engagement in extensive construction activities go far beyond the administration of water rights. Because I conclude that the United States did not waive its sovereign immunity, I do not address this argument.
28 BAKER RANCHES, INC. V. BURGUM
manipulate waterflow within the confines of Great Basin
National Park, all in an effort to increase the waterflow onto the Baker Ranches property. In addition, Baker Ranches
requested that the Federal Government be precluded from
pursuing trespass charges for its unauthorized entry onto federal land. Finally, Baker Ranches sought to enjoin the United States from planting vegetation in the riparian
corridors of the Baker-Lehman Creeks, otherwise
consuming tributary waters, or removing trees or other
vegetation in the Baker-Lehman Creeks channels. The
United States vehemently challenges these requests on the basis that it did not waive its sovereign immunity and is thus not bound by the Baker-Lehman Decree. Unlike the
majority, I agree with the United States.
We start from the unquestioned premise Athat the United
States is a sovereign, and, as such, is immune from suit unless it has expressly waived such immunity and consented to be sued.@ Orff, 358 F.3d at 1142 (citation omitted).
Importantly, A[w]e strictly construe in favor of the
government the scope of any waiver of sovereign immunity.@ Id. (citation omitted) (emphasis added); see also
Metropolitan Water Dist. of Southern Calif. v. United States, 830 F.2d 139, 143 (9th Cir. 1987) (per curiam), affirmed by California v. United States, 490 U.S. 920 (1989) (per
curium) (AWaivers of sovereign immunity are construed
strictly and narrowly. . . .@) (citation omitted). 4 As stated above, A[a]ny claim for which sovereign immunity has not been waived must be dismissed for lack of jurisdiction.@ Id. (citation omitted).
4
The majority does not mention, much less apply, this stringent standard.
BAKER RANCHES, INC. V. BURGUM 29
Because the majority and Bakers Ranches are of the view
that passage of the McCarran Amendment expressly waived
the United States= sovereign immunity for the proceedings culminating in the Baker-Lehman Decree, the provisions of that statute are pivotal.
The McCarran Amendment provides in pertinent part:
Suits for adjudication of water rights
(a) Joinder of United States as defendant.
Consent is given to join the United States
as a defendant in any suit (1) for the
adjudication of rights to the use of water of a
river system or other source, or (2) for the
administration of such rights, where it
appears that the United States is the owner of
or is in the process of acquiring water rights
by appropriation under State law, by
purchase, by exchange, or otherwise, and the
United States is a necessary party to such suit.
The United States, when a party to any such
suit, shall (1) be deemed to have waived any
right to plead that the State laws are
inapplicable or that the United States is not
amenable thereto by reason of its
sovereignty, and (2) shall be subject to the
judgments, orders, and decrees of the court
having jurisdiction, and may obtain review
thereof, in the same manner and to the same
extent as a private individual under like
circumstances. . . .
43 U.S.C. § 666 (1952) (emphasis added).
30 BAKER RANCHES, INC. V. BURGUM
It is crucial to acknowledge that the provisions of the
McCarran Amendment apply only when the United States is
Aa party@ to the proceeding adjudicating or administering water rights. Id. 5 The proceeding in this case is the BakerLehman Decree. And as the majority pointed out repeatedly, the United States decidedly was not a party to the
proceedings resulting in the Baker-Lehman Decree. Thus,
under the plain language of the statute, the United States did not waive its sovereign immunity. See id. A[S]trictly
construe[d] in favor of the government,@ as our precedent requires, the plain language of the statute supports the argument of the United States that it did not waive its
sovereign immunity. Orff, 358 F.3d at 1142 (citation
omitted) (emphasis added).
Without addressing the plain language of the statute, and without A[s]trictly constru[ing]@ the language of the statute Ain favor of the government;@ id., the majority nevertheless concludes that the McCarran Amendment waives the United
States= sovereign immunity. See Majority Opinion, pp. 15-23.
As an initial matter, I agree with the majority that the McCarran Amendment Awaives sovereign immunity only for
the administration of rights determined in a >comprehensive= adjudication.@ 6 Majority Opinion, p. 15. However, I part company with the majority regarding the definition of what constitutes a comprehensive adjudication of water rights.
5
The majority ignores this language in the statute.
6
Interestingly, the majority cites Orff for this proposition, but makes no mention of the instruction in Orff to Astrictly construe in favor of the government the scope of any waiver of sovereign immunity.@ 358 F.3d at 1142 (citation omitted).
BAKER RANCHES, INC. V. BURGUM 31
It appears that the majority uses the term
Acomprehensive@ in the sense of a state regulatory scheme that Areplace[s] piecemeal adjudication@ of water rights. Majority Opinion, p. 16. However, we have more precisely defined the concept of Acomprehensive@ in our precedent to only encompass determinations that resolve the rights of all claimants to a stream of water.
The majority takes issue with the conclusion that a water rights adjudication is not comprehensive unless it Aresolve[s] the rights of all claimants to a stream of water.@ Majority Opinion, p. 17. But this conclusion is embodied in our
precedent. See United States v. State of Oregon, 44 F.3d 758, 768-69 (9th Cir. 1994) (A[T]he United States refers to cases stating that the [McCarran] Amendment=s waiver is
limited to >general= or >comprehensive= adjudications. These cases make clear that the [water] adjudication must include the undetermined claims of all parties with an interest in the relevant water source@) (emphasis added). For good
measure, in State of Oregon, we cited to Dugan, a case the majority attempts to distinguish. See Majority Opinion, pp. 21-22. But see State of Oregon, 44 F.3d at 768 (citing to Dugan as one of the cases making Aclear that the [water] adjudication must include the undetermined claims of all parties with an interest in the relevant water source@).
The majority also seeks to distinguish Orff. See Majority Opinion, pp. 20-21. However, it is undeniable that in Orff we concluded that the lawsuit was Anot the type of suit
contemplated by the McCarran Amendment.@ See 358 F.3d
at 1143. Citing Metropolitan Water Dist. and Dugan, we
explained that the lawsuit was Anot the type of suit
contemplated by the McCarran Amendment@ because A[t]his
32 BAKER RANCHES, INC. V. BURGUM
is not a suit to adjudicate the rights of all claimants on a stream.@ Id.
In Orff, we addressed a dispute between the Westlands
Water District and the United States. In discussing whether the action was Athe type of suit contemplated by the
McCarran Amendment,@ id. at 1143, we held that the
McCarran Amendment only authorizes actions Ato
adjudicate the rights of all claimants on a stream.@ Id. (citation omitted) (emphasis added). We relied upon
Metropolitan Water Dist., 830 F.2d at 144, and Dugan v.
Rank, 372 U.S. 609, 617-18 (1963).
In Metropolitan Water Dist., which was affirmed by the
United States Supreme Court, we addressed a challenge to the resurveying of boundaries between the Fort Mojave
reservation and other public land in Southern California. See 830 F.2d at 140. The resurveying affected the water supply of several entities with lower priorities than the Fort Mojave Indian Tribe, including the Metropolitan Water District. See id. at 141.
One of the jurisdictional bases asserted by the
Metropolitan Water District was the McCarran Amendment.
See id. at 142. In resolving this jurisdictional issue, we held that the McCarran Amendment waives the United States=
sovereign immunity Aonly [for] suits to adjudicate the rights of all claimants to a stream.@ Id. at 144 (citing Dugan, 372 U.S. at 617-18) (emphasis added). Stated differently, if a case does not adjudicate the water rights of all parties, the McCarran Amendment provides no basis for jurisdiction
over the United States. See id.
The Supreme Court made this point explicitly in Dugan,
only eleven years after passage of the McCarran
Amendment. In that case, some water rights claimants along
BAKER RANCHES, INC. V. BURGUM 33
the San Joaquin River, in the Central Valley of California, sought to enjoin the United States from storing and diverting water at the Friant Dam. See 372 U.S. at 610. 7 After the district court Aheld that the United States was a proper party under the McCarran Amendment,@ the Ninth Circuit
reversed. Id. at 616-17. We concluded that the United States could not be joined as a party without its consent. See id. at 617. The Supreme Court affirmed the Ninth Circuit=s ruling, noting that there was no need to Aconsider the contention at length.@ Id. at 617-18. In other words, the proposition was so well settled that no lengthy discussion of the issue was warranted. See id.
The Supreme Court explained:
“We go directly to the question of joinder of
the United States as a party. We agree with
the [Ninth Circuit] Court of Appeals on this
issue and therefore do not consider the
contention [that jurisdiction existed under the
McCarran Amendment] at length. It is
sufficient to say that the provision of the
McCarran amendment relied upon by the
[water claimants] and providing that the
United States may be joined in suits for the
adjudication of rights to the use of water of a
river system or other source is not applicable
here.
Id. at 617-18 (citation, footnote reference, and internal quotation marks omitted).
7
Only the water claimants below the Friant Dam were parties to the action. See id.
34 BAKER RANCHES, INC. V. BURGUM
The Supreme Court explained that the McCarran
Amendment was not applicable because the case before it
did not Ainvolv[e] a general adjudication of all of the rights of various owners on a given stream.@ Id. at 618 (quoting S. Rep. No. 755, 82d Cong., 1st Session 9 (1951)) (emphasis added). 8 The Supreme Court explicitly relied on Athe fact that all of the claimants to water rights along the river [were] not made parties.@ Id. The same is true in this case Cthe United States was not made a party to the proceedings
culminating in the Baker-Lehman Decree. Therefore,
construing the McCarran Amendment waiver of sovereign
immunity strictly, narrowly, and in favor of the United
States, as we must, see Orff, 358 F.3d at 1142, see also Metropolitan Water Dist., 830 F.2d at 143, the Supreme
Court=s decision in Dugan compels the conclusion that the McCarran Amendment did not waive the United States=
sovereign immunity for a proceeding to which it was not a party. See Dugan, 372 U.S. at 617-18 (affirming the Ninth Circuit=s decision so holding). Accordingly, the majority=s reliance on Dugan to support a determination that the United States waived its sovereign immunity is simply misplaced.
In Orff, we relied on Dugan and Metropolitan Water
Dist. in concluding that the action at issue was Anot the type of suit contemplated by the McCarran Amendment.@ 358
F.3d at 1143 & n.3. We followed our reasoning and that of
8
Interestingly, this is the same legislative history quoted by the majority. See Majority Opinion, p. 17 (citing Eagle Cnty., 401 U.S. 525 (quoting S. Rep. No. 755, 82d Cong., 1st Session 9)). However the majority parrots the language without adhering to the Supreme Court=s interpretation of that language: The McCarran Amendment does not apply when, as in this case, the water adjudication did not determine Aall of the rights of various owners on a given stream.@ Dugan, 372 U.S. at 618 (quoting S. Rep. No. 755, 82d Cong., 1st Session 9 (1951)).
BAKER RANCHES, INC. V. BURGUM 35
the Supreme Court in concluding that the dispute between the United States and A[l]andowners and water users within the Westlands district@ was Anot a suit to adjudicate or administer the rights of all claimants on a stream.@ Id. at 1141, 1143.
We determined that Afinding otherwise and granting
waiver under [the McCarran Amendment] in this case would still be counter to the holdings of Metropolitan Water Dist. and Dugan, which expressly limit the government=s consent in waiving sovereign immunity under the McCarran
Amendment to those cases that implicate the rights of all claimants on a stream.@ Id. at 1143 n.3 (first emphasis
added). The majority=s reasoning is in direct conflict with this binding precedent.
None of the cases cited by the majority call into question this binding precedent. The majority relies heavily on State Engr. v. S. Fork Band of the Te-Moak Tribe of W. Shoshone Indians of Nev. (Te-Moak), 339 F.3d 804 (9th Cir. 2003), decided one year prior to Orff. In Te-Moak, no issue was raised regarding whether the adjudication addressed the
claims of all parties, and our decision in Te-Moak did not discuss that issue in any manner. See 339 F.3d at 812
(holding only that the McCarran Amendment applies
retroactively.) Tellingly, our decision in Orff did not discuss or distinguish Te-Moak in holding that the McCarran
Amendment does not apply absent adjudication of the claims of all parties. See 358 F.3d at 1143. Rather, we relied on Metropolitan Water Dist. and Dugan Awhich expressly limit the government=s consent in waiving sovereign immunity
under the McCarran Amendment to those cases that
implicate the rights of all claimants on a stream.@ Id. at 1143 n.3 (emphasis in the original). It is reasonable to infer from 36 BAKER RANCHES, INC. V. BURGUM
this language that we did not consider the decision in TeMoak to be Acounter to the holdings of Metropolitan Water Dist. and Dugan@ because there was no indication in TeMoak that less than all the claimed rights were administered in the water decree. Id.
The other cases cited by the majority are similarly
distinguishable. In State of Oregon, proceedings were
commenced in 1975, almost twenty-five years after
enactment of the McCarran Amendment. See 44 F.3d at 762. Therefore, no issue arose of retroactive application of the amendment or of less than all claims being administered. See id. at 765-66 (analyzing whether AOregon=s adjudication of water rights . . . constitute[s] a >suit= . . . rather [than] an >administrative proceeding= outside the plain language of the McCarran Amendment@).
The majority reasons that the McCarran Amendment
applies retroactively and thus “waives the United States= immunity from suit for the administration of water
rights . . . acquired before the law came into effect.@
Majority Opinion, pp. 19-20. This reasoning relies on TeMoak, the First Circuit=s decision in United States v. Puerto Rico, 287 F.3d 212 (1st Cir. 2002), and the Supreme Court decision in United States v. Dist. Ct. in & for Eagle Cnty. (Eagle Cnty. II), 401 U.S. 520 (1971). See id. at 20.
However, these cases do not support a conclusion that the United States waived its sovereign immunity under the facts of this case.
As previously discussed, in Te-Moak, decided one year
prior to Orff, no issue was raised or addressed regarding whether the adjudication of water rights included the claims of all parties. See Te-Moak, 393 F.3d at 812-13. In addition, in Te-Moak the claims of the United States arose after the
BAKER RANCHES, INC. V. BURGUM 37
water rights adjudication, unlike in this case where the water rights claimed by the United States existed prior to the challenged water rights adjudication. See id. at 807 (noting that the decree Aencompassed five ranches that were later purchased by the federal government@) (emphasis added).
One year later in Orff, we expressly and explicitly held that the McCarran Amendment only waives the sovereign
immunity of the United States when the water rights of Aall claimants on a stream@ are adjudicated. 358 F.3d at 1143 n.3 (emphasis in the original). See also Metropolitan Water
Dist., 830 F.2d at 144 (concluding that the McCarran
Amendment Aauthorize[s] . . . only suits to adjudicate the rights of all claimants on a stream@) (citing Dugan, 372 U.S. at 617-18).
The First Circuit=s decision actually supports the view of the United States. In its decision, the First Circuit recognized that any waiver under the McCarran Amendment Amust be
strictly construed in favor of the United States, and not enlarged beyond what the language of the statute
requires. . . .@ United States v. Puerto Rico, 287 F.3d at 217 (quoting United States v. Idaho, 508 U.S. 1, 7 (1993). 9 In
9
United States v. Idaho involved a water rights adjudication commenced decades after enactment of the McCarran Amendment, and the United States was joined as a party. See 508 U.S. at 4 (noting that the petition commencing the water rights adjudication naming the United States as a party Afollowed the enactment by the Idaho Legislature in 1985 and 1986 of legislation providing for the Snake River Basin Adjudication@). Therefore, there was no occasion for the Supreme Court to address application of the McCarran Amendment to adjudications when all claimants to water rights are not made parties. cf. id. (AThe Director of the Idaho Department of Water Resources filed a petition in the District Court of the Fifth Judicial District naming the United States and all other water users as defendants. . . .@) (emphasis added).
38 BAKER RANCHES, INC. V. BURGUM
addition, the First Circuit observed that Athe McCarran
Amendment applies to water rights acquired prior to 1952, so long as the suit against the government is commenced
subsequent to that date.@ Id. (emphasis added). But the
Baker-Lehman Creeks suit was not Acommenced subsequent
to [1952].@ Id. Rather, the water rights adjudication was commenced more than twenty-five years before 1952.
Therefore, the First Circuit decision does not support a waiver of sovereign immunity in this case.
Finally, in Eagle County II, the United States argued that the McCarran Amendment did not waive its sovereign
immunity because the Amendment contemplated waiver
Aonly for the adjudication of water rights which the United States acquired pursuant to state law,@ rather than Areserved water rights based on withdrawals from the public domain.@ 401 U.S. 522-23. The Supreme Court rejected this
argument. The Supreme Court also characterized and
rejected as Aextremely technical@ the argument that, in a supplemental adjudication, Asince the United States cannot be barred by the previous decrees and since the owners of previously decreed rights are not before the court, the
consent envisaged by [the McCarran Amendment] is not
present.@ Id. at 525. This ruling was made exclusively in the context of a supplemental adjudication rather than
enforcement of an initial adjudication, as is presently before us. Indeed, in Eagle County II, the Supreme Court declined to opine on the merits of the initial adjudication. See id. at 525-26 (AThe absence of owners of previously decreed rights may present problems going to the merits, in case there
develops a collision between them and any reserved rights of the United States. All such questions, including the
volume and scope of particular reserved rights, are federal questions which, if preserved, can be reviewed here after
BAKER RANCHES, INC. V. BURGUM 39
final judgment by the Colorado court@). The Supreme Court referenced the observation by the Colorado state court that the state court was
not determining whether the United States
has reserved water rights . . . nor, if so,
whether these rights have priority over
previously adjudicated rights. These
questions properly should be decided after
the United States presents its specific claims
for adjudication and the issues of fact and law
are clearly drawn.
Id. at 526 n. 7 (quoting United States v. District Ct. in and for Eagle Cnty., 458 P.2d 760, 770 (Colo. 1969) (en banc) (Eagle Cnty. I) (footnote reference omitted).
The Colorado Supreme Court in Eagle County I
expressly declined to definitively resolve the United States= argument that the state court lacked jurisdiction over it in the supplemental adjudication due to the absence of the United States from the prior water adjudications. See Eagle Cnty. I, 458 P.2d at 771. The Colorado Supreme Court noted that in its brief the United States cited to Colorado statutes and court decisions holding that water adjudication decrees could not Abe attacked after four years and in a subsequent water
adjudication a priority cannot be given to a use of water prior to the date of the last adjudicated decree.@ Id.
The Colorado Supreme Court observed that the United
States quoted from Arizona v. California, 298 U.S. 558, 571-72 (1936), that Ano decree rendered in its absence can bind or affect the United States.@ Id.
40 BAKER RANCHES, INC. V. BURGUM
The Colorado Supreme Court further quoted the United
States= brief:
It is self-evident that supplemental water
adjudications are not actions to which the
United States has consented. It would be
absurd to hold that the United States is bound
by prior adjudications to which it was not a
party and is thus now bound by proceedings
in which it cannot have its rights adjudicated.
Such a holding would convert [the McCarran
Amendment] into an instrument of injustice
that would destroy the rights of the United
States. It is for this reason that [the McCarran
Amendment] consents only to an
adjudication in which all users are before the
court.
Id.
The Colorado Supreme Court responded to the United
States= argument by stating that the language quoted from Arizona v. California Awas not made in connection with an adjudication of water rights by a state court 10 and here again we are going to wait until the matter is argued more fully and specifically before making a determination as to whether [the quoted language] applies to Colorado water
adjudications.@ Id. Nevertheless, the Colorado Supreme
10
Arizona v. California involved an original petition to the United States Supreme Court to fix Athe quantum of Arizona=s equitable share of the water flowing in the Colorado river, subject to diversion and use.@ 298 U.S. at 559.
BAKER RANCHES, INC. V. BURGUM 41
Court professed its belief: AOffhand, we are inclined to believe that [the quoted language] does apply.@ Id.
The Colorado Supreme Court then referenced one of its
earlier cases, West End Irrigation Co. v. Garvey, 184 P.2d 476 (Colo. 1947) (en banc) for the proposition that Ato the extent a decree is beyond the authority of the court, it cannot be made valid by any rule of res judicata or any statutes of limitation. It is no more effectual after four years than before.@ Id. Based on this prior ruling, the Colorado
Supreme Court opined: AIt may well be that the same
principle should be applied to [water] appropriations made by the United States which have not been included in
previous adjudications to which the United States was not a party.@ Id.
It was in this context that the United States Supreme
Court in Eagle County II characterized the government=s
sovereign immunity argument as Aextremely technical.@ 401 U.S. at 525.
In sum, the context in Eagle County II involved:
$ A supplemental adjudication rather than
an initial adjudication of water rights.
See id.
$ All interested claimants joined as parties.
See id.
$ The merits of the United States claims not
subject to adjudication. See id. at 526.
$ Preservation of the United States= ability
to assert the priority of its water rights
42 BAKER RANCHES, INC. V. BURGUM
following the supplemental adjudication.
See Eagle Cnty. I at 770. 11
In contrast, Baker Ranches is seeking to enforce an initial adjudication to which the United States was not a party and most importantly, under the Nevada statutory scheme, the water rights previously adjudicated cannot be reassessed in a supplemental adjudication. See Majority Opinion, p.19
n.4. Because of this entirely different context, Eagle County II is not governing precedent for this case. Rather, the Supreme Court=s decision in Dugan, and our binding
precedent in Orff and Metropolitan Water Dist. compel the conclusion that the United States did not waive its sovereign immunity.
Finally, the majority asserts that it would be Aabsurd@ to permit the United States to challenge Asettled” pre-McCarran Amendment decrees in Nevada. Majority Opinion, p. 18.
However, those pre-McCarran Amendment decrees were
Asettled@ at a time when the United States had not waived its sovereign immunity. And under the language of the
McCarran Amendment, it does not apply when the
adjudication did not include the United States as a party. See 43 U.S.C. § 666 (AThe United States, when a party to any such suit, shall be deemed to have waived [its sovereign immunity]@) (emphasis added); see also Dugan, 372 U.S. at 617-18; Orff, 358 F.3d at 1141, 1143. This outcome is
especially indicated in view of our obligation to construe the McCarran Amendment strictly, narrowly, and in favor of the
11
This portion of Eagle County I refutes the majority=s assertion that Athe United States was bound to respect the water rights determined in the preceding adjudication.@ Majority Opinion, p. 19.
BAKER RANCHES, INC. V. BURGUM 43
government. See Orff, 358 F.3d at 1142; see also
Metropolitan Water Dist., 830 F.2d at 143.
In any event, it was the decided intent of Congress that the McCarran Amendment apply only when all parties were
included in the challenged water adjudication. In Eagle
County II, the United States Supreme Court noted that the Awhole community of claims is involved@ and quoted
Senator McCarran, Chairman of the Committee reporting on the bill, on the intent of the McCarran Amendment. See 401 U.S. at 525. Senator McCarran=s words reflect an express intent to waive sovereign immunity only when all parties are permitted to present their claims. He was quoted by the
Supreme Court as stating that the McCarran Amendment:
is not intended to be used for any other
purpose than to allow the United States to be
joined in a suit wherein it is necessary to
adjudicate all of the rights of various owners
on a given stream. This is so because unless
all of the parties owning or in the process of
acquiring water rights on a particular stream
can be joined as parties defendant, any
subsequent decree would be of little value.
Id. (emphasis added).
The Supreme Court agreed with this statement in Dugan,
holding that the McCarran Amendment does not apply to a
pre-McCarran water decree that did not include the United States as a party. See Dugan, 372 U.S. at 617-18.
And speaking of intent, it certainly was not the intent of Congress that the McCarran Amendment be interpreted to
facilitate the trespass of private landowners onto public 44 BAKER RANCHES, INC. V. BURGUM
parklands and engage in diversion of water from federal
property, extensive excavation of federal lands, and
displacement of vegetation to the detriment of the parkgoing public. The majority does not and cannot cite any
portion of the McCarran Amendment or any case that would sanction this unprecedented disruption of the national park system. 12
In conclusion, under the language of the statute,
expressed legislative intent, Supreme Court authority, and our precedent, the United States did not waive its sovereign immunity for the Baker-Lehman Creeks adjudication. Thus, the Baker-Lehman Decree does not bind the United States. The district court got it right. The majority got it wrong. I respectfully dissent.
12
The majority attempts to deny the disastrous effect of its decision by declaring that it expresses no view on the merits of Baker Ranches claims. See Majority Opinion, p.25 n.7. But by requiring the United States to comply with the Baker-Lehman Creeks adjudication, the effect is the same.