The McCarran Amendment
A current Ninth Circuit Case could upset pre-1952 water rights adjudications in certain circumstances!
Enacted by Congress in 1952, the McCarran Amendment, 43 U.S.C. § 666, waives the United States’ sovereign immunity in state court water rights adjudications. The Amendment acknowledges the power of a state to regulate ownership and use of the waters within its boundaries. This allows the federal government to be joined as a defendant in a suit to determine ownership and priority of water rights from a particular source.
But, what happens in the circumstance where vested water rights were adjudicated before the McCarran Amendment was enacted? If the federal government could have joined state adjudication proceedings in the past, and chose not to, can they still assert reserved water rights to the fully adjudicated water source?
The Challenge
That is precisely the issue that arose in the Nevada federal court case Backer Ranches, Inc. v. Haaland. In Baker Ranches, owners of decreed water rights to Baker and Lehman Creeks sued the United States for interfering with their water rights to the creeks.
The state court adjudication establishing the owner’s water rights to Baker and Lehman Creeks occurred in 1934, before the McCarran Amendment. Because the federal government had sovereign immunity to state court proceedings concerning water rights at the time, the federal government was not a party to the adjudication, though it was informed and provided with updates about the proceedings.
Years later, the federal government allegedly began to divert the flows of the creeks, interfering with the plaintiffs’ decreed water rights and triggering the lawsuit. The federal government moved to dismiss the case, claiming that it had reserved water rights superior to the plaintiffs and that the court lacked subject matter jurisdiction because the federal government was not a party to the 1934 adjudication and had sovereign immunity.
Plaintiffs argued that the McCarran Amendment waived federal sovereign immunity and that the state adjudication should control ownership and use of the water at issue. The court ultimately sided with the federal government, noting that the waiver of sovereign immunity found in the McCarran Act only applied to circumstances where the adjudication of water rights is comprehensive – i.e. when all parties asserting water rights are able to participate in the adjudication.
District Court Findings
The court found that the federal government’s reserved water rights were not part of the 1934 adjudication and that the federal government had not waived its sovereign immunity. Hence, the court dismissed the case, finding that it lacked subject matter jurisdiction. The court’s decision to dismiss the case is currently being appealed to the Ninth Circuit Court of Appeals.
If the court’s decision in Baker Ranches is upheld it has the potential to upset what has been considered settled priorities for water use throughout the arid western United States. If upheld, the federal government will have the ability to assert reserved water rights to a water source that has already been adjudicated in state court if the adjudication occurred before the passage of the McCarran Amendment and the federal government was not a party. In certain circumstances, the result could be as drastic as the complete loss of an individual’s water use.
Schroeder Law Offices is happy to review your circumstances with you.
