Te-Moak

August 5, 2003

PRESS RELEASE

Judge Settles State-Federal Court Battle Over Water Rights 

By: Christopher Schwindt, Schroeder Law Offices, P.C.

            San Francisco, CA – In an opinion entered July 28, 2003, the Ninth Circuit Court of Appeals settled a long-standing dispute between the federal and state courts over administration and control of state-decreed water rights.  In State Engineer v. United States the Court ruled in favor of the State Engineer of Nevada and Pershing County Water Conservation District (PCWCD), and against the United States and South Fork Band of the Te-Moak Tribe of Western Shoshone Indians of Nevada.  The Court ruled that power to administer water rights is vested exclusively in the court that first enters a water rights decree.  In this case, the state court entered the Humboldt River Decree in 1935, so it has exclusive jurisdiction to administer the water rights under that Decree.

            Laura Schroeder of Schroeder Law Offices P.C. represented PCWCD in the appeal.  She said the case was very similar to an earlier one where the federal court entered the original water rights decree, and therefore had exclusive jurisdiction: “This time the shoe was on the other foot.  By recognizing the Nevada state court’s exclusive authority over the decree, Judge Kozinski upheld the legal principles that created an orderly system of water law and water rights administration in the West.”  Ms. Schroeder said that although the state’s contempt action still has to be decided, at least we finally know which court system has power to make that decision.

            The dispute arose when the United States, and thereafter the Tribe, refused to pay the State of Nevada’s fees for administering the Tribe’s water rights.  The Tribe even went so far as to arrest and handcuff the watermaster, forcefully escorting him from the reservation when he attempted to enforce the state court water decree.  This prompted the State Engineer to file an action for contempt against the Tribe in state court.  The United States joined the dispute on behalf of the Tribe, and removed the case to the federal district court.  In a strange twist of events, described as “surreal” by Ninth Circuit Judge Kozinski, the state court and federal court tried to prevent one another from conducting further proceedings in the matter.  Finally, the federal court decided to abstain from rendering any decision, and sent the case back to the state court.

             All parties appealed the federal district court’s decision.  The State Engineer and PCWCD argued that the state court has exclusive jurisdiction over the matter.  Since the state court first entered the decree, the federal court could not voluntarily abstain from the case, but rather it was required by law to send the case back to state court.   The United States and Tribe argued that contempt action was essentially against the persons involved, rather than the water rights, and thus the federal court should decide the case.

             Ninth Circuit Judge Kozinski held that whichever court enters the initial decree adjudicating the water rights at issue has exclusive jurisdiction over the administration of those rights.  The case was essentially about the water itself, which constitutes property, or “res” in Latin.  An ancient and still valid legal doctrine provides that when one court first seizes control over the res, no other court can exercise concurrent control in a legal proceeding. Otherwise, confusion and conflicting decisions could result, as nearly occurred here.

             In the case of water, the court first entering a decree of the water rights seizes control over the res, which is the water.  It makes no difference whether that court happens to be a federal or a state court; the important point is that whichever court enters the original decree is the only court with power to administer the water rights under that decree from then on.  In this case, the Sixth Judicial District Court of Nevada first entered the Humboldt Decree, so regardless of federal or tribal involvement, the state court had the exclusive power to decide the case.  The fact that the action was brought in contempt against the Tribal authorities was merely a formality, because it was essentially a case over control of the water, or res.  The contempt action will be decided in state court.

For more information, please contact:schroeder@water-law.com

Laura A. Schroeder
Schroeder Law Offices, P.C.
1915 NE 39th Ave
PO Box 12527
Portland, OR  97212
(503) 281-4100
(503) 281-4600 (fax)

schroeder@water-law.com
www.water-law.com