ASSOCIATED ENTERPRISES, INC., ET AL. v. TOLTEC WATERSHED IMPROVEMENT DISTRICT
No. 71-1069
Supreme Court of the United States
Argued January 8, 1973—Decided March 20, 1973
410 U.S. 743
Fred W. Phifer argued the cause and filed a brief for appellee.*
PER CURIAM.
In this case, we are confronted with an issue similar to the one determined today in Salyer Land Co. v. Tulare Water District, ante, p. 719. Appellee Toltec Watershed Improvement District was established after referendum held pursuant to Wyoming‘s Watershed Improvement District Act,
Appellants urge here that the provisions entitling only landowners to vote and weighting the vote according to acreage violate the Equal Protection Clause. Like the California water storage district, the Wyoming watershed district is a governmental unit of special or limited purpose whose activities have a disproportionate effect on landowners within the district. The district‘s operations are conducted through projects and the land is assessed for any benefits received.
We cannot agree with the dissent‘s intimation that the Wyoming Legislature has in any sense abdicated to a wealthy few the ultimate authority over land management in that State. The statute authorizing the establishment of improvement districts was enacted by a legislature in which all of the State‘s electors have the unquestioned right to be fairly represented. Under the act, districts may be formed only as subdivisions of soil and water conservation districts.
Affirmed.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL concur, dissenting.
I
For the reasons set forth in my dissenting opinion in Salyer Land Co. v. Tulare Water District, ante, p. 735, I cannot agree that the voting provisions of Wyoming‘s Watershed Improvement District Act pass muster under the Equal Protection Clause. Accordingly, I dissent.
At issue is Wyoming‘s Watershed Improvement District Act,
The purposes of the Wyoming Act are “to provide for the prevention and control of erosion, floodwater and sediment damages, and the storage, conservation, development, utilization, and disposal of water.”
In June 1970, appellee sought a right of entry onto lands owned by appellant Associated Enterprises, and leased by appellant Johnston Fuel Liners, for the purpose of carrying out foundation studies for a dam site. When appellant Associated Enterprises resisted, Toltec sought to enforce its right of entry in state court. The trial court agreed with appellants that if Toltec had been illegally formed, they would have a good defense to
I conclude that the presumption set out in Phoenix v. Kolodziejski, 399 U. S. 204, has not been overcome, for “[p]lacing voting power in property owners alone can be justified only by some overriding interest of those owners that the State is entitled to recognize.” Id., at 209. Here, the suggestion was made below that property owners are those “primarily concerned” with the affairs of the watershed district. But assuming, arguendo, that a State may, in some circumstances, limit the franchise to that portion of the electorate “primarily affected” by the outcome of an election, Kramer v. Union School District, 395 U. S. 621, 632, the limitation may only be upheld if it is demonstrated that “all those excluded are in fact substantially less interested or affected than those the [franchise] includes.” Ibid.
Other than the bald assertion by the court below that it “makes sense” to limit the franchise in watershed district referenda to property owners, there is nothing in the record to support the exclusion. Appellant Johnston is a lessee of land in the District. Why a lessee is “substantially less interested” in the creation of a watershed district than is a titleholder is left to speculation.2 And
Moreover, we recently stated that “a percentage reduction of an individual‘s voting power in proportion to the amount of property he owned would be [constitutionally] defective. See Stewart v. Parish School Board, 310 F. Supp. 1172 (ED La.), aff‘d, 400 U. S. 884 (1970).” Gordon v. Lance, 403 U. S. 1, 4 n. 1.
II
It is argued, however, that unlike “units of local government having general governmental powers over the entire geographic area served by the body,” Avery v. Midland County, 390 U. S. 474, 485, a watershed improvement district is “a special-purpose unit of government assigned the performance of functions affecting definable groups of constituents more than other constituents,” id., at 483-484. The court below sought to make such an analysis.
The Avery test, however, was significantly liberalized in Hadley v. Junior College District, 397 U. S. 50. At issue was an election for trustees of a special purpose district which ran a junior college. We said,
“[S]ince the trustees can levy and collect taxes, issue bonds with certain restrictions, hire and fire teachers, make contracts, collect fees, supervise and discipline students, pass on petitions to annex school districts, acquire property by condemnation, and in general manage the operations of the junior college, their powers are equivalent, for apportionment purposes, to those exercised by the county commissioners
in Avery. . . . [T]hese powers, while not fully as broad as those of the Midland County Commissioners, certainly show that the trustees perform important governmental functions . . . and have sufficient impact throughout the district to justify the conclusion that the principle which we applied in Avery should also be applied here.” Id., at 53-54. (Emphasis added, footnote omitted.)
Measured by the Hadley test, the Toltec Watershed Improvement District surely performs “important governmental functions” which “have sufficient impact throughout the district” to justify the application of the Avery principle. The District may: levy and collect special assessments,
The lower court characterized these functions as “proprietary” in nature, rather than “governmental.” But that is a meaningless distinction when control of public affairs is at issue. Cipriano v. City of Houma, 395 U. S. 701; Stewart v. Parish School Board of St. Charles, 310 F. Supp. 1172, 1176, aff‘d, 400 U. S. 884. It is hardly to be argued that a public body with the power to take land by eminent domain, to issue bonds, to levy taxes, and to provide plans for flood control does not “perform important governmental functions.”
It is also inconceivable that a body with the power to destroy a river by damming it and so deprive a watershed of one of its salient environmental assets does not have “sufficient impact” on the interests of people generally to invoke the principles of Avery and Hadley.
It is said that there is a difference between an election to create a special-purpose district, and an election either
“Our exacting examination [of statutes which selectively distribute the franchise] is not necessitated by the subject of the election; rather, it is required because some resident citizens are permitted to participate and some are not.” Kramer v. Union School District, supra, at 629.
As we said in Hadley:
“If the purpose of a particular election were to be the determining factor in deciding whether voters are entitled to equal voting power, courts would be faced with the difficult job of distinguishing between various elections. We cannot readily perceive judicially manageable standards to aid in such a task. It might be suggested that equal apportionment is required only in ‘important’ elections, but good judgment and common sense tell us that what might be a vital election to one voter might well be a routine one to another.” 397 U. S., at 55.
The mere creation of the Watershed Improvement District subjects residents of the area to constraints. The District may condemn land without further electoral approval; and it has the power to finance improvements through special taxes levied against land to be benefited by the improvements without further electoral approval. While such assessments fall in the first instance on the landowner, lessees and tenants would be substantially affected, as well.3 And its power to reshape or control the watershed and to provide flood control enables it to
The issues I tender are disposed of by the suggestions that the members of the Legislature of Wyoming passed the Act now challenged, that they represented the people of Wyoming, and that they could therefore put the landowners in command of the environmental problems tendered by this case. That would, of course, be true if the case presented no federal question. But adherence to Reynolds v. Sims and its progeny makes the federal rule dominant, viz., that important governmental functions may not be assigned to special groups, whether powerful lobbies or other discrete groups to which a state legislature is often beholden.
I would reverse the judgment below.
Notes
Establishment of a Watershed Improvement District entails several steps. First, a petition proposing the creation of such a district must be filed with the board of supervisors of the soil and water conservation district in which the proposed watershed district will lie.
On receipt of the petition, the board of supervisors must call a public hearing, which “[a]ll owners of land within the proposed
If the supervisors do think there is a need, however, they must further determine whether the proposed district is “administratively practicable and feasible.”
Once created, a watershed improvement district has broad powers. It may exercise the power of eminent domain, levy and collect assessments, and issue bonds.