UNITED STATES v. DISTRICT COURT OF FOURTH JUDICIAL DIST. IN AND FOR UTAH COUNTY et al.
No. 7506.
Supreme Court of Utah
Decided December 21, 1951.
238 P. 2d 1132.
Clinton D. Vernon, Atty. Gen., J. Lambert Gibson, Asst. Atty. Gen., Clair M. Aldrich, and Christenson & Christenson, Provo, for defendants.
WADE, Justice.
The United States seeks a writ, based on its sovereign immunity, to prevent the Fourth District Court from taking jurisdiction of an appeal from a decision of the state engineer approving its application for a change of the diversion place of some of its irrigation waters. These water rights were obtained by the government as appurtenances to lands acquired in the construction of the Deer Creek reservoir, which lands are now under water. The permission to change the placе of diversion of such waters was obtained over the protest of other water users who claim that such change will impair their vested rights to the use of the waters of the Provo River and who appealed from the decision by commencing an action in the district court to review the decision of the state engineer, whereupon the United States instituted this action.
The United States which initiated these proceedings by applying to the state engineer for a change of place of diversion is now claiming the right to make such change under the engineer‘s favorable decision. The defendants here contend that Congress has expressly waived such immunity from this suit under the present circumstances and that by filing and relying on its approved application the United States has submitted to the jurisdiction of the district court to review the engineer‘s decision. These contentions are sustained and the writ denied.
The administration of the waters of the western arid states present many vital and complicated problems. The right to the use of water, although a property right, is very different from the ownership of specific property which is
To meet this urgent need, the Legislature in 19031 created the State Engineer‘s office to keep records of all established water rights and those to be acquired in the future, to supervise the distribution of the water, and to keep records of and regulate future appropriations and changes in the place of diversion, use and nature of the use. Although the engineer is required, the same as courts, to exercise discretion, determine facts after a hearing and approve or reject apрlications ac-
The State Engineer‘s decisions, often have the effect of determining valuable rights. Neither an appropriation or change in diversion place or purpose or place of use can be initiated or accomplished under our law without his approval or the approval of the district court on review.2 His decisions require notice to all interested persons who may protest, whereupon the Engineer must investigate and hear evidence of all interested parties and he should approve or reject applications to appropriate, and applications for a change and issue or deny certificates that such applications have been accomplished in accordance with the law and the facts as he finds them.3 With the Engineer‘s approval the applicant may proceed to make such appropriation or change but if he rejects such application the applicant is prohibited from taking any of the steps proposed in his application so long as such rejection remains in effect.4 Such decisions are declared final unless reversed by a review in the district court,5 and any person changing or attempting to change a place of diversion, place of use or purpose of use without first applying to the State Engineer is guilty of a misdemeanor6 and no right to appropriate can be initiated or accomplished except by filing an application therefore with the State Engineer.7 Thus the decision of the Engineer and of the district court on appeal therefrom have the effect of establishing or denying valuable rights but
The legislature provided that any person aggrieved by the engineer‘s decision may bring an “action in the district court for a plenary review thereof” and that the hearing therein “shall proceed as a trial de novo.”10 The use of the terms “review” and “trial de novo” indicate that the court shall review only the issues of law and fact which were involved in the engineer‘s decision. That is, whether the application shall be approved or rеjected, and as a corollary thereto whether on all the evidence adduced at such trial de novo the engineer‘s approval or rejection should be sustained, rejected or modified.11 The district court by its decision, the same as the engineer‘s decision in approving or rejecting such application has the effect of determining whether the applicant may proceed to perfect a right thereunder. In re Application 7600, 63 Utah 311, 225 P. 605, 607, decided in 1924 was under statute which provided for an appeal but did not mention plenary review or trial de novo and did not detail the steps neсessary to get into the district court. There we said
“the trial in the district court should be a trial de novo, and limited to the particular question decided by the state engineer“.
“When an appeal is taken from the decision of the state engineer in such a case, the trial court is required to determine the same questions de novo. It determines whether the application should be approved or rejected and does not fix the rights of the parties beyond the determination of that matter. The issues remain the same upon an appeal to this court. All that the district court, is called upon to do is to determine whether the application should be rejected or approved.
* * * * *
“It is not for the court, on an appeal from the decision of the state engineer rejecting respondent‘s application, to decree to him any waters which he may be able to obtain by conserving and increasing the flow of the stream involved. It should simply determine whether the application was rightly rejected. In determining that question, the court stands in the same position as the state engineer did. It must determine from the evidence whether there is probable cause to believe that there is unappropriated water available for use; that the applicant can beneficially use such unappropriated water; and that such water can be diverted from the source of supply and used without injury to or conflict with prior rights. If the application is approved, then the applicant must proceed under and be governed by the same statutory provisions as would have been aрplicable had his application been approved by the state engineer.”
To the same effect is Tanner v. Bacon, 103 Utah 494, 136 P. 2d 957; Whitmore v. Murray City, 107 Utah 445, 154 P. 2d 748.
The district court‘s judgment in reviewing the engineer‘s decision is limited to the issues determinable by the engineer and in general has the same effect as though it were made by him. The question to be determined is whether or not under the facts established in that court the engineer‘s decision should be upheld or reversed taking into account the statutory powers of the engineer but the court may not determine issues not within the power of the engineer to determine. In the case of an application to apрropriate or to change the place of di-
“The office of state engineer was not created to adjudicate vested rights between parties, * * *”
and that
“The determination of the priority of rights is a judicial function аnd not among the powers of the state engineer.”
He seems to conclude therefrom that the decisions of the engineer are administrative but those of the court in reviewing them somehow become a judicial function. The import of these cases are exactly opposite from that conclusion. Whether or not we call the engineer‘s decision administrative and the district court‘s decision judicial, no rights to the use of water accrue by the mere approving or rejecting of an application, the only thing thereby determined is whether the applicant may рroceed in accordance with the statute to perfect the right applied for. Riordan v. Westwood, 115 Utah 215, 203 P. 2d 922.
In the Eardley case, the engineer denied an application to appropriate and on appeal the district court not only approved the application but awarded appellant the right to use the water for which he applied. On appeal, we reversed that award, using the language quoted above from that case to the effect that the issues before the court on appeal are the same as they were
The Whitmore case was not a review of the engineer‘s decision but an independent action seeking a declaratory judgment to establish the right of plaintiff therein to appropriate under his application the amount of water for which he had aрplied for power purposes. The defendant in that case filed its application to appropriate also for power purposes with the engineer before plaintiff but in that application its diversion place was such that both of them could use the same water, one after the other, so there was no conflict between these applications. After plaintiff filed his application, defendant applied for and was granted a change in its diversion place to a place where the same water could not be used to supply both applications and most of the year there was not enough water to supply the two of them at the same time. Although he had notice thereof, plaintiff did not protest defendant‘s application for a change in diversion place but after his time for appeal therefrom had expired he filed that action to establish his right to complete his appropriation with priority over the defendant. The defendant therein argued that the priority of its right over the plaintiff‘s had been established by the engineer‘s decision allowing the change in place of diversion, contending thаt such decision necessarily
From these decisions and the cases cited above, it is clear that the district court‘s judgment can only cover the issues subject to determination by the Engineer and that the effect of such judgment is the same as it would have been if the Engineer had reached the same conclusion in the first instance. The Engineer in granting an application does not determine that the applicant‘s rights are prior to the rights of the protestant but only finds there is reason to believe that the application may be granted and some water beneficially used thereunder without interfering with the rights of others. Under such a holding, the Engineer rejects applications only when it is clear that the applicant can establish no valuable rights thereunder, he does not adjudicate claims but decides only that there is probable cause to believe that applicant may be able to establish rights under his application without impairing the rights of others. Such a decision is administrative in
Section 383 of the Federal Reclamation Act, 32 Stat. 390,
“383. Vested rights and State laws unaffected by chapter. Nothing in this chapter 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 chapter, 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. (June 17, 1902, c. 1093, § 8, 32 Stat. 390.)”
Pursuant to those provisions and in compliance with the Utah statutes, on June 12, 1945, the United States filed an application to change the place of diversion and use of its water rights which had previously been used to irrigate the lands now covered by the Deer Creek Reservoir. By
The United States answered the protests stating that it proposed to use only such waters as it could use without interfering with the rights of such plaintiffs and offered to modify its application so as to protect such rights. After a hearing before the state engineer, the United States modified its application in accordance with its interpretation of the evidence and such offer by reducing the quantity of water which it applied to change from 43.292 cubic feet per second (c. f. s.) to 10.30 c. f. s. The engineer approved the application subject to all rights which might be adversely affected. Thus it is clear that the engineer‘s decision did not purport to determine how much water the applicant could redivert and use from the Provo River without impairing the rights of others, but merely found that there was reason to believe that some of such waters could be so rediverted and used. Such approval of the change of place of diversion and use was expressly limited to such waters as could be so rediverted and used without impairing the rights of others.
Although the United States claims the benefit of the engineer‘s аpproval of its application, it contends that it is not subject to the jurisdiction of the district court on appeal from that decision because it has not waived immunity from such suit. If all of the defenses against the approval of that application set out in such complaint could be litigated and finally adjudicated in such action, then there would be much force to that argument. Since the only issues that the district court can determine in that action are those which are inherent in the engineer‘s decision which only requires a determination of whether there is reason to believe that sometimes some of such waters may be diverted at the new diversion place and used as the application proposes without impairing the rights of others, the United States is subject to no greater risk in the review by the district court than it was
The United States contends that since the law as applied to it is different in some instances from the law as applied to private persons and other private legal entities, it is not subject to the jurisdiction of the district court. It claims that it is not subject to the payment of costs in legal actions and that different rules are applied in establishing estoppel and abandonment against it than in the case of a person or other legal entity. The plaintiffs do ask for costs in the district court action and claim estoppel and abandonment. The questions of estoppel and abandonment were not issues to be determined by the State Engineer and therefore cannot be adjudicated in the review of that decesion in the district court and the only bearing they can have on the decision in the district court is the light they may throw on the question of whether there is reason to believe that some of this watеr may be diverted under this application without impairing other rights. Certainly, the fact that the law may be different as applied to the United States as to the payment of costs and estoppel and abandonment is not grounds for denying jurisdiction to the district court. We cannot on that account assume that the district court will erroneously decide those questions and if it should, means have been provided for correction of erroneous decisions.
In answer to the state‘s contention that it would be unfair for the United States to be a law unto itself and administer its water rights as its administrative officers saw fit, counsel suggests that regardless of the result of this action, eventually the United States will litigate all the questions raised or suggested in the appeal to the district court. Under our holding in this case, such a suit will be necessary regardless of the outcome of this case unless the district court should find that there is no reason to believe that any such change could be effected without impairing rights of others for the approval of such an application would not determine any question except that the United States could proceed to change the diversion place of such waters only to the extent that it can do so without impairing the rights of others.
We, therefore, conclude that the district court has jurisdiction to proceed with the review of the Engineer‘s decision and this application for such a writ is denied.
WOLFE, C. J., and McDONOUGH, and HENRIOD, JJ., concur.
CROCKETT, Justice (concurring).
I concur on the grounds stated in the opinion of Mr. Justice Wade, that the Federal Government has voluntarily submitted itself to the jurisdiction of the Utah tribunals by filing its application, and the Federal statute requires the Secretary of the Interior to proceed in conformity with State law which embraces the full procedural requirements of the State law including the review on appeal. Had the ruling of the State Engineer been adverse to the Government, it is beyond peradventure of doubt that the Government would have claimed the right to seek a reversal on appeal. It would be anomalous indeed if the Government could claim the benefit of a ruling of the State Engineer and then not be subject to having the ruling reviewed by the District Court on appeal as provided by statute.