State of Nevada Ex Rel. Hugh A. Shamberger, State Engineer v. United States Ofamerica

Nevada seeks a declaration that the United States may not make use of underground waters developed by wells located on the Hawthorne Naval Ammunition Depot without applying therefor pursuant to state law. Nevada takes this appeal from judgment of the District Court dismissing its complaint.

Many issues are raised by the appeal. The ultimate question upon which Nevada desires our expression is: which sovereign entity, the United States or a state of the Union, is vested with control over the appropriation to beneficial consumptive use by the United States of non-navigable waters, including underground waters, within the boundaries of a state ? We find, however, that our disposition of the matter must turn upon the first point raised by the United States: that it has not consented to the bringing of this suit and that the suit is therefore barred by the sovereign immunity of the defendant.

Nevada contends that congressional consent to suit has been given by 43 U.S.C. § 666 (a). Our construction of that section, in the light of its legislative history, is that it cannot be made to apply to the case at bar.

The Hawthorne Naval Ammunition Depot, located in Mineral County, Nevada, is…