State of Washington v. Stewart L. Udall, Secretary of the Interior

417 F.2d 1310 STATE OF WASHINGTON, Appellant, v. Stewart L. UDALL, Secretary of the Interior, et al., Appellees. No. 22413. United States Court of Appeals Ninth Circuit. October 14, 1969. As Modified October 14, 1969. Rehearing Denied December 24, 1969. Harold T. Hartinger (argued), Asst. Atty. Gen., John J. O'Connell, Atty. Gen., J. R. Pritchard, Asst. Atty. Gen., Olympia, Wash., for appellant. Roger P. Marquis (argued), Clyde O. Martz, Asst. Atty. Gen., Washington, D. C., Smithmoore P. Myers, U. S. Atty., Spokane, Wash., Ronald R. Hull, Asst. U. S. Atty., Yakima, Wash., for appellee. Before HAMLIN, ELY, and CARTER, Circuit Judges. ELY, Circuit Judge: 1 The State of Washington instituted this suit in an attempt to secure judicial review of an administrative determination by the Secretary of the Interior, acting through subordinate officials in the Bureau of Reclamation. The federal officials had determined that Washington was not entitled to the delivery of water from the Columbia Basin Project to more than 160 irrigable acres of certain state-owned lands within the South Columbia Basin Irrigation District. The District Court, relying on the Supreme Court's decision in Dugan v.…

The State of Washington instituted this suit in an attempt to secure judicial review of an administrative determination by the Secretary of the Interior, acting through subordinate officials in the Bureau of Reclamation. The federal officials had determined that Washington was not entitled to the delivery of water from the Columbia Basin Project to more than 160 irrigable acres of certain state-owned lands within the South Columbia Basin Irrigation District. The District Court, relying on the Supreme Court’s decision in Dugan v. Rank, 372 U.S. 609 , 83 S.Ct. 999 , 10 L.Ed.2d 15 (1963), and holding that the United States was an indispensable party and had not consented to such a suit against it, dismissed the State’s complaint upon the basis of the doctrine of sovereign immunity. The State appeals, contending that the United States has waived its immunity through the Administrative Procedure Act, 5 U.S.C. §§ 701-706 , or the mandamus statute, 28 U.S.C. § 1361 . For reasons that follow, we have concluded that the doctrine of sovereign immunity did not operate to require dismissal of the State’s complaint.

The State also urges that jurisdiction was vested in the District Court under…

(dissenting):

I respectfully dissent. The factual situation which forms the basis of the case before us is a frustrating one, but one in which neither the officials of the State of Washington nor of the United States government have been arbitrary or capricious in their actions.

The case concerns the desire of the State of Washington to secure water for its school lands. Under Washington law the disposal of such lands is restricted by Sec. 11 of the Washington Enabling Act and by Art. 16, §§ 1 and 2 of the Washington Constitution, which provide in substance, that the school lands shall be disposed of only at public sale or public auction. The statutes of the United States, in particular 43 U.S.C. § 423e provide in substance, that as to lands held in private ownership water will not be supplied for an area in excess of 160 acres unless there is a valid recordable contract for the sale of the lands in excess of 160 acres, at terms and conditions satisfactory to the Secretary, and at prices not to exceed those fixed by the Secretary.

Public Law 851, 81st Cong., 2d Sess., 64 Stat. 1074 (1950) solved the problem while the law was in existence. However, the enactment of Public Law…