MEMORANDUM AND ORDER

I

NATURE OF THE CASE

In preparation for the construction and operation of the New Melones Dam on the Stanislaus River as a component part of the Central Valley Project, the plaintiff (hereinafter “United States”) made application to the State Water Resources Control Board of the State of California (hereinafter “Board”) for permits to appropriate certain unappropriated water from the Stanislaus River watershed. In addition to the original applications filed by the Plaintiff, it also sought appropriative grants based on prior applications which had been filed by agencies of the State of California, the originat- or of the project in question. After lengthy hearings, the Board, on April 4, 1973, issued its decision, numbered 1422 (hereinafter denoted “D 1422”) granting to the Plaintiff’s appropriator’s rights to the requested water, assigning to such appropriations the desired priority date. However, in D 1422, the Board imposed certain conditions upon the Plaintiff’s impoundment, use and distribution of the total amount of water which the Board had granted to the Plaintiff in the foregoing grants of appropriator’s rights. It is these conditions that the Board imposed, rather than the grants of appro *493 priative rights, which engendered this litigation.

Simply stated, the United States now argues that some of the conditions imposed by the Board are in conflict with, and are contrary to the intent of Congress as expressed in the Reclamation Act of 1902, subsequent acts amendatory thereto, and the enactments authorizing the instant project.

The administrative function of the Board, its hearing and notice procedure, and the other elements of its permit granting powers are set forth in substantial detail in the California Water Code, §§ 1200 et seq. Unlike most other state administrative boards in California, its authority with regard to reconsideration of its decisions or orders, its basis for reconsideration of a decision or order, and the judicial review thereof, are spelled out in specific detail in §§ 1357,1358 and 1360 of that Code. It should specifically be noted that § 1252.5 of the Water Code of California provides as follows:

Section 1358 of the Water Code provides:

Judicial review of the board’s actions is found in § 1360 of the same Code:

Rather than avail itself of the provisions of administrative reconsideration and state court review as prescribed by the California Legislature, the United States filed a Complaint for Declaratory Relief in this court on October 15, 1973, long after the time for filing state action has expired. 2 In its complaint, prayers for relief by the United States in this action requested this court to:

Plaintiff was successful in both the District Court 3 and the Court of Appeals. 4

The Supreme Court of the United States, however, reversed in California v. United States, 438 U.S. 645 , 98 S.Ct. 2985 , 57 L.Ed.2d 1018 (1978). In remanding the case to this Court, Justice Rehnquist, speaking for a majority of six Justices directed that:

On September 27, 1978, Defendant (hereinafter “California”), filed a Motion for Summary Judgment and for Judgment on the pleadings in the matter. The matter was transferred to The Honorable Charles B. Renfrew for further proceedings, and he heard oral argument on the motion on March 1, 1979. Judge Renfrew, not having concluded the matter prior to his appointment as Assistant Attorney General, the matter was reassigned to the undersigned for decision.

II

CALIFORNIA’S CONTENTIONS

Briefly stated, California’s argument is as follows:

Under state law, the United States had 30 days to petition the Board for reconsideration of its decision, including the conditions imposed on the United States therein. By not availing itself of this option, D 1422 became final 30 days after its issuance. At that point, the United States had 30 days in which to petition for a Writ of Mandamus pursuant to Section 1360 of the Water Code in the appropriate Superior Court of the State of California. Having allowed that time period to pass, D 1422 is now final and binding upon the United States in the instant suit. California reached this point by contending that since § 8 of the Reclamation Act of 1902 requires the United States to comply with state laws relating to the control, use, appropriation or distribution of water used for irrigation in all respects, that the only recourse for judicial review open to the United States was in the State court action as indicated by Water Code § 1360.

Having thus posited the foregoing major and minor premises of the syllogism, California urges the following conclusions on the court:

1. That the United States is barred by the doctrine of res judicata from challenging either the appropriations granted under D 1422, or any of the conditions contained therein.

2. That the doctrine of collateral estoppel bars the United States from challenging any of the actual findings of the Board to the effect that the United States has failed *495 to show the proposed water uses are reasonable and beneficial under federal and state law.

3. If neither of the foregoing arguments is sufficient to entitle the State to the judgment in this court, that the court, on review of the administrative record, must uphold the factual findings of the Board because they are supported by substantial evidence.

At the threshold of this decision we must examine and decide:

1. Whether the United States could properly exercise the choice of judicial forum; and

2. The choice of law to be applied in whatever forum the United States chose to bring its action.

As stated in Wright, Miller and Cooper, Federal Practice and Procedure, § 3651:

The decision of the Southern District of Idaho in Northside Canal Co., Ltd. v. Twin Falls Canal Co., et al., 12 F.2d 311 (D.C.Idaho, 1926), deserves passing notice.

Plaintiff lodged a bill in equity against the defendant noted above and others, including the Secretary of the Interior, in the State courts of Idaho. The Secretary removed the suit to the United States District Court, and plaintiff sought an order remanding the case to State court.

After determining that the United States was the real party in interest, the District Court refused to remand, stating, at page 313:

It appears to the court that the reasoning of the District Court is sound and applicable to the instant case.

Both the constitutional amendment and the jurisdictional sections mentioned in *496 the above quotation were firmly in place at thé time § 8 of the Reclamation Act of 1902 was enacted. California cites no authority nor quotations from legislative intent which would indicate to the court that Congress, in enacting the Reclamation Act of 1902, intended to curtail, by implication, the jurisdiction of federal courts to entertain suits in which the United States is a plaintiff concerning its activities in the reclamation field.

Finally, the court believes that the case of Colorado River Water Conservation District v. United States, 424 U.S. 800 , 96 S.Ct. 1236 , 47 L.Ed.2d 484 (1976), is determinative of that issue.

After passage of the McCarran Amendment, 43 U.S.C. § 666 , which consented to the United States being named as a defendant in state court cases involving the adjudication of the rights to use of water of a river system or other source or for the administration of such rights wherein it appears that the United States is an owner of water rights, the following events occurred:

1. The United States, as trustee for certain Indian Tribes and as an owner of various non-Indian government water right claims, brought an action in the United States District Court for the District of Colorado, to obtain a determination of its water rights in certain waters and tributaries located in Colorado Water Division No. 7.

2. Thereafter, one of the defendants in the Federal action filed a state court action naming the United States as a defendant and sought an order directing that process be served on the United States making them a party to the state court action.

3. Several of the parties in the federal court action then moved the Federal District Court to dismiss on the grounds that the McCarran Amendment had stripped the District Court of its jurisdiction to adjudicate the water rights in question.

Without addressing itself to the question of the jurisdiction of the District Court, the Federal District Court dismissed the action ruling that the doctrine of abstention required deference to the State court proceedings. The Tenth Circuit reversed. (See U. S. v. Akin, 504 F.2d 115 .) The Supreme Court reversed, and reinstated the District Court’s decision.

In reversing the Circuit Court of Appeals, however, the Supreme Court took specific pains to examine the question of the jurisdiction of the District Court to hear the case. After fully considering the matter, Justice Brennan, speaking for six members of the court, concluded as follows:

This holding was cited with approval in Cappaert v. United States, 426 U.S. 128 , 96 S.Ct. 2062 , 48 L.Ed.2d 523 (1976).

Thus, while both Congress and the courts have consistently recognized the “sharing” of jurisdiction by state and federal courts, the court was furnished with no authority, nor could find any by its own research, that compels the conclusion that Congress divested the federal courts of their share of this jurisdiction.

The choice of law question presents a more difficult problem.

The broad reach of the language employed by Justice Rehnquist in the forepart of the majority decision in United States v. California, supra, would tend to compel the conclusion that State procedural laws, as well as State substantive laws are mandated upon Federal Courts by the terms of § 8 of the Reclamation Act of 1902 ( 43 U.S.C. § 383 ). Yet the preciseness of the majority opinion directions on remand dictate a closer examination of the question of which law should be applied by the court.

To the court’s knowledge, no decision has squarely faced the problem in the prior reported reclamation cases. Santa Margarita Mutual Water Company v. State Water Rights Board of the State of California, 165 F.Supp. 870 (S.D.Cal.1958), is of some help, but since the District Court remanded the case to state court sua sponte, much of its discussion on this point becomes dicta. 5 We then turn to cases in other fields for guidance.

It is generally conceded by writers in this field that Clearfield Trust Co. v. United States, 318 U.S. 363 , 63 S.Ct. 573 , 87 L.Ed. 838 (1943), is the seminal decision on this point. Speaking for a unanimous court, Justice Douglas stated the controlling considerations as follows:

For years, the Supreme Court has held that where controversies were brought involving the apportionment of waters of an interstate stream, common law principles *498 applied, rather than state law. (See Kansas v. Colorado, 206 U.S. 46, 95 , 27 S.Ct. 655, 666 , 51 L.Ed. 956 (1907); New Jersey v. New York, 283 U.S. 336 , 51 S.Ct. 478 , 75 L.Ed. 1104 (1931); Hinderliter v. La Plata River and Cherry Creek Ditch Co., 304 U.S. 92 , 58 S.Ct. 803 , 82 L.Ed. 1202 (1938).

The reasoning of these cases indicates that the rights and liabilities of the United States, and the citizens of the various states directly affected thereby cannot be permitted to vary with the laws of the several states where there are important federal policies involved.

Such a policy is involved here. Justice Holmes said it best:

We reject the contention of California that by electing to be bound by substantive rules of water law of the various states in the acquisition of appropriator’s rights, the United States must subject itself to the differing, and often conflicting, procedural rules of the states and is foreclosed from examining the propriety of state action in federal courts. Section 8 of the Reclamation Act does not compel such a result.

In eminent domain cases, where riparian rights, or other property ownership arising from riparian rights, have been taken by the United States, federal law, rather than state law, is applied to determine the value of the property taken. (United States ex rel. T.V.A. v. Powelson, 319 U.S. 266 , 63 S.Ct. 1047 , 87 L.Ed. 1390 (1943).

In this regard, a further facet should be noted as to the present status of this litigation. Since, as argued by California, the Board’s decision, D 1422, giving the United States certain rights to appropriate water from the Stanislaus River has become final under state law, to that extent, the United States possesses appropriator’s rights to water in that river. The only issue now left to the decision of this court is whether or not the conditions imposed by D 1422 as to the impoundment and use of that water is consistent with the expressed intent of Congress. The court has not been furnished by counsel any authority (though such was specifically requested) that indicates that state law should be held to foreclose such inquiry.

Ill

RES JUDICATA

The doctrine of res judicata most simply stated, prohibits repetitious suits involving the same parties or their privies and concerning the same cause of action. [See Commissioner v. Sunnen, 333 U.S. 591 , 68 S.Ct. 715 , 92 L.Ed. 898 (1947).]

As we have demonstrated, the issues remaining in this case have not been finally adjudicated, and are properly before this court for determination. Hence on that ground alone, California’s claim of res judicata must fail.

Even despite the foregoing, there are other cogent reasons why the doctrine of res judicata is not available to the Defendant in support of his motion for summary judgment. The Board rendered D 1422 as an administrative agency. Its sole function is to engage in factfinding within the parameters of authority outlined in the appropriate sections of the California Water Code. As was stated in United States v. Utah Construction and Mining Co., 384 U.S. 394 , 86 S.Ct. 1545 , 16 L.Ed.2d 642 (1966):

There is no indication that the Board ever considered whether or not acts of Congress constituted a limitation on the exercise of their administrative function, nor does a review of the California legislative materials pertaining to the creation of the Board indicate that the California legislature intended that the Board was empowered to decide issues of law of the nature presented by the complaint of the United States.

IV

COLLATERAL ESTOPPEL

The classic distinction between res judicata and collateral estoppel is well stated in Irving National Bank v. Law, 10 F.2d 721 (2nd Cir. 1926), at 724:

The same considerations enumerated with regard to res judicata are equally applicable here — with even more force.

Tested against the classical language employed by Judge Hand, supra, D 1422 is totally void as to any determination or finding by the Board of its power to act vis-avis the will of Congress in regard to the establishment and operation of this project.

V

THE COURT MUST UPHOLD D 1422 IF REVIEW SHOWS IT SUPPORTED BY “SUBSTANTIAL EVIDENCE” TEST

California apparently raises this issue as “insurance” should the court be inclined to treat this motion as simply a request to engage in a review of administrative action.

The thrust of the Plaintiff’s complaint does not request the court to engage in the normal and usual review of an administrative decision, nor has the court been able to find anything in the Plaintiffs’ moving papers wherein they request this court to engage in the traditional judicial review of an administrative action. To the contrary, as stated in the United States Memorandum of Points and Authorities in Opposition to Defendants’ Motion for Summary Judgment and Judgment on the Pleadings filed on November 13, 1978:

*500 The court agrees with this statement. To state the matter quite another way, the United States has its water; the issue now is how can they use it?

The court submits that that is a question of law. Since congressional intent is being determined, the court must engage in a limited amount of factfinding to determine what was, in fact, the congressional intent as it applies to the New Melones project.

CONCLUSION AND ORDER

Defendants’ Motions for Summary Judgment and Judgment on the Pleadings are denied.

. Prior to the announcement of the Supreme Court in the instant case, it was thought to be the law that the United States was not bound, in all instances, to acquire water by means of the California administrative scheme, or by eminent domain. [See Dugan v. Rank, 372 U.S. 609 , 83 S.Ct. 999 , 10 L.Ed.2d 15 (1963); Fresno v. California, 372 U.S. 627 , 83 S.Ct. 996 , 10 L.Ed.2d 28 (1963); United States v. Gerlach Live Stock Co., 339 U.S. 725 , 70 S.Ct. 995 , 94 L.Ed.2d 1231 (1950).] But compare the majority and dissenting opinions in United States v. California, 438 U.S. 645 , 98 S.Ct. 2985 , 57 L.Ed.2d 1018 (1978).

. Plaintiff invokes this court’s jurisdiction pursuant to Title 28, U.S.C. § 1345 :

California admitted the truth of such allegations in its answer.

. United States v. California, 403 F.Supp. 874 (E.D.Cal.1975).

. United States v. California, 558 F.2d 1347 (9th Cir. 1977).

. In essence, the court held that the issue presented by the pleadings in Santa Margarita was the validity of the action of the California Water Rights Board (the predecessor administrative agency which was replaced by the agency here involved, i. e., the Water Resources Board of the State of California) in granting certain applications for appropriation of water from a river running through a military reservation of the United States. The Fallbrook Public Utility District was one of the successful appropriator applicants, and Santa Margarita’s application was rejected by the State Board. The ensuing litigation raised such congressional concern that subsection (d), of Section 208, C. 651 Title II, 66 Stat. 560 , contained a limitation on the use of any appropriation in the act “to prepare or prosecute the suit in the United States District Court for the Southern District of California by the United States against the Fallbrook Public Utility Corporation.”

. Occasionally it helps to recall how disputations such as this arise. Although not material to this decision, it should be noted that the United States became embroiled in this controversy because California found that the completion of the Central Valley Project, of which New Melones Dam is a part, was beyond its economic capacity, and hence would have remained incomplete but for the agreement by Congress to take over the construction of this and other components of the project.