BOISE-KUNA IRRIGATION DISTRICT, ET AL., PETITIONERS V. UNITED
STATES OF AMERICA, ET AL.

   No. 88-1170

   In the Supreme Court of the United States

   October Term, 1988

   On Petition for a Writ of Certiorari to the Supreme Court of the
State of Idaho

   Brief for the United States in Opposition

            TABLE OF CONTENTS
   Question presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The opinion of the Idaho Supreme Court (Pet. App. 1a-26a) is
reported at 764 P.2d 78.  The opinion of the Idaho district court
(Pet. App. 27a-57a) is unreported.

                             JURISDICTION

   The judgment of the Supreme Court of Idaho was entered on October
13, 1988.  The petition for a writ of certiorari was filed on January
10, 1989.  The jurisdiction of this Court is invoked under 28 U.S.C.
1257(3).  See note 2, infra.

                          QUESTION PRESENTED

   The McCarran Amendment provides consent to the joinder of the
United States as a defendant "in any suit * * * for the adjudication
of rights to the use of water of a river system or other source" (43
U.S.C. 666).  The question presented is whether joinder of the United
States under the McCarran Amendment in an adjudication of rights to
the use of water of Idaho's Snake River system requires the inclusion,
within the geographic scope of that adjudication, of two tributary
sub-basins.

                               STATEMENT

   1. In 1986, the Idaho state legislature enacted legislation
requiring "a comprehensive determination of the nature, extent and
priority of the rights of all users of surface and ground water from
(the Snake River) system." Idaho Code Section 42-1406A(1) (Supp.
1988).  To accomplish this comprehensive determination, the
legislature required that "the director of the department of water
resources shall petition the district court to commence an
adjudication within the terms of the McCarran amendment, 43 U.S.C.
section 666, of the water rights of the Snake River Basin * * *"
(Idaho Code Section 42-1406A(1) (Supp. 1988)).  The McCarran Amendment
provides congressional consent "to join the United States as a
defendant in any suit (1) for the adjudication of rights to the use of
water of a river system or other source * * *" (43 U.S.C. 666).

   The Idaho statute prescribes the contents of the director's
petition, including, in subparagraph (3), both mandatory and
discretionary directives concerning the geographic scope of the
proposed adjudication to be sought in the petition.  Subparagraph 3(b)
permits the director to include "adjudication of the water rights of
the main stem of the Snake River which forms the boundary between the
state of Idaho and the states of Oregon and Washington." Idaho Code
Section 42-1406A(3)(b) (Supp. 1988).  The director is further granted
discretion in this subparagraph to include any unadjudicated
tributaries to this part of the mainstem in the petition, but he
"shall not include in the petition * * * any adjudicated tributary
unless the United States, or other parties whose consent is necessary,
refuse to consent to the jurisdiction of the district court to
adjudicate all federal or Indian water rights claims pursuant to the
McCarran amendment, 43 U.S.C. section 666." Idaho Code Section
42-1406A(3)(b) (Supp. 1988).  The Boise and Weiser Rivers are both
tributaries of the Snake River, and both join the Snake River along
the portion of the mainstem that forms the boundary between Idaho and
Oregon.

   2. The Idaho director of water resources filed a petition on June
17, 1987 (Pet. App. 28a-29a), pursuant to Idaho Code Section 42-1406A,
requesting that the district court "commence an adjudication, within
the terms of the McCarran amendment, of the water rights of the Snake
River basin" (Pet. App. 27a-28a).  The petition, in proposing specific
geographic boundaries for the adjudication (id. at 29a), excluded the
Boise River and Weiser River tributary sub-basins and two other
sub-basins not at issue here (id. at 49a).

   The United States and a number of other parties objected to the
exclusion of the Boise and Weiser sub-basins (Pet. App. 50a).  The
United States urged that the Boise and Weiser tributaries, which
contributed to the total flow of the Snake River, had to be
adjudicated to determine the downstream water rights at issue in the
proposed general stream adjudication.  The United States further urged
that exclusion of the Boise and Weiser sub-basins would defeat
McCarran Amendment jurisdiction over the United States because the
state court proceeding would not be a comprehensive, general
adjudication of all water rights within the river system (ibid.).  /1/

   The district court ruled, among other matters, that the Boise and
Weiser River sub-basins must be included in the general stream
adjudication.  Pet. App. 27a-57a.  The court concluded that under
Idaho Code Section 42-1406A's "consent" provision the United States'
objection to the exclusion of those sub-basins was sufficient, by
itself, to require their inclusion in the general stream adjudication
(Pet. App. 49a-50a).  In addition, the court agreed with the United
States that "the McCarran amendment, cases interpreting it and the
legislative history to it require that an adjudication be a general
adjudication of all rights inter se of a river system or other source
in order to obtain jurisdiction over the United States" (id. at 52a).
The court recognized that "(a) comprehensive adjudication of all water
rights in the Snake River basin cannot occur without including the
sub-basins" (ibid.) and that "the inclusion of these sub-basins is
necessary in order to obtain lawful jurisdiction over the United
States" (id. at 53a).

   3. The Idaho Supreme Court affirmed the district court's order.
Pet. App. 4a-26a.  The state supreme court disagreed with the district
court's conclusion that under Idaho Code Section 42-1406A the United
States' objection in this litigation was sufficient, by itself, to
require inclusion of the two sub-basins.  The court construed Idaho
Code 42-1406A's consent provision as referring "to the existing
consent by Congress in the McCarran Amendment" (Pet. App. 13a), and
"not to some special consent of the United States" (id. at 14a).

   The court nevertheless concluded that the McCarran Amendment's
consent to joinder in "the adjudication of rights to the use of water
of a river system" (43 U.S.C. 666) required that the adjudication of
the Snake River system include determination of water rights in the
hydrologically related Boise and Weiser sub-basins.  Pet. App.
14a-21a.  The court recounted the consistent reading given the
McCarran Amendment by this Court and the lower federal courts (id. at
14a-18a).  The court specifically rejected (id. at 18a-20a)
petitioners' contention that this Court's decisions in United States
v. District Court in and for the County of Eagle, 401 U.S. 520 (1971),
and United States v. District Court in and for Water Division No. 5,
401 U.S. 527 (1971), required a different result.

                               ARGUMENT

   The Idaho Supreme Court correctly held that the McCarran Amendment
does not permit the State of Idaho to join the United States in a
general stream adjudication of the Snake River system unless the
adjudication includes two hydrologically related sub-basins.  The
State of Idaho, which initiated the stream adjudication and is a
respondent to the petition for a writ of certiorari, agrees with that
holding.  The Idaho Supreme Court's decision does not conflict with
any decision of this Court or any other court.  Accordingly, further
review is not warranted.  /2/

   1. The McCarran Amendment's plain language controls this case.
That statute permits joinder of the United States in suits "for the
adjudication of rights to the use of water in a river system" (43
U.S.C. 666 (emphasis added)).  The term "river system" -- by
definition -- includes the river's main stem and its contributing
branches.  See, e.g., United States v. District Court in and for the
County of Eagle, 401 U.S. 520, 523 (1971) ("the Eagle (River) and its
tributaries" are "a 'river system' within the meaning of the Act").
Thus, the McCarran Amendment here quite plainly limits joinder of the
United States to an adjudication of rights to the use of water of the
Snake River and its tributaries.

   Congress's objective in including tributaries is obvious.  Since a
general stream adjudication involves the apportionment of competing
claims to a limited resource, it cannot proceed unless all of the
potential claimants are before the court.  And since the upstream
tributaries contribute to the total resource available for downstream
apportionment, the upstream claims must be adjudicated to determine
downstream flows and priorities.  Thus, the inclusion of tributaries
is necessary to ensure "a general adjudication of 'all of the rights
of various owners on a given stream'" (Dugan v. Rank, 372 U.S. 609,
618-619 (1963), quoting S. Rep. No. 755, 82d Cong., 1st Sess. 9 (1951)
(emphasis added)).  As the Idaho Supreme Court explained (Pet. App.
14a-16a), the McCarran Amendment's legislative history fully supports
this view.  /3/

   Petitioners principally argue that the Idaho Supreme Court's
interpretation of the McCarran Amendment is contrary to the federal
policy of deference to state water law.  See Pet. 11-14.  A general
policy cannot, however, override plain statutory language.  Moreover,
the Idaho Supreme Court's interpretation is manifestly consistent with
Idaho's practices in administering water within its borders.  As the
State of Idaho has explained:

         The practical effect of the Idaho Supreme Court's judgment is
      to include two sub-basins within the Snake River Basin general
      adjudication and to incorporate these old decrees into a
      comprehensive decree adjudicating all rights to the use of water
      within the Snake River Basin.  This will result in better
      administration of the entire Snake River Basin.

   Idaho Br. in Opp. 12.

   Petitioners also characterize the Idaho Supreme Court's
interpretation of the McCarran Amendment as "'frivolous' and
'extremely technical'" (Pet. 20).  Quite to the contrary, the court
has simply construed the statute according to its plain terms and
objectives.  The court's adherence to the McCarran Amendment's
language is particularly appropriate here because the statute provides
a limited waiver of the United States' sovereign immunity and places
claims against the United States within the jurisdiction of state
courts.  It is well settled that "when Congress attaches conditions to
legislation waiving the sovereign immunity of the United States, those
conditions must be strictly observed, and exceptions thereto are not
to be lightly implied." Block v. North Dakota, 461 U.S. 273, 287
(1983).  Furthermore, jurisdictional provisions, which are to "'be
read by judges with the minds of . . . specialist'" (Cheng Fan Kwok v.
INS, 392 U.S. 206, 212 (1968)), "must be construed both with precision
and with fidelity to the terms by which Congress has expressed its
wishes" (ibid.).

   2. Petitioners appear to acknowledge (Pet. 10) that the Idaho
Supreme Court's decision does not stand in square conflict with any
decision of another court.  They maintain, however, that the Idaho
Supreme Court's decision "conflicts in principle" (id. at 10, 15) with
this Court's decisions in United States v. District Court in and for
the County of Eagle, 401 U.S. 520 (1971), and United States v.
District Court in and for Water Division No. 5, 401 U.S. 527 (1971).
The Idaho Supreme Court correctly rejected that contention.  See Pet.
App. 18a-20a.

   In Eagle County, this Court principally held that the McCarran
Amendment permits state courts to adjudicate federal reserved water
rights.  401 U.S. at 521-525.  In the course of reaching that
decision, the Court observed that "the Eagle (River) and its
tributaries" -- though a part of the Colorado River drainage basin --
comprise "a 'river system' within the meaning of the Act" (id. at
523).  That observation simply recognizes that a major river system
may consist of a number of smaller river systems.  Applied to the
circumstances here, it would suggest that Idaho could have joined the
United States in an action to adjudicate rights in a Snake River
tributary, such as the Boise (or the Weiser) River, provided that the
adjudication embraced all of that tributary's upstream constituent
parts.  But since Idaho wishes to join the United States in an action
to adjudicate rights in the Snake River system, the adjudication
correspondingly must include the Snake River's mainstem and all of its
upstream constituent parts.

   In Water Division No. 5, the Court approved the use of the McCarran
Amendment to join the United States in an action brought under
Colorado's unique water rights adjudication procedures, which consist
of dividing the State's territory into a number of "water divisions"
and determining claims in "monthly proceedings before a water referee"
(401 U.S. at 528-529).  The Court held that this approach amounted to
a general stream adjudication because these ongoing judicial
proceedings, held concurrently in the different divisions, would reach
"all claims, perhaps month by month but inclusively in the totality"
(401 U.S. at 529).  Thus, Water Division No. 5 simply stands for the
proposition that a State has latitude to determine how to conduct a
general stream adjudication;  it does not alter the requirement that
the adjudication embrace an entire "river system" (43 U.S.C. 666).
/4/

   Accordingly, the Idaho Supreme Court's decision in this case is
entirely consistent with this Court's decisions in Eagle County and
Water Division No. 5.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   WILLIAM C. BRYSON

      Acting Solicitor General

   DONALD A. CARR

      Acting Assistant Attorney General

   PETER C. MONSON

   ROBERT L. KLARQUIST

   WILLIAM B. LAZARUS

      Attorneys

   MARCH 1989

   /1/ The State of Idaho itself recognized that the tributary water
rights had not been fully or finally adjudicated.  The state
director's petition indicated that past adjudications involving the
Boise and Weiser Rivers had concerned only rights to the use of
surface water and not to the use of groundwater, and that the United
States was at most a party to only one of the two major decrees
concerning rights to surface water on the Boise River, and was not a
party to any decree concerning rights to surface water on the Weiser
River (Petition for the General Adjudication of Rights to the Use of
Water from Snake River Basin Water System, No. 39576 (5th Dist. Ct.
June 17, 1987), paras. 15, 16).

   /2/ We do not contest that the judgment of the Idaho Supreme Court
is final for purposes of 28 U.S.C. 1257(3).  The federal issue here
"has been finally decided in the state courts with further proceedings
pending in which the part(ies) seeking review here might prevail on
the merits of nonfederal grounds" and "reversal of the state court on
the federal issue would be preclusive of any further litigation on the
relevant cause of action" with respect to those parties.  See, e.g.,
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 477-485 (1975).

   /3/ Petitioners describe the Boise and Weiser tributaries as
"adjudicated" tributaries (see e.g., Pet. 9), suggesting that the
water rights in those sub-basins have already been determined.  But as
both of the lower courts (as well as the State of Idaho, see note 1,
supra) recognized, the Boise and Weiser tributaries have not been
fully and finally adjudicated.  See Pet. App. 8a-9a, 52a.

   /4/ Petitioners contend that Water Division No. 5 supports the
exclusion of the Boise and Weiser Rivers from adjudication of the
Snake River system because the Colorado legislature had placed the
Colorado River and one of its tributaries, the Gunnison River, in
separate water divisions.  This Court noted, but did not comment on,
that division.  See 401 U.S. at 528.  As the Idaho Supreme Court
explained (Pet. App. 20a), the Colorado legislature's administrative
scheme assures that the Gunnison River and its tributaries will be
subject to a concurrent, ongoing adjudication of water rights, albeit
in a geographically separate water division.  Thus, Colorado's
procedure fulfills the McCarran Amendment's basic goal of assuring a
comprehensive determination of water rights.  See generally Colorado
River Water Conservation District v. United States, 424 U.S. 800,
819-820 (1976).