Summary of a Recent
Judicial Development in
Water Law

Plaintiff Fails to Establish Waiver of Sovereign Immunity

L. Paul Goeringer
National AgLaw Center Research Associate

Summary of Decision

In Grant County Black Sands Irrigation District v. United States, 539 F. Supp. 2d 1292 (E.D. Wash. 2008), the District Court for the Eastern District of Washington granted the United States' motion to dismiss. The district court found that the plaintiffs, two reclamation water users, had failed to establish that the U.S. had waived sovereign immunity under the Administrative Procedures Act (APA) or other federal acts.

Background

The plaintiffs brought a class action suit on behalf of water users in the Quincy Basis Ground Water Subarea near the Columbia Basin Project. Id. at 1295. They claimed that federal reclamation laws required the U.S. to treat them "equitably as compared to other federal reclamation participants." Id. at 1294.

Arguments

The U.S. argued that APA § 702, which relates to waiver of sovereign immunity, did not apply because the Tucker Act did not provide equitable relief for claims based on contract. Id. at 1296. In addition, the U.S. argued that the plaintiffs failed to identify any reviewable final agency action or any non-discretionary duties not taken by the U.S. Id. The plaintiffs argued that Congress had waived sovereign immunity under APA § 706(1) and 706(2). Id. The plaintiffs also argued that the reclamation laws limited the government's discretion and identified certain actions that the U.S. had withheld in not treating 43 U.S.C § 903(e) contracts as repayment contracts and giving them the rights provided for in 43 U.S.C. § 485h-1-5. Id. at 1297. Finally, the plaintiffs argued that their quiet title claims and mandamus claims were based on other waivers of sovereign immunity, so those claims were independent of the APA. Id. at 1298.

Analysis and Holdings

The district court, looking at past precedent, stated that "section 702 of the APA waives sovereign immunity for Plaintiffs' claims if (1) the claims are not for money damages; (2) an adequate remedy for the claims is not available elsewhere; and (3) the claims do not seek relief expressly or impliedly forbidden by another statute." Id. at 1296. The court also stated that the Tucker Act and the Little Tucker Act did not allow for "a district court to grant equitable or declaratory relief in a contract dispute . . . ." Id. The court did find that a district court could grant equitable relief based on statutory rights. Id. The court found that "the basis for Plaintiffs' claims is statutory, based on federal reclamation laws. Thus the Tucker Act does not preclude a section 702 waiver of sovereign immunity." Id. The court then turned to its determination of whether the plaintiffs had brought a valid claim under the APA. Id.

The district court agreed with the U.S. that the plaintiffs had failed to raise a claim under the APA, and therefore were not entitled to the waiver of sovereign immunity in the APA. Id. at 1298. First, the district court found that nothing required that § 9(e) short-term contracts to be treated as "repayment contracts." Id. at 1297. The district court found "nothing in this section that would authorize the Secretary to provide the benefits Plaintiffs are seeking to short-term contracts. Plaintiffs' interpretation of section 485h(e) is belied by the explicit provisions of section 485h-1-5." Id.

Second, the plaintiffs pointed to a series of statutes that limited the government's discretion in entering into short-term contracts. Id. Reviewing the statutes, the district court found nothing that required the U.S. to do what the plaintiffs were requesting. Id. at 1297-98.

Third, the court disagreed that inclusion of a construction charge in the § 9(e) contracts was a violation of federal reclamation law. Id. at 1298. The construction charge was allowed under § 485h (e). Id. The court found that the section

permits the Secretary to set rates in the Secretary's judgment [that] will produce revenues at least sufficient to cover an appropriate share of the annual operation and an appropriate share of such fixed charges as the Secretary deems proper, due consideration being given to that part of the cost of construction of works connected with water supply and allocated to irrigation.
Id.

The court found that nothing in the law required that, once a construction charge was assessed, the contract would become a repayment contract or a contract covered by § 485h-1. Id.

Finally, the court disagreed with the plaintiffs' assertion that the U.S. was required to treat the plaintiffs equally as compared with other participants. Id. "On the contrary, the reclamation laws provide that the water users be treated differently, depending on the type of contract that is entered into with the users and the Bureau." Id. The court found that the plaintiffs were not entitled to the APA's waiver of sovereign immunity because they had failed to establish a claim under the APA. Id.

With the remaining claims, the court found that the plaintiffs had failed to meet their burden to show that the U.S. had waived sovereign immunity. Id. The court granted the government's motion to dismiss with respect to all claims. Id. at 1299.

The case was decided on January 14, 2005.