The Supreme Court/The Supreme Court.iso/pc/ascii/misc/108orig.zx

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SUPREME COURT OF THE UNITED STATES
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No. 108, Orig.
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STATE OF NEBRASKA, PLAINTIFF v. STATES OF
WYOMING and COLORADO
on petition for order enforcing decree and for
injunctive relief
[May 30, 1995]

  Justice Thomas, concurring in part and dissenting in
part.
  I agree with the decision of the Court to overrule all
of Wyoming's exceptions to the Third Interim Report of
the Special Master (Report).  Accordingly, I join Parts
I, II, and III of the Court's opinion.  I do not agree,
however, that we should overrule the exceptions of the
United States and Nebraska to the Master's recommen-
dation that Wyoming be allowed to proceed with its pro-
posed Fourth Cross-Claim against the United States.  I
would sustain those exceptions and require Wyoming to
pursue that claim in another forum.
  Wyoming's Fourth Cross-Claim begins with the follow-
ing allegation:
-The equitable apportionment which the Decree was
intended to carry into effect was premised in part
on the assumption that the United States would op-
erate the federal reservoirs and deliver storage wa-
ter in accordance with applicable federal and state
law and in accordance with the contracts governing
use of water from the federal reservoirs.-  App. to
Report E-11.
Wyoming then alleges generally that -[t]he United States
has failed to operate the federal reservoirs in accordance
with applicable federal and state laws and has failed to
abide by the contracts governing use of water from the
federal reservoirs.-  Ibid.  According to Wyoming, these
failures have -caused water shortages to occur more fre-
quently and to be more severe, thereby causing injury to
Wyoming and its water users.-  Id., at E-12.  In short,
Wyoming alleges that -a predicate to the 1945 decree
was that the United States adhered to [riparian law's]
beneficial use limitations in administering storage water
contracts, that it no longer does so, and that this change
has caused or permitted significant injury to Wyoming
interests.-  Ante, at 17.
  In the abstract, these allegations are sufficient to state
a claim for modification of the decree based on changed
circumstances.  Such relief is authorized by the decree's
Paragraph XIII, which invited the parties to -apply at
the foot of this decree for its amendment or for further
relief.-  Nebraska v. Wyoming, 325 U. S. 589, 671 (1945)
(Nebraska I).  In particular, subdivision (f) of Paragraph
XIII anticipates that we might modify the decree in light
of -[a]ny change in conditions making modifications of
the decree or the granting of further relief necessary or
appropriate.-  Id., at 672.  Thus, in light of the Federal
Government's failure to satisfy our expectation that it
would comply with applicable riparian law and with its
contracts, we might engage in -a reweighing of equities-
and accordingly -reope[n]- the 1945 apportionment of the
North Platte and modify the decree in Wyoming's favor.
Nebraska v. Wyoming, 507 U. S. ___, ___ (1993) (slip op.,
at 7) (Nebraska II).
  If Wyoming's Fourth Cross-Claim against the United
States had actually sought such relief, I might agree
with the Court's decision to allow the claim to proceed.
But the cross-claim's prayer for relief seeks neither a
reapportionment of the North Platte nor any other mod-
ification of the decree.  Instead, it asks the Court -to
enjoin the United States' continuing violations of fed-
eral and state law and . . . to direct the United States
to comply with the terms of its contracts.-  App. to Re-
port E-12.  This prayer makes perfect sense: why seek
to modify the decree based on a -change in conditions-
if such change could be reversed or annulled by means
of injunctive relief grounded in existing law?  Indeed,
were existing law sufficient to prevent the injuries al-
leged by Wyoming, the State could hardly point to the
-considerable justification- necessary for -reopening an
apportionment of interstate water rights.-  Nebraska II,
supra, at ___ (slip op., at 7).
  Yet precisely because the injunctive relief requested
by Wyoming arises out of and depends on a body of law
that exists independently of the decree, the Court errs
in asserting that Wyoming -states a claim arising under
the decree itself.-  Ante, at 18.  This is so for two rea-
sons.  First, a claim that the United States must comply
with applicable law and with contracts governed by such
law-here, 8 of the Reclamation Act of 1902, 32 Stat.
390, 43 U. S. C. 372, 383, the Warren Act, ch. 141,
36 Stat. 925, 43 U. S. C. 523-525, and other federal
and state riparian law, see ante, at 14-15-necessarily
-arises under- that body of law.  See, e.g., Franchise Tax
Bd. of Cal. v. Construction Laborers Vacation Trust for
Southern Cal., 463 U. S. 1, 8-9 (1983) (approving, as a
principle of inclusion, -Justice Holmes' statement, `A suit
arises under the law that creates the cause of action'-
(quoting American Well Works Co. v. Layne & Bowler
Co., 241 U. S. 257, 260 (1916))).
  Second, although a decree entered by this Court could
conceivably afford an additional and separate basis for
ordering the United States to comply with applicable ri-
parian law and with its storage contracts, our 1945 de-
cree in fact does not.  That is, we -anticipated that the
storage [water] supply would `be left for distribution in
accordance with the contracts which govern it,'- ante, at
14 (emphasis added) (quoting Nebraska I, 325 U. S., at
631), but we did not mandate that result.  To the con-
trary, Paragraph VI of the decree states expressly that
-[s]torage water shall not be affected by this decree- and
that storage water shall be distributed -without interfer-
ence because of this decree.-  Id., at 669.  Accord, Brief
for Wyoming in Response to Exceptions of Nebraska and
the United States 19 (-No one asserted [in 1945] a need
for the Court affirmatively to require the [Federal Gov-
ernment's] compliance with federal law; such compliance
was assumed-).
  Because Wyoming's Fourth Cross-Claim against the
United States therefore involves neither -an application
for enforcement of rights already recognized in the de-
cree- nor a request for -a modification of the decree,-
Nebraska II, supra, at ___ (slip op., at 5), I do not un-
derstand why the Court chooses to entertain that claim
as part of the present proceeding.  It is well established
that -[w]e seek to exercise our original jurisdiction spar-
ingly and are particularly reluctant to take jurisdiction
of a suit where the plaintiff has another adequate forum
in which to settle his claim.-  United States v. Nevada,
412 U. S. 534, 538 (1973) (per curiam).  This particular
reluctance applies squarely to -controversies between the
United States and a State,- of which we have -original
but not exclusive jurisdiction.-  28 U. S. C. 1251(b)(2)
(emphasis added).  Thus, in United States v. Nevada, we
declined to exercise jurisdiction over a dispute between
those parties about intrastate water rights, noting that
such dispute was -within the jurisdiction of the District
Court- in Nevada.  412 U. S., at 538.  Accord, id., at
539-540 (-Any possible dispute with California with re-
spect to United States water uses in that State can be
settled in the lower federal courts in California . . .-).
  These principles should be applied here.  Although I
agree with the Court that the mere existence of pending
litigation brought by individual storage contract holders
against the United States in the Federal District Court
in Wyoming is not dispositive, see ante, at 18, I see no
reason (and the parties offer none) why Wyoming could
not institute its own action against the United States in
that forum.  Moreover, given the number and variety of
the other new or amended claims we have approved
today, see ante, at 9-12-not to mention the issues left
unresolved by our 1993 opinion, see Nebraska II, supra,
at ___-___ (slip op., at 10-18)-the significant statutory
and contractual issues raised by Wyoming's cross-claim
against the United States would most likely be resolved
in the District Court with far greater dispatch.  Indeed,
the present round of litigation has dragged on for almost
nine years, but we are not even beyond the stage of con-
sidering amendments to the pleadings.
  Finally, although I share the Court's distaste at the
prospect of intervention by individual storage contract
holders in this original action, see ante, at 19-20, I find
it just as distasteful unnecessarily to deny private par-
ties the opportunity to participate in a case the disposi-
tion of which may impair their interests.  By remitting
Wyoming's claim to the District Court, we would allow
the storage contract holders to participate voluntarily by
joinder or intervention, see Fed. Rules Civ. Proc. 20(a)
and 24, or to be joined involuntarily in the interest of
just adjudication, see Rule 19.
                       *    *    *
  The Court's decision to entertain Wyoming's Fourth
Cross-Claim against the United States departs from our
established principles for exercising our original juris-
diction, ignores the relief requested by Wyoming, and
needlessly opens the possibility to a reapportionment of
the North Platte.  In short, it constitutes -a misguided
exercise of [our] discretion.-  Wyoming v. Oklahoma, 502
U. S. 437, 475 (1992) (Thomas, J., dissenting).  Accord-
ingly, I respectfully dissent from the Court's decision in
this regard.