United States v. Idaho ex rel. Director, Idaho Dept. of Water Resources

PETITIONER:United States
RESPONDENT:Idaho ex rel. Director, Idaho Dept. of Water Resources
LOCATION:City of Minneapolis

DOCKET NO.: 92-190
DECIDED BY: Rehnquist Court (1991-1993)
LOWER COURT: Idaho Supreme Court

CITATION: 508 US 1 (1993)
ARGUED: Mar 29, 1993
DECIDED: May 03, 1993

ADVOCATES:
Clive J. Strong – on behalf of the Respondent
Jeffrey Minear – for petitioner
Jeffrey P. Minear – on behalf of the Petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – March 29, 1993 in United States v. Idaho ex rel. Director, Idaho Dept. of Water Resources

William H. Rehnquist:

We’ll hear argument next in No. 92-190, the United States v. Idaho on the relation of the Director of the Idaho Department of Water Resource.

Mr. Minear, you may proceed.

Jeffrey P. Minear:

Thank you, Mr. Chief Justice, and may it please the Court:

The question in this case is whether the McCarran Amendment allows the State of Idaho to charge the United States with filing fees to pay for the costs of State water rights adjudication.

This case has its origins in a dispute between the State of Idaho and the Idaho Power Company over the Company’s right to use Snake River flows for power development.

Idaho ultimately decided to conduct a general adjudication of all water rights in the Snake River Basin.

And it joined the United States pursuant to the McCarran Amendment, which is set forth at page 2 of our brief.

Congress enacted the McCarran Amendment to allow joinder of the United States in such adjudications, but it specifically provided that the United States is exempt from judgments for costs, which was the mechanism that Idaho and other States commonly used to pay… to pay for those adjudications at that time.

Nevertheless, Idaho has now asserted that it can charge the United States filing fees to the same end, to pay for the adjudication.

We originally estimated that those fees would amount to at least $10 million in this litigation alone.

We have now completed filing our various water rights claims with the Department of Water Resources and it appears that those fees will total at least $30 million.

We challenged Idaho’s fee assessments through a writ of mandamus, and the Idaho Supreme Court ultimately held by a vote of 3 to 2 that the McCarran Amendment requires the United States to pay those fees.

We seek reversal of that judgment.

As this Court has repeatedly recognized, the United States is immune from cost and fee assessments unless Congress expressly provides otherwise.

The McCarran Amendment contains no such waiver.

An inspection of the McCarran Amendment’s text proves our point.

The first sentence, the so-called joinder provision, allows Idaho to join the United States as a defendant in the Snake River Basin adjudication, but it says nothing about requiring the United States to pay money.

The mere consent to joinder is not consent to pay for the adjudication or to pay for the expenses of other parties.

Sandra Day O’Connor:

Well, Mr. Minear, the last sentence, the proviso, says no judgment for costs shall be entered against the United in such a suit.

Now, is it possible that these fees could be considered costs?

They’re paid in advance, but are they the type of fee that could be considered a cost?

Jeffrey P. Minear:

They certainly serve the very same function as a judgment for cost.

In fact, the Idaho code makes that quite clear.

It states, on page 2 of our brief, in order to provide an adequate and equitable cost-sharing formula for financing the costs of adjudicating water rights the Department of Water Resources shall… shall accept no claim… notice of claim, et cetera.

Sandra Day O’Connor:

I found troublesome the Government’s argument that the United States isn’t bound by any procedural requirements of the State in which the water litigation is conducted.

Jeffrey P. Minear:

Well, with all respect, Your Honor–

Sandra Day O’Connor:

That strikes me as pretty broad.

Jeffrey P. Minear:

–That is… that is not our position.

I think our position is that the McCarran Amendment does not specifically address State procedures.

Now, I think that it’s implicit in the join… the notion of joinder that the United States will comply with reasonable procedures of the State.

Sandra Day O’Connor:

I mean there may be time limits for filing certain things and a whole array of State procedural requirements.

Jeffrey P. Minear:

That is correct.

And Idaho–

Sandra Day O’Connor:

And if the United States isn’t bound by any of those, I don’t see how the litigation could proceed.

Jeffrey P. Minear:

–Well, our position is that… we think that the McCarran Amendment does not expressly address this issue, but we think that the United States is bound by reasonable procedures.

But at the same time, the United States reserves its right to object to any procedures that are aberrant or that are hostile to Federal interests.

For… assume, for example, that Idaho decided to determine water rights by a coin flip.

The United States does not necessarily have due process rights to make an objection.

Its protection is in… is based on supremacy grounds, and in its protection under sovereign immunity principles.

And we believe the United States could have kept–

Antonin Scalia:

But I think… I think you could say that in granting the waiver, it was assumed that the procedures, if not for the sake of the United States at least for the… for the sake of other people, would comply with due process of law.

Jeffrey P. Minear:

–And that’s… and that is my point.

Antonin Scalia:

So do you have some other example that would prove your point, because I don’t find that one a persuasive one?

Jeffrey P. Minear:

Excuse me, I’m not sure… other examples of a–

Antonin Scalia:

No, I’m saying since… since I am sure that the… that the McCarran provision assumed that any procedures would comply with… with the requirements of due process, I don’t think that this example that you give proves that… that the McCarran Act was not meant to subject the Government to procedures.

Jeffrey P. Minear:

–And, again, I think that there’s nothing that the… in the McCarran Amendment that addresses State procedures specifically.

Antonin Scalia:

Right.

Jeffrey P. Minear:

And, again, we’re talking about the implications and not… my point is simply that the United States still has the right to raise objections to procedures that are either unfair, which, I think, is the point that you’re making in terms of them being… not comporting with due process, or also procedures that are directly hostile to Federal interests.

For instance, if… suppose that in terms of filing deadlines, the United States was subject to a shorter period than other parties.

We think that the United States may well have the right to object to those types of procedures.

Antonin Scalia:

Sure, but not on the basis of sovereign immunity.

On the base… I mean, the… on the quite different basis of selective… you know, being discriminated against.

Jeffrey P. Minear:

That’s correct, that’s correct.

William H. Rehnquist:

Okay.

Sovereign immunity has nothing to do with… with due process, in that people who concededly are subject to the jurisdiction of courts can always raise a due process claim.

Jeffrey P. Minear:

That… that is correct.

Again, the point here, however, is the… the question of assessment of fees.

William H. Rehnquist:

Yes.

Now, supposing that Idaho made an assessment of $100 on everybody who is making an appearance for the first time in a judicial proceeding in Idaho, and that was applied across the board.

Jeffrey P. Minear:

The question with respect to the United States is whether Congress has waived its historic immunity from those types of assessments.

William H. Rehnquist:

And do–

Jeffrey P. Minear:

And we… and our answer is it has not.

And we would look to the three provisions of the… the three relevant provisions of the McCarran Act.

First is the joinder provision and, as I say, all that consents to is the joinder of the United States in the proceeding.

It does not say anything about costs or fees for which a separate waiver of sovereign immunity would be required.

William H. Rehnquist:

–You don’t think there’s any subsidiary waiver involved when it… when it talks about being joined in a proceeding.

Jeffrey P. Minear:

Not with respect to… to fees and costs.

This Court has recognized those types of… any cost-shifting mechanism requires a separate waiver from Congress.

William H. Rehnquist:

Well, but then why does Congress say at the end of this that it shall not be liable for costs, if it wouldn’t have been without the provision?

Jeffrey P. Minear:

For the very reason that it… that the provision was attached to the third provision, the so-called judgment provision, which subjects the United States to the judgments of the State court.

And we believe that Congress put in the proviso to make clear that that provision did not subject the United States to judgments for costs.

It’s important to remember–

Byron R. White:

Well, Mr. Minear, the… the statute permits the United States to be joined, but what that means is that the… that there can be a general adjudication of a… of water rights in the basin, but only… and what it means is that if the United States wants to get water rights, they not only are joined but if they did not come in and file a claim, they would have no water rights.

Jeffrey P. Minear:

–That is correct.

Byron R. White:

And so it… you… the United States conceded that it would have to to make a valid water right claim in the State of Idaho.

Jeffrey P. Minear:

It would have to.

In the judicial proceeding it would have to make a claim.

Byron R. White:

Exactly.

And you would have to take the initiative.

Jeffrey P. Minear:

Yes, that is correct.

Byron R. White:

And you don’t think that subsumes compliance with some rules about how you file a claim.

Jeffrey P. Minear:

We believe it does not subsume compliance with filing fees.

Again, this… Congress has… we require a waiver from Congress.

Byron R. White:

Well, what if it had been a $5 fee?

Jeffrey P. Minear:

If it had been a $5 fee, in all likelihood we would not have challenged it because it’s a de minimis amount.

Byron R. White:

Well, why not?

Jeffrey P. Minear:

And because it… the law does not concern itself with trifles, as the Court said in Weltover last year, that de minimis not curat lex.

Byron R. White:

Well, but–

Jeffrey P. Minear:

We simply would not–

Byron R. White:

–The United States is not being subject to filing fees that are different from other parties.

Jeffrey P. Minear:

–I think that in terms of types of claims–

Byron R. White:

Is it or not?

Jeffrey P. Minear:

–In terms–

Byron R. White:

Yes or no?

Jeffrey P. Minear:

–That it does not discriminate directly against the United States with respect to the claims made by the United States.

However, the types of claims the United States typically makes, for instance instream flows, are–

Volume.

Jeffrey P. Minear:

–Require fees at a much higher level.

Volume.

And the more water you claim, the more you pay.

Jeffrey P. Minear:

Yes.

And, also, certain types of claims are, in fact… or require a higher fee even though there’s no added expense in adjudicating those types of claims.

But, again, this–

And that includes the claim… the kind of claims the United States makes.

Jeffrey P. Minear:

–Yes, the instream flow claims for example.

But, again, the question here is not ultimately one of reasonableness or fairness of the State procedures.

It’s a question of whether Congress has consented to these–

You say… suggest that determining instream flow claims is not more complicated than just… just adjudicating prior appropriation claims.

Jeffrey P. Minear:

–Well, with respect to the Federal Government, the State does not carry any burden, in fact, of even investigating those claims.

They simply take the claim of the United States, abstract it and include it in the report.

So there’s very little cost involved to the State actually examining those claims, as compared to going out and investigating individual small claims.

But, again, we’re getting, I think, removed from the point that I… I think is critical here, and that is that Congress must specifically consent to the payment of fees.

And we think that the cost proviso indicates quite clearly that Congress was not–

Let me ask you about that.

You… I’m… I want to be sure I got something you said a little while ago.

I thought you said that the cost proviso, which is just an appendage to the portion of the statute that deals with the entry of judgments, doesn’t have any relevance to the first sentence in the section.

From that I inferred… and you correct me if I’m wrong… that the United States is not taking the position that the filing fees in this case, which are assessed before any judgment’s entered, are covered by the language in the proviso.

Jeffrey P. Minear:

–We’re taking the position that they are not, by their terms, a judgment for costs.

There is… can be distinction between a judgment for costs–

So, specifically, you rely on the proviso only to sort of illuminate the meaning of the whole statute as further evidence of the fact that there’s not a sufficiently specific waiver of sovereign immunity in the earlier part of the statute.

Jeffrey P. Minear:

–Ultimately, that is–

Rather than arguing that this is covered by the proviso.

Jeffrey P. Minear:

–That is… that is correct.

Okay.

Jeffrey P. Minear:

That ultimately is correct.

And I think it’s important to remember that when the McCarran Amendment was enacted in 1952 it was against the backdrop of other well-accepted principles, including the fact that the United States was not liable for fees.

Mr. Minear, I assume I can agree with you on the… or, I hope I can agree with you, because you’re going to have trouble otherwise, on the… on the fees without agreeing with you on the procedures.

Jeffrey P. Minear:

Yes, I think that’s–

Or do you think… you think the two go together inevitably.

Jeffrey P. Minear:

–You don’t need to resolve the procedural question–

See, I don’t see how sovereign immunity applies to the procedures at all?

I mean how does sovereign immunity apply to the procedures?

Jeffrey P. Minear:

–Well, we think… again, this is the… this issue arises… our basic… let me begin with this point.

Our basic position is there must be a separate and specific waiver before fees or costs can be assessed against the United States.

Right.

That’s fair enough.

Jeffrey P. Minear:

Now, the question of procedures was brought into this case by the interpretation of Idaho of the pleading provision.

There is a… a second provision says the United States, when any… when a party to any such suit, shall be deemed to have waived any right to plead that the State laws are inapplicable.

We believe that the State laws was referring to, in fact, the laws governing the appropriation of water rights by… under State law, the acquisition of water rights themselves, not the laws… not procedural laws.

Idaho’s argument is that reference actually is referring to procedural laws.

Our basic point is that procedure has nothing to do about… with this.

Even if you accepted that provision as… as referring to procedural laws, the United States still would not be subject to fees because there is not an express waiver of the United States’ immunity from fees.

Well, do you think your argument as to the express waiver by the United States of immunity from fees is no stronger than the argument that you’re not subject to procedures because the… there’s no express waiver as to procedures?

Jeffrey P. Minear:

We think our argument with respect to fees is much stronger.

So do I.

Jeffrey P. Minear:

Yes.

I mean I think to… if you had said that you have a right to challenge an Idaho rule that says you notice a deposition a certain amount of days in advance, that you go just through the whole Idaho Code of Procedure saying we have to look at sovereign immunity in these of these after there’s been a consent to joinder, I think that’s rather farfetched.

Jeffrey P. Minear:

No.

And I apologize to the Court if I’ve not been clear on this.

That our point is that the question here is the United States’ immunity with respect to fees.

Jeffrey P. Minear:

As to procedures, we believe that we do have… do reserve the right to challenge them on the basis that they are either unreasonable or hostile to Federal interests, but that’s not a sovereign immunity question.

Again, that’s simply the rights that we think are implicit within the McCarran Amendment, and I think rights that were recognized in footnote 20 of San Carlos where you noticed that State procedures might be inadequate to adjudicate certain types of Federal water rights.

The… the crucial question here, though, is whether there has been an express waiver of fees.

And I think it’s important to note that in 1952 when this act was enacted, Congress was quite clear that there did need to be a separate waiver for… for fees.

In fact, 2412(a) at that time, 28 U.S.C. 2412 (a) made that point, that Congress is not liable for fees or costs unless there is an express waiver.

And I don’t think that ultimately Idaho or the Idaho Supreme Court has quarreled with the need for a waiver.

The question has been, instead, whether the McCarran Amendment is explicit or clear enough on that point.

And we believe that the McCarran Amendment is not.

It does not say anything about fees, and the only point where it discusses monetary liabilities is with respect to a judgment for costs.

I think just being… just being joined in a State suit for a… for a watershed… water rights adjudication certainly doesn’t determine what the applicable law is.

You’re not… certainly McCarran didn’t say that the United States can be joined and it would… and their water rights would be governed totally by State law.

Jeffrey P. Minear:

That is correct.

It certainly didn’t say that.

Jeffrey P. Minear:

It does not say that.

Because, probably most States… at least I know one State that doesn’t recognize instream flow rights, but the United States claims them all the time.

Jeffrey P. Minear:

Yes.

And as this Court recognized in cases like Cappaert, Federal-reserved water rights are governed by Federal law, not State law.

Yes, yes.

Jeffrey P. Minear:

What the McCarran Amendment provides is the… an opportunity to join the United States in the adjudication so that all water rights in the basin can be determined.

That was the focus and the principle point of the McCarran Amendment, but it did not say anything about who pays for those procedures except with respect to the cost proviso.

Now, at the time the McCarran Amendment was enacted, the most common way for paying for these types of procedures was through a judgment of costs at the end of the litigation, and the McCarran Amendment made quite clear that the United States was not subject to those judgments.

Now, we think that the clear implication of that is the United States is not responsible for paying for the adjudication or for paying the fees and expenses of its adversaries in the adjudication.

We don’t believe the cost proviso was only limited to the… to the notion that… that you can’t assess the United States with the actual costs at the end of the litigation, but you can assess filing fees that may bear no relationship whatsoever to the costs of the adjudication, and impose those against the United States.

We don’t believe that that was Congress’ concern.

Congress, instead, was indicating that it… the United States could be joined in these proceedings, but the States would have to finance the proceedings.

Now, I would like to… to turn to the pleading provision, because it appears that is the provision that has costs–

Well, what if the McCarran Amendment had never been… been passed and the United States brought a suit in Federal court to adjudicate its water rights in a certain stream in the State of Idaho.

I don’t suppose you could have made the State of Idaho pay for the costs of the adjudication.

Jeffrey P. Minear:

–That’s quite correct.

That… I believe that would be correct.

Uh-huh.

Jeffrey P. Minear:

And we think that the–

And the United States would have had to pay its own expenses for–

Jeffrey P. Minear:

–That’s right.

But by the same token, when the United States is brought in as an involuntary defendant in State court, the United States should not have to pay fees in those circumstances.

The general practice is that the United… that courts normally–

–Well, you… you say fees generally.

Now, do you distinguish at all between a uniformly applied appearance fee to all defendants and the kind of very expensive fees that were charged here, that are based partly on reimbursing the State for the cost of litigation?

Jeffrey P. Minear:

–We draw no distinction in principle, but in practical effect.

The fact is that if these were $5 fees or $1 fees, the United States, in all likelihood would protest those fees, but would nevertheless pay them because we simply would not want to burden the courts with these disputes.

What does Idaho… or does it identify the kinds of fees… or what do they… how do they justify these fees and what are they supposed to reimburse the State of Idaho for?

Jeffrey P. Minear:

Well, Idaho’s position does not correspond exactly to what the statute itself says, but I take Idaho’s position to be that the fees that are generated here would cover the cost of investigating water rights, preparing the director’s report, which is then submitted to the court as a pleading before the court.

And in that report it would have an investigation of State water claims and abstract of Federal claims.

What… they will simply take our Federal claims and abstract them… provide a summary and include that in the report.

Expenses that the United… if the United States had brought the suit in Federal court, expenses that the United States would have had to put up with.

Jeffrey P. Minear:

Perhaps the United States would have.

Well, the United States has to pay all of its fees of investigating its own claims in any event.

Yeah.

Jeffrey P. Minear:

Idaho does not investigate our claims.

We investigate our claims.

Yeah.

Jeffrey P. Minear:

We prepare the lengthy claims and all they do is provide an abstract, a secretarial service in a sense.

In addition, Idaho also uses those fees to raise objections to water rights claims, and they would also use those fees for service of process, for paying attorneys.

I believe that they have budge ted $2.1 million in attorneys’ fees that will be paid out of these fees.

Now, that might not necessarily be–

Do they… do they hire private counsel to represent them?

Jeffrey P. Minear:

–No.

These are salaries of the… of the attorneys in the Department of Water Resources.

Oh, really.

Jeffrey P. Minear:

And that includes the salaries for conducting depositions, conducting investigation, writing legal memoranda and the like.

Jeffrey P. Minear:

In sum, these costs are not–

I take it, expenses and salaries that are related to adjudicating United States claims, not everybody else’s.

Jeffrey P. Minear:

–No.

This applies to everyone’s claims.

They’re not distinguishing… the money all goes into a single fund, and they then use that also to pay for the court, for the court procedures, to pay for the Department of Water Resources work, it’s general work in participating as a party in the water rights adjudication.

Now, I believe that Idaho claims that the… they fund separately the attorneys who actually appear in court such as in this proceeding, but by and large they are also funding water rights attorneys in the Department of Water Resources.

Now, we believe that ultimately the… Idaho’s position here just does not conform to the principles that this Court has spoken to with respect to waivers of sovereign immunity.

We believe it must be a clear and unambiguous waiver before the United States can be assessed with these types of fees.

And this makes… indeed, makes good sense, because if the State can count on the Federal Treasury to pay for these types of adjudications, it will have no incentive to conduct an efficient adjudication.

And it’s not clear, as I said, that these fees in fact have any bearing or relationship on the actual costs that will be incurred by the Department of Water Resources in participating in this lawsuit.

I believe I would like to reserve the remainder of my time for rebuttal.

Very well, Mr. Minear.

Mr. Strong, we’ll hear from you.

Clive J. Strong:

Mr. Chief Justice, and may it please the Court:

The McCarran Amendment, in clear and unequivocal language, requires the United States to comply with those State laws that govern the conduct of general stream adjudications.

Where does it say that?

Clive J. Strong:

Your Honor, we believe it says that in the second sentence of the McCarran Amendment when it says–

What does that say?

Clive J. Strong:

–It says, Your Honor, when the United States… when a party to any such suit shall be deemed to have waived any right to plead that the State laws are inapplicable or that the United States is not amendable thereto by reason of its sovereignty.

It’s the State’s contention–

Well, you don’t think that State law… that the entire body of State is what… is to applied in adjudicating the United States water rights.

Clive J. Strong:

–Your Honor, we believe the reference to State laws has to refer to those laws that govern the conduct of two types of suits, because it refers back to the first sentence.

It has to refer to suits for adjudication and suits for administration.

It’s those bodies of law–

All right, all right.

Clive J. Strong:

–That are being incorporated.

But what about the substantive law that’s applied… say the United States wants to have established a instream flow right.

Is State law going to govern that?

Clive J. Strong:

Your Honor, it depends–

Yes or no?

Clive J. Strong:

–Perhaps.

I have to say perhaps because it depends upon how the water right is acquired.

Under State law you can acquire an instream flow, and the United States has gone through that process to have those created.

You can also have a water right reserved under Federal law, for instream flow purposes.

Well, if… if the claim is that this is a reserved right, why it’s going to be adjudicated under Federal law rather than under State law.

Clive J. Strong:

You’re correct, Your Honor.

Yes.

Clive J. Strong:

That was the point that I was attempting to make, was that the substantive law that governs the type of water right is dependent upon the origin of what… of where that claim comes from.

Well, then–

Clive J. Strong:

If it’s a Federal reserved water right, then Federal law–

–Then the McCarran Act doesn’t really say that the United States… that this whole proceeding is to be governed by State law.

Clive J. Strong:

–And that’s not our contention, Your Honor.

Our contention is simply that those procedures and substantive parts of State law that govern the conduct of general stream adjudications and suits for administration is what the second sentence refers to.

To give you an example of the problem that would encompass if that reference was not in the procedure, it would be the claims filing periods, the procedures that are all set forth by statute… and you have to understand that in Western States the general stream adjudications are not a creature of court, but rather a creature of statute.

All the aspects of those proceedings are governed by those State statutory procedures.

Absent a waiver as to those State laws, the State would not be able to apply its statutory procedures to the United States.

And that’s the contention that we have before the Court, is that it’s necessary to have that waiver and the second sentence reaches those instances.

Well.

Clive J. Strong:

If you accept the United States’ interpretation that it only… that the second sentence only extends to those laws governing the acquisition of water rights, then it would be rendering meaningless the same phrase with respect to suits for administration.

Because in suits for administration, the issue is not the acquisition of a State water right, it’s a question of how the decree is going to be administrated.

And for example, the futile call doctrine, which says that if a senior water right could call for water but by calling for that water there would not be sufficient water to meet the purposes of that water right, you could not exercise it against a junior water user.

That provision has to be incorporated, otherwise you would not be able to administer the particular decrees.

So what we’re contending is simply that the State laws must refer to those bodies of law that deal directly with administration and adjudication of water rights.

Mr. Strong, do you think it was the intent of the McCarran Amendment to change in any way the substantive law governing Federal water rights?

Take the Winters case, you know, something quite controversial as to reserved rights on reservations.

Do you think the McCarran Amendment contemplated that Idaho might come up with a rule that would overturn, say, the Winters doctrine?

Clive J. Strong:

Absolutely not, Your Honor.

Our contention is that as to the laws that govern the determination of those water rights, it will be based upon either Federal or State law.

But in the context of making those determinations, the McCarran Amendment is a procedural statute that was designed to allow the States to apply those laws that govern the conduct of their adjudications to the United States.

And in this instance, it allows the imposition of filing fees, because filing fees are part and parcel of those procedures.

Clive J. Strong:

One of the reasons the McCarran Amendment was enacted was to ensure the availability of the comprehensive State proceedings.

Those proceedings originally started out as a quite title action in which there was an adversarial relationship, but over time the Western States developed a specialized procedure that moved away from that process and instead developed a process that’s more akin to an interpleader action or an in rem action, in which all parties are brought in who may have a claim to that resource.

And by bringing them all into the case, then everyone is able to have certainty that the water rights that are decreed in that adjudication are final.

Mr. Strong, let me make sure I understand your position, because it’s a strong point if it’s… if it’s correct.

You say that under the second sentence it is impossible that the phrase

“waived any right to plead that the State laws are inapplicable. “

it’s impossible that that could apply to the State’s substantive law concerning water rights.

Clive J. Strong:

I’m saying that if–

Do you really say that no… no State laws concerning water rights effect the Government?

Clive J. Strong:

–Your Honor, if I might take a moment to explain.

When the United States acquires a water right pursuant to State law, in accordance with the historic policy of Congress that this Court has recognized, the United States by voluntarily acquiring a water law under State law, submits to the procedures and substance for the definition of that water right.

Absent those… those procedures, there would be no water right for the United States to have.

Yeah, but I’m talking about the substance, the substance.

You contend that in these proceedings the United States is not bound by any substantive State water law.

Clive J. Strong:

No, Your Honor, I’m not contending that.

Okay.

Clive J. Strong:

The contention I’m making–

Well that’s what–

Clive J. Strong:

–Your Honor, is that if a water right is acquired pursuant to State law under the historical policy of deference to State water law, the United States, by the acquisition of that water right, has already submitted itself to the substantive laws governing the acquisition of that water right.

–Oh, you say this water… this wavier is unnecessary because it’s already there.

Clive J. Strong:

Exactly, Your Honor.

The waiver wasn’t even necessary.

Well that’s a much weaker argument, I think.

Okay, I got ya, all right.

Well, that’s… that’s the way that, usually, appropriated rights are acquired.

Clive J. Strong:

Correct, Your Honor.

That’s the point that we’re attempting to make, is the McCarran Amendment is not a substantive statute and it doesn’t create water rights.

It recognizes that a State may have the ability, by this waiver, to adjudicate those water rights.

And the substantive rules that govern the actual acquisition of those water rights have already been established long before you ever get to the adjudication.

When you get to the adjudication, you’re simply determining the relationship of the rights as with respect to one another.

Clive J. Strong:

And the benefits of the State system that Congress deferred to, I think really informs this particular statute.

Because, as I was suggesting, it’s an in rem action where all parties, whether you have a water right or not, are brought in to make sure that the final decree is binding on everyone.

And in order to do that, it’s a very complicated process where everyone in a State has to be served who has potential interest.

Once that service is done, then you have to take all of the claims and relate them to one another.

In the Snake River Basin adjudication, for example, the trial court, with the assistance of the Department of Water Resources, will have to evaluate 120,000 claims.

Those claims will all be consolidated into one single report that will list where those water rights are from an area that’s the size of the State of Massachusetts, New Hampshire, Vermont, and New York combined, and say how they relate to one another.

Then the parties come in and file objections to that report.

That report frames what issues are in dispute.

It allows an efficiency in the process that would not otherwise exist in the traditional quiet title action where every party would be responsible for conducting those very activities that the State, through the use of the filing fees, has been able to consolidate in the director and make the proceeding more efficient.

Mr. Strong, the United States says that the sort of fees that you intend to charge it could amount to as much as $10 million.

These don’t certainly sound like ordinary filing fees in the sense one ordinarily uses that.

Is the Idaho system structured so as to make the litigants pay for the entire cost of the proceeding?

Clive J. Strong:

Your Honor, the Idaho proceeding was structured by the legislature to require those who benefit, the claimants, to pay for the cost of that proceeding.

And I might add, it includes the State of Idaho.

Every claim that the State of Idaho submits by its other agencies, it’s required to pay a filing fee.

The director is not a claimant in the action.

He has no water rights.

But if the State of Idaho has a water right that it wants to put forward in a proceeding, it has to pay the filing fee.

And contrary to the United States’ assertion, those instream flow claims that they assert are so large are applied against the State of Idaho as well as the United States.

Because I suppose they have… does Idaho law provide for instream flow rights?

Clive J. Strong:

Yes, Your Honor, it does.

The State–

And I suppose Idaho has… owns a lot of property along the Snake River.

Clive J. Strong:

–Yes, Your Honor, it does.

The State of Idaho has paid in excess of $3 million for instream flow claims in the adjudication up to this point in time.

What percentage of Idaho land is owned by the Federal Government?

Clive J. Strong:

Your Honor, 65 percent of the State of Idaho is owned by the Federal Government.

Does that include Indian reservations?

Clive J. Strong:

Your Honor, that would be total Federal holdings within the State of Idaho.

Including Indian lands.

Clive J. Strong:

Yes.

Your Honor, turning back to the point of the filing fees and why they’re a critical part of the process, when Congress enacts a general waiver, and our contention is that the McCarran Amendment is a general waiver, it waives sovereign immunity as to ordinary incidents of those procedures or proceedings.

And in this case, because of the structure of the statutory procedures, the filing fees are an integral part of that.

Indeed, in 1916 in the Pacific Live Stock v. Lewis case, this Court specifically examined a system, that was similar to Idaho’s, in the State of Oregon in which a variable fee was charged for claimants to have their water rights adjudicated in the Oregon comprehensive adjudication procedure.

And the Court found that the imposition of these fees was an appropriate action by the State because of the benefits received by the claimants from the services provided by the State engineer in those adjudications.

The importance of that case comes, I think, in terms of the references in the legislative history and the congressional report that was submitted in conjunction with the McCarran Amendment.

In Senate Report 755, the report specifically refers to the Pacific Live Stock v. Lewis case as an example of the type of proceedings that this… that Congress intended to reach within the context of a general stream adjudication.

Where… where is that cited in your brief, the Pacific Live Stock v. Lewis?

Clive J. Strong:

Your Honor, just a second.

I’m looking through the index.

I don’t see it.

Perhaps I have the wrong first name or something.

Clive J. Strong:

It… unfortunately, Your Honor, it’s been referred to in two different ways, Pacific Live Stock v. Lewis, and in the congressional report as Pacific Live Stock v. Oregon.

It’s cited at pages 33, 34, 44, and 47.

And is it… okay, thank you.

Clive J. Strong:

The State’s contention is simply that the McCarran Amendment intended to provide flexibility to the States in the way they conduct these general stream adjudications.

And contrary to the United States’ assertion, at the time of the enactment of the McCarran Amendment these were not normally recovered by judgments for costs.

Indeed, an examination of those statutes will show that in the States of Oregon, Arizona, and Nevada, variable filing fees were used; in the States of Washington, Colorado, and California, fixed fees were used; and in other States, the fees were simply apportioned.

The director was not a part of those particular adjudications, but was invited by the court to come in as a special expert, and then the court apportioned those fees amongst all parties.

And so rather than the uniformity of a judgment for costs as a way to recover these costs in 1952, the state of the body of law shows that it was quite differing aspects in all States of how those particular costs or expenses were recovered.

And the point–

Mr. Strong, on that point what about Idaho?

Was it… is it not correct that Idaho’s procedure was to treat them as part of the judgment for costs?

Clive J. Strong:

–Your Honor, it’s not entirely correct.

The way it worked in Idaho in 1952 was that the State engineer was invited into the proceeding by the court, and he would make an estimate of the expenses that he would incur in preparing the director’s report.

Once those expenses were calculated, he would submit those to the State auditor who would take them to the board of examiners for evaluation and then finally that would be referred back to the court.

The court, at the end of the case, would enter an order apportioning those expenses, and then they would become a lien upon the property.

But it… but would they not be called a judgment for costs?

Wouldn’t… wouldn’t the judgment for costs at the end of the proceeding encompass the expenses that are now covered by filing fees?

Clive J. Strong:

Your Honor, we don’t agree that that’s what was intended by the word judgment for costs.

Clive J. Strong:

We believe that–

Oh, I understand that.

That’s not my question.

My question is at the time the statute was enacted back in ’52, I guess it was, that’s the way Idaho collected the money that it needed to perform the same function that’s now performed by the filing fees.

Is that correct?

Clive J. Strong:

–Your Honor, there would be an order entered, and I guess you could call that a judgment if you wanted.

Well, that’s what the court would call it, isn’t it, judgment for costs, in Idaho?

Clive J. Strong:

And it became… automatically, by statute, it was made a lien upon the property, was the way it worked.

And wasn’t the word costs used somewhere in describing that amount of money in Idaho… as a matter of Idaho practice?

Clive J. Strong:

I believe you’re correct, Your Honor.

That in… in the statute somewhere–

But you’re saying that that was not true in Oregon, Arizona, and Nevada and these other States.

Clive J. Strong:

–That’s correct, Your Honor.

They had a different label for it.

Clive J. Strong:

And not just a different label, but a different procedure entirely.

And again pointing back to the McCarran Amendment, there’s nothing in the McCarran Amendment that specifically excepts out from the general waiver as to those State laws governing the conduct of general stream adjudications, filing fees.

And Congress is presumed to have known at the time of the enactment of the McCarran Amendment of the State of the laws that it was incorporating through this body.

Do you… do you acknowledge that the costs provision here would have made the prior Idaho costs not payable by the United States?

Clive J. Strong:

Your Honor, I–

Did it cover the prior Idaho system or not, in ’52?

Clive J. Strong:

–Your Honor, I don’t believe, in our interpretation of what the term “judgment for costs” means, that that is what Congress intended.

The State’s contention is that judgment for costs is a term of art that means the imposition of the expenses incurred by a prevailing party on an opposing party.

In this instance, the United States has not been asked to pay the expenses of a prevailing party.

In no way is the director a claimant in the proceeding.

In no way does the director get any relief from the proceeding.

He simply provides a service, services that are provided by governmental unit or fee.

And the United States… I suppose most claimants, the majority of the claimants expect to prevail and have a water right.

Clive J. Strong:

Your Honor, the… in the context of a general stream adjudication, that’s right, they expect to prevail and have a water right.

And they expect not only that they will prevail as to their own water right, but they may be–

At least a lot of them are going to prevail, including the United States, and they will be awarded water rights and they’re prevailing parties, if you have to find somebody who’s a prevailing party.

Clive J. Strong:

–That’s right.

But the director is not a prevailing party.

The director is simply providing a service.

His service is for the purpose of trying to facilitate adjudication.

In absence–

Excuse me, you don’t… who paid these costs, then, if… if it was understood that almost everybody wins, who loses and pays the costs?

I don’t understand that.

You’re saying the costs provision had no meaning at all.

Clive J. Strong:

–No, Your Honor, I’m not saying the cost provision had no meaning.

Well, it had a… it had an easy meaning if it applied to this kind of thing.

Clive J. Strong:

Your Honor, the meaning it had was to refer to those instances where the claimants… and you have to think of the adjudication.

It has the claimants, with a nominal party bringing the action, where the claimants, as between themselves, were suing one another over whether they had a valid water right.

That, in our opinion, is what the judgment for costs provision was intended to reach, to prevent the United States from having 119,000 other claimants come in and try to impose their costs in perfecting their water right against the United States.

On the other hand, we don’t believe the Congress intended to prevent a special expert, a court-appointed expert in this instance, to be able to recover the expenses that they incurred in providing a service that is of uniform benefit to every single claimant.

Well, what about the salaries that the United States mentioned?

Does the fee purport to cover various salaries, all the salaries of people who… State employees who work on this adjudication?

Clive J. Strong:

Your Honor, let me set the record straight on that, because it’s substantially different than as portrayed by the United States.

There is a clear division as… stated as what the United States serves in many different capacities.

It serves in the capacity of a claimant and also serves in the capacity of a special expert.

With respect to what the director’s doing in this adjudication, the expenses that are being covered out of that account are the service of process that the director served on all people for the benefit of the claimants.

If that had not been done, you would have had individual claimants trying to join people and you would not have a comprehensive determination.

450,000 claims.

The director also prepares a report.

He goes through and he takes the claims that are submitted.

He reviews them against the files that he has in his own records.

He reviews them against the hydrologic information that’s available.

Well, Justice White asked you whether the salaries of public officials in Idaho were being paid by… I think you can answer without the long recitation.

Clive J. Strong:

I’m sorry, Your Honor, I’ll give a much shorter response.

Yes, some salaries are being paid, but those salaries are for the purpose of preparing the director’s report and doing the services that every single claimant would benefit from.

If the director does not perform those services, then the individual claimants would have to perform those services in absence of him doing it.

Do you have any notion about… about what the total fees charged private claimants in this water adjudication would have been?

You’ve said that… you’ve said that the State of Idaho has already paid $3 million.

Clive J. Strong:

In… private claimants have paid… it’s not in the record, but to my recollection somewhere in the neighborhood of $15 million.

Is any of that $15 going to be used to pay outside experts, independent experts?

Clive J. Strong:

No, Your Honor.

Those–

So that… it’s the… the Idaho procedure is that there will be a further assessment at the end of the case for the cost of… of expert witnesses.

Clive J. Strong:

–No, Your Honor.

Idaho’s contemplation is that the services that are being provided by the director will carry through and form the director’s report, which… from which objections are filed.

Once people then make objections to that report, they will each be responsible for whatever expenses they incur, including the State of Idaho, in pressing their claim forward against another claimant.

Well, are those fees… excuse me.

No, go ahead, I’m sorry.

Are those fees going to be… the expert witness’ fees at stage two going to be subject to a… a cost assessment by the… by the Idaho courts, depending on how the case turns out?

Clive J. Strong:

No, Your Honor.

Under the McCarran Amendment–

Well, then let me just go to my final question, what is left, then, of the proviso?

What work is it going to accomplish, on your theory?

Clive J. Strong:

–Okay, Your Honor the point I was getting ready to make, as to the United States the McCarran Amendment proviso would preclude the imposition of those judgment for costs as between one claimant against the United States.

There is nothing that would prevent the court from imposing a judgment for costs as between two private claimants in this adjudication.

And, in fact, that is routinely done.

As claimants fight with one another, if one prevails they can recover expenses.

Well when the… when the report of the director comes in, people can attack it.

Clive J. Strong:

That’s correct, Your Honor.

And does the… does the director defend it or not?

Clive J. Strong:

Yes, Your Honor, the director defends it.

And let’s define what defend means.

He–

So–

Clive J. Strong:

–He explains what his report says.

–So the United States files a big objection to the report and the director may incur a lot of expense defending against that attack, so the United States is supposed to pay the salaries that… of the people opposing their claim.

Clive J. Strong:

No, Your Honor, the director is not opposing the claim.

The director is serving in the capacity of a special expert.

His role is simply to provide the court with the information that he has gathered from the investigation of the claims and the hydrologic information.

Now, that’s his sole purpose.

He doesn’t have any interest or stake in the outcome.

Yeah, but the director’s role isn’t finished when he files his report.

You don’t suggest that.

Clive J. Strong:

I’m not suggesting that, Your Honor.

Under the Idaho system, the way it is now, we would contend that–

The director and his helpers will… would be available as witnesses and probably would call themselves as witnesses.

Clive J. Strong:

–And I would expect will be called by the United States and by all the other parties, as it serves their interest in presenting their particular case.

Mr. Strong, I’ve been glancing over this report of Pacific Live Stock Company against the Oregon Water board.

It doesn’t appear to me the United States was a party in that case.

Clive J. Strong:

That’s correct, Your Honor.

So how does it support your position here?

Clive J. Strong:

That case was decided in 1916.

At that time the waiver of sovereign immunity was not in place.

The point that I made was in the Senate Report 755, that case is cited as an example of the type of adjudications that the McCarran Amendment was intended to reach.

Mr. Strong, the text of the statute says the United States, when a party shall be deemed to have waived any right to plead that the State laws are inapplicable.

I mean it says… it doesn’t say the State laws shall be applicable.

It says shall be deemed to have waived any right to plead that they are inapplicable.

That suggests to me that what you’re talking about is laws that are the subject matter of the litigation, that would the subject of a pleading.

I don’t know that you’d file a pleading that would say I am not subject to the… to the filing fees.

That’d be a very strange pleading, don’t you think?

Clive J. Strong:

Your Honor, obviously words can be construed in different ways.

What we have been able to discern, though, from looking at the McCarran Amendment language specifically, that in order to apply the State procedures there has to be a waiver.

If there is no wavier, then the State has no ability to go forward with its adjudications.

That’s the only plausible reading you can give to the second sentence.

If you give it any other reading, then there is no basis for the State to conduct its general stream adjudications because those are statutory creatures and absent a waiver of the Supremacy Clause, they would not be applicable to the United States.

So if you give it the only plausible construction–

Wait, wait.

The Supremacy Clause only prevents your compelling the United States to do something, to appear, to pay money, to do various things, right?

Clive J. Strong:

–That’s correct, Your Honor.

And what the Idaho adjudication statutes and all other statutes do is to compel the United States to submit a claim at a specific point in time, pursuant to a specific procedure.

If that law is not applicable to the United States, then there is no way to force the United States to file its claims.

It would be back to… what the United States is suggesting is that it can pick and choose which procedures are going to be applicable to it in the conduct of the adjudication.

Yes, but I would say that that is all covered by the first part of it.

Consent is given to join the United States as a defendant.

I would say that the obligation to compel with all those procedural rules that go with the suit, that’s the waiver for that.

I don’t have to resort to the… to the later one to achieve that.

Clive J. Strong:

Your Honor, if… if you take that position, then on basis… it would seem to me that it would subject the United States to the judicial procedures, the simple joinder of the United States.

But what in that waiver is broad enough to encompass a waiver of the intergovernmental immunity provisions regarding State laws, the second aspect of the waiver of sovereign immunity.

I see nothing in the first sentence that would support that conclusion.

Has the United States at any time in this litigation suggested that your… that your fees are unreasonably high, or is their only argument of sovereign immunity?

Clive J. Strong:

Your Honor, they have suggested that the fees are unreasonably high.

This case has gone forward based upon summary judgment motions.

The United States’ claims had not been filed until last week.

And so on its face… the court has ruled on its face that the services that are being provided are reasonably related to the fee.

Now if, upon receipt of those particular claims–

And I guess the only issue brought before us is sovereign immunity.

Clive J. Strong:

–That’s correct, Your Honor.

If… if, on the other hand, and I want to emphasize this point.

If, on the other hand, once the claims are filed, that there is some question as to whether the fees relate to the services being provided, then the United States will have an opportunity to go back and object to that.

I thought they had to pay the fee up on the filing.

Clive J. Strong:

It’s required to pay it up on the filing, but they could object at the time of the filing to the payment of that fee, if they believe that it is going to be unfair or unreasonable based upon the facts.

The only thing we’ve tried so far is this case based upon–

Sort of like paying your tax first and asking for a refund later.

Clive J. Strong:

–They might try it that way, or the other option would be to bring another mandamus action saying that based upon the claims they’re filing, that the fees are not rationally related to the services being provided.

Can I ask one last question.

It doesn’t really relate to your case, just a point of curiosity.

One of the justices in his opinions chose to follow the dissent in one of our cases rather than the majority.

Does that happen very often in Idaho?

[Laughter]

Clive J. Strong:

It’s a good question, Your Honor.

I would be surprised–

I know it’s different out there.

I wasn’t sure.

[Laughter]

Clive J. Strong:

–Well, I would invite you out to enjoy the environs of Idaho.

The point that we would like to… to make here is simply that these are complex proceedings that absent the ability of the States to–

It’s nice to know they read dissents in Idaho.

[Laughter]

Clive J. Strong:

–We have a lot of dissents in Idaho.

The point that we would really like to close with the Court is simply that these are complex proceedings, that the State engineer has unique knowledge and skills that need to be used in these adjudications if we’re going to complete them in a timely fashion.

Otherwise, we will revert back to the situation where we’re doing simply in rem actions where every single party is going to be going out preparing their own reports, doing their own investigations, all at the same time that everyone else is doing the same thing, and the court’s going to have to sort through a plethora of paper.

The procedures that the States have developed and the Congress recognized avoid that difficulty.

They develop a uniform procedure for the application of State laws.

Thank you, Mr. Strong.

Clive J. Strong:

Thank you.

Mr. Minear, you have 8 minutes remaining.

Mr. Minear, can I ask you one question before you get into your rebuttal?

Jeffrey P. Minear:

Yes, Your Honor.

Does the United States think it would be permissible… this is a sovereign immunity case, basically.

Would it be permissible for the Court to look at legislative history to try and unravel this puzzle?

Jeffrey P. Minear:

We think, as a general matter, that the expression of sovereign immunity must be clear on the face of the statute.

Well, I understand.

But do you think in this case?

Jeffrey P. Minear:

And we believe it would be impermissible.

It would be impermissible.

Jeffrey P. Minear:

Impermissible to look to legislative history.

Jeffrey P. Minear:

This case.

Mr. Minear, also before you get started, so then you’ll just have a lot of free time with no questions after we’re all done.

[Laughter]

What is the Government’s position as to whether that clause 1, the second clause 1, the United States… in the second sentence.

Jeffrey P. Minear:

Yes.

Do you acknowledge that that is a submission of the United States to substantive State laws?

And if so, what substantive State laws?

Jeffrey P. Minear:

We think that the provision as a whole recognizes several points.

First of all, when the United States… it begins, when a party to such suit, shall be deemed to have waived any right to plead that the State laws are inapplicable.

We believe the State laws they are referring to are the State laws that are referred to in the prior sentence, the State laws by which water is appropriated under State law.

The point of this sentence is that the United States cannot raise a sovereignty objection to the procedures that a State has for perfecting a State water right.

We have to raise… if we have an objection to those procedures, we have to raise them at that time when the procedure… when we first apply for a water right.

We cannot come in later on in a general water rights adjudication and then raise that claim.

Not… not the procedures of the adjudication.

Jeffrey P. Minear:

No.

The procedures for obtaining a water right.

Jeffrey P. Minear:

For the applying for a permit for the water right.

Right.

Jeffrey P. Minear:

Now that explains why this only applies “when a party”… the language,

“when a party to any such suit. “

It recognizes that if we’re not a party to that suit, if we’re just applying for a water right and Idaho imposes some burden that we believe is impermissible, we can raise that challenge at that time.

It is, in a sense, more like an exhaustion requirement than anything else.

It requires that we raise our objections to a State permitting requirement at the time we apply for the permit.

That also explains why it uses the language “any right to plead”.

If Idaho was correct that the point of this whole provision was to subject us to State procedures, you would think that Congress would simply have said the United States shall be subject to State procedures.

Now, I think the important point in this case is it’s about fees and it’s about costs.

And in 1952, the costs… the general costs provision of the U.S. Code said this:

“The United States shall be liable for fees and costs only when such liability is expressly provided for by act of Congress. “

The revisor’s note notes that this follows the well known common law rule that a sovereign is not liable for costs unless specific provision for such liability is made by law.

This is a corollary to the rule that a sovereign cannot be sued without his consent, and that’s–

Is it remarkable that the reference to fees was omitted from this proviso, whereas it was included in the language from the general statute that you’ve just quoted?

Jeffrey P. Minear:

–No, I don’t think so, because that general statute would have exempted the United States from both fees and costs.

However, when Congress wrote the McCarran Amendment, it also provided the second clause… the second clause of the pleading provision: The United States, when a party to any such suit, shall be subject to the judgments, orders, and decrees of the court having jurisdiction, provided that no judgment for costs shall be entered against the United States.

Now, the purpose of the cost proviso was to make absolutely clear that the mere fact that we are subject to judgments for costs… for judgments generally, did not mean we were subject to judgments for costs.

And that explains why it… read in the context of section 2412(a), the cost proviso was inserted there, to make it absolutely clear that the United States was not expected to pick up these expenses.

But that doesn’t really explain, I don’t think, your answer to Justice Souter’s question as to why fees were later… later omitted.

Jeffrey P. Minear:

Omitted in the section 2412(a).

Yeah, yes.

Jeffrey P. Minear:

The reason why… there’s simply no mention of them one way or another, and that means the common law rule would still be in effect.

Well, I know, but I mean they… they were once present in the statute, they are now omitted.

Jeffrey P. Minear:

Yes.

And, in fact, it’s… I suppose by negative implication what’s… what is indicated is that although a prevailing party can now collect costs under the present version of 2412(a), he cannot collect fees.

And that’s reflected in the various statutes of the Federal Code.

Well, a party doesn’t collect fees, the court collects fees.

And a party may charge a paid fee as a cost, but the Supreme Court of Idaho is certainly right as to the distinction between fees and costs, I think.

Jeffrey P. Minear:

Why, I think so.

But nevertheless, the United States still does not pay fees even to a court.

That’s made clear in the notes of 28 U.S.C. 1914, for instance, where it recognizes that although fees may be assessed against parties, the United States does not pay fees in the courts.

Now, that’s the common law rule that’s been followed here, and I think that Idaho has really seized upon the absence of the word filing fees to turn what used to be judgments for costs into filing fees.

They mention, for instance, the court-appointed experts, the fact that we’re simply paying for a court-appointed expert.

A court-appointed expert is an assessable cost under section 1920 of the judicial code.

That is one of the costs that a person could, in fact, get compensation for.

So I think it’s clear that what they’ve really done is taken a procedure whereby the State was precluded from charging the United States with the expense of the litigation by the cost proviso, and tried to get around that by collecting the fees up front through filing… a filing fee system, which may bear very little relationship to the actual costs incurred.

Mr. Minear, do you… you implicitly, then, I take it, dispute Mr. Strong’s representation that at the time this statute was enacted, there was in effect in Idaho and other Western States the practice of charging fees up front.

Jeffrey P. Minear:

I believe there was no practice in Idaho of charging filing fees in a court adjudication.

There were three States that charged filing fees in a administrative adjudication, but those are not subject to the McCarran Amendment in any event.

The McCarran Amendment only provides suits… applies in suits.

So that in no… you are representing that so far you know, in no judicial proceeding were fees charged up front like this.

Jeffrey P. Minear:

No.

There were three States, we believe, that did charge a filing fee.

In a judicial proceeding?

Jeffrey P. Minear:

In a judicial proceeding.

California charged $5 per claimant, and I believe that Washington and Colorado also had a minor charge along those lines.

But both of those States ultimately provided for the final payment of the adjudication through a judgment for costs.

That was the… the most common way in which these suits were adjudicated and–

So, in any case, the fees were not comparable to these fees.

Jeffrey P. Minear:

–Certainly not comparable to these fees.

I see.

Jeffrey P. Minear:

The only comparable fee would have been the Oregon… Oregon did have a variable fee, but it only applied in administrative proceedings.

And as I said, the McCarran Amendment does not waive the United States’ immunity to administrative proceedings as compared to judicial proceedings.

What was the practice in Nevada, Mr. Minear, do you remember?

Jeffrey P. Minear:

I believe in Nevada, that there was a filing fee in administrative proceedings.

But there also was a separate track for the… a water right suit could be brought in court, and in the court suits a judgment for costs was provided.

And, of course, the McCarran Amendment put the United States on the track of the judicial proceedings in those contexts.

And Senator McCarran might be familiar with those procedures.

Jeffrey P. Minear:

Yes.

That’s… that might be.

I think, as a general matter, we cannot presume that the Congress was familiar with the 17 different sets of State laws that were in effect.

They’re available in the exhibits that Idaho provided in these proceedings and they’re quite voluminous, and it’s difficult to believe that the Congres was really aware of all the different procedures there.

And I think they were probably thinking in terms of general judicial procedures instead.

And as I said, in the general course of a judicial proceeding the plaintiff pays the costs.

But the report did cite that Oregon case.

Jeffrey P. Minear:

It did cite that case, but it cited it in the context that everyone should be brought together in an adjudication.

It did not cite it in the context of paying fees.

There’s no mention at all of judicial fees in the… in the report at all.

That simply was not a matter of discussion.

The concern in the legislation… I see my time has expired.

William H. Rehnquist:

Thank you, Mr. Minear.

The case is submitted.