author: Me. Justice Harlan Mr. Justice Douglas,

text:
    OHIO v. WYANDOTTE CHEMICALS CORP. et al.
    No. 41,
    Orig.
    Argued January 18, 1971
    Decided March 23, 1971
    HarlaN, J., delivered the opinion of the Court, in which Burger, C. J., and Black, BreNNAN, Stewart, White, Marshall, and BlackmuN, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 505.

      Paul W. Brown, Attorney General of Ohio, argued the cause and filed a brief for plaintiff.

      John M. Moelmann argued the cause for defendant Wyandotte Chemicals Corp. With him on the briefs were Thomas J. Weithers and Milton F. Mallender. Ian W. Outerbridge, by special leave of Court, argued the cause for defendant Dow Chemical Co. of Canada, Ltd. With him on the briefs was Richard W. Galiher. Harley J. McNeal argued the cause and filed briefs for defendant Dow Chemical Co.

      Peter L. Strauss argued the cause for the United States as amicus curiae. With him on the brief were Solicitor

      General Griswold, Assistant Attorney General Kashiwa, and James R. Moore.

      Frank J. Kelley, Attorney General, Robert E. Deren-goski, Solicitor General, and M. Robert Carr, Assistant Attorney General, filed a brief for the State of Michigan as amicus curiae.

   Me. Justice Harlan

delivered the opinion of the Court.

By motion for leave to file a bill of complaint, Ohio seeks to invoke this Court’s original jurisdiction. Because of the importance and unusual character of the issues tendered we set the matter for oral argument, inviting the Solicitor General to participate and to file a brief on behalf of the United States, as amicus curiae. For reasons that follow we deny the motion for leave to file.

The action, for abatement of a nuisance, is brought on behalf of the State and its citizens, and names as defendants Wyandotte Chemicals Corp. (Wyandotte), Dow Chemical Co. (Dow America), and Dow Chemical Company of Canada, Ltd. (Dow Canada). Wyandotte is incorporated in Michigan and maintains its principal office and place of business there. Dow America is incorporated in Delaware, has its principal office and place of business in Michigan, and owns all the stock of Dow Canada. Dow Canada is incorporated, and does business, in Ontario. A majority of Dow Canada’s directors are residents of the United States.

The complaint alleges that Dow Canada and Wyan-dotte have each dumped mercury into streams whose courses ultimately reach Lake Erie, thus contaminating and polluting that lake’s waters, vegetation, fish, and wildlife, and that Dow America is jointly responsible for the acts of its foreign subsidiary. Assuming the State’s ability to prove these assertions, Ohio seeks a decree: (1) declaring the introduction of mercury into Lake Erie’s tributaries a public nuisance; (2) perpetually enjoining these defendants from introducing mercury into Lake Erie or its tributaries; (3) requiring defendants either to remove the mercury from Lake Erie or to pay the costs of its removal into a fund to be administered by Ohio and used only for that purpose; (4) directing defendants to pay Ohio monetary damages for the harm done to Lake Erie, its fish, wildlife, and vegetation, and the citizens and inhabitants of Ohio.

Original jurisdiction is said to be conferred on this Court by Art. Ill of the Federal Constitution. Section 2, cl. 1, of that Article, provides: “The judicial Power shall extend ... to Controversies . . . between a State and Citizens of another State . . . and between a State . . . and foreign . . . Citizens or Subjects.” Section 2, cl. 2, provides: “In all Cases ... in which a State shall be Party, the supreme Court shall have original Jurisdiction.” Finally, 28 U. S. C. § 1251 (b) provides: “The Supreme Court shall have original but not exclusive jurisdiction of ... (3) All actions or proceedings by a State against the citizens of another State or against aliens.”

While we consider that Ohio’s complaint does state a cause of action that falls within the compass of our original jurisdiction, we have concluded that this Court should nevertheless decline to exercise that jurisdiction.

I

That we have jurisdiction seems clear enough. Beyond doubt, the complaint on its face reveals the existence of a genuine “case or controversy” between one State and citizens of another, as well as a foreign subject. Diversity of citizenship is absolute. Nor is the nature of the cause of action asserted a bar to the exercise of our jurisdiction. While we have refused to entertain, for example, original actions designed to exact compliance with a State's penal laws, Wisconsin v. Pelican Ins. Co., 127 U. S. 265 (1888), or that seek to embroil this tribunal in “political questions,” Mississippi v. Johnson, 4 Wall. 475 (1867); Georgia v. Stanton, 6 Wall. 50 (1868), this Court has often adjudicated controversies between States and between a State and citizens of another State seeking to abate a nuisance that exists in one State yet produces noxious consequences in another. See Missouri v. Illinois, 180 U. S. 208 (1901) (complaint filed), 200 U. S. 496 (1906) (final judgment); Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907); New York v. New Jersey, 256 U. S. 296 (1921); New Jersey v. New York City, 283 U. S. 473 (1931). In short, precedent leads almost ineluctably to the conclusion that we are empowered to resolve this dispute in the first instance.

Ordinarily, the foregoing would suffice to settle the issue presently under consideration: whether Ohio should be granted leave to file its complaint. For it is a time-honored maxim of the Anglo-American common-law tradition that a court possessed of jurisdiction generally must exercise it. Cohens v. Virginia, 6 Wheat. 264, 404 (1821). Nevertheless, although it may initially have been contemplated that this Court would always exercise its original jurisdiction when properly called upon to do so, it seems evident to us that changes in the American legal system and the development of American society have rendered untenable, as a practical matter, the view that this Court must stand willing to adjudicate all or most legal disputes that may arise between one State and a citizen or citizens of another, even though the dispute may be one over which this Court does have original jurisdiction.

As our social system has grown more complex, the States have increasingly become enmeshed in a multitude of disputes with persons living ' outside their borders. Consider, for example, the frequency with which States and nonresidents clash over the application of state laws concerning taxes, motor vehicles, decedents’ estates, business torts, government contracts, and so forth. It would, indeed, be anomalous were this Court to be held out as a potential principal forum for settling such controversies. The simultaneous development of “long-arm jurisdiction” means, in most instances, that no necessity impels us to perform such a role. And the evolution of this Court’s responsibilities in the American legal system has brought matters to a point where much would be sacrificed, and little gained, by our exercising original jurisdiction over issues bottomed on local law. This Court’s paramount responsibilities to the national system lie almost without exception in the domain of federal law. As the impact on the social structure of federal common, statutory, and constitutional law has expanded, our attention has necessarily been drawn more and more to such matters. We have no claim to special competence in dealing with the numerous conflicts between States and nonresident individuals that raise no serious issues of federal law.

This Court is, moreover, structured to perform as an appellate tribunal, ill-equipped for the task of factfinding and so forced, in original cases, awkwardly to play the role of factfinder without actually presiding over the introduction of evidence. Nor is the problem merely our lack of qualifications for many of these tasks potentially within the purview of our original jurisdiction; it is compounded by the fact that for every case in which we might be called upon to determine the facts and apply unfamiliar legal norms we would unavoidably be reducing the attention we could give to those matters of federal law and national import as to which we are the primary overseers.

Thus, we think it apparent that we must recognize “the need [for] the exercise of a sound discretion in order to protect this Court from an abuse of the opportunity to resort to its original jurisdiction in the enforcement by States of claims against citizens of other States.” Massachusetts v. Missouri, 308 U. S. 1, 19 (1939), opinion of Chief Justice Hughes. See also Georgia v. Pennsylvania R. Co., 324 U. S. 439, 464-465 (1945), and id., at 469-471 (dissenting opinion), We believe, however, that the focus of concern embodied in the above-quoted statement of Chief Justice Hughes should be somewhat refined. In our opinion, we may properly exercise such discretion, not simply to shield this Court from noisome, vexatious, or unfamiliar tasks, but also, and we believe principally, as a technique for promoting and furthering the assumptions and value choices that underlie the current role of this Court in the federal system. Protecting this Court per se is at best a secondary consideration. What gives rise to the necessity for recognizing such discretion is pre-eminently the diminished societal concern in our function as a court of original jurisdiction and the enhanced importance of our role as the final federal appellate court. A broader view of the scope and purposes of our discretion would inadequately take account of the general duty of courts to exercise that jurisdiction they possess.

Thus, at this stage we go no further than to hold that, as a general matter, we may decline to entertain a complaint brought by a State against the citizens of another State or country only where we can say with assurance that (1) declination of jurisdiction would not disserve any of the principal policies underlying the Article III jurisdictional grant and (2) the reasons of practical wisdom that persuade us that this Court is an inappropriate forum are consistent with the proposition that our discretion is legitimated by its use to keep this aspect of the Court’s functions attuned to its other responsibilities.

II

In applying this analysis to the facts here presented, we believe that the wiser course is to deny Ohio’s motion for leave to file its complaint.

A

Two principles seem primarily to have underlain conferring upon this Court original jurisdiction over cases and controversies between a State and citizens of another State or country. The first was the belief that no State should be compelled to resort to the tribunals of other States for redress, since parochial factors might often lead to the appearance, if not the reality, of partiality to one’s own. Chisholm v. Georgia, 2 Dall. 419, 475-476 (1793); Wisconsin v. Pelican Ins. Co., 127 U. S., at 289. The second was that a State, needing an alternative forum, of necessity had to resort to this Court in order to obtain a tribunal competent to exercise jurisdiction over the acts of nonresidents of the aggrieved State.

Neither of these policies is, we think, implicated in this lawsuit. The courts of Ohio, under modern principles of the scope of subject matter and in personam jurisdiction, have a claim as compelling as any that can be made out for this Court to exercise jurisdiction to adjudicate the instant controversy, and they would decide it under the same common law of nuisance upon which our determination would have to rest. In essence, the State has charged Dow Canada and Wyandotte with the commission of acts, albeit beyond Ohio’s territorial boundaries, that have produced and, it is said, continue to produce disastrous effects within Ohio’s own domain. While this Court, and doubtless Canadian courts, if called upon to assess the validity of any decree rendered against either Dow Canada or Wyandotte, would be alert to ascertain whether the judgment rested upon an even-handed application of justice, it is unlikely that we would totally deny Ohio’s competence to act if the allegations made here are proved true. See, e. g., International Shoe Co. v. Washington, 326 U. S. 310 (1945); United States v. Aluminum Co. of America, 148 F. 2d 416 (CA2 1945); ALI, Restatement of the Foreign Relations Law of the United States 2d, § 18. And while we cannot speak for Canadian courts, we have been given no reason to believe they would be less receptive to enforcing a decree rendered by Ohio courts than one issued by this Court. Thus, we do not believe exercising our discretion to refuse to entertain this complaint would undermine any of the purposes for which Ohio was given the authority to bring it here.

B

Our reasons for thinking that, as a practical matter, it would be inappropriate for this Court to attempt to adjudicate the issues Ohio seeks to present are several. History reveals that the course of this Court’s prior efforts to settle disputes regarding interstate air and water pollution has been anything but smooth. In Missouri v. Illinois, 200 U. S. 496, 520-522 (1906), Justice Holmes was at pains to underscore the great difficulty that the Court faced in attempting to pronounce a suitable general rule of law to govern such controversies. The solution finally grasped was to saddle the party seeking relief with an unusually high standard of proof and the Court with the duty of applying only legal principles “which [it] is prepared deliberately to maintain against all considerations on the other side,” id., at 521, an accommodation which, in cases of this kind, the Court has found necessary to maintain ever since. See, e. g., New York v. New Jersey, 256 U. S., at 309. Justice Clarke’s closing plea in New York v. New Jersey, id., at 313, strikingly illustrates the sense of futility that has accompanied this Court’s attempts to treat with the complex technical and political matters that inhere in all disputes of the kind at hand:

“We cannot withhold the suggestion, inspired by the consideration of this case, that the grave problem of sewage disposal presented by the large and growing populations living on the shores of New York Bay is one more likely to be wisely solved by cooperative study and by conference and mutual concession on the part of representatives of the States so vitally interested in it than by proceedings in any court however constituted.”

The difficulties that ordinarily beset such cases are severely compounded by the particular setting in which this controversy has reached us. For example, the parties have informed us, without contradiction, that a number of official bodies are already actively involved in regulating the conduct complained of here. A Michigan circuit court has enjoined Wyandotte from operating its mercury cell process without judicial authorization. The company is, moreover, currently utilizing a recycling process specifically approved by the Michigan Water Resources Commission and remains subject to the continued scrutiny of that agency. Dow Canada reports monthly to the Ontario Water Resources Commission on its compliance with the commission’s order prohibiting the company from passing any mercury into the environment.

Additionally, Ohio and Michigan are both participants in the Lake Erie Enforcement Conference, convened a year ago by the Secretary of the Interior pursuant to the Federal Water Pollution Control Act, 62 Stat. 1155, as amended. The Conference is studying all forms and sources of pollution, including mercury, infecting Lake Erie. The purpose of this Conference is to provide a basis for concerted remedial action by the States or, if progress in that regard is not rapidly made, for corrective proceedings initiated by the Federal Government. 33 U. S. C. §466g (1964 ed. and Supp. V). And the International Joint Commission, established by the Boundary Waters Treaty of 1909 between the United States and Canada, 36 Stat. 2448, issued on January 14, 1971, a comprehensive report, the culmination of a six-year study carried out at the request of the contracting parties, concerning the contamination of Lake Erie. That document makes specific recommendations for joint programs to abate these environmental hazards and recommends that the IJC be given authority to supervise and coordinate this effort.

In view of all this, granting Ohio’s motion for leave to file would, in effect, commit this Court’s resources to the task of trying to settle a small piece of a much larger problem that many competent adjudicatory and conciliatory bodies are actively grappling with on a more practical basis.

The nature of the case Ohio brings here is equally disconcerting. It can fairly be said that what is in dispute is not so much the law as the facts. And the factfinding process we are asked to undertake is, to say the least, formidable. We already know, just from what has been placed before us on this motion, that Lake Erie suffers from several sources of pollution other than mercury; that the scientific conclusion that mercury is a serious water pollutant is a novel one; that whether and to what extent the existence of mercury in natural waters can safely or reasonably be tolerated is a question for which there is presently no firm answer; and that virtually no published research is available describing how one might extract mercury that is in fact contaminating water. Indeed, Ohio is raising factual questions that are essentially ones of first impression to the scientists. The notion that appellate judges, even with the assistance of a most competent Special Master, might appropriately undertake at this time to unravel these complexities is, to say the least, unrealistic. Nor would it suffice to impose on Ohio an unusually high standard of proof. That might serve to mitigate our personal difficulties in seeking a just result that comports with sound judicial administration, but would not lessen the complexity of the task of preparing responsibly to exercise our judgment, or the serious drain on the resources of this Court it would entail. Other factual complexities abound. For example, the Department of the Interior has stated that eight American companies are discharging, or have discharged, mercury into Lake Erie or its tributaries. We would, then, need to assess the business practices and relative culpability of each to frame appropriate relief as to the one now before us.

Finally, in what has been said it is vitally important to stress that we are not called upon by this lawsuit to resolve difficult or important problems of federal law and that nothing in Ohio’s complaint distinguishes it from any one of a host of such actions that might, with equal justification, be commenced in this Court. Thus, entertaining this complaint not only would fail to serve those responsibilities we are principally charged with, but could well pave the way for putting this Court into a quandary whereby we must opt either to pick and choose arbitrarily among similarly situated litigants or to devote truly enormous portions of our energies to such matters.

To sum up, this Court has found even the simplest sort of interstate pollution case an extremely awkward vehicle to manage. And this case is an extraordinarily complex one both because of the novel scientific issues of fact inherent in it and the multiplicity of governmental agencies already involved. Its successful resolution would require primarily skills of factfinding, conciliation, detailed coordination with — and perhaps not infrequent deference to — other adjudicatory bodies, and close supervision of the technical performance of local industries. We have no claim to such expertise or reason to believe that, were we to adjudicate this case, and others like it, we would not have to reduce drastically our attention to those controversies for which this Court is a proper and necessary forum. Such a serious intrusion on society’s interest in our most deliberate and considerate performance of our paramount role as the supreme federal appellate court could, in our view, be justified only by the strictest necessity, an element which is evidently totally lacking in this instance.

Ill

What has been said here cannot, of course, be taken as denigrating in the slightest the public importance of the underlying problem Ohio would have us tackle. Reversing the increasing contamination of our environment is manifestly a matter of fundamental import and utmost urgency. What is dealt with above are only considerations respecting the appropriate role this Court can assume in efforts to eradicate such environmental blights. We mean only to suggest that our competence, is necessarily limited, not that our concern should be kept within narrow bounds.

Ohio’s motion for leave to file its complaint is denied without prejudice to its right to commence other appropriate judicial proceedings.

It is so ordered.

Mr. Justice Douglas,

dissenting.

The complaint in this case presents basically a classic type of case congenial to our original jurisdiction. It is to abate a public nuisance. Such was the claim of Georgia against a Tennessee company which was discharging noxious gas across the border into Georgia. Georgia v. Tennessee Copper Co., 206 U. S. 230. The Court said:

“It is a fair and reasonable demand on the part of a sovereign that the air over its territory should not be polluted on a great scale by sulphurous acid gas, that the forests on its mountains, be they better or worse, and whatever domestic destruction they have suffered, should not be further destroyed or threatened by the act of persons beyond its control, that the crops and orchards on its hills should not be endangered from the same source.” Id., at 238.

Dumping of sewage in an interstate stream, Missouri v. Illinois, 200 U. S. 496, or towing garbage to sea only to have the tides carry it to a State’s beaches, New Jersey v. New York City, 283 U. S. 473, have presented analogous situations which the Court has entertained in suits invoking our original jurisdiction. The pollution of Lake Erie or its tributaries by the discharge of mercury or compounds thereof, if proved, certainly creates a public nuisance of a seriousness and magnitude which a State by our historic standards may prosecute or pursue as parens patriae.

The suit is not precluded by the Boundary Waters Treaty of 1909, 36 Stat. 2448. Article IV provides that the “boundary waters . . . shall not be polluted on either side to the injury of health or property on the other.” But there is no machinery for direct enforcement of Art. IV.

Article VIII empowers the International Joint Commission to “pass upon all cases involving the use or obstruction or diversion of the waters with respect to which under Articles III and IY . . . the approval of this Commission is required.” Those Articles specifically describe the type of projects for which approval is required. For example, Art. IV states that the “[p]arties . . . will not permit the construction or maintenance ... of any remedial or protective works or any dams or other obstructions . . . the effect of which is to raise the natural level of waters on the other side of the boundary unless . . . approved by the . . . Commission.” Significantly, the proscription of pollution, which immediately follows this provision in Art. IV, does not mention approval or action by the International Joint Commission.

Article X does vest the Commission with power to render binding decisions on matters referred by consent of both parties. But Art. X states that any joint reference “on the part of the United States . . . will be by and with the advice and consent of the Senate, and on the part of His Majesty’s Government with the consent of the Governor General in Council.”

In other words, so far as pollution is concerned, the Treaty contains no provision for binding arbitration. Thus, it does not evince a purpose on the part of the national governments of the United States and Canada to exclude their States and Provinces from seeking other remedies for water pollution. Indeed, Congress in later addressing itself to water pollution in the Federal Water Pollution Control Act, 33 U. S. C. § 1151 (1970 ed.), said in § 1 (c):

“Nothing in this chapter shall be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters {including boundary waters) of such States.” (Emphasis added.)

This litigation, as it unfolds, will, of course, implicate much federal law. The case will deal with an important portion of the federal domain — the navigable streams and the navigable inland waters which are under the sovereignty of the Federal Government. It has been clear since Pollard’s Lessee v. Hagan, 3 How. 212, decided in 1845, that navigable waters were subject to federal control. That paramount federal dominion extends into the oceans beyond low tide. United States v. California, 332 U. S. 19.

Congress has enacted numerous laws reaching that domain. One of the most pervasive is the Rivers and Harbors Act of 1899, 30 Stat. 1121, as amended, 33 U. S. C. § 403, which was before us in United States v. Republic Steel Corp., 362 U. S. 482. In that case we read § 13 of the 1899 Act, 33 U. S. C. § 407, which forbids discharge of “any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state” as including particles in suspension. Id., at 490.

In the 1930's fish and wildlife legislation was enacted granting the Secretary of the Interior various heads of jurisdiction over the effects on fish and wildlife of “domestic sewage, mine, petroleum, and industrial wastes, erosion silt, and other polluting substances.” See, e. g., 16 U. S. C. § 665. Among other things, the Secretary of the Interior through the Fish and Wildlife Service gave advice to the Corps of Engineers as respects the effects which proposed dredging or filling of estuaries would have on fish or wildlife.

Since that time other changes have been made in the design of the federal system of water control. The Federal Water Pollution Control Act, as amended, 33 U. S. C. § 1151 (1970 ed.), gives broad powers to the Secretary to take action respecting water pollution on complaints of States, and other procedures to secure federal abatement of the pollution. Ibid. The National Environmental Policy Act of 1969, 83 Stat. 852, 42 U. S. C. §4331 (1964 ed., Supp. V), gives elaborate ecological directions to federal agencies and supplies procedures for their enforcement.

On December 23, 1970, the President issued an Executive Order which correlates the duties of the Corps of Engineers and the Administrator of the new Environmental Protection Agency under the foregoing statutes. Under that Executive Order the Corps in order “to regulate the discharge of pollutants and other refuse matter into the navigable waters of the United States or their tributaries” is directed after consultation with the Administrator to amend its regulations concerning issuance of permits. While the Corps is responsible for granting or denying permits, §2 (a)(2), it must accept the findings of the Administrator respecting “water quality standards,” § 2(a) (2) (A). On December 31, 1970, the Corps gave notice of its new proposed rules to govern discharges or deposits into navigable waters.

Yet the federal scheme is not pre-emptive of state action. Section 1 (b) of the Water Pollution Control Act declares that the policy of Congress is “to recognize, preserve, and protect the primary responsibilities and rights of the States in preventing and controlling water pollution.” 33 U. S. C. § 1151 (b) (1970 ed.). Section 10 provides that except where the Attorney General has actually obtained a court order of pollution abatement on behalf of the United States, “State and interstate action to abate pollution of . . . navigable waters . . . shall not ... be displaced by Federal enforcement action.” § 10 (b), 33 U. S. C. § 1160 (b) (1970 ed.).

The new Environmental Quality Improvement Act of 1970, 84 Stat. 114, 42 U. S. C. §4371 (1970 ed.), while stating the general policy of Congress in protecting the environment, also states: “The primary responsibility for implementing this policy rests with State and local governments.” 42 U. S. C. §4371 (b)(2) (1970 ed.).

There is much complaint that in spite of the arsenal of federal power little is being done. That, of course, is not our problem. But it is our concern that state action is not pre-empted by federal law. Under existing federal law, the States do indeed have primary responsibility for setting water quality standards; the federal agency only sets water quality standards for a State if the State defaults. 33 U. S. C. § 1160 (c) (1970 ed.).

There is not a word in federal law that bars state action. If, however, defendants had a permit from the Corps to discharge mercury into federal waters, the question would be vastly different. But they do not, and so far as appears they are not under any federal process and are not parties to any federal proceedings. In light of the history of water pollution control efforts in this country it cannot be denied that a vast residual authority rests in the States. And there is no better established remedy in state law than authority to abate a nuisance.

Much is made of the burdens and perplexities of these original actions. Some are complex, notably those involving water rights.

The drainage of Lake Michigan with the attendant lowering of water levels, affecting Canadian as well as United States interests, came to us in an original suit in which the Hon. Charles E. Hughes was Special Master. This Court entered a decree, Wisconsin v. Illinois, 278 U. S. 367, and has since that time entered supplementary-decrees.

The apportionment of the waters of the Colorado between Arizona and California was a massive undertaking entailing a searching analysis by the Special Master, the Hon. Simon H. Rifkind. Our decision was based on the record made by him and on exceptions to his Report. Arizona v. California, 373 U. S. 546.

The apportionment of the waters of the North Platte River among Colorado, Wyoming, and Nebraska came to us in an original action in which we named as Special Master, Hon. Michael J. Doherty. We entered a complicated decree, which dissenters viewed with alarm, Nebraska v. Wyoming, 325 U. S. 589, but which has not demanded even an hour of the Court’s time during the 26 years since it was entered.

If in these original actions we sat with a jury, as the Court once did, there would be powerful arguments for abstention in many cases. But the practice has been to appoint a Special Master which we certainly would do in this case. We could also appoint — or authorize the Special Master to retain — a panel of scientific advisers. The problems in this case are simple compared with those in the water cases discussed above. It is now known that metallic mercury deposited in water is often transformed into a dangerous chemical. This lawsuit would determine primarily the extent, if any, to which the defendants are contributing to that contamination at the present time. It would determine, secondarily, the remedies within reach — the importance of mercury in the particular manufacturing processes, the alternative processes available, the need for a remedy against a specified polluter as contrasted to a basin-wide regulation, and the like.

The problem, though clothed in chemical secrecies, can be exposed by the experts. It would indeed be one of the simplest problems yet posed in the category of cases under the head of our original jurisdiction.

The Department of Justice in a detailed brief tells us there are no barriers in federal law to our assumption of jurisdiction. I can think of no case of more transcending public importance than this one.

       The matter is well treated in the Solicitor General’s amicus brief, which satisfactorily deals with a number of considerations which we find it unnecessary to discuss in this opinion.

       While we possess jurisdiction over Dow America and Wyandotte simply on the basis of their citizenship, the problem with respect to Dow Canada is quite different with regard to two major issues: whether that foreign corporation has “contacts” of the proper sort sufficient to bring it personally before us, and whether service of process can lawfully be made upon Dow Canada. Were we to decide to entertain this complaint, however, it seems reasonably clear that the better course would be to reserve this aspect of the jurisdictional issue pending ascertainment of additional facts, rather than to resolve it now. Thus, for purposes of ruling on Ohio’s motion for leave to file its complaint, we treat the question of jurisdiction over all three defendants as a unitary one.

       In our view the federal statute, 28 U. S. C. § 1251 (b) (3), providing that our original jurisdiction in cases such as these is merely concurrent with that of the federal district courts, reflects this same judgment. However, this particular case cannot be disposed of by transferring it to an appropriate federal district court since this statute by itself does not actually confer jurisdiction on those courts, see C. Wright, Federal Courts 502 (2d ed. 1970), and no other statutory jurisdictional basis exists. The fact that there is diversity of citizenship among the parties would not support district court jurisdiction under 28 U. S. C. § 1332 because that statute does not deal with cases in which a State is a party. Nor would federal question jurisdiction exist under 28 U. S. C. § 1331. So far as it appears from the present record, an action such as this, if otherwise cognizable in federal district court, would have to be adjudicated under state law. Erie R. Co. v. Tompkins, 304 U. S. 64 (1938).

       Justice Holmes’ analysis appears to rest, in part, on the fact that in the case before him the conduct complained of was the act of a sovereign State. However, we see no reason why the determination to impose a high standard of proof would not be equally compelling in a case such as the one before us. Arguably, the necessity for applying virtually unexceptionable legal principles does not obtain where conduct never previously subjected to state law scrutiny is involved, but this is not the case here. See text, infra.

       See Hearings before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, Serial No. 90-3, p. 32 et seq.

       Exec. Order No. 11574, 35 Fed. Reg. 19627.

       35 Fed. Reg. 20005. And see 36 Fed. Reg. 983 concerning its proposed policy, practice, and procedure in that regard.

       See Polikoff, The Interlake Affair, Wash. Monthly, Yol. 3, No. 1, p. 7 (Mar. 1971).

       2 W. Blackstone, Commentaries *218 (Cooley 4th ed. 1899): “[I]t is a nuisance to stop or divert water that used to run to another’s meadow or mill; to corrupt or poison a water-course, by erecting a dyehouse or a lime-pit for the use of trade, in the upper part of the stream; or in short to do any act therein that in its consequences must necessarily tend to the prejudice of one’s neigh-bour. So closely does the law of England enforce that excellent rule of gospel morality, of 'doing to others as we would they should do unto ourselves.’ ”

       281 U. S. 179, 696; 289 U. S. 395; 309 U. S. 569; 311 U. S. 107; 313 U. S. 547; 388 U. S. 426.

        Georgia v. Brailsford, 3 Dall. 1.

       The case is therefore not an appropriate one for application of the teaching of Massachusetts v. Mellon, 262 U. S. 447, 485-486, that “[w]hile the State, under some circumstances, may sue (as ;parens patriae) for the protection of its citizens (Missouri v. Illinois, 180 U. S. 208, 241), it is no part of its duty or power to enforce their rights in respect of their relations with the Federal Government. In that field it is the United States, and not the State, which represents them as parens patriae, when such representation becomes appropriate; and to the former, and not to the latter, they must look for such protective measures as flow from that status.”


source: Caselaw Access Project

author:
      Me. Justice Douglas
      Mr. Justice Blackmun,

license: Public Domain

text:
    UNITED STATES v. RANDALL, TRUSTEE IN BANKRUPTCY
    No. 125.
    Argued February 22, 1971
    Decided March 24, 1971
    Douglas, J., delivered the opinion of the Court, in which Harlan, Brennan, White, and Marshall, JJ., joined. BlackMun, J., filed a dissenting opinion, in which Burger, C. J., and Black and Stewart, JJ., joined, post, p. 518.

      Richard B. Stone argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Walters, and Crombie J. D. Garrett.

      Kevin J. Gillogly argued the cause for respondent. With him on the brief was Daniel C. Ahern.

   Me. Justice Douglas

delivered the opinion of the Court.

Halo Metal Products, Inc. (the debtor) was kept in possession of its business by court order under Chapter XI of the Bankruptcy Act, 11 U. S. C. § 701 et seq. The order required it to open three separate bank accounts for its general, payroll, and tax indebtedness and to make appropriate disbursements from those accounts. Salaries and wages paid were to be credited against the payroll account and checks for wages and for withheld income and social security taxes were to be paid after approval by the referee. Checks for the withheld taxes were to be paid into the tax account. Withdrawals from this account were to be allowed only for payment of withheld taxes and welfare obligations.

The debtor did not comply with those requirements. Although it withheld income and social security taxes from the wages of its employees, it did not deposit them in the special tax account and did not pay them, as required, to the United States.

Later the debtor was adjudicated a bankrupt. The United States, which had previously filed a proof of claim in the Chapter XI proceedings for payment of the taxes, now asked the bankruptcy court to pay the amount of withheld taxes prior to the payment of the costs and expenses of administration of the bankruptcy proceedings. The referee denied the request. The District Court agreed with the referee. The Court of Appeals affirmed the order denying payment, 419 F. 2d 1068. The case is here on petition for a writ of certiorari which we granted (400 U. S. 817) because of a conflict among the circuits, cf. City of New York v. Rassner, 127 F. 2d 703; United States v. Sampsell, 193 F. 2d 154; Hercules Service Parts Corp. v. United States, 202 F. 2d 938.

The United States relies for its priority on 26 U. S. C. § 7501 (a), which provides:

“Whenever any person is required to collect or withhold any internal revenue tax from any other person and to pay over such tax to the United States, the amount of tax so collected or withheld shall be held to be a special fund in trust for the United States. The amount of such fund shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations (including penalties) as are applicable with respect to the taxes from which such fund arose.”

The argument is that withheld taxes are a trust in favor of the United States. It is answered that the debtor-in-possession failed to segregate the taxes so withheld; hence there was no trust. To that the United States replies that since the debtor-in-possession was a court-appointed officer, the misconduct of the officer should not defeat the trust. And, the argument continues, creditors are not unfairly harmed since the trust funds were never an asset of the estate.

We deal, however, with a Bankruptcy Act which we conclude is an overriding statement of federal policy on this question of priorities. Section 64 (a)(1) of the Act, 11 U. S. C. § 104 (a)(1) (1964 ed., Supp. V), provides:

“The debts to have priority, in advance of the payment of dividends to creditors, and to be paid in full out of bankrupt estates, and the order of payment, shall be (1) the costs and expenses of administration .... Where an order is entered in a proceeding under any chapter of this title directing that bankruptcy be proceeded with, the costs and expenses of administration incurred in the ensuing bankruptcy proceeding . . . shall have priority in advance of payment of the unpaid costs and expenses of administration . . . incurred in the superseded proceeding . . .

Until 1926 claims for administrative expenses were subordinate to tax claims. In that year they were placed ahead of taxes. The costs and administrative expenses of a trustee were, however, still subordinate to claims of the referee or creditors for preserving or recovering assets. In 1952 the Act was amended to give priority to administrative expenses of an ensuing bankruptcy proceeding over unpaid administrative expenses of a superseded proceeding.

We have then a progressive legislative development that (1) marks a decline in the grant of a tax preference to the United States and (2) marks an ascending priority for costs and expenses of administration.

We think the statutory policy of subordinating taxes to costs and expenses of administration would not be served by creating or enforcing trusts which eat up an estate, leaving little or nothing for creditors and court officers whose goods and services created the assets. In Nicholas v. United States, 384 U. S. 678, 690-692, we rejected the claim of the United States that under § 7501 (a) of the Internal Revenue Code it was entitled to interest accruing after the arrangement under Chapter XI and during the bankruptcy. We so held because to allow interest would run counter to the “strong policy of § 64 (a)(1) of the Bankruptcy Act.” Id., at 691. To allow the present claimed priority for the principal would by the same token run counter to the grain of the Bankruptcy Act.

This construction conforms with a literal reading of the second sentence of § 7501 (a) which makes the amount of such fund payable “in the same manner and subject to the same provisions and limitations ... as are applicable with respect to the taxes from which such fund arose.” In conformity with Nicholas we read those words against the history of the Bankruptcy Act. So read, the fund is as subordinate as the taxes. See In re Green, 264 F. Supp. 849, 851.

What we decide today is also in accord with those decisions which hold that the specific priorities granted by Congress in the Bankruptcy Act govern generalized statutes giving the United States priority in a wide range of situations. Guarantee Co. v. Title Guaranty Co., 224 U. S. 152; Davis v. Pringle, 268 U. S. 315.

Affirmed.

Mr. Justice Blackmun,

whom The Chief Justice, Mr. Justice Black, and Mr. Justice Stewart join, dissenting.

I cannot escape the conviction that the Court’s ruling on this very narrow issue dishonors property of the United States and effects a windfall for those who benefit from the ruling.

The amount in issue consists of income and FICA taxes actually withheld from wages of employees. These are not taxes of the debtor. Were it not for the withholding scheme, the amounts would have been paid out to the employees as gross wages and it would have been their obligation, as it was prior to the adoption of withholding, to pay those taxes. Instead, the employer now withholds, and § 7501 (a) of the Internal Revenue Code of 1954, 26 U. S. C. § 7501 (a), appropriately impresses a trust upon the amounts withheld. The Court today defeats the trust only because the arrangement debtor in possession, a corporation which the Court has characterized as “an officer of the bankruptcy court,” Nicholas v. United States, 384 U. S. 678, 690 (1966), flagrantly disobeyed the arrangement court’s specific order to pay the withholding amounts into a separate bank account. The respondent trustee concedes that if the order had been obeyed, the trustee would have no case. Tr. of Oral Arg. 34.

The decision in Nicholas does not demand the result reached by the Court. That case concerned interest accruing during bankruptcy, not the tax on which the interest was asserted. The present decision is a long step down the road beyond Nicholas.

Neither am I persuaded by the suggestion made by the trustee, and seemingly reflected in the Court’s opinion, that a contrary decision would leave little or nothing for administrative costs of the bankruptcy proceeding and therefore would deter orderly administration of bankrupt estates. I suspect that the fact of bankruptcy administration of a vast number of small- or no-asset cases is a sufficient refutation of that suggestion.

I find myself in accord with the views expressed by the Second, Sixth, and Ninth Circuits. City of New York v. Rassner, 127 F. 2d 703 (CA2 1942); In re Airline-Arista Printing Corp., 267 F. 2d 333 (CA2 1959), aff’g 156 F. Supp. 403 (SDNY 1957); Hercules Service Parts Corp. v. United States, 202 F. 2d 938 (CA6 1953); United States v. Sampsell, 193 F. 2d 154 (CA9 1951). I would reverse.

       “Where the funds are received by a public officer, such as a receiver or trustee in bankruptcy, the owner of the funds is entitled to priority with respect to the funds so received without further tracing.” 5 A. Scott on Trusts §521, p. 3652 (3d ed. 1967).

       3A Collier on Bankruptcy 2046-2048, 2155-2156 (14th ed. 1969).

       44 Stat. 662.

       Collier, supra, n. 2, at 2049, 2050 n. 15.

       66 Stat. 426. “Unless provision is made for payment of the costs and expenses necessary to liquidate, administer and close the estate in the ensuing bankruptcy proceeding, ahead of all prior incurred and unpaid administration costs and expenses, there is always danger of a breakdown of administration. There should be assurance to the trustee in the ensuing proceeding that the costs and expenses incurred by him, such as bond and insurance premiums, costs of conducting a public sale and compensation for his services and for the services of his attorney, will be paid out of the assets liquidated and administered by him ahead of the prior unpaid costs and expenses.” S. Rep. No. 1395, 82d Cong., 2d Sess., 5.
      In 1966 Congress amended § 17 of the Act so as to make dis-chargeable all taxes due and owing more than three years prior to bankruptcy except, inter alia, those withheld or collected from others but not paid over. Act of July 5, 1966, 80 Stat. 270.

       The competing Act in those cases was Rev. Stat. § 3466, which read: “Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority hereby established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed.”


author: Mr. Justice Douglas

text:
    UNITED STATES v. DISTRICT COURT IN AND FOR THE COUNTY OF EAGLE et al.
    No. 87.
    Argued March 2, 1971
    —Decided March 24, 1971
    Mr. Justice Douglas delivered the opinion for a unanimous Court. MR. Justice HarlaN, though joining in the opinion, filed a concurring statement, post, p. 530.

      Deputy Assistant Attorney General Kiechel argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Kashiwa, Francis X. Beytagh, Jr., Edmund B. Clark, and Charles N. Woodruff.

      Kenneth Balcomb argued the cause for respondents. With him on the brief were Robert L. McCarty, George L. Zoellner, Don H. Sherwood, and Raphael J. Moses.

    Briefs of amici curiae were filed by Gary K. Nelson, Attorney General, and Irving A. Jennings for the State of Arizona et al.; by Thomas C. Lynch, Attorney General, Walter S. Rountree, Assistant Attorney General, and David B. Stanton, Deputy Attorney General, for the State of California; by Duke W. Dunbar, Attorney General of Colorado, Lee Johnson, Attorney General of Oregon, Harvey Dickerson, Attorney General of Nevada, Robert M. Robson, Attorney General of Idaho, Robert L. Woodahl, Attorney General of Montana, and G. Kent Edwards, Attorney General of Alaska, for the States of Colorado et al.; by G. T. Blankenship, Attorney General, and W. Howard O’Bryan, Jr., Assistant Attorney General, for the State of Oklahoma; by Vernon B. Romney, Attorney General, Robert B. Hansen, Deputy Attorney General, and D allin W. Jensen, Assistant Attorney General, for the State of Utah; by Slade Gorton, Attorney General, and Charles B. Roe, Jr., and Henry W. Ipsen, Assistant Attorneys General, for the State of Washington; and by James E. Barrett, Attorney General, Sterling A. Case, Deputy Attorney General, and Jack R. Gage, Special Assistant Attorney General, for the State of Wyoming.
   Mr. Justice Douglas

delivered the opinion of the Court.

Eagle River is a tributary of the Colorado River; and Water District 37 is a Colorado entity encompassing all Colorado lands irrigated by water of the Eagle and its tributaries. The present case started in the Colorado courts and is called a supplemental water adjudication under Colo. Rev. Stat. Ann. § 148-9-7 (1963). The Colorado court issued a notice which, inter alia, asked all owners and claimants of water rights in those streams “to file a statement of claim and to appear ... in regard to all water rights owned or claimed by them.” The United States was served with this notice pursuant to 43 U. S. C. § 666. The United States moved to be dismissed as a party, asserting that 43 U. S. C. § 666 does not constitute consent to have adjudicated in a state court the reserved water rights of the United States.

The objections of the United States were overruled by the state District Court and on a motion for a writ of prohibition the Colorado Supreme Court took the same view. 169 Colo. 665, 458 P. 2d 760. The case is here on a petition for certiorari, which we granted. 397 U. S. 1005.

We affirm the Colorado decree.

It is clear from our cases that the United States often has reserved water rights based on withdrawals from the public domain. As we said in Arizona v. California, 373 U. S. 546, the Federal Government had the authority both before and after a State is admitted into the Union “to reserve waters for the use and benefit of federally reserved lands.” Id., at 597. The federally reserved lands include any federal enclave. In Arizona v. California we were primarily concerned with Indian reservations. Id., at 598-601. The reservation of waters may be only implied and the amount will reflect the nature of the federal enclave. Id., at 600-601. Here the United States is primarily concerned with reserved waters for the White River National Forest, withdrawn in 1905, Colorado having been admitted into the Union in 1876.

The United States points out that Colorado water rights are based on the appropriation system which requires the permanent fixing of rights to the use of water at the time of the adjudication, with no provision for the future needs, as is often required in case of reserved water rights. Ibid. Since those rights may potentially be at war with appropriative rights, it is earnestly urged that 43 U. S. C. § 666 gave consent to join the United States only for the adjudication of water rights which the United States acquired pursuant to state law.

The consent to join the United States “in any suit (1) for the adjudication of rights to the use of water of a river system or other source” would seem to be all-inclusive. We deem almost frivolous the suggestion that the Eagle and its tributaries are not a “river system” within the meaning of the Act. No suit by any State could possibly encompass all of the water rights in the entire Colorado River which runs through or touches many States. The “river system” must be read as embracing one within the particular State’s jurisdiction. With that to one side, the first clause of §666 (a)(1), read literally, would seem to cover this case for “rights to the use of water of a river system” is broad enough to embrace “reserved” waters.

The main reliance of the United States appears to be on Clause 2 of § 666 (a) which reads:

. . for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise.”

This provision does not qualify § 666 (a)(1), for (1) and (2) are separated by an “or.” Yet even if “or” be read as “and,” we see no difficulty with Colorado’s position. Section 666 (a) (2) obviously includes water rights previously acquired by the United States through appropriation or presently in the process of being so acquired. But we do not read § 666 (a) (2) as being restricted to appropriative rights acquired under state law. In the first place “the administration of such rights” in § 666 (a)(2) must refer to the rights described in (1) for they are the only ones which in this context “such” could mean; and as we have seen they are all-inclusive, in terms at least. Moreover, (2) covers rights acquired by appropriation under state law and rights acquired “by purchase” or “by exchange,” which we assume would normally be appropriative rights. But it also includes water rights which the United States has “otherwise” acquired. The doctrine of ejusdem generis is invoked to maintain that “or otherwise” does not encompass the adjudication of reserved water rights, which are in no way dependent for their creation or existence on state law. We reject that conclusion for we deal with an all-inclusive statute concerning “the adjudication of rights to the use of water of a river system” which in § 666 (a)(1) has no exceptions and which, as we read it, includes appropriative rights, riparian rights, and reserved rights.

It is said that this adjudication is not a “general” one as required by Dugan v. Rank, 372 U. S. 609, 618. This proceeding, unlike the one in Dugan, is not a private one to determine whether named claimants have priority over the United States. The whole community of claims is involved and as Senator McCarran, Chairman of the Committee reporting on the bill, said in reply to Senator Magnuson: “S. 18 is not intended ... to be used for any other purpose than to allow the United States to be joined in a suit wherein it is necessary to adjudicate all of the rights of various owners on a given stream. This is so because unless all of the parties owning or in the process of acquiring water rights on a particular stream can be joined as parties defendant, any subsequent decree would be of little value.”

It is said, however, that since this is a supplemental adjudication only those who claim water rights acquired since the last adjudication of that water district are before the court. It is also said that the earliest priority date decreed in such an adjudication must be later than the last priority date decreed in the preceding adjudication. The last water adjudication in this water district was entered on February 21, 1966, and the United States was not a party to that or to any prior proceeding in this water district. The United States accordingly says that since the United States cannot be barred by the previous decrees and since the owners of previously decreed rights are not before the court, the consent envisaged by 43 U. S. C. § 666 is not present.

We think that argument is extremely technical; and we decline to confine 43 U. S. C. § 666 so narrowly. The absence of owners of previously decreed rights may present problems going to the merits, in case there develops a collision between them and any reserved rights of the United States. All such questions, including the volume and scope of particular reserved rights, are federal questions which, if preserved, can be reviewed here after final judgment by the Colorado court.

Affirmed

[For concurring statement of Mr. Justice Harlan, see post, p. 530.]

       66 Stat. 560, 43 U. S. C. §666 (a), provides:
      “Consent is given 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, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit. The United States, when a party to any such suit, shall (1) be deemed to have waived any right to plead that the State laws are inapplicable or that the United States is not amenable thereto by reason of its sovereignty, and (2) shall be subject to the judgments, orders, and decrees of the court having jurisdiction, and may obtain review thereof, in the same manner and to the same extent as a private individual under like circumstances: Provided, That no judgment for costs shall be entered against the United States in any such suit.”

       See Coffin v. Left Hand Ditch Co., 6 Colo. 443, 446; Mason v. Hills Land & Cattle Co., 119 Colo. 404, 204 P. 2d 153.

       See Comment, 48 Calif. L. Rev. 94, 111 (1960).

       S. Rep. No. 755, 82d Cong., 1st Sess., 9. And see Pacific Live Stock Co. v. Oregon Water Bd., 241 U. S. 440, 448.

       Colo. Rev. Stat. Ann. § 148-9-7.

         Id., §148-9-13.

       The Colorado court stated:
      “We are not determining whether the United States has reserved water rights in connection with lands withdrawn subsequent to August 1, 1876, the date of Colorado’s admission to the Union; nor, if so, whether these rights have priority over previously adjudicated rights. These questions properly should be decided after the United States presents its specific claims for adjudication and the issues of fact and law are clearly drawn.” 169 Colo., at 577, 458 P. 2d, at 770.


author: Mr. Justice Douglas Me. Justice Harlan,

text:
    UNITED STATES v. DISTRICT COURT IN AND FOR WATER DIVISION NO. 5 et al.
    No. 812.
    Argued March 2, 1971
    Decided March 24, 1971
    MR. Justice Douglas delivered the opinion for a unanimous Court. Mr. Justice HarlaN, though joining in the opinion, filed a concurring statement, post, p. 530.

      Deputy Assistant Attorney General Kiechel argued the cause for the United States. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Kashiwa, Samuel Huntington, and Edmund B. Clark.

      Kenneth Balcomb argued the cause for respondents. With him on the brief was Robert L. McCarty.

   Mr. Justice Douglas

delivered the opinion of the Court.

This is a companion case to the Eagle County case, ante, p. 520, and involves an action brought under a different state statute in the District Court of Colorado for Water Division No. 5. That court was given responsibility for water rights determinations affecting “all lands in the state of Colorado in the drainage basins of the Colorado river and all of its tributaries arising within Colorado, with the exception of the Gunnison river,” which includes the area of the Eagle River system.

Notice was served on the United States pursuant to 43 U. S. C. § 666 (b) and it moved to quash the service. That motion was denied. A writ of prohibition was sought in the Supreme Court and it was also denied. The case is here on a petition for a writ of certiorari which we granted. 400 U. S. 940.

The area covered by this suit includes vastly more extensive water rights than those involved in the Eagle County case. The Forest Service administers four separate national forests in the area: the White River, Arapaho, Routt, and Grand Mesa-Uncompahgre. The Department of the Interior, through the Bureau of Reclamation, the National Park Service, the Bureau of Land Management, the Bureau of Mines, and the Bureau of Sport Fisheries and Wildlife, makes use of water in Water Division No. 5 for national recreational and other purposes. The Department of the Navy administers certain naval petroleum and oil shale reserves which, if ever developed, would require water to accomplish the federal purpose for which the reservations were made.

The major issue — the scope of the consent-to-be-sued provision in 43 U. S. C. § 666 — has been covered in the Eagle County opinion and need not be repeated here.

It is emphasized, however, that the procedures under the new Act are much more burdensome on the Government than they were under the older Act. It is pointed out that the new statute contemplates monthly proceedings before a water referee on water rights applications. These proceedings, it is argued, do not constitute general adjudications of water rights because all the water users and all water rights on a stream system are not involved in the referee’s determinations. The only water rights considered in the proceeding are those for which an application has been filed within a particular month. It is also said that the Act makes all water rights confirmed under the new procedure junior to those previously awarded.

It is argued from those premises that the proceeding does not constitute a general adjudication which 43 U. S. C. § 666 contemplated. As we said in the Eagle County case, the words “general adjudication” were used in Dugan v. Rank, 372 U. S. 609, 618, to indicate that 43 U. S. C. § 666 does not cover consent by the United States to be sued in a private suit to determine its rights against a few claimants. The present suit, like the one in the Eagle County case, reaches all claims, perhaps month by month but inclusively in the totality; and, as we said in the other case, if there is a collision between prior adjudicated rights and reserved rights of the United States, the federal question can be preserved in the state decision and brought here for review.

Affirmed.

Me. Justice Harlan,

concurring.

I join in the opinions of the Court in these cases, explicitly disclaiming, however, the intimation of any view as to the existence and scope of the so-called “reserved water rights” of the United States, either in general or in the particular situations here involved.

       The Colorado Water Rights Determination and Administration Act of 1969, Colo. Rev. Stat. Ann. § 148-21-1 et seq., Colo. Rev. Stat. Ann. § 148-21-18 (3) (Supp. 1969).

       The 1969 Act here in question abolished the 70 water districts previously existing and replaced them with seven water divisions.

       Colo. Rev. Stat. Ann. § 148-21-8 (6).

      This statement applies also to No. 87, United States v. District Court in and for the County of Eagle et al., ante, p. 520.


author: Per Curiam.

text:
    RADICH v. NEW YORK
    No. 169.
    Argued February 22, 1971
    Decided March 24, 1971

      Richard G. Green argued the cause for appellant. With him on the briefs were Shirley Fingerhood and Melvin L. Wulj.

      Michael R. Juviler argued the cause for appellee. With him on the brief were Frank S. Hogan and William C. Donnino.

    John B. Hightower et al. filed a brief as amicus curiae urging reversal.

      Louis J. Lefkowitz, Attorney General, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Maria L. Marcus, Assistant Attorney General, filed a brief for the Attorney General of New York as amicus curiae urging affirmance.
   Per Curiam.

The judgment is affirmed by an equally divided Court.

Mr. Justice Douglas took no part in the consideration or decision of this case.