author: Me. Chief Justice Burger

text:
    CAPPAERT et al. v. UNITED STATES et al.
    No. 74-1107.
    Argued January 12, 1976
    Decided June 7, 1976

      Burger, C. J., delivered the opinion for a unanimous Court.

      Samuel S. Lionel argued the cause and filed briefs for petitioners in No. 74-1107. George Allison, Special Deputy Attorney General of Nevada, argued the cause for petitioner in No. 74G1304. With him on the briefs was Peter D. Laxalt, Special Deputy Attorney General.

      Deputy Solicitor General Randolph argued the cause for the United States in both cases. With him on the brief were Solicitor General Bork, Acting Assistant Attorney General Kiechel, Harry R. Sachse, Jacques B. Gelin, John H. Germeraad, and Robert L. Klarquist.

      Together with No. 74-1304, Nevada ex rel. Westergard v. United States et al., also on certiorari to the same court.

       Briefs of amici curiae urging reversal in both cases were filed (1) for the States of Colorado, North Dakota, and Washington by J. D. MacFarlane, Attorney General of Colorado, Jean IS. Dubofsky, Deputy Attorney General, Edward G. Donovan, Solicitor General, David W. Robbins, First Assistant Attorney General, Charles M. Elliott, Special Assistant Attorney General, Allen I. Olson, Attorney General of North Dakota, Gerald W. Vandewalle, Chief Deputy Attorney General, Slade Gorton, Attorney General of Washington, and Charles B. Roe, Senior Assistant Attorney General; and (2) for the States of Arizona, Hawaii, Idaho, Kansas, Montana, Nebraska, New Mexico, Oklahoma, South Dakota, Utah, and Wyoming by Bruce Babbitt, Attorney General of Arizona, Ronald Y. Amemiya, Attorney General of Hawaii, Wayne L. Kidwell, Attorney General of Idaho, Curt T. Schneider, Attorney General of Kansas, Robert L. Woodahl, Attorney General of Montana, Paul L. Douglas, Attorney General of Nebraska, Antonio Anaya, Attorney General of New Mexico, Larry Derryberry, Attorney General of Oklahoma, William J. Janklow, Attorney General of South Dakota, Vernon B. Romney, Attorney General of Utah, and V. Frank Mendicino, Attorney General of Wyoming.

        Bruce R. Green and Robert S. Pelcyger filed a brief for the Salt River Pima-Maricopa Indian Community et al. as amici curias urging affirmance in No. 74G1304.

        Evelle J. Younger, Attorney General, Carl Boronkay, Assistant Attorney General, and Roderick Walston, Richard C. Jacobs, and. Douglas B. Noble, Deputy Attorneys General, filed a brief for the State of California as amicus curiae in No. 74^1304.

   Me. Chief Justice Burger

delivered the opinion of the Court.

The question presented in this litigation is whether the reservation of Devil's Hole as a national monument reserved federal water rights in unappropriated water.

Devil’s Hole is a deep limestone cavern in Nevada. Approximately 50 feet below the opening of the cavern is a pool 65 feet long, 10 feet wide, and at least 200 feet deep, although its actual depth is unknown. The pool is a remnant of the prehistoric Death Valley Lake System and is situated on land owned by the United States since the Treaty of Guadalupe Hidalgo in 1848, 9 Stat. 922. By the Proclamation of January 17, 1952, President Truman withdrew from the public domain a 40-acre tract of land surrounding Devil’s Hole, making it a detached component of the Death Valley National Monument. Proclamation No. 2961, 3 CFR 147 (1949-1953 Comp.) , The Proclamation was issued under the American Antiquities Preservation Act, 34 Stat. 225, 16 U. S. C. § 431, which authorizes the President to declare as national monuments “objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States . . .

The 1952 Proclamation notes that Death Valley was set aside as a national monument “for the preservation of the unusual features of scenic, scientific, and educational interest therein contained.” The Proclamation also notes that Devil’s Hole is near Death Valley and contains a “remarkable underground pool.” Additional preambulary statements in the Proclamation explain why Devil’s Hole was being added to the Death Valley National Monument:

“Whereas the said pool is a unique subsurface remnant of the prehistoric chain of lakes which in Pleistocene times formed the Death Valley Lake System, and is unusual among caverns in that it is a solution area in distinctly striated limestone, while also owing its formation in part to fault action; and
“Whereas the geologic evidence that this subterranean pool is an integral part of the hydrographic history of the Death Valley region is further confirmed by the presence in this pool of a peculiar race of desert fish, and zoologists have demonstrated that this race of fish, which is found nowhere else in the world, evolved only after the gradual drying up of the Death Valley Lake System isolated this fish population from the original ancestral stock that in Pleistocene times was common to the entire region; and
“Whereas the said pool is of such outstanding scientific importance that it should be given special protection, and such protection can be best afforded by making the said forty-acre tract containing the pool a part of the said monument . . . .”

The Proclamation provides that Devil’s Hole should be supervised, managed, and directed by the National Park Service, Department of the Interior. Devil's Hole is fenced off, and only limited access is allowed by the Park Service.

The Cappaert petitioners own a 12,000-acre ranch near Devil's Hole, 4,000 acres of which are used for growing Bermuda grass, alfalfa, wheat, and barley; 1,700 to 1,800 head of cattle are grazed. The ranch represents an investment of more than $7 million; it employs more than 80 people with an annual payroll of more than $340,000.

In 1968 the Cappaerts began pumping groundwater on their ranch on land 2y2 miles from Devil's Hole; they were the first to appropriate groundwater. The groundwater comes from an underground basin or aquifer which is also the source of the water in Devil's Hole. After the Cappaerts began pumping from the wells near Devil’s Hole, which they do from March to October, the summer water level of the pool in Devil’s Hole began to decrease. Since 1962 the level of water in Devil's Hole has been measured with reference to a copper washer installed on one of the walls of the hole by the United States Geological Survey. Until 1968, the water level, with seasonable variations, had been stable at 1.2 feet below the copper marker. In 1969 the water level in Devil’s Hole was 2.3 feet below the copper washer; in 1970, 3.17 feet; in 1971, 3.48 feet; and, in 1972, 3.93 feet.

When the water is at the lowest levels, a large portion of a rock shelf in Devil’s Hole is above water. However, when the water level is at 3.0 feet below the marker or higher, most of the rock shelf is below water, enabling algae to grow on it. This in turn enables the desert fish (cyprinodon diabolis, commonly known as Devil’s Hole pupfish), referred to in President Truman’s Proclamation, to spawn in the spring. As the rock shelf becomes exposed, the spawning area is decreased, reducing the ability of the fish to spawn in sufficient quantities to prevent extinction.

In April 1970 the Cappaerts, pursuant to Nevada law, Nev. Rev. Stat. §533.325 (1973), applied to the State Engineer, Roland D. Westergard, for permits to change the use of water from several of their wells. Although the United States was not a party to that proceeding and was never served, employees of the National Park Service learned of the Cappaerts’ application through a public notice published pursuant to Nevada law. § 533.360. An official of the National Park Service filed a protest as did a private firm. Nevada law permits interested persons to protest an application for a permit; the protest may be considered by the State Engineer at a hearing. § 533.365. A hearing was conducted on December 16, 1970, and a field solicitor of the Department of the Interior appeared on behalf of the National Park Service. He presented documentary and testimonial evidence, informing the State Engineer that because of the declining water level of Devil’s Hole the United States had commissioned a study to determine whether the wells on the Cappaerts’ land were hydrologically connected to Devil’s Hole and, if so, which of those wells could be pumped safely and which should be limited to prevent lowering of the water level in Devil’s Hole. The Park Service field solicitor requested either that the Cappaerts’ application be denied or that decision on the application be postponed until the studies were completed.

The State Engineer declined to postpone decision. At the conclusion of the hearing he stated that there was no recorded federal water right with respect to Devil’s Hole, that the testimony indicated that the Cappaerts’ pumping would not unreasonably lower the water table or adversely affect existing water rights, and that the permit would be granted since further economic development of the Cappaerts’ land would be in the public interest. In his oral ruling the State Engineer stated in part that “the protest to the applications that are the subject of this hearing are overruled and the applications will be issued subject to existing rights.” The National Park Service did not appeal. See Nev. Rev. Stat. § 533.450 (1973).

In August 1971 the United States, invoking 28 U. S. C. § 1345, sought an injunction in the United States District Court for the District of Nevada to limit, except for domestic purposes, the Cappaerts’ pumping from six specific wells and from specific locations near Devil’s Hole. The complaint alleged that the United States, in establishing Devil’s Hole as part of Death Valley National Monument, reserved the unappropriated waters appurtenant to the land to the extent necessary for the requirements and purposes of the reservation. The complaint further alleged that the Cappaerts had no perfected water rights as of the date of the reservation. The United States asserted that pumping from certain of the Cappaerts’ wells had lowered the water level in Devil’s Hole, that the lower water level was threatening the survival of a unique species of fish, and that irreparable harm would follow if the pumping were not enjoined. On June 2, 1972, the United States filed an amended complaint, adding two other specified wells to the list of those to be enjoined.

The Cappaerts answered, admitting that their wells draw water from the same underlying sources supplying Devil’s Hole, but denying that the reservation of Devil’s Hole reserved any water rights for the United States. The Cappaerts alleged that the United States was estopped from enjoining use of water under land which it had exchanged with the Cappaerts. The State of Nevada intervened on behalf of the State Engineer as a party defendant but raised no affirmative defenses.

On June 5, 1973, the District Court, by Chief Judge Roger D. Foley, entered a preliminary injunction limiting pumping from designated wells so as to return the level of Devil’s Hole to not more than 3.0 feet below the marker. Detailed findings of fact were made and the District Judge then appointed a Special Master to establish specific pumping limits for the wells and to monitor the level of the water at Devil’s Hole. The District Court found that the water from certain of the wells was hydrologically connected to Devil’s Hole, that the Cappaerts were pumping heavily from those wells, and that that pumping had lowered the water level in Devil’s Hole. The court also found that the pumping could be regulated to stabilize the water level at Devil’s Hole and that neither establishing an artificial shelf nor transplanting the fish was a feasible alternative that would preserve the species. The District Court further found that if the injunction did not issue “there is grave danger that the Devil’s Hole pupfish may be destroyed, resulting in irreparable injury to the United States.” 375 F. Supp. 456, 460 (1974).

The District Court then held that in establishing Devil’s Hole as a national monument, the President reserved appurtenant, unappropriated waters necessary to the purpose of the reservation; the purpose included preservation of the pool and the pupfish in it. The District Court also held that the federal water rights antedated those of the Cappaerts, that the United States was not estopped, and that the public interest required granting the injunction. On April 9, 1974, the District Court entered its findings of fact and conclusions of law substantially unchanged in a final decree permanently enjoining pumping that lowers the level of the water below the 3.0-foot level. 375 F. Supp. 456 (1974).

The Court of Appeals for the Ninth Circuit affirmed, 508 F. 2d 313 (1974), in a thorough opinion by Senior District Judge Gus J. Solomon, sitting by designation, holding that the implied-reservation-of-water doctrine applied to groundwater as well as to surface water. The Court of Appeals held that “[t]he fundamental purpose of the reservation of the Devil’s Hole pool was to assure that the pool would not suffer changes from its condition at the time the Proclamation was issued in 1952 . . . .” Id., at 318. The Court of Appeals further held that neither the Cappaerts nor their successors in interest had any water rights in 1952, nor was the United States estopped from asserting its water rights by exchanging land with the Cappaerts. In answer to contentions raised by the intervenor Nevada, the Court of Appeals held that “the United States is not bound by state water laws when it reserves land from the public domain,” id., at 320, and does not need to take steps to perfect its rights with the State; that the District Court had concurrent jurisdiction with the state courts to resolve this claim; and, that the state administrative procedures granting the Cappaerts’ permit did not bar resolution of the United States’ suit in Federal District Court.

We granted certiorari to consider the scope of the implied-reservation-of-water-rights doctrine. 422 U. S. 1041 (1975). We affirm.

I

Reserved-Water-Rights Doctrine

This Court has long held that when the Federal Government withdraws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation. In so doing the United States acquires a reserved right in unappropriated water which vests on the date of the reservation and is superior to the rights of future appropriators. Reservation of water rights is empowered by the Commerce Clause, Art. I, § 8, which permits federal regulation of navigable streams, and the Property Clause, Art. IV, § 3, which permits federal regulation of federal lands. The doctrine applies to Indian reservations and other federal enclaves, encompassing water rights in navigable and nonnavigable streams. Colorado River Water Cons. Dist. v. United States, 424 U. S. 800, 805 (1976); United States v. District Court for Eagle County, 401 U. S. 520, 522-523 (1971); Arizona v. California, 373 U. S. 546, 601 (1963); FPC v. Oregon, 349 U. S. 435 (1955); United States v. Powers, 305 U. S. 527 (1939); Winters v. United States, 207 U. S. 564 (1908).

Nevada argues that the cases establishing the doctrine of federally reserved water rights articulate an equitable doctrine calling for a balancing of competing interests. However, an examination of those cases shows they do not analyze the doctrine in terms of a balancing test. For example, in Winters v. United States, supra, the Court did not mention the use made of the water by the upstream landowners in sustaining an injunction barring their diversions of the water. The “Statement of the Case” in Winters notes that the upstream users were homesteaders who had invested heavily in dams to divert the water to irrigate their land, not an unimportant interest. The Court held that when the Federal Government reserves land, by implication it reserves water rights sufficient to accomplish the purposes of the reservation.

In determining whether there is a federally reserved water right implicit in a federal reservation of public land, the issue is whether the Government intended to reserve unappropriated and thus available water. Intent is inferred if the previously unappropriated waters are necessary to accomplish the purposes for which the reservation was created. See, e. g., Arizona v. California, supra, at 599-601; Winters v. United States, supra, at 576. Both the District Court and the Court of Appeals held that the 1952 Proclamation expressed an intention to reserve unappropriated water, and we agree. The Proclamation discussed the pool in Devil’s Hole in four of the five preambles and recited that the “pool . . . should be given special protection.” Since a pool is a body of water, the protection contemplated is meaningful only if the water remains; the water right reserved by the 1952 Proclamation was thus explicit, not implied.

Also explicit in the 1952 Proclamation is the authority of the Director of the Park Service to manage the lands of Devil’s Hole Monument “as provided in the act of Congress entitled 'An Act to establish a National Park Service, and for other purposes,’ approved August 25,1916 (39 Stat. 535; 16 U. S. C. 1-3) . . . .” The National Park Service Act provides that the “fundamental purpose of the said parks, monuments, and reservations” is “to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” 39 Stat. 535, 16 U. S. C. § 1.

The implied-reservation-of-water-rights doctrine, however, reserves only that amount of water necessary to fulfill the purpose of the reservation, no more. Arizona v. California, supra, at 600-601. Here the purpose of reserving Devil’s Hole Monument is preservation of the pool. Devil’s Hole was reserved “for the preservation of the unusual features of scenic, scientific, and educational interest.” The Proclamation notes that the pool contains “a peculiar race of desert fish . . . which is found nowhere else in the world” and that the “pool is of . . . outstanding scientific importance . . . .” The pool need only be preserved, consistent with the intention expressed in the Proclamation, to the extent necessary to preserve its scientific interest. The fish are one of the features of scientific interest. The preamble noting the scientific interest of the pool follows the preamble describing the fish as unique; the Proclamation must be read in its entirety. Thus, as the District Court has correctly determined, the level of the pool may be permitted to drop to the extent that the drop does not impair the scientific value of the pool as the natural habitat of the species sought to be preserved. The District Court thus tailored its injunction, very appropriately, to minimal need, curtailing pumping only to the extent necessary to preserve an adequate water level at Devil’s Hole, thus implementing the stated objectives of the Proclamation.

Petitioners in both cases argue that even if the intent of the 1952 Proclamation were to maintain the pool, the American Antiquities Preservation Act did not give the President authority to reserve a pool. Under that Act, according to the Cappaert petitioners, the President may reserve federal lands only to protect archeologic sites. However, the language of the Act which authorizes the President to proclaim as national monuments “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government” Is not so limited. The pool in Devil’s Hole and its rare inhabitants are “objects of historic or scientific interest.” See generally Cameron v. United States, 252 U. S. 450, 451-456 (1920).

II

Groundwater

No cases of this Court have applied the doctrine of implied reservation of water rights to groundwater. Nevada argues that the implied-reservation doctrine is limited to surface water. Here, however, the water in the pool is surface water. The federal water rights were being depleted because, as the evidence showed, the “[gjroundwater and surface water are physically interrelated as integral parts of the hydrologic cycle.” C. Corker, Groundwater Law, Management and Administration, National Water Commission Legal Study No. 6, p. xxiv (1971). Here the Cappaerts are causing the water level in Devil’s Hole to drop by their heavy pumping. See Corker, supra; see also Water Policies for the Future- — -Final Report to the President and to the Congress of the United States by the National Water Commission 233 (1973). It appears that Nevada itself may recognize the potential interrelationship between surface and ground water since Nevada applies the law of prior appropriation to both. Nev. Rev. Stat. §§ 533.010 et seq., 534.020, 534.080, 534.090 (1973). See generally F. Tre-lease, Water Law — Resource Use and Environmental Protection 457-552 (2d ed. 1974); C. Meyers & A. Tar-lock, Water Resource Management 553-634 (1971). Thus, since the implied-reservation-of-water-rights doctrine is based on the necessity of water for the purpose of the federal reservation, we hold that the United States can protect its water from subsequent diversion, whether the diversion is of surface or ground water.

Ill

State Law

Petitioners in both cases argue that the Federal Government must perfect its implied water rights according to state law. They contend that the Desert Land Act of 1877, 19 Stat. 377, 43 U. S. C. § 321, and its predecessors severed nonnavigable water from public land, subjecting it to state law. That Act, however, provides that patentees of public land acquire only title to land through the patent and must acquire water rights in nonnavigable water in accordance with state law. Cali fornia Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S. 142, 162 (1935); see Morreale, Federal-State Conflicts Over Western Waters — A Decade of Attempted “Clarifying Legislation,” 20 Rutgers L. Rev. 423, 432 (1966). This Court held in FPC v. Oregon, 349 U. S. 435, 448 (1955), that the Desert Land Act does not apply to water rights on federally reserved land.

The Cappaert petitioners argue that FPC v. Oregon, supra, must be overruled since, inter alia, the Court was unaware at the time that case was decided that there was no longer any public land available for homesteading. However, whether or not there was public land available for homesteading in 1955 is irrelevant to the meaning of the 1877 Act. The Desert Land Act still provides that the water rights of those who received their land from federal patents are to be governed by state law. That there may be no more federal land available for homesteading does not mean the Desert Land Act now applies to all federal land. Since the Act is inapplicable, determination of reserved water rights is not governed by state law but derives from the federal purpose of the reservation; the fact that the water rights here reserved apply to nonnavigable rather than navigable waters is thus irrelevant.

Since FPC v. Oregon, supra, was decided, several bills have been introduced in Congress to subject at least some federal water uses to state appropriation doctrines, but none has been enacted into law. The most recent bill, S. 28, 92d Cong., 1st Sess., was introduced on January 25, 1971, and reintroduced under the same number in the 93d Cong., 1st Sess., on January 4, 1973. See Morreale, supra.

Federal water rights are not dependent upon state law or state procedures and they need not be adjudicated only in state courts; federal courts have jurisdiction under 28 U. S. C. § 1345 to adjudicate the water rights claims of the United States. Colorado River Water Cons. Dist. v. United States, 424 U. S., at 807-809. The McCarran Amendment, 66 Stat. 560, 43 U. S. C. § 666, did not repeal § 1345 jurisdiction as applied to water rights. 424 U. S., at 808-809. Nor, as Nevada suggests, is the McCarran Amendment a substantive statute, requiring the United States to “perfect its water rights in the state forum like all other land owners.” Brief for Nevada 37. The McCarran Amendment waives United States sovereign immunity should the United States be joined as a party in a state-court general water rights’ adjudication, Colorado River Water Cons. Dist. v. United States, supra, at 808, and the policy evinced by the Amendment may, in the appropriate case, require the United States to adjudicate its water rights in state forums. Id., at 817-820.

IY

Res Judicata

Finally, Nevada, as intervenor in the Cappaerts’ suit, argued in the Court of Appeals that the United States was barred by res judicata or collateral estoppel from litigating its water-rights claim in federal court. Nevada bases this conclusion on the fact that the National Park Service filed a protest to the Cappaerts’ pumping permit application in the state administrative proceeding. Since we reject that contention, we need not consider whether the issue was timely and properly raised. We note only that the United States was not made a party to the state administrative proceeding; nor was the United States in privity with the Cappaerts. See Blonder-Tongue Labs., Inc. v. University of Illinois Foundation, 402 U. S. 313, 320-326 (1971). When the United States appeared to protest in the state proceeding it did not assert any federal water-rights claims, nor did it seek to adjudicate any claims until the hydrological studies as to the effects of the Cappaerts’ pumping had been completed. The fact that the United States did not attempt to adjudicate its water rights in the state proceeding is not significant since the United States was not a party. The State Water Engineer’s decree explicitly stated that it was “subject to existing rights”; thus, the issue raised in the District Court was not decided in the proceedings before the State Engineer. See Blonder-Tongue Labs., Inc. v. University of Illinois Foundation, supra, at 323. Cf. United States v. Utah Constr. & Min. Co., 384 U. S. 394, 422 (1966).

We hold, therefore, that as of 1952 when the United States reserved Devil’s Hole, it acquired by reservation water rights in unappropriated appurtenant water sufficient to maintain the level of the pool to preserve its scientific value and thereby implement Proclamation No. 2961. Accordingly, the judgment of the Court of Appeals is

Affirmed.

       The final paragraphs of the Proclamation withdrawing Devil’s Hole from the public domain recite:
      “Now, Therefore, I, Harry S. Truman, President of the United States of America, under and by virtue of the authority vested in me by section 2 of the act of June 8, 1906, 34 Stat. 225 (16 U. S. C. 431), do proclaim that, subject to the provisions of the act of Congress approved June 13, 1933, 48 Stat. 139 (16 U. S. C. 447), and to all valid existing rights, the following-described tract of land in Nevada is hereby added to and reserved as a part of the Death Valley National Monument, as a detached unit thereof:
      “Mount Diablo Meridian, Nevada T. 17 S., R. 50 E., sec. 36, SW %SE%.
      “Warning is hereby expressly given to all unauthorized persons not to appropriate, injure, destroy, or remove any feature of this addition to the said monument and not to locate or settle on any of the lands thereof.”

       Title 28 U. S. C. § 1345 provides as follows:
      “Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress.”

       On appeal from the preliminary injunction, the Court of Appeals, in response to a motion from the Cappaerts to modify the injunction to permit them to pump to 3.7 feet below the copper marker, had permitted the Cappaerts to pump so long as the water level did not drop more than 3.3 feet below the marker. 483 F. 2d 432 (1973).

       Nevada is asking, in effect, that the Court overrule Arizona v. California, 373 U. S. 546 (1963), and United States v. District Court for Eagle County, 401 U. S. 520 (1971), to the extent that they hold that the implied-reservation doctrine applies to all federal enclaves since in so holding those cases did not balance the “competing equities.” Brief for Nevada 15. However, since balancing the equities is not the test, those cases need not be disturbed.

       The District Court and the Court of Appeals correctly held that neither the Cappaerts nor their predecessors in interest had acquired any water rights as of 1952 when the United States’ water rights vested. Part of the land now comprising the Cappaerts’ ranch was patented by the United States to the Cappaerts’ predecessors as early as 1890. None of the patents conveyed water rights because the Desert Land Act of 1877, 19 Stat. 377, 43 U. S. C. § 321, provided that such patents pass title only to land, not water. Pat-entees acquire water rights by “bona fide prior appropriation,” as determined by state law. California Oregon Power Co. v. Beaver Portland Cement Co., 295 U. S. 142 (1935). Under Nevada law water rights can be created only by appropriation for beneficial use. Nev. Rev. Stat. §§ 533.030, 534.020, 533.325 (1973). Jones v. Adams, 19 Nev. 78, 6 P. 442 (1885). Under the doctrine of prior appropriation, the first to divert and use water beneficially establishes a right to its continued use as Jong as the water is beneficially diverted. See Colorado River Water Cons. Dist. v. United States, 424 U. S. 800, 805 (1976). See also J. Sax, Water Law, Planning & Policy — Cases and Materials, 218-224 (1968). Neither the Cappaerts nor their predecessors in interest appropriated any water until after 1952.
      Some Cappaert wells are on land acquired from the United States in 1969 through a land exchange under § 8 of the Taylor Grazing Act of 1934, 48 Stat. 1272, as amended, 43 U. S. C. § 315g (b). In this exchange the Cappaerts received land within one mile of Devil’s Hole under a patent granting them "all rights, privileges, immunities and appurtenances . . . subject to any vested and accrued water rights for mining, agriculture, manufacturing or other ;purposes. . . .” (Emphasis supplied.) The federal water rights in Devil’s Hole had vested 17 years before that exchange.

       The 1952 Proclamation forbids unauthorized persons to “appropriate, injure, destroy, or remove any feature” from the reservation. Since water is a “feature” of the reservation, the Cappaerts, by their pumping, are “appropriating” or “removing” this feature in violation of the Proclamation.

       Petitioners in both cases argue that the effect of applying the implied-reservation doctrine to diversions of groundwater is to prohibit pumping from the entire 4,500 square miles above the aquifer that supplies water to Devil's Hole. First, it must be emphasized that the injunction limits but does not prohibit pumping. Second, the findings of fact in this case relate only to wells within 2% miles of Devil’s Hole. No proof was introduced in the District Court that pumping from the same aquifer that supplies Devil’s Hole, but at a greater distance from Devil’s Hole, would significantly lower the level in Devil’s Hole. Nevada notes that such pumping “will in time affect the water level in Devil’s Hole.” Brief for Nevada 25. There was testimony from a research hydrologist that substantial pumping 40 miles away “[ojver a period of perhaps decades [would have] a small effect.” App. 79.

       The predecessors of the Desert Land Act of 1877 are the Act of July 26, 1866, c. 262, 14 Stat. 251, and the Act of July 9, 1870, 16 Stat. 217. Those Acts provided that water rights vested under state law or custom are protected. However, the Cappaerts did not have any vested water rights in 1952. See n. 5, supra.

       The cases relied upon by the Cappaerts are not to the contrary. E. g., United States v. Gerlach Live Stock Co., 339 U. S. 725 (1950); Ickes v. Fox, 300 U. S. 82 (1937); Dority v. New Mexico ex rel. Bliss, 341 U. S. 924 (1951). None involve a federal reservation and all involve a determination whether water rights had vested under state law. Here a federal reservation is involved and neither the Cappaerts nor their predecessors in interest had any vested water rights in 1952 when the United States’ water rights vested.

        Nebraska v. Wyoming, 325 U. S. 589 (1945), also relied upon by the Cappaerts, involved a federal reservation pursuant to the Reclamation Act of June 17, 1902, 32 Stat. 388, which directs the Secretary of the Interior to “proceed in conformity with [state] laws” and which provides that “the right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right.” In Nebraska v. Wyoming, the Court noted that the United States had acted in conformity with state law. The Court said: “We intimate no opinion whether a different procedure might have been followed so as to appropriate and reserve to the United States all of these water rights. No such attempt was made.” 325 U. S., at 615. Here the United States acquired reserved water rights through a reservation authorized, not by the Reclamation Act, but by the Antiquities Act.

       Nevada argues that the discussion of the implied-reservation doctrine in FPC v. Oregon was dictum as that case involved the supremacy of the Federal Power Act, 49 Stat. 863, 16 U. S. C. §§ 791a-825r (1952 ed., Supp. II) over state law. To the extent that the Federal Power Act authorized reservation of unappropriated water for the electrical needs of the federal project, so too did the Antiquities Act authorize implicit reservation of unappropriated water for the purposes of the Devil’s Hole reservation.

       See n. 2, supra.

       The eases petitioners in both cases rely upon involve parties who collaterally attacked an administrative determination. Here the United States was never a party.

       The United States requested either that the permits be denied or decision postponed until the studies were completed. While the State Engineer did not postpone decision on the permit application, the Cappaerts’ attorney said that the studies “will go forward whether or not the applications are granted; so let’s not make the mistake of thinking that if these applications are granted the studies are moot, they are not.” App. 307.


source: Caselaw Access Project

author: Mr. Justice Stewart Mr. Justice Stevens,

license: Public Domain

text:
    RADZANOWER v. TOUCHE ROSS & CO. et al.
    No. 75-268.
    Argued March 30, 1976
    Decided June 7, 1976

      Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and BrenNan, White, Marshall, BlackmuN, Powell, and RehNQUist, JJ., joined. StevENS, J., filed a dissenting opinion, post, p. 158.

      Ira Jay Sands argued the cause for petitioners. With him on the briefs was Samuel Gottlieb.

      Samuel E. Gates argued the cause for respondent. With him on the briefs was Richard I. Janvey.

         David Ferber and David J. Romanski filed a brief for the Securities and Exchange Commission as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed by C. West-brook Murphy for the Comptroller of the Currency; by William Eldred Jackson and Briscoe R. Smith for the Chase Manhattan Bank; and by Donald J. Yellon and William B. Davenport for the First National Bank of Chicago.

   Mr. Justice Stewart

delivered the opinion of the Court.

This case requires us to determine which venue provision controls in the event a national banking association is sued in a federal court for allegedly violating the Securities Exchange Act of 1934: the broad venue provision of the Securities Exchange Act, which allows suits under that Act to be brought in any district where the defendant may be found, or the narrow venue provision of the National Bank Act, which allows national banking associations to be sued only in the district where they are established.

The petitioner, Hyman Radzanower, instituted a class action in the District Court for the Southern District of New York alleging, inter alia, that the respondent, First National Bank of Boston, a national banking association with its principal office in Boston, Mass., had violated the federal securities laws by failing to disclose to the Securities and Exchange Commission and the investing public its knowledge of certain adverse financial information about one of its customers, the TelePrompter Corporation, and of securities laws violations by that company. The complaint alleged that venue was proper under § 27 of the Securities Exchange Act of 1934, 48 Stat. 902, 15 U. S. C. § 78aa, which provides that “[a]ny suit or action to enforce any liability or duty created [by or under the Securities Exchange Act] . . . may be brought in any such district [wherein any act or transaction constituting the violation occurred] or in the district wherein the defendant is found or is an inhabitant or transacts business . . . The bank moved to dismiss the complaint as to it, asserting that venue as to it lay only under the venue provision of the National Bank Act, Rev. Stat. § 5198 (1878), 12 U. S. C. § 94. That section provides that “ [a] ctions and proceedings against any [national banking] association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established . . . .”

Following the settled law of the Second Circuit, the District Court granted the bank’s motion to dismiss. It held that “[ajbsent waiver or consent, a national bank may be sued only in the district in which it is established. 12 U. S. C. Section 94.” The court noted that the bank was established in Boston “because its charter specifies Boston as its principal place of business,” and it rejected the petitioner’s claim that the bank had waived the provisions of § 94. The Court of Appeals affirmed without opinion. Because of differing views in the Circuits as to the statutory venue question presented, we granted the petition for certiorari. 423 U. S. 911.

Section 94 provides that suits against a national banking association “may be had” in the federal district court for the district where such association is established. The Court has held that this grant of venue is mandatory and exclusive: “The phrase ‘suits . . . may be had’ was, in every respect, appropriate language for the purpose of specifying the precise courts in which Congress consented to have national banks subject to suit and we believe Congress intended that in those courts alone could a national bank be sued against its will.” Mercantile Nat. Bank v. Langdeau, 371 U. S. 555, 560. Accord, Michigan Nat. Bank v. Robertson, 372 U. S. 591; National Bank v. Associates of Obstetrics, 425 U. S. 460. The venue provision of the Securities Exchange Act, by contrast, allows suits under that Act to be brought anywhere that the Act is violated or a defendant does business or can otherwise be found. It is the petitioner’s contention that when a national bank is named as a defendant in a suit brought under the Securities Exchange Act, it loses the protection of the venue provisions of § 94 and may be sued in any federal judicial district where that Act was violated or where it does business or can be found. For the reasons that follow, we cannot accept that contention.

It is a basic principle of statutory construction that a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum. “Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.” Morton v. Mancari, 417 U. S. 535, 550-551. “The reason and philosophy of the rule is, that when the mind of the legislator has been turned to the details of a subject, and he has acted upon it, a subsequent statute in general terms, or treating the subject in a general manner, and not expressly contradicting the original act, shall not be considered as intended to affect the more particular or positive previous provisions, unless it is absolutely necessary to give the latter act such a construction, in order that its words shall have any meaning at all.” T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 98 (2d ed. 1874).

When Congress enacted the narrow venue provisions of the National Bank Act, it was focusing on the particularized problems of national banks that might be sued in the state or federal courts. When, 70 years later, Congress enacted the Securities Exchange Act, its focus was on the objective of promoting fair dealing in the securities markets, and it enacted a general venue provision applicable to the broad universe of potential defendants subject to the prohibitions of that Act. Thus, unless a “clear intention otherwise” can be discerned, the principle of statutory construction discussed above counsels that the specific venue provisions of § 94 are applicable to the respondent bank in this case. Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222.

The issue thus boils down to whether a “clear intention otherwise” can be discovered — whether, in short, it can be fairly concluded that the venue provision of the Securities Exchange Act operated as a pro tanto repeal of § 94. “It is, of course, a cardinal principle of statutory construction that repeals by implication are not favored.” United States v. United Continental Tuna Corp., 425 U. S. 164, 168. There are, however,

“two well-settled categories of repeals by implication — (1) where provisions in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an implied repeal of the earlier one; and (2) if the later act covers the whole subject of the earlier one and is clearly intended as a substitute, it will operate similarly as a repeal of the earlier act. But, in either case, the intention of the legislature to repeal must be clear and manifest. . . .” Posadas v. National City Bank, 296 U. S. 497, 503.

It is evident that the “two acts” in this case fall into neither of those categories.

The statutory provisions at issue here cannot be said to be in “irreconcilable conflict” in the sense that there is a positive repugnancy between them or that they cannot mutually coexist. It is not enough to show that the two statutes produce differing results when applied to the same factual situation, for that no more than states the problem. Rather, “when two statutes are capable of co-existence, it is the duty of the courts . . . to regard each as effective.” Morton v. Mancari, supra, at 551. As the Court put the matter in discussing the interrelationship of the antitrust laws and the securities laws: “Repeal is to be regarded as implied only if necessary to make the [later enacted law] work, and even then only to the minimum extent necessary. 'This is the guiding principle to reconciliation of the two statutory schemes.” Silver v. New York Stock Exchange, 373 U. S. 341, 357.

Here the basic purposes of the Securities Exchange Act can be fairly served by giving full effect to the provisions of 12 U. S. C. § 94. The primary purpose of the Securities Exchange Act was not to regulate the activities of national banks as such but “[t]o provide fair and honest mechanisms for the pricing of securities [and] to assure that dealing in securities is fair and without undue preferences or advantages among investors . . . .” H. R. Rep. No. 94 — 229, p. 91 (1975). Its venue provision, § 27, was intended to facilitate that goal by enabling suits to enforce rights created by the Act to be brought wherever a defendant could be found. The venue provision of the National Bank Act, § 94, was intended, on the other hand, “for the convenience of those [banking] institutions, and to prevent interruption in their business that might result from their books being sent to distant counties . . . .” Charlotte Nat. Bank v. Morgan, 132 U. S. 141, 145, quoted in Mercantile Nat. Bank v. Langdeau, 371 U. S., at 561-562, n. 12.

By allowing suits against national banks to be brought only pursuant to § 94, the purposes of that section will obviously be served. Yet application of § 94 will not “unduly interfere” with the operation of the Securities Exchange Act. See Gordon v. New York Stock Exchange, 422 U. S. 659, 686. Section 94 will have no impact whatever upon the vast majority of lawsuits brought under that Act. In the tiny fraction of litigation where its effect will be felt, it will foreclose nobody from invoking the Act's provisions. Members of the investing public will still be free to bring actions against national banks under the Act. While suits against this narrow and infrequent category of defendants will have to be brought where the defendant is established, that is hardly an insurmountable burden in this day of easy and rapid transportation. Since it is possible for the statutes to coexist in this manner, they are not so repugnant to each, other as to justify a finding of an implied repeal by this Court. It is simply not “necessary” that § 94 be repealed in part in order “to make the Securities Exchange Act work.” See Silver v. New York Stock Exchange, supra, at 357.

Moreover, it cannot be said either that “the later act covers the whole subject of the earlier one and is clearly intended as a substitute,” or that “the intention of the legislature to repeal [is] clear and manifest.” 296 U. S., at 503. The Securities Exchange Act of 1934 covers a “subject” quite different from the National Bank Act. The 1934 Act was enacted primarily to halt securities fraud, not to regulate banks. Indeed, banks were specifically exempted from many provisions of the securities laws, and Congress almost contemporaneously enacted other specific legislation dealing with the problems arising from banks’ involvement in the securities business. The passage of that legislation and the exemption of national banks from important provisions of the securities laws suggest, if anything, that Congress was reaffirming its view that national banks should be regulated separately by specific legislation applying only to them. And there is nothing in the legislative history of the Securities Exchange Act to support the view that Congress in enacting it gave the slightest consideration to the pro tanto repeal of § 94, let alone to indicate “that Congress consciously abandoned its [prior] policy,” Morton v. Mancari, 417 U. S., at 551, or that its intent to repeal § 94 pro tanto was “ 'clear and manifest/ ” United States v. Borden Co., 308 U. S. 188, 198, quoting Red Rock v. Henry, 106 U. S. 596, 602.

For these reasons it is impossible to conclude that § 94 was partially repealed by implication in 1934. It follows under the general principles of statutory construction discussed above that the narrowly drawn, specific venue provision of the National Bank Act must prevail over the broader, more generally applicable venue provision of the Securities Exchange Act. We conclude, therefore, that a national banking association is subject to suit under the Securities Exchange Act only in that district wherein it is established, and that the judgment before us must accordingly be affirmed.

It is so ordered.

Mr. Justice Stevens,

dissenting.

In my judgment a brief reference to the history, purpose, and language of these two special venue statutes will provide a better guide to their meaning than the exposition of the doctrine of implied repeal found in the treatise on statutory construction written by Sedgwick in 1874. Indeed, if Sedgwick were to be our guide, I would heed this advice: “When acts can be harmonized by a fair and liberal construction it must be done.”

It is worth repeating that both of these statutes are special venue statutes. Neither party relies on the general venue provision in 28 U. S. C. § 1391. One relies on a special statute for one kind of litigant — national banks; the other relies on a special statute for one kind of litigation — cases arising under the Securities Exchange Act of 1934. The precise issue before us involves only a tiny fraction of the cases in either special category: Most litigation against national banks does not arise under the Securities Exchange Act; and most litigation arising under the Securities Exchange Act does not involve national banks. Thus, with equal logic we might describe either statute as creating an exception from the somewhat more general provisions of the other.

The rule that the legislature presumably intended to give effect to the more specific statute could therefore be applied to support the petitioner, as well as the respondent bank, in this case. Similarly, without pausing to consider the reason why each statute was enacted, we might simply apply the rule that the more recent of two conflicting statutes shall prevail, rather than the rule that the special statute takes precedence over the general. But such abstract reasoning is less instructive than a consideration of the source and the need for the alleged conflict. Of special importance is an evaluation of the intent of Congress when it enacted these statutes.

The source of the special venue statute for national banks is the Act to Provide a National Currency enacted in 1863 and amended in 1864. When these statutes were enacted, Congress apparently assumed that the newly authorized national banks would not be subject to suit in state courts unless Congress gave its express consent. The fact that the statute was phrased in permissive language suggests that Congress' primary purpose was to give such consent. The mandatory construction given to that language a century later when the Court decided Mercantile Nat. Bank v. Langdeau, 371 U. S. 555, is consistent with that purpose because it is unlikely that the Civil War Congress intended to authorize the several States to subject national banks to the potential harassment of defending litigation in places other than the county or city where the bank was located. This reason for placing a mandatory limiting construction on the authorization for suit in the state courts is not applicable to the separately enacted federal venue provision; for in any event the federal courts could only entertain such litigation against national banks as Congress might authorize.

In 1934 when Congress enacted the Securities Exchange Act, there was no reason for it to assume that the language in the special jurisdictional and venue provisions of that statute would not apply to national banks. Langdeau would not be decided until almost 30 years later, the language in the venue provision of the Civil War banking legislation was permissive, and there was no recognized policy reason supporting an exceptional venue privilege for national banks in federal litigation. There was no longer any doubt about the su-ability of national banks in either state or federal courts. Moreover, what once might have been regarded as the significant burden of requiring a fledgling bank to haul its records from one county to another within the State, would hardly justify treating banks differently from other litigants in the 20th century.

On the other hand, the special venue .section included in the Securities Acts was specifically designed to implement an important legislative objective. Indeed, in construing the comparable provision in the 1933 statute, the Court held that its benefits are so crucial to the legislative purpose that they cannot be waived. In contrast, it is well settled that a national bank’s special venue privilege is waivable. Manifestly, there is a difference between the importance of the policies underlying the two statutes.

But there is no necessary conflict. Since the two Acts can be harmonized by a fair and liberal construction, if we heed Sedgwick’s counsel, that “must be done.” As already noted, the actual wording of the earlier statute, which used the words “may be had” provides no conflict with a literal reading of the later Act. The conflict is created solely by this Court’s interpretation of those words as, in effect, meaning that the trial of a case against a national bank “must be had” in the place specified by Congress rather than the place specified by a state legislature. If we so read the statute, we need only conclude that any later enacted special venue statute which, by its own terms, applies to national banks should be read to mean what it says. Preoccupation with the ancient doctrine of implied repeal should not foreclose this simple construction of the plain language of the 1934 Act.

The rule that repeals by implication are not favored, like all other canons of statutory construction, is merely one of the guidelines to observe in the search for a construction which will best reflect the real intent of the legislature. When we are dealing with a well-established and clearly defined old rule, it is usually reasonable to suppose that the legislative intent to change such a rule would be unambiguously expressed. Or if we are dealing with an old rule that is an established and important part of our national policy, we must be sure that it is not changed simply by inadvertent use of broad statutory language. Thus, if Congress intended to modify the long-settled practice of preferential hiring of Indians on Indian reservations, or to limit the coverage of a statute as important as the Sherman Act, a court would require an unambiguous expression of intent to make such a change; without such an expression it is reasonable to believe that inadvertence, rather than an intent to repeal, is the actual explanation for the broad language that arguably changes the old rule. But if neither the existence of, nor the reason for, the old rule is clear at the time of the later enactment, there is no special reason for questioning the legislative intent to have the later statute mean exactly what it says. Specifically, in this case, since it is clear that Congress intended national banks to be covered by some sections of the Securities Exchange Act, but not others, and since the purpose of authorizing a broader venue in this type of litigation applies with equal force to national banks and other defendants, the canon of construction strikes me as an unreliable guide for ascertaining the true intent of Congress.

Congress may well have simply overlooked the special venue provision in the Civil War statute, particularly since Langdeau had not yet been decided. It may therefore be accurate to describe the omission of any reference to the earlier statute in the legislative history of the later one as inadvertent. But that merely raises the question of whether it is more realistic to imply an exception to the applicable language of the 1934 Act or to conclude that if Congress had thought about this preference for national banks it nevertheless would have enacted the statute it did enact in 1934. There is no doubt in my mind that the 1934 Congress would have done exactly what it did do even if it had foreseen not only this Court’s decision in Langdeau but also the Court’s willingness to construe the federal venue provision in the same “Draconian” fashion as the state provision, to use Judge Friendly’s typically appropriate adjective. I could understand a legislative decision to exempt banks entirely from the coverage of the new law on the theory that an interest in the solvency of national banks entitles them to special immunity, but it seems wholly unrealistic to assume that Congress would treat banks like all other defendants for liability purposes and yet treat them differently for venue purposes.

It is true that we are dealing with only a tiny fraction of the litigation arising under the 1934 Act or of the litigation involving national banks. But that fact merely minimizes the likelihood that a busy Congress will correct an inequitable and anachronistic situation. It is also true that holding the trial in one forum rather than another is hardly an insurmountable burden on either the plaintiff or the bank in this day of easy and rapid transportation — unlike the situation in the Civil War period when the statute that the Court considers controlling was enacted — but the burden on the judiciary is increased by requiring multiple trials whenever national banks participate in an allegedly unlawful securities offering.

In sum, whatever canon of statutory construction is applied, I am persuaded that we are most apt to reflect the intent of Congress faithfully if we give effect to the plain meaning of the 1934 Act and thereby place banks on an equal footing with other corporations which must defend litigation of this kind.

I therefore respectfully dissent.

       Section 94 in its entirety reads :
      “Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association, is located having jurisdiction in similar cases.”

       The petitioner does not claim that the bank is “established” anywhere else than in Boston. Federal courts have consistently ruled that the place specified in a bank’s charter as its home office is determinative, of the district in which the bank is “established” for purposes of § 94. See, e. g., Buffum v. Chase Nat. Bank, 192 F. 2d 58, 60 (CA7); Leonardi v. Chase Nat. Bank, 81 F. 2d 19, 22 (CA2).

       The opinion of the District Court is unreported.
      It has long been settled that the restrictive venue provisions of § 94 can be waived by a defendant bank. See, e. g., Charlotte Nat. Bank v. Morgan, 132 U. S. 141, 145; Michigan Nat. Bank v. Robertson, 372 U. S. 591, 594; National Bank v. Associates of Obstetrics, 425 U. S. 460.
      Although the parties each devoted a portion of their briefs to the waiver issue, that issue was not raised in the petition for certiorari. Since we consider “[o]nly the questions set forth in the petition or fairly comprised therein,” this Court’s Rule 23 (1) (e), we have no occasion to pass on the. correctness of the decisions below on the waiver question.

       The judgment of the Court of Appeals is reported at 516 F. 2d 896.

       The Second and Ninth Circuits have concluded that § 94 is the exclusive venue provision governing suits against national banking associations, while the Third Circuit has ruled that such suits may also be brought pursuant to § 27 of the Securities Exchange Act. Compare Bruns, Nordeman & Co. v. American Nat. Bank, 394 F. 2d 300 (CA2), and United States Nat. Bank v. Hill, 434 F. 2d 1019 (CA9), with Ronson Corp. v. Liquifin Aktiengesellschaft, 483 F. 2d 852 (CA3).

       When the Langdeau Court held that the words “may be had” serve to provide mandatory and exclusive venue, it was dealing with the relationship of § 94 to a state venue statute. Since the same words are used in connection with the federal-court venue provision, the same construction is virtually inescapable. “[I]t would indeed strain language to say that the same verbs were merely permissive with respect to suits in federal courts although prohibitory as to actions in state ones.” Bruns, Nordeman & Co. v. American Nat. Bank, supra, at 303.

       See Brown v. GSA, 425 U. S. 820; Bulova Watch Co. v. United States, 365 U. S. 753, 758; Rodgers v. United States, 185 U. S. 83, 87-89 (“It is a canon of statutory construction that a later statute, general in its terms and not expressly repealing a prior special statute, will ordinarily not affect the special provisions of such earlier statute”); Ex parte Crow Dog, 109 U. S. 556, 570-571. See also Fourco Glass Co. v. Transmirra Products Corp., 353 U. S. 222; Stonite Products Co. v. Melvin Lloyd Co., 315 U. S. 561 (specific venue statutes for patent suits prevail over general venue statutes).

       See also 1A J. Sutherland, Statutes and Statutory Construction §23.15 (4th ed. C. Sands 1972).

       See also Gordon v. New York Stock Exchange, 422 U. S. 659, 682; Regional Rail Reorganization Act Cases, 419 U. S. 102, 133; Silver v. New York Stock Exchange, 373 U. S. 341, 357; United States v. Borden Co., 308 U. S. 188, 198-199.

       See also Gordon v. New York Stock Exchange, supra, at 685; United States v. National Assn. of Securities Dealers, 422 U. S. 694, 734-735.

       The legislative history of the Securities Acts does not indicate that Congress considered banks as likely defendants in actions brought under those Acts. While Congress did examine problems stemming from the relationship of banks and the securities business in the early 1930’s, see S. Rep. No. 1455, 73d Cong., 2d Sess. (1934), it dealt with those problems in comprehensive legislation dealing only with banks. See Banking Act of 1933, 48 Stat. 162. See generally Investment Co. Institute v. Camp, 401 U. S. 617.

       The SEC has suggested that its enforcement activity under the Securities Exchange Act will be hindered in cases of securities law violations by geographically dispersed banks, if it cannot sue all defendants, including the banks, in one proceeding. The SEC, however, was unable to cite a single instance in the last 40 years where this situation has arisen. In any event, policy arguments such as this are more appropriately addressed to Congress than to this Court. See Mercantile Nat. Bank v. Langdeau, 371 U. S. 555, 563.

       See 15 U. S. C. §§77c(a)(2), 771 (2); cf. 15 U. S. C. §78c (a)(6).

       See n. 11, supra.

       This intention was expressly stated by Congress when it exempted bank securities from the registration-statements requirements of the Securities Act of 1933: a[A]dequate supervision over the issuance of securities of a national bank is exercised by the Comptroller of the Currency.” H. R. Rep. No. 85, 73d Cong., 1st Sess., 14 (1933). Subsequent Congresses have continued to follow this policy. For example, while national banks are subject to the registration, reporting, and proxy requirements of the Securities Exchange Act, in 1964 Congress amended the Act so that the administration of those parts of the Act with respect to banks was transferred from the SEC to the various federal banking authorities. See § 3 (e), 78 Stat. 568, 15 U. S. C. § 781 (i).

       In 1959 Congress reviewed the National Bank Act and adopted an Act designed “to repeal certain [national banking] laws which have become obsolete.” See Pub. L. 86-230, 73 Stat. 457. When it did so, it did not repeal § 94.

       T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 98 n. (a) (2d ed. 1874). Coincidentally, this advice is found on the same page from which the Court quotes, ante, at 153. We have repeated this principle of statutory construction many times. See, e. g., United States v. Borden Co., 308 U. S. 188, 198: “When there are two acts upon the same subject, the rule is to give effect to both if possible.”

       The rule that the more specific legislation will usually take precedence over the more general rests on the quite reasonable assumption that the legislature’s attention was probably focused more directly on the subject matter of the specific than on only one aspect of a much broader subject matter. But since the venue provision of the Civil War banking legislation was a relatively inconsequential part of the entire statute, there is no reason to assume that it was given any more attention than the venue provision in the Securities Exchange Act of 1934.

       Sedgwick quotes this familiar rule with approval: “Leges posteriores, priores contrarias abrogant. 'If two inconsistent acts be passed at different times, the last/ said the Master of the Rolls, 'is to be obeyed; and if obedience cannot be observed without derogating from the first, it is the first which must give way. Every act of Parliament must be considered with reference to the state of the law subsisting when it came into operation, and when it is to be applied; it cannot otherwise be rationally construed. Every act is made, either for the purpose of making a change in the law, or for the purpose of better declaring the law; and its operation is not to be impeded by the mere fact that it is inconsistent with some previous enactment.’ ” Sedgwick, supra, at 104. See also United States v. Tynen, 11 Wall. 88, 92.

       12 Stat. 665, 681.

       The federal venue provision was first enacted in 1863, 12 Stat. 681, and in the following year, the provision was amended to authorize suit in state courts. Section 57 of the 1864 Act, which is the predecessor of 12 U. S. C. § 94, reads, in pertinent part as follows:
      “Sec. 57. And be it further enacted, That suits, actions, and proceedings, against any association under this act, may be had in any circuit, district, or territorial court of the United States held within the district in which such association may be established; or in any state, county, or municipal court in the county or city in which said association is located, having jurisdiction in similar cases: Provided, however, That all proceedings to enjoin the comptroller under this act shall be had in a circuit, district, or territorial court of the United States, held in the district in which the association is located.” 13 Stat. 116.

       See Charlotte Nat. Bank v. Morgan, 132 U. S. 141, 144; First Nat. Bank v. Union Trust Co., 244 U. S. 416, 428.

        Charlotte Nat. Bank v. Morgan, supra, at 145.

       “The Act’s special right is enforceable in any court of competent jurisdiction — federal or state — and removal from a state court is prohibited. If suit be brought in a federal court, the purchaser has a wide choice of venue, the privilege of nation-wide service of process and the jurisdictional $3,000 requirement of diversity cases is inapplicable.” Wilko v. Swan, 346 U. S. 427, 431. Referring to the analogous provision in the Federal Employers’ Liability Act, the Court added: “We said the right to select the ‘forum’ even after the creation of a liability is a ‘substantial right’ and that the agreement, restricting that choice, would thwart the express purpose of the statute. We need not and do not go so far in this present case. By the terms of the agreement to arbitrate, petitioner is restricted in his choice of forum prior to the existence of a controversy. While the Securities Act does not require petitioner to sue, a waiver in advance of a controversy stands upon a different footing. ... On the other hand, it has enacted the Securities Act to protect the rights of investors and has forbidden a waiver of any of those rights.” Id., at 438.

       “No reason can be suggested why one court of a State, rather than another, both being of the same dignity, should take cognizance of a suit against a national bank, except the convenience of the bank. And this consideration supports the view that the exemption of a national bank from suit in any state court except one of the county or city in which it is located is a personal privilege, which it could claim or not, as it deemed necessary.” Charlotte Nat. Bank v. Morgan, supra, at 145.
      See also Michigan Nat. Bank v. Robertson, 372 U. S. 591, 594; National Bank v. Associates of Obstetrics, 425 U. S. 460.

       Although the Second Circuit decision in Bruns, Nordeman & Co. v. American Nat. Bank, 394 F. 2d 300, 303 (1968), supports the result reached by the Court in this case, Judge Friendly expressed the opinion that if the court were writing on a clean slate, it would have reached a contrary conclusion; it reached the result it did only because it felt bound by a prior decision of the Second Circuit which it characterized as giving “a construction to the clause of § 94 dealing with the venue of suits in a federal court quite as Draconian as the Supreme Court has done with respect to the state court clause.” The earlier Second Circuit precedent made no analysis of the question whether the clause should be given a mandatory or permissive construction. See Leonardi v. Chase Nat. Bank, 81 F. 2d 19 (1936). It is also noteworthy that when the Third Circuit considered the question, it concluded that the venue provision of the Securities Exchange Act should be accepted at face value. See Ronson Corf. v. Liquifin Aktiengesellschaft, 483 F. 2d 852 (1973); contra: United States Nat. Bank v. Hill, 434 F. 2d 1019 (CA9 1970). The American Law Institute, Study of the Division of Jurisdiction between State and Federal Courts 413 (1969), pointed out that there “is no obvious reason why a national bank requires a unique and restrictive venue rule, and cannot be treated as is any other corporation for purposes of venue.”

       The policy of according hiring preference to Indians in the Bureau of Indian Affairs which was involved in Morton v. Mancari, 417 U. S. 535, 550-551, was not only perfectly clear but had been consistently recognized since at least as far back as 1934.

       See, e. g., United States v. Borden Co., 308 U. S. 188, 198; United States v. Philadelphia Nat. Bank, 374 U. S. 321, 350-351; Silver v. New York Stock Exchange, 373 U. S. 341, 359; United States v. National Assn. of Securities Dealers, 422 U. S. 694, 719-720.

       When Congress intends to change a well-recognized and well-established rule of law, it customarily provides us with evidence of that specific intent. But it is unrealistic to expect the Legislature to consider and expressly mention the impact of a new statute on every old rule that it may modify, particularly if the old rule is not only unimportant but not even clearly stated at the time the new statute is enacted. In such a setting the new statute should be interpreted in the light of its own history with the expectation that a certain amount of ancient underbrush will inevitably be cut away. Only to the extent that the old roots retain sufficient vitality to support some desirable and discernible purpose at the time of the later enactment is there any real justification for avoiding an implied repeal.

       The Securities Act of 1933 contains explicit exemptions for national banks at 15 U. S. C. §§ 77e (a)(2), 771 (2), as does the Securities Exchange Act at 15 U. S. C. § 781 (i).