Whether the federal government can avoid the doctrine of prior exclusive jurisdiction in an ongoing, comprehensive water adjudication under the McCarran Amendment by asserting defenses based on federal law

QUESTION PRESENTED This is the second petition for certiorari arising from related cases in the Ninth Circuit, both of which concern water rights in Oregon’s Klamath River Basin and the continued vitality of the federal McCarran Amendment. The first petition seeks review of a ruling granting Native American tribes veto power over any federal proceeding to enforce state-adjudicated water rights. Pet. for Writ of Cert., Klamath Irrigation District v. U.S. Bureau of Reclamation et al., Sup. Ct. Case No. 22-1116 (“Klamath I’). This second petition seeks review of a parallel ruling denying state courts prior exclusive jurisdiction to enforce water rights they have determined in ongoing in rem McCarran Amendment adjudication proceedings, if the federal government seeks removal based on its “federal obligations.” The federal government has innumerable obligations that intersect with adjudicated water rights. Thus, under the ruling here, general stream adjudications no longer comprehensively determine all state and federal “rights to the use of water” from a water source, and the federal government can remove virtually any water-rights enforcement proceeding to federal court. Once the proceeding reaches federal court, Klamath I allows any Native American tribe with an interest in the litigation to shut it down. Consequently, the combined effect of the Ninth Circuit’s rulings leaves water users in the American West no reliable forum to comprehensively determine and administer their water rights. This eviscerates the McCarran Amendment’s purpose of enabling water to be allocated in accordance with ii judicially enforceable water rights determined in comprehensive general stream adjudications. The result is a lawless frontier in which water is allocated by unelected federal agency officials whose decisions cannot be judicially reviewed. “[N]o problem” in the American West is “more critical than the scarcity of water.” Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 804 (1976). Allowing unelected federal agency officials to reallocate water that state courts have adjudicated to others, while denying thousands of affected water rights holders judicial recourse in either state or federal court, not only undermines the McCarran Amendment—it fundamentally undermines the rule of law on a massive scale. The Court should consider this petition together with Klamath I, grant certiorari in both, and reverse the Ninth Circuit’s erroneous rulings to ameliorate their drastic consequences. The question presented is: Whether the federal government can avoid the doctrine of prior exclusive jurisdiction in an ongoing, comprehensive water adjudication under the McCarran Amendment by asserting defenses based on federal law.