United States v. Commonwealth of PR

          United States Court of Appeals
                    For the First Circuit

No. 01-2124

                   UNITED STATES OF AMERICA,
                      Plaintiff, Appellee,

                              v.

              COMMONWEALTH OF PUERTO RICO ET AL.,
                    Defendants, Appellants.


         APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF PUERTO RICO
        [Hon. Héctor M. Laffitte, U.S. District Judge]


                            Before

                    Torruella, Circuit Judge,
                 Coffin, Senior Circuit Judge,
                   and Selya, Circuit Judge.


     Roberto J. Sánchez-Ramos, Solicitor General, and Salvador
J. Antonetti-Stutts, Director, Federal Litigation Division,
Puerto Rico Department of Justice, with whom Vanessa Lugo-
Flores, Deputy Solicitor General, Daniel Riesel,      Elizabeth
Read, and Sive, Paget & Riesel, were on brief, for appellants.
     Katherine J. Barton, Attorney, Environment & Natural
Resources Division, United States Department of Justice, with
whom John C. Cruden, Acting Assistant Attorney General, William
B. Lazarus, Attorney, Environment & Natural Resources Division,
Guillermo Gil, United States Attorney, Isabel Muñoz Acosta,
Assistant United States Attorney, and John Tew, Office of
General Counsel, United States Department of the Navy, were on
brief, for appellee.




                        April 24, 2002
             SELYA, Circuit Judge.        In 1952, Congress enacted the

McCarran Amendment, 43 U.S.C. § 666, a law that waived the

sovereign immunity of the United States in suits for the general

adjudication or administration of water rights.                This appeal

turns on the scope of that waiver.

             The underlying litigation flows from Puerto Rico's

efforts to impose restrictions on the extraction of water from

a river known as the Rio Blanco.          The Commonwealth asserts that

the    McCarran     Amendment   divests    the   United   States   of    its

sovereign immunity in respect to the compelled participation of

the United States Navy in administrative proceedings concerning

that subject, commenced pursuant to Puerto Rico's Law of Waters,

12    P.R.   Laws   Ann.   §§   1501-3015.       Disagreeing    with    this

assertion, the Navy asked the United States District Court for

the District of Puerto Rico for surcease.            The district court

stayed the administrative proceedings pending final resolution

of the suit.        In due course, the court found the McCarran

Amendment inapplicable and         granted the Navy sanctuary.           See

United States v. Puerto Rico, 144 F. Supp. 2d 46, 53 (D.P.R.

2001).

             Although our reasoning differs significantly from the

district court's, we too hold that the McCarran Amendment does

not waive the sovereign immunity of the United States with


                                    -3-
respect to the administrative proceedings here at issue.                   The

McCarran Amendment speaks of "suits," and the local proceedings,

instituted   by   the   Commonwealth's     Department     of    Natural    and

Environmental Resources (DNER) under the Law of Waters, cannot

be so characterized.

I.   BACKGROUND

          Insofar       as     pertinent       here,    the     facts      are

uncontroversial.        During    World    War    II,    the    Navy    began

construction of the United States Naval Station at Roosevelt

Roads (NSRR).     To ensure an adequate fresh-water supply, the

Navy obtained a permit (the 1942 permit) from the Puerto Rico

Public Service Commission to withdraw up to ten cubic feet per

second   from   the   Rio    Blanco.     The    Navy   then    proceeded    to

construct a primary water intake in the tailrace of a privately-

owned hydroelectric power plant and an emergency intake just

upstream of the plant.         Shortly thereafter, a federal agency

acquired title to the hydroelectric plant and conveyed it to the

Puerto Rico Water Resources Authority (PRWRA).           In consideration

of the conveyance, the PRWRA issued a permit (the 1944 permit)

granting the federal government the right "to continue the use,




                                   -4-
operation, and maintenance" of the water supply system free of

charge for as long as the NSRR remained operational.1

           Puerto Rico enacted the Law of Waters in 1976.                        The

statute   directs     the    Secretary    of    the    DNER   to   formulate      an

integrated plan for conservation, development, and use of the

Commonwealth's water resources, 12 P.R. Laws Ann. § 1505(a), set

water consumption priorities, id. § 1505(e), and establish and

administer    a   system      that     allocates      water   based      on   those

priorities,    id.    §     1505(j).      The    statute      contemplates       the

issuance of permits for the drilling of water wells and the

granting of franchises for the utilization of surface waters.

Id. § 1509.

           The statutory regime further provides that when a body

of water lacks sufficient volume to meet the demands that are

made upon it, the Secretary may institute a process to allocate

the available water among competing claimants.                 Id. § 1515.       The

statute grants affected parties the right to a hearing before

the   Secretary   —   a     hearing    that     incorporates       the   right    to

counsel, the right to present evidence, and similar procedural

protections.      Id. § 1519.          Although the statute terms such



      1
     The parties hotly debate whether the 1944 permit granted a
right to withdraw water or merely an easement-like right to
maintain the water supply system. We have no occasion to reach
this issue.

                                        -5-
hearings "quasi-judicial," no court officer is involved; the

details      of    the     process     are       spelled      out     in   the       DNER's

regulations, and the Secretary's decision is final unless an

aggrieved party seeks review within thirty days in a court of

first instance.           Id. § 1520.

             In 1986, the DNER, acting under the Law of Waters,

admonished the Navy that it needed to update its franchise for

diverting water from the Rio Blanco.                         Thinking this a mere

formality,        the    Navy   submitted        a    renewal   application.            The

Secretary never acted upon the application, claiming that it was

incomplete.

             The matter remained on the back burner until July 7,

1999, when the DNER served the Navy with a "cease-and-show-

cause" order.           This order rested on the premise that the Navy

was    withdrawing        water    from    the       Rio   Blanco     without    a    valid

franchise (and thereby transgressing the Law of Waters).                              After

some    intermittent        contacts,      marked          chiefly    by   bureaucratic

wrangling, the Secretary issued a second order, dated October

29, 1999, directing the Navy to (1) initiate a franchise request

for    the   primary      and     emergency      water      intake     locations,       (2)

install metering devices to measure water extraction from both

intakes,     (3)        reimburse    the     Commonwealth            for   prior      water

consumption, and (4) pay provisional user fees until its water


                                           -6-
rights claims were administratively determined.             This order

informed the Navy, in no uncertain terms, that it was obliged to

participate in franchise application proceedings, and that the

DNER might ultimately grant or deny a franchise, taking into

account "the needs of the entire community of the area."

          Dismayed by the DNER's dismissive attitude toward its

rights under the 1942 and 1944 permits, the Navy sued the

Commonwealth and the Secretary.      Its complaint asked the federal

district court both to enjoin the defendants from enforcing the

DNER's orders, and to confirm the Navy's right to withdraw water

from the Rio Blanco as provided in the 1942 and 1944 permits.

The Navy advanced a golconda of arguments in support of these

prayers for relief, alleging, inter alia, that the 1944 permit

bestowed an affirmative right to withdraw water from the Rio

Blanco free of charge, and that the Secretary's efforts to

plunge   the   Navy   into   administrative   water   use   proceedings

infringed the sovereign immunity of the United States.              The

defendants took a much dimmer view of the combined force and

effect of the Navy's permits.      In addition, they maintained that

the ongoing DNER proceedings fell within the waiver of sovereign

immunity effected by the McCarran Amendment.

          On November 22, 1999, the district court enjoined all

DNER proceedings against the Navy pendente lite.       The defendants


                                  -7-
then moved to dismiss the action.        Pertinently, they posited

that the waiver contained in the McCarran Amendment extended to

administrative proceedings of the type and kind initiated by the

Secretary under the Law of Waters.      The Navy opposed the motion.

In regard to the sovereign immunity issue, it advanced several

reasons why the McCarran Amendment did not pave the way for the

DNER proceeding.    Among other things, the Navy asseverated that

the proceeding was not a general stream-wide adjudication of the

sort envisioned by the McCarran Amendment, but, rather, a purely

administrative proceeding limited to a single user.

          In response, the defendants reiterated their argument

that the administrative proceedings were covered by the McCarran

Amendment.   They suggested that the particular administrative

proceeding they had initiated was merely the first in a series

of proceedings which, in due course, would involve other water

rights claimants.    To emphasize this last point, the defendants

moved on January 31, 2001, for a limited modification of the

stay in order to permit them to join other parties in the

ongoing   administrative   proceeding    and   carry   out   a   general

stream-wide allocation referable to the Rio Blanco.

          The district court denied both motions on March 30,

2001, and set the case for trial.     On May 9, the court reversed

its field and advised the parties that it would address the


                                -8-
issues raised by the defendants' motion to dismiss in advance of

trial.       Roughly four weeks later, the court issued an opinion

that not only denied the motion to dismiss but also declared

that       federal   sovereign   immunity   barred   the   Secretary   from

compelling the Navy to participate in the ongoing administrative

proceeding.2         The court based this conclusion on the fact that

the Navy's water rights antedated the McCarran Amendment.               See

United States v. Puerto Rico, 144 F. Supp. 2d at 52-53.                This

appeal followed.



II.    DISCUSSION

              Although a plethora of other interesting questions lurk

in the penumbra of this case, we deem the sovereign immunity

issue dispositive.          Consequently, we start by describing the

legal framework applicable to that issue, explain briefly why we

reject the district court's rationale, and then proceed to the

merits.       Since the existence vel non of sovereign immunity here



       2
     Because the United States, to this point, had not moved
affirmatively for remedial action, the court's ruling was, in
effect, a sua sponte grant of declaratory and injunctive relief.
We need not probe this seeming anomaly, however, as the
defendants have not made a developed argument that we should
vacate the order on the ground of procedural irregularity, see
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (noting
that "issues . . . unaccompanied by some effort at developed
argumentation are deemed waived"), but, rather, have elected to
attack the district court's ruling head-on.

                                     -9-
depends upon a question of waiver, and that question in turn

depends on statutory construction, we afford plenary review.

Strickland v. Comm'r, Me. Dep't of Human Servs., 96 F.3d 542,

545 (1st Cir. 1996).

                      A.    The Legal Framework.

            It is common ground that absent waiver or consent,

federal sovereign immunity precludes a state from hauling the

United States into either a state court or an adversarial state

administrative    proceeding.          But    Congress   can   waive   federal

sovereign    immunity,     and   the    McCarran   Amendment     —   the   sole

"waiver" statute that is at issue here — constitutes an express

waiver of that immunity in suits for the adjudication of water

rights.     It provides in pertinent part:

                   Consent is hereby 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

                                       -10-
             a    private    individual    under   like
             circumstances:  Provided, That no judgment
             for costs shall be entered against the
             United States in any such suit.

43 U.S.C. § 666(a).

             Typically, waivers of federal sovereign immunity are

strictly construed.         E.g., United States v. Horn, 29 F.3d 754,

762 (1st Cir. 1994).         In United States v. Idaho, 50 8 U . S . 1

(1993),     the   Supreme   Court   confirmed         that    this     interpretive

approach applies in the context of the McCarran Amendment.                          The

Court stated:

             Any such waiver must be strictly construed
             in favor of the United States, and not
             enlarged beyond what the language of the
             statute requires. But just as we should not
             take it upon ourselves to extend the waiver
             beyond that which Congress intended[,] . . .
             [n]either, however, should we assume the
             authority to narrow the waiver that Congress
             intended.

Id. at 6 (citations and internal quotation marks omitted).

             The short of it is that congressional intent remains

the   key   determinant     of   the    scope        of   a   waiver    of   federal

sovereign immunity — and the McCarran Amendment is no exception

to this rule.        To discern what Congress intended, we look

primarily to the language and structure of the statute.                             See

United States v. Hilario, 218 F.3d 19, 23 (1st Cir. 2000).

Plain   meaning     controls     except       when    the     statutory      text    is

ambiguous, or when literal application of the words would either

                                       -11-
contravene clear legislative intent or lead to an absurd result.

Id.

                   B.    The District Court's Rationale.

               The district court held the McCarran Amendment waiver

inapplicable on non-retroactivity grounds.             United States v.

Puerto Rico, 144 F. Supp. 2d at 52-53.               We agree with the

defendants that this reasoning misses the mark.3

               There is, of course, a general presumption against

applying statutes retroactively.             See Landgraf v. U.S.I. Film

Prods., 511 U.S. 244, 280 (1994).            This presumption, combined

with the rule of strict construction for waivers of federal

sovereign immunity, can suffice to ground a plausible argument

that the McCarran Amendment was not intended to have retroactive

application.          The rub, however, is that the case before us does

not involve a backward-looking application of the statute.

               The McCarran Amendment was adopted in 1952, and the

DNER proceeding against the Navy did not commence until 1999.

A   law   is    not    considered   retroactive   merely   because   events

occurring prior to its passage are implicated in subsequent

proceedings under it.          See Campbell v. United States, 809 F.2d

563, 571 (9th Cir. 1987); Alexander v. Robinson, 756 F.2d 1153,


      3
     The United States, to its credit, concedes this point
(although it vigorously defends the district court's decision on
alternate grounds).

                                      -12-
1155 n.5 (5th Cir. 1985).            Thus, the fact that the United States

traces its water rights to permits issued in the early 1940s

does   not   alter     the    conclusion       that       the   use   to     which    the

defendants      seek   to     put    the    statutory       waiver      would       be   a

prospective application, not a retrospective one.                          Because the

defense of sovereign immunity exists wholly apart from any legal

rights   that    the   Navy    might       claim    under       the   1942    and    1944

permits, see United States v. Dist. Ct. ex rel. Eagle County,

401 U.S. 520, 525-26 (1971), the incidence of federal sovereign

immunity     cannot    turn    on     the    date     a    particular        right    was

acquired.     See Campbell, 809 F.2d at 571 (explaining that "the

presumption against 'retroactivity' has generally been applied

only when application of the new law would affect rights or

obligations existing prior to the change in law").                           Hence, the

McCarran Amendment applies to water rights acquired prior to

1952, as long as the suit against the government is commenced

subsequent to that date.             See, e.g., Eagle County, 401 U.S. at

523 (finding the McCarran Amendment applicable even though the

underlying federal rights were acquired in 1905).

                                C.    The Merits.

             Despite the fact that we do not accept the district

court's ratio decidendi, we nonetheless may affirm the judgment

on any independent ground that is apparent in the record.                            See,


                                        -13-
e.g., Lohnes v. Level 3 Communications, Inc., 272 F.3d 49, 52

(1st Cir. 2001).       The Navy argues that the waiver embodied in

the McCarran Amendment does not extend to purely administrative

proceedings    (such    as   the     proceeding      that   the   Secretary

commenced).    We turn next to that argument.4

         In     crafting      the     McCarran      Amendment,       Congress

consistently   used    the   word    "suit"    to   describe   the    matters

affected by the statutory waiver of federal sovereign immunity.

That word appears no fewer than seven times in a relatively

compact statute (most of which is reproduced above).                 The word

"suit" has a particularized meaning in legal parlance; it refers

specifically to an action in a judicial forum.              See Black's Law

Dictionary 1448 (7th ed. 1999) (defining a "suit" as "[a]ny

proceeding by a party or parties against another in a court of

law") (emphasis supplied).          The term's meaning was essentially

the same a half-century ago (when Congress enacted the McCarran

Amendment).    E.g., Stoll v. Hawkeye Cas. Co., 185 F.2d 96, 98

(8th Cir. 1950) (stating that the generally accepted definition

of the word "suit"       refers     to   a   "proceeding in a court of

justice") (quoting Weston v. City Council of Charleston, 27 U.S.


    4Because we find this argument compelling, we need not
evaluate the Navy's asseveration that the McCarran Amendment
does not apply because the DNER proceeding is neither a general
stream-wide adjudication nor an "adjudication of rights" within
the contemplation of the statute.

                                    -14-
(2 Pet.) 449, 464 (1829) (emphasis supplied)).                   The presumption

is     that      Congress    knew,    and    purposefully        embraced,        that

particularized meaning when it chose to employ the word in the

text       of   the   McCarran    Amendment.        See    Morissette      v.   United

States, 342 U.S. 246, 263 (1952); United States v. Nason, 269

F.3d 10, 16 (1st Cir. 2001).

                Nothing in the language or structure of the McCarran

Amendment rebuts this presumption.5                 To the contrary, Congress's

persistent use of terms such as "defendant," "necessary party,"

and    "the      court   having    jurisdiction,"         virtually   compels      the

conclusion that the repeated references to suits were fully

calculated.           It follows that the waiver was meant to apply only

to judicial proceedings.

                The defendants attempt to blunt the force of Congress's

seven-fold resort to the word "suit" in the text of the McCarran

Amendment by reliance on the Ninth Circuit's opinion in United

States v. Oregon, 44 F.3d 758 (9th Cir. 1994).                      They cite this

case for the proposition that "suit," as that word is used in

the McCarran Amendment, encompasses administrative as well as

judicial        proceedings.       Whether     or    not   Oregon     is   correctly


       5
     To be sure, the McCarran Amendment does contain a reference
to the "administration of [water use] rights," but read in
context, these words grammatically refer to suits for the
administration of such rights, and so fail to broaden the scope
of the waiver.

                                       -15-
decided — a matter on which we take no view — we do not believe

that the opinion supports so sweeping a proposition.

            In Oregon, the Ninth Circuit held that a unitary water

rights     adjudication        framework,        which      contained         both

administrative and judicial components, satisfied the McCarran

Amendment's definition of a suit.             Id. at 767.      The court noted

that the primary purpose of the McCarran Amendment was to permit

comprehensive       water   rights      adjudications          in     the     arid

southwestern states (where, historically, the United States held

a major portion of such rights).             See id. at 765.     Most of those

states    adopted   specific    statutory       schemes   for    water      rights

adjudications, and those schemes tended to delegate significant

authority to administrative agencies.              See id. at 763-65.          The

court reasoned that to exclude such proceedings from the scope

of the waiver granted by the McCarran Amendment would defeat the

drafters' intent to facilitate water use adjudications in those

regions.    See id. at 765-67; see also Colo. River Water Conserv.

Dist. v. United States, 424 U.S. 800, 819 (1976) ("The consent

to jurisdiction given by the McCarran Amendment bespeaks a

policy that recognizes the availability of comprehensive state

systems    for   adjudication    of    water    rights    as    the   means    for

achieving these goals.").




                                      -16-
              The statutory scheme considered in Oregon was a unitary

scheme that contained two interconnecting tracks.                      Although it

envisioned that an action would be commenced administratively by

the agency (the Oregon Water Resources Department), that action

automatically would proceed to a judicial forum upon completion

of the administrative process.               See Oregon, 44 F.3d at 764.           In

other     words,       the     Oregon     statute     constructs       a    seamless

proceeding,          possessing       both   administrative         and     judicial

components.          These     two    components    "are     not   independent    or

unrelated, but parts of a single statutory proceeding, the

earlier stages of which are before the [agency] and the later

stages before the court."               Pacific Live Stock Co. v. Or. Water

Bd.,    241    U.S.     440,    451     (1915)     (commenting      upon    Oregon's

statutory scheme for the administration of water rights).                         In

other     words,      the    agency      "merely     paves    the     way   for   an

adjudication by the court of all the rights involved."                            Id.

Thus, even though the word "suit" contemplates an action in a

judicial forum, it is at least arguable that this seamless

proceeding constitutes a suit.

              Puerto Rico's approach differs in material respects

from Oregon's.         The Law of Waters does not establish a seamless

process       with    both     administrative       and    judicial    components.

Rather, it contemplates a purely administrative proceeding — a


                                          -17-
proceeding that ordinarily will terminate with a final order of

the Secretary.   It defies common sense to say that this type of

administrative    proceeding,        wholly   lacking    any   integrated

judicial involvement, is a fair congener to a proceeding under

the Oregon scheme (and, thus, constitutes a suit).

          To   plug   this   hole,    the   defendants   respond   that   a

proceeding under the Law of Waters leaves open the possibility

of judicial review.     See 12 P.R. Laws Ann. § 1520 (conferring

upon any aggrieved party a right to seek judicial review of the

DNER's final order within thirty days).         Their premise is true,

but their suggested conclusion — that this right of judicial

review transmogrifies the underlying proceeding into a suit —

does not hold water.     We explain briefly.

          Section 1520 is a bareboned provision, which lacks any

semblance of detail.     Therefore, we must assume that it merely

acknowledges the right of judicial review embodied in Puerto

Rico's Uniform Administrative Procedure Act (UAPA), 3 P.R. Laws

Ann. §§ 2101-2201.6     Cf. Becker v. FEC, 230 F.3d 381, 384 (1st

Cir. 2000) (reasoning that because a federal statute contained

no provisions governing the mode and manner of judicial review,



     6Under the UAPA, "[a]ny party which is adversely affected by
a final order or resolution of an agency" has thirty days within
which to file a petition for review in a local court. 3 P.R.
Laws Ann. § 2172.

                                 -18-
the provisions set forth in the APA applied).                That review is

highly circumscribed and cannot serve to compensate for the

absence of meaningful judicial involvement in the underlying

proceeding.    After all, virtually every final agency action is

reviewable    by   a   court   of   law.     See,    e.g.,   Administrative

Procedure Act (APA) § 704, 5 U.S.C. § 704 ("Agency action made

reviewable by statute and final agency action for which there is

no other adequate remedy in a court are subject to judicial

review.").    To accept that the right to a limited APA-type of

judicial review suffices to convert a purely administrative

proceeding into a suit would compel the absurd conclusion that

all administrative proceedings are suits and that no purely

administrative proceedings exist.          We cannot endorse so radical

a proposition.

           A further comparison between Oregon's seamless scheme

for the adjudication of water rights and Puerto Rico's Law of

Waters   illustrates     the   point.      Under    the   former   scheme,   a

reviewing court is not constrained by the administrative record

but may receive additional evidence, Warner Valley Stock Co. v.

Lynch, 336 P.2d 884, 901 (Or. 1959), or, alternatively, may

appoint a special master to take further testimony,                 Or. Rev.

Stat. § 539.150.        Relatedly, such a scheme allows de novo




                                    -19-
judicial review of factual matters.                  See Warner Valley, 336 P.2d

at 900.

              The UAPA (and, thus, Puerto Rico's Law of Waters)

operates quite differently.              Under it, an inquiring court is

limited       to   the   administrative          record,      and    the    agency's

factfinding "shall be upheld by the court [so long as] grounded

on substantial evidence filed in the administrative record."                       3

P.R. Laws Ann. § 2175.           Thus, a court examining a decision of

the Secretary in a case under the Law of Waters would be forced

to rely solely on evidence presented in the administrative

proceeding, and would have to defer broadly to the Secretary's

findings of fact.         Limitations such as these underscore that

Puerto Rico's water rights proceedings are both procedurally and

substantively different from a traditional suit.                     In effect, an

agency       functions   under     the    UAPA       scheme   as    an   independent

adjudicator within the executive branch of government, whereas,

under    a    seamless   scheme     possessing         both   administrative     and

judicial components, an agency functions as an aid to the court.

              In sum, a seamless administrative-judicial scheme (such

as   Oregon's)      places   the    court       in    the   role    of   independent

adjudicator, not merely in the role of reviewer of a pre-

compiled record.         Based on this salient distinction, we hold

that even if Oregon's scheme might be termed a suit, Puerto


                                         -20-
Rico's counterpart scheme cannot be so characterized.                           Put

another way, because a DNER proceeding under the Law of Waters

contains no significant judicial component, it is not equivalent

to a suit — and the balm of the McCarran Amendment does not

extend to it.

                 We need go no further.         There is simply no persuasive

evidence         that   the   repeated   use    of   the   word   "suit"   by   the

drafters of the McCarran Amendment was either a linguistic

accident or an awkward attempt to convey a meaning different

than the norm.7          Thus, we are bound to accord the word "suit" its

ordinary meaning.             See Morissette, 342 U.S. at 263; Nason, 268

F.3d at 16.             So defined, the word presupposes a meaningful

adjudication in a judicial forum.               Since the Law of Waters does

not provide for such an adjudication, the McCarran Amendment

does       not   apply    here.     It   follows     inexorably    that    federal

sovereign immunity bars the proceeding that the Secretary seeks

to launch against the Navy.


       7
     For what it may be worth, we note that nothing in the
legislative history of the McCarran Amendment establishes that
Congress intended the waiver of federal sovereign immunity to
cover a purely administrative scheme for the adjudication of
water rights. In the Senate hearings, the distinction between
administrative and judicial actions was drawn at several points,
see, e.g., Hearings on S.18, Subcomm. Sen. Jud'y Comm., 82d
Cong., 1st Sess., 10-11, 23, 53 (1952), but the hearings are
unilluminating as to the key issue of whether the Amendment was
ultimately   intended   to  encompass   purely    administrative
proceedings.

                                         -21-
III.       CONCLUSION

              To recapitulate, we hold that the McCarran Amendment

does not waive federal sovereign immunity with respect to the

purely administrative proceeding commenced against the Navy

under the Law of Waters.             The upshot is that the federal

government's immunity remains intact and the Secretary lacks the

authority      to   compel   the   Navy   either   to   participate   in   the

ongoing administrative proceeding or to enforce the October 29,

1999 order.8



Affirmed and remanded.




       8
      Because our reasoning differs from that of the lower court,
we remand the case for the entry of an amended decree consistent
with this opinion.

                                     -22-