From Deseret News archives:
Water suit sent to state court
Roosevelt is trying to add existing well to its culinary supply
On Nov. 28, Judge Tena Campbell rejected a motion by the U.S. Bureau of Indian Affairs to dismiss Roosevelt city's lawsuit against Utah State Engineer Jerry Olds. The city is suing Olds over his denial of a point-of-diversion application that would have allowed Roosevelt to add an existing but formerly unused well to its culinary water system.
Attorneys for the city and the state had opposed the BIA's motion to dismiss in federal court, which was filed under the umbrella of the Sovereign Immunity Act.
"What they (the BIA) were doing was using their sovereign immunity as a sword, when they were supposed to be using it as a shield," said David Wright, an attorney who represents Roosevelt.
While a dismissal of the case in federal court would have forever ended the suit against Olds, he did not approve of the BIA's methods, according to Assistant Utah Attorney General Norman Johnson.
"The state engineer believes de novo judicial review is part of the water rights application process," Johnson said. "Those aggrieved by his decisions are entitled to such review and that review should be in state court."
Campbell's ruling, which remanded the case to state court and declared the dismissal motion moot, could perhaps help end what state, county and city officials have long considered an abuse of sovereign immunity by federal agencies. In the Olds case, the BIA had asked to have the lawsuit moved from state to federal court where both the Ute Indian Tribe and the BIA are immune from civil action.
However, the BIA was never a target of the lawsuit and the Ute Indian Tribe was merely named as a "party of interest" in the suit against Olds because — along with 31 individuals living in the Neola area — the tribe had objected to the state issuing a permit to Roosevelt. The opposing parties alleged that the city's development of the well would harm other water users by draining the area's aquifer.
Johnson argued before Campbell that the Sovereign Immunity Act was only meant to shield foreign governments from being sued in federal courts, not as a tool for interfering with the actions of other agencies. He reasoned that the Ute Tribe can still sue in state court if it believes it would be harmed by Roosevelt's use of the Durigan Springs well.
Other federal agencies have successfully used the Sovereign Immunity Act many times in the past 30 years to block lawsuits affecting their interests, according to both Johnson and Wright.
