TENTH CIRCUIT TO CONSIDER MUNICIPAL WATER ISSUES

On February 21, 2008, the United States District Court for the Western District certified various jurisdictional questions relating to municipal water use for appeal to the Tenth Circuit Court of Appeals. 2008 WL 490635 (W.D. Okla.). The Court found that there exist no “just reasons to delay the appeal” of its earlier rulings dismissing the municipality’s third-party claims against the United States Department of Agriculture and its counterclaims against the rural water district.

The Court dismissed the third-party claims on the grounds that the USDA is immune under the principal of sovereign immunity. The Court also found that the municipality lacked prudential standing to assert its claims against the USDA. As a result, the Court dismissed the counterclaims, finding that the USDA was a necessary and indispensable party to those claims and that such claims could not be adjudicated without USDA involvement.

The rulings were jurisdictional in nature, and the Court did not review the substantive merits of the municipality’s claims, which include a challenge to the constitutionality of 7 U.S.C. § 1926(b) and Okla. Stat. tit. 82, § 1324.10(4), which purportedly authorizes rural water districts to obtain federal funding and exclusive protection under 7 U.S.C. § 1926(b). The February 21, 2008 Order will allow for expedited interlocutory appeal of these rulings. In the event that the Tenth Circuit finds in favor of the municipality on the jurisdictional questions, the case will be sent back down to the District Court for review of the substantive merits of these constitutional challenges.

Courtney Bru