ORFF et al. v. UNITED STATES et al.

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596 OCTOBER TERM, 2004
Syllabus
ORFF et al. v. UNITED STATES et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 03–1566. Argued February 23, 2005—Decided June 23, 2005
Petitioner California farmers and farming entities purchase water from
respondent Westlands Water District, which receives its water from the
United States Bureau of Reclamation under a 1963 contract between
Westlands and the Bureau. In 1993, Westlands and other water dis
tricts sued the Bureau for reducing their water supply. Petitioners,
though not parties to the 1963 contract, intervened as plaintiffs. After
negotiations, all parties except petitioners stipulated to dismissal of the
districts’ complaint. Petitioners pressed forward with, as relevant
here, the claim that the United States had breached the contract. They
contended that they were third-party beneficiaries entitled to enforce
the contract and that the United States had waived its sovereign immu
nity from breach of contract suits in a provision of the Reclamation
Reform Act of 1982, 43 U. S. C. § 390uu. The District Court ultimately
held that petitioners were neither contracting parties nor intended
third-party beneficiaries of the contract and therefore could not benefit
from § 390uu’s waiver. The Ninth Circuit affirmed in relevant part.
Held: Section 390uu does not waive the United States’ sovereign immunity
from petitioners’ suit. The provision grants consent “to join the United
States as a necessary party defendant in any suit to adjudicate” certain
rights under a federal reclamation contract. (Emphasis added.) A
waiver of sovereign immunity must be strictly construed in favor of the
sovereign. See, e. g., Department of Army v. Blue Fox, Inc., 525 U. S.
255, 261. In light of this principle, § 390uu is best interpreted to grant
consent to join the United States in an action between other parties
when the action requires construction of a reclamation contract and join
der of the United States is necessary. It does not permit a plaintiff to
sue the United States alone.
This interpretation draws support from § 390uu’s use of the words
“necessary party,” a term of art whose meaning calls to mind Federal
Rule of Civil Procedure 19(a)’s requirements for joinder of parties. The
interpretation also draws support from the contrast between § 390uu’s
language, which speaks in terms of joinder, and the broader phrasing
of other statutes, e. g., the Tucker Act, that waive immunity from
suits against the United States alone. Petitioners’ suit, brought solely

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against the United States and its agents, is not an attempt to “join the
United States as a necessary party defendant” under § 390uu. Pp. 601–
604.
358 F. 3d 1137, affirmed.
Thomas, J., delivered the opinion for a unanimous Court.
William M. Smiland argued the cause for petitioners.
With him on the briefs were Theodore A. Chester, Jr., and
Hal S. Scott.
Jeffrey P. Minear argued the cause for respondent United
States. With him on the brief were Acting Solicitor Gen
eral Clement, Assistant Attorney General Sansonetti, Dep
uty Solicitor General Kneedler, and Todd S. Aagaard.
Stuart L. Somach argued the cause for respondent West
lands Water District. With him on the brief were Andrew
M. Hitchings, Robert B. Hoffman, Daniel J. O’Hanlon, Wil
liam T. Chisum, and Donald B. Ayer. Michael Rubin,
Linda Lye, Hamilton Candee, and Michael E. Wall filed a
brief for Intervenors-Respondents Natural Resources De
fense Council et al.*
Justice Thomas delivered the opinion of the Court.
Petitioners are individual farmers and farming entities in
California who purchase water from respondent Westlands
Water District (Westlands or District). Westlands receives
its water from the United States Bureau of Reclamation (Bu
*Nancie G. Marzulla and Roger J. Marzulla filed a brief for the Central
San Joaquin Water Conservation District et al. as amici curiae urging
reversal.
Marvin S. Cohen, Paul R. Orme, and W. Patrick Schiffer filed a brief
for the Central Arizona Water Conservation District et al. as amici curiae
urging affirmance.
Briefs of amici curiae were filed for the State of California by Bill
Lockyer, Attorney General of California, Tom Greene, Chief Assistant At
torney General, Mary E. Hackenbracht, Senior Assistant Attorney Gen
eral, and William Jenkins, Deputy Attorney General; and for the Pacific
Legal Foundation et al. by Russell C. Brooks and Robin L. Rivett.

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598 ORFF v. UNITED STATES
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reau) under a 1963 contract between Westlands and the
Bureau. Petitioners contend that the Bureau breached the
contract in 1993 when it reduced the water supply to West
lands. Although petitioners are not parties to the contract,
they claim that they are entitled to enforce it as intended
third-party beneficiaries; that the United States waived its
sovereign immunity from suits for breach of contract in a
provision of the Reclamation Reform Act of 1982, § 221, 96
Stat. 1271, 43 U. S. C. § 390uu; and hence that they may sue
the United States in federal district court for breach of the
1963 contract. We conclude that, in enacting § 390uu, Con
gress did not consent to petitioners’ suit.
I
The Reclamation Act of 1902 set in motion a massive pro
gram to provide federal financing, construction, and opera
tion of water storage and distribution projects to reclaim
arid lands in many Western States. California v. United
States, 438 U. S. 645, 650 (1978). The California Central Val
ley Project (CVP), a system of dams, reservoirs, levees,
canals, pumping stations, hydropower plants, and other in
frastructure, distributes water throughout California’s vast
Central Valley. United States v. Gerlach Live Stock Co., 339
U. S. 725, 733 (1950).
The Bureau, located in the Department of the Interior,
administers the CVP. In accordance with its standard prac
tice for federal reclamation projects, the Bureau holds per
mits to appropriate water from the relevant state agency,
here the California State Water Resources Control Board.
See California, supra, at 652, and n. 7. The Bureau distrib
utes the water in accordance with its statutory and contrac
tual obligations. It contracts with state irrigation districts
to deliver water and to receive reimbursement for the costs
of constructing, operating, and maintaining the works.
In 1963, the United States agreed to a 40-year water serv
ice contract with Westlands, a political subdivision of the

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State of California. The 1963 contract provided, among
other things, that the United States would furnish to the
District specified annual quantities of water, App. 34–36, and
that the District would accept and pay for the water at a
maximum rate of $8 per acre-foot, id., at 38. Since 1978,
the contract has generated extensive litigation. See Bar
cellos & Wolfsen, Inc. v. Westlands Water Dist., 899 F. 2d
814, 817 (CA9 1990); O’Neill v. United States, 50 F. 3d 677,
681 (CA9 1995); 358 F. 3d 1137, 1141 (CA9 2004) (case below).
In 1982, Congress enacted the Reclamation Reform Act,
which included 43 U. S. C. § 390uu, the waiver of sovereign
immunity at issue here.
The present case arose from water delivery reductions in
the early 1990’s. Those reductions stemmed from environ
mental obligations imposed on the Bureau by the 1992 en
actment of the Central Valley Project Improvement Act
(CVPIA), 106 Stat. 4706. The CVPIA directed the Secre
tary of the Interior to “operate the [CVP] to meet all obliga
tions under . . . the Federal Endangered Species Act” (ESA),
§ 3406(b), and to dedicate annually a certain amount of CVP
water to implement fish, wildlife, and habitat restoration,
§ 3406(b)(2). In the early 1990’s, the National Marine Fish
eries Service listed the Sacramento River winter-run chi
nook salmon as a threatened species under the ESA, see 55
Fed. Reg. 46523 (1990); 50 CFR § 227.4(e) (1991); and, in 1993,
the United States Fish and Wildlife Service listed the delta
smelt as a threatened species, see 58 Fed. Reg. 12854–12855;
50 CFR § 17.11. The Bureau concluded that pumps used to
deliver water south of the Sacramento-San Joaquin Delta
could harm these species. Brief for United States 10–11,
and n. 7. To avert possible harm to these species and other
wildlife, the Bureau concluded that it needed to reduce the
water delivery. In the 1993–1994 water year, the Bureau
reduced by 50 percent the contractual delivery of CVP water
to water districts south of the Delta, including Westlands.
Id., at 10; see also O’Neill, supra, at 681.

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In 1993, Westlands and several other water districts chal
lenged the Bureau’s 50-percent delivery reduction under the
Administrative Procedure Act, the ESA, the National Envi
ronmental Policy Act of 1969, and the Due Process and Tak
ings Clauses of the Fifth Amendment. Westlands Water
Dist. v. United States Dept. of Interior, Bureau of Recla
mation, 850 F. Supp. 1388, 1394–1395 (ED Cal. 1994). Peti
tioner landowners and water users intervened as plaintiffs.
Respondent Natural Resources Defense Council and other
fishing and conservation organizations intervened as de
fendants. Id., at 1394. Ultimately, following negotiations
among the State of California, the Federal Government, and
urban, agricultural, and environmental interests, the water
districts and all parties except petitioners stipulated to the
dismissal of the districts’ complaint. 358 F. 3d, at 1142; App.
to Pet. for Cert. 25a; Brief for United States 11.1
Petitioners pressed forward with numerous claims. The
District Court dismissed some of them and granted summary
judgment for the Government on others, see 358 F. 3d, at
1142, leaving only the claim at issue here: that the United
States had breached the 1963 contract by reducing the deliv
ery of water and was liable for money damages. Petitioners
contended that the United States had waived its sovereign
immunity from their suit in the Reclamation Reform Act,
43 U. S. C. § 390uu. The District Court initially held that
petitioners were intended third-party beneficiaries and that
the language of § 390uu was broad enough to allow their suit,
App. to Pet. for Cert. 26a, but on reconsideration changed its
view. It held that, in light of intervening Circuit authority,
Klamath Water Users Protective Assn. v. Patterson, 204
F. 3d 1206 (CA9 1999), petitioners were neither contracting
parties nor intended third-party beneficiaries of the 1963
contract, and therefore could not benefit from § 390uu’s
waiver. App. to Pet. for Cert. 27a–34a.
1 Westlands subsequently intervened on appeal.

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The Court of Appeals affirmed in relevant part. It agreed
with the District Court’s reading of the 1963 contract and
§ 390uu in light of Klamath. 358 F. 3d, at 1144–1147. The
Court of Appeals noted that its decision might be at odds
with H. F. Allen Orchards v. United States, 749 F. 2d 1571
(CA Fed. 1984), which had reached the opposite conclusion
with respect to farmers who belonged to an irrigation dis
trict in Washington. 358 F. 3d, at 1147, n. 5. We granted
certiorari. 543 U. S. 924 (2004).
II
This dispute centers on § 390uu, which waives the United
States’ sovereign immunity for certain purposes. Section
390uu provides:
“Consent is given to join the United States as a neces
sary party defendant in any suit to adjudicate, confirm,
validate, or decree the contractual rights of a contract
ing entity and the United States regarding any contract
executed pursuant to Federal reclamation law. The
United States, when a party to any suit, shall be deemed
to have waived any right to plead that it is not amenable
thereto by reason of its sovereignty, and shall be subject
to judgments, orders, and decrees of the court having
jurisdiction, and may obtain review thereof, in the same
manner and to the same extent as a private individual
under like circumstances. Any suit pursuant to this
section may be brought in any United States district
court in the State in which the land involved is
situated.”
Petitioners contend that they are intended third-party
beneficiaries of the 1963 contract and therefore entitled to
enforce the contract. Hence, they claim, their suit is one “to
adjudicate . . . the contractual rights of a contracting entity
and the United States” within the meaning of § 390uu. This
argument founders on the principle that a waiver of sover

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eign immunity must be strictly construed in favor of the sov
ereign. See, e. g., Department of Army v. Blue Fox, Inc.,
525 U. S. 255, 261 (1999); Lane v. Pen˜ a, 518 U. S. 187, 192
(1996). Construing § 390uu in light of this principle, we find
it insufficient to waive sovereign immunity.
Section 390uu grants consent “to join the United States
as a necessary party defendant in any suit to adjudicate”
certain rights under a federal reclamation contract. (Em
phasis added.) This language is best interpreted to grant
consent to join the United States in an action between other
parties—for example, two water districts, or a water district
and its members—when the action requires construction of
a reclamation contract and joinder of the United States is
necessary. It does not permit a plaintiff to sue the United
States alone.
Section 390uu’s use of the words “necessary party” sup
ports this interpretation. Before 1966, the term “neces
sary” described the class of parties now called “Persons to
be Joined if Feasible” under Federal Rule of Civil Procedure
19(a). See Provident Tradesmens Bank & Trust Co. v. Pat
terson, 390 U. S. 102, 116–118, and n. 12 (1968) (recounting
terminology change). Rule 19(a) requires a court to order
joinder of a party if
“(1) in the person’s absence complete relief cannot be
accorded among those already parties, or (2) the person
claims an interest relating to the subject of the action
and is so situated that the disposition of the action in
the person’s absence may (i) as a practical matter impair
or impede the person’s ability to protect that interest or
(ii) leave any of the persons already parties subject to a
substantial risk of incurring double, multiple, or other
wise inconsistent obligations by reason of the claimed
interest.”
Though the Rule no longer describes such parties as “neces
sary,” “necessary party” is a term of art whose meaning par

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allels Rule 19(a)’s requirements. See Black’s Law Diction
ary 928 (5th ed. 1979) (defining “necessary parties” as “those
persons who must be joined in an action because, inter alia,
complete relief cannot be given to those already parties with
out their joinder,” and citing Fed. Rule Civ. Proc. 19(a)).
The phrase “join . . . as a necessary party defendant” in
§ 390uu thus calls to mind Rule 19(a)’s requirements. We
need not decide here whether the phrase limits the waiver
of sovereign immunity to cases in which the United States
could be joined under Rule 19(a). Regardless, the tradi
tional concept of joinder of a necessary party supports inter
preting § 390uu to permit joinder of the United States in an
action rather than initiation of a suit solely against it.
Our conclusion draws force from the contrast between
§ 390uu’s language, which speaks in terms of joinder, and the
broader phrasing of statutes that waive immunity from suits
against the United States alone. For example, the Tucker
Act grants the United States Court of Federal Claims “ju
risdiction to render judgment upon any claim against the
United States founded . . . upon any express or implied
contract with the United States.” 28 U. S. C. § 1491(a)(1).2
The Little Tucker Act grants district courts original jurisdic
tion, concurrent with the Court of Federal Claims, over
“[a]ny . . . civil action or claim against the United States, not
exceeding $10,000 in amount, founded . . . upon any express
or implied contract with the United States.” § 1346(a)(2).
The contrast between 43 U. S. C. § 390uu and the broader
language of these statutes confirms that our construction as
cribes the proper meaning to the limiting phrase “join . . . as
a necessary party defendant” in § 390uu.
Petitioners’ suit cannot proceed under our interpretation
of § 390uu. For purposes of that provision, petitioners
sought to sue the United States alone: They named as de
2 The District Court invited petitioners several times to transfer their
damages claims to the Court of Federal Claims, but petitioners did not
accept those invitations. App. to Pet. for Cert. 22a.

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fendants the United States itself, as well as various federal
entities and officials they viewed as responsible for the water
delivery reduction (for example, the Bureau, the Fish and
Wildlife Service, and the Secretary of the Interior). Peti
tioners’ suit, brought solely against the United States and its
agents, is not an attempt to “join the United States as a
necessary party defendant.” § 390uu (emphasis added).3
* * *
We hold that § 390uu does not waive immunity from peti
tioners’ suit: The statute does not waive immunity from suits
directly against the United States, as opposed to joinder of
the United States as a necessary party defendant to permit a
complete adjudication of rights under a reclamation contract.
We therefore affirm the judgment of the Court of Appeals.
It is so ordered.
3 We need not reach the contentions, advanced by respondents, that
§ 390uu neither unequivocally grants consent to a money damages remedy,
Brief for United States 23–25; Brief for Natural Resources Defense
Council et al. 20–21, nor unequivocally grants consent to suit by noncon
tracting entities, id., at 22–23, and n. 8; Brief for Westlands Water District
44–46. As explained above, we find § 390uu otherwise insufficiently clear
to grant consent to petitioners’ suit.