HUDSPETH COUNTY CONSERV. & REC. DIST. NO. 1 v. Robbins

• Decision Date: 27 May 1954
• Docket Number: No. 14668.,14668.
• Citation: 213 F.2d 425
• Parties: HUDSPETH COUNTY CONSERVATION & RECLAMATION DIST. NO. 1 et al. v. ROBBINS et al.
• Court: U.S. Court of Appeals — Fifth Circuit

213 F.2d 425 (1954)

HUDSPETH COUNTY CONSERVATION & RECLAMATION DIST. NO. 1 et al. v. ROBBINS et al.

No. 14668.

United States Court of Appeals Fifth Circuit.

May 27, 1954.

W. Morgan Hunter, Austin, Tex., Theodore Andress, El Paso, Tex., Thurmond Arnold, Washington, D. C., Arnold, Fortas & Porter, Washington, D. C., Andress, Lipscomb & Peticolas, El Paso, Tex., Powell, Wirtz & Rauhut, Austin, Tex., of counsel, for appellants.

Eugene T. Edwards, Louis A. Scott, El Paso, Tex., Frederick K. Gray, Regional Counsel, U. S. Bureau of Reclamation, Amarillo, Tex., for appellee.

Before HUTCHESON, Chief Judge, and HOLMES and RIVES, Circuit Judges.

RIVES, Circuit Judge.

Appellant, Hudspeth County Conservation and Reclamation District No. 1, a Texas public corporation, and five individual land owners, as representatives of all of the land owners of the Hudspeth District, as plaintiffs, brought this suit against the Regional Director and Assistant Regional Director of the Bureau of Reclamation, the Project Manager and Assistant Project Manager of the Rio Grande Reclamation Project, thirteen individuals as representatives of all land owners and water users of the Rio Grande Project, El Paso County Water Improvement District No. 1, another Texas public corporation, and the Manager of said corporation, as defendants.¹ Plaintiffs sought a declaratory judgment to establish certain water rights of the Hudspeth land owners, and in order to protect such water rights, they sought an injunction against the officials of the Federal Bureau of Reclamation named as defendants, their successors in office, agents and employees. This appeal is by the plaintiffs from a summary judgment rendered by the district court in favor of the defendants and its refusal to render a partial summary judgment for the plaintiffs.

While the district court thus ruled with the defendants on the merits, it had overruled their motion to dismiss the action on the ground that the United States, which has not consented to be sued, is an indispensable party defendant. That question, going to the jurisdiction of the district court, confronts us at the outset. We shall therefore briefly outline some of the essential facts and restate the plaintiffs' contentions sufficiently for a consideration of that jurisdictional issue.

Elephant Butte Dam and Reservoir and Caballo Dam and Reservoir are integral parts of a reclamation project known as the Rio Grande Project, which was undertaken and constructed by the Government under authority of the Reclamation Act of June 17, 1902, 32 Stat. 389, 43 U.S.C.A. § 371 et seq.² In 1906 and 1908, the Federal Reclamation Service filed notices of intent to appropriate all the unappropriated waters of the Rio Grande River.³ The dams, reservoirs and irrigation works were completed to a point where, under date of November 19, 1924, Commissioner Mead of the Bureau of Reclamation wrote to the Secretary of Interior in part, as follows:

"The Hudspeth County Conservation and Reclamation District No. 1 contains an irrigable area of 20,014 acres located in the State of Texas just below the Rio Grande Federal irrigation project. The terminus of the Tornillo Main Canal of the Government project may be feasibly connected with the district canal to serve water to lands of the district. The United States will have available for disposal at the terminus of this canal certain water developed from the project, which water can be used for the irrigation of district lands. This water would be dumped into the river and lost to the project were it not utilized on lands in the Hudspeth District."

Under date of December 1, 1924, a contract was entered into between the United States of America and Hudspeth County Conservation and Reclamation District No. 1, which contract recognized that "the District contains an irrigable area of 20,014 acres located in Texas just below the Rio Grande Federal Irrigation Project." That contract provided in part, as follows:

"The United States will deliver to the District at the terminus of the Tornillo Main canal, during the irrigation season of 1925 and thereafter during each irrigation season as established on the Rio Grande project, such water from the project as may be available at said terminus without the use of storage from Elephant Butte reservoir. The Secretary of the Interior shall be at all times the sole judge of the availability of such water. The rental of water hereunder is secondary and inferior to the right to use water for any purpose on the lands of the Rio Grande Federal irrigation project. In consideration of such rental the District hereby relinquishes all right, title, interest, and claim to any and all waters of the Rio Grande, except as herein provided."

An amendatory contract was entered into on April 27, 1951, which also contained the provision that "the rental of water hereunder is secondary and inferior to the right to use of water on the Rio Grande Federal Irrigation Project for any purposes." Indeed, some such provision was required by Section 1 of the Warren Act, Act of February 21, 1911, 36 Stat. 925, 43 U.S.C.A. § 523, authorizing carriage of water through reclamation facilities to independently operated irrigation districts "preserving a first right to lands and entrymen under the project".

Pursuant to these contracts, the defendant Reclamation officials and their predecessors carried water to the Hudspeth District from 1925 to 1951, and the land owners of the District used the water for irrigation purposes. Beginning in 1951, the defendant Reclamation officials have cut off deliveries of water to Hudspeth District, and some of the water so intercepted has been delivered to some farmers in El Paso and Elephant Butte Districts whose beneficial use of water is subsequent in time to that of the plaintiff Hudspeth farmers.

As their first and principal contention, the plaintiffs insist that by lawful, beneficial use of the Rio Grande water on Hudspeth lands appropriative water rights became vested as an appurtenance to such lands which cannot be limited or affected by contract with the Reclamation Bureau. That issue concerns rights to the use of water delivered to the Hudspeth District by the Reclamation officials under the contract executed in 1924 and amended in 1951.

A second and subordinate issue concerns seepage waters from lands in the El Paso District. It was necessary to drain lands in the El Paso District to keep them from becoming waterlogged. The drain water was not very desirable because of its saline character, and prior to 1951 the El Paso District made no use of these seepage waters. In 1947 a canal was constructed from the project drain outlet to the Hudspeth main canal system whereby such seepage waters might be carried directly to the Hudspeth system without discharge into the river. These drainage waters did not originally come under the 1924 contract but were included under the provisions of the amendatory contract of 1951, whereby the United States agreed to deliver such water as may be available through the distribution facilities carrying the drain or return flow waters into the Hudspeth District. The seepage waters, as well as the waters delivered to the Hudspeth District by Reclamation officials under the contract executed in 1924, were all developed waters of the Rio Grande Project made possible by that project and never received by the Hudspeth District prior to the construction by the Government of the dams, reservoirs and irrigation works. The right of the United States as storer and carrier was not exhausted when these waters had been once used, but, as recognized in the 1951 contract, that right extended to the recapture and re-use of such waters. State of Nebraska v. State of Wyoming, 325 U.S. 589, 615, 65 S.Ct. 1332, 89 L.Ed. 1815, note 11.

As a third issue, the plaintiffs claim that the defendant Reclamation officials unlawfully diverted and used water for generation of hydroelectric power in derogation of the prior and superior water rights of the Hudspeth farmers and that the District Judge should have permitted the plaintiffs to amend their pleadings to pray for injunctive relief against such diversions.⁴ In connection with the irrigation of lands, the Reclamation Act, 36 Stat. 930, 43 U.S.C.A. § 522, provides for the development and lease of surplus power or power privileges with the proviso "that no lease shall be made of such surplus power or power privileges as will impair the efficiency of the irrigation project".

The authority of the United States to construct, maintain and operate the dams, reservoirs and irrigation facilities is unquestioned. One of the purposes is to fulfill a treaty obligation to the Republic of Mexico.⁵ Another purpose is to irrigate certain arid lands in New Mexico and Texas and thus to promote the general welfare.

"* * * the power of Congress to promote the general welfare through large-scale projects for reclamation, irrigation, or other internal improvement, is now as clear and ample as its power to accomplish the same results indirectly through resort to strained interpretation of the power over navigation." United States v. Gerlach Live Stock Co., 339 U.S. 725, 738, 70 S.Ct. 955, 962, 94 L.Ed. 1231.

The plaintiffs' position on all three contentions seems to be that the actions of the defendant Reclamation officials are ultra vires their statutory authority and, therefore, may be made the object of injunctive relief. That position is based upon the contention that the Hudspeth land owners had acquired rights to use the water for irrigating their lands which were vested property rights appurtenant to their lands and wholly distinct from the interest of the Government in the irrigation works.

It seems clear that the United States, by filing the notices of intent to appropriate and thereafter impounding the water, did not become the owner of the water in its own right. That is recognized in the Reclamation Act i...