Holguin v. Elephant Butte Irrigation Dist., 11066

Citation575 P.2d 88, 1977 NMSC 73, 91 N.M. 398
Case DateSeptember 09, 1977
CourtSupreme Court of New Mexico

Page 88

575 P.2d 88
91 N.M. 398
David HOLGUIN, Robert Bullard, O. L. Smith, Lawrence Horner
and Mrs. Robert S. Hayner, Plaintiffs-Appellants,
No. 11066.
Supreme Court of New Mexico.
Sept. 9, 1977.

[91 NM 398] Martin, Martin & Lutz, James T. Martin, Jr., William L. Lutz, Las Cruces, for plaintiffs-appellants.

Threet, Threet, Glass & King, Martin E. Threet, R. Michael Hooe, Albuquerque, for defendant-appellee.


EASLEY, Justice.

Plaintiff, David Holguin and five others (hereinafter Landowners which shall at times refer to plaintiffs predecessors in title) brought suit against Elephant Butte Irrigation District (EBID) for a declaratory judgment to establish their water rights on land located within the geographical limits of the irrigation district. Landowners also

Page 89

[91 NM 399] claimed damages for failure of EBID to provide irrigation facilities and prayed for damages for improvements made by them because of alleged representations by EBID agents that their water rights would not be contested. EBID petitioned for dismissal for failure to join the New Mexico State Engineer and the United States of America as indispensable parties and asked for summary judgment with regard to the other claims. The effect of the trial court's decision was to grant summary judgment as to all issues. Landowners appealed to this court. We affirm the decision of the trial court that the United States is an indispensable party, which is the dispositive issue.

Although there are a multitude of unique and interesting questions raised in this case, the controlling issue is whether the United States, which owns the dams and the irrigation works and contracts with EBID through the Federal Bureau of Reclamation and Irrigation (Bureau) for the distribution of the water, is an indispensable party, particularly in light of the fact that the United States has a treaty with Mexico to deliver specified quantities of water to Mexico on a periodic basis and has other obligations and duties under the law and by contract.


The Rio Grande River has played a vital role in hundreds of years of colorful history in Colorado, New Mexico, Texas and Mexico. "The Rio Grande is not only a river of song and story, but also a symbol of the Spanish heritage in what is now the American Southwest. It is the second longest river in the United States and is the only river of this country having long segments, first wholly within this nation and next forming an international boundary." 1 Of all the interesting developments in the history of the river, none could be as dramatic and far-reaching in its effect as the federal government's decision to harness the unappropriated waters of the Rio Grande and its tributaries for irrigation and other purposes in southern New Mexico and southwest Texas.

On June 17, 1902, the Reclamation and Irrigation Act was passed by Congress authorizing the construction of irrigation dams and works. 2 The Rio Grande Project was passed by Congress in 1905. 3 The Territorial Legislature in New Mexico in 1907 passed a comprehensive water code in which it was provided that the United States under the Reclamation Law could give notice to the state of its intention to utilize certain specified unappropriated water and that water would not be subject to appropriation by others, provided the federal government proceeded thereafter to construct irrigation works under the Reclamation Law. 4

The Reclamation Service (now Bureau) gave notice to the New Mexico State Engineer in 1906 that the federal government intended to appropriate 730,000 acre-feet of water per year from the unappropriated waters of the Rio Grande which water would be impounded for the Rio Grande Project. In 1908, the claim was expanded to cover all of the unappropriated waters of the Rio Grande and its tributaries.

In conjunction with the development of the Rio Grande Project, the federal government found it necessary to negotiate with Mexico to settle longstanding differences regarding the delivery of water to that country. A treaty was signed on May 21, 1906, in which the irrigation developments under the Rio Grande Project were mentioned indicating an intent by our government to integrate the two developments. 5 The treaty called for the United States to deliver to Mexico a specified amount of

Page 90

[91 NM 400] water each month totaling 60,000 acre-feet per year.

The United States executed a contract with EBID on January 7, 1918. On January 17, 1920, a contract was entered into between the United States and the El Paso County Water Improvement District No. 1. By May 1, 1939, an interstate compact had been ratified and had become effective among the states of Colorado, New Mexico and Texas, whereby "causes of present and future controversy" would be removed. 6 The compact sets out in detail the amounts of water to be delivered by the upstream states and when it will be forthcoming.

EBID was organized by property owners on the lower Rio Grande in New Mexico to cooperate with the Bureau to provide irrigation for their lands. EBID negotiated numerous contracts over the years with the Bureau regarding the construction, operation and maintenance of the elaborate irrigation works and the details of furnishing water to the members. Unfortunately, the contracts that were in effect at the time of the decision of the trial court on EBID's motion in this case were not made a part of the record.

All of the acreage owned by Landowners is what EBID characterizes as suspended land, or land not to be irrigated. The undisputed evidence is that it would not be economically feasible for EBID to construct irrigation works that would deliver water to this property. EBID has made no effort since its inception to construct works to deliver water to the lands in question. However, these Landowners have paid a nominal "general assessment" which is charged against all suspended land in the district, with the exception of those tracts that consist of less than two acres. Landowners were not charged and never paid for any water used from the project, although all the other property owners who had contracted to join EBID were obligated to do so.

Landowners never made applications to EBID to have their lands become a part of the district, nor had they been granted water rights by the New Mexico State Engineer. Nevertheless, Landowners and their predecessors have been appropriating water by pumping in varying amounts from the Rio Grande at least since 1930. One of them may have had water rights prior to the time the Bureau gave notice to the State of the intent to appropriate all the unappropriated waters of the Rio Grande and its tributaries in 1908.

At least by July 3, 1933, the Board of Directors of EBID was aware that Landowners were pumping from the river although they had not signed water contracts in the manner prescribed by law. EBID on that date made it known to the Bureau that Landowners were appropriating the water without a contract and without paying for it. EBID requested that water be denied to those persons using it without a contract. After that, for over forty years, letters went back and forth between EBID and the Bureau, surveys were made of the unauthorized appropriations, letters were written to the appropriators demanding that they pay for the water and that they enter into contracts with EBID. However, there is no evidence in the record that either EBID or the Bureau made demands that the persons stop pumping water. Nothing of consequence was done to end what was called the "illegal appropriations."

In 1973 EBID notified the State Engineer of the details involving this situation. His investigation and subsequent actions gave rise to the filing of this declaratory judgment and damage action.

Indispensable Parties N.M.R.Civ.P. 19

Our present rule of procedure regarding joinder of parties, N.M.R.Civ.P. (§ 21-1-1(19), N.M.S.A.1953), was adopted in 1969. It provides in material part that "(a) person * * * shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest * * * and * * * the disposition of the action in his absence may (i) * * * impair or

Page 91

[91 NM 401] impede his ability to protect that interest * * * ."

Subsection (b) of the rule states in part: "If (such) a person * * * cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed * * * or * * * be dismissed, the absent person being thus regarded as indispensable." Thus deeming a party "indispensable" is a conclusion the court reaches after weighing various factors, some of which are mentioned in the remaining part of Rule 19(b). The obvious purpose behind the amended rule is to insure that courts reach decisions regarding indispensability only after a careful and thoughtful analysis as to whether it is feasible to proceed.

In Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968) the U.S. Supreme Court explained the same rule in the Federal Rules as follows:

To say that a court "must" dismiss in the absence of an indispensable party and that it "cannot proceed" without him puts the matter the wrong way around: a court does not know whether a particular person is "indispensable" until it has examined the situation to determine whether it can proceed without him.

Id. at 119, 88 S.Ct. at 743.

Whether a person is "indispensable," that is, whether a particular lawsuit must be dismissed in the absence of that person, can only be determined in the context of particular litigation. There is a large category, whose limits are not presently in question, of persons who, in the Rule's terminology, should be "joined if feasible," and who, in the older terminology, were called either necessary or indispensable parties. Assuming the...

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