Jicarilla Apache Tribe v. U.S., s. 80-1704

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Citation657 F.2d 1126
Docket Number80-1705 and 80-1759,Nos. 80-1704,s. 80-1704
PartiesJICARILLA APACHE TRIBE, Plaintiff-Appellee, v. UNITED STATES of America, Cecil Andrus, Secretary of the Interior of the United States of America, and City of Albuquerque, New Mexico, and State of New Mexico ex rel., Interstate Stream Commission, Intervenors-Appellants.
Decision Date29 July 1981

Martin Green, Dept. of Justice, Washington, D. C. (Richard A. Simms and V. Henry Rothschild, Sp. Asst. Attys. Gen., Santa Fe, N. M., for intervenor-appellant State of N. M., Malcolm W. deVesty and Barbara Stephenson, Asst. City Attys., Albuquerque, N. M., for intervenor-appellant City of Albuquerque, with him on the brief), for defendants-appellants and intervenors-appellants.

Robert J. Nordhaus and Lester K. Taylor, Nordhaus, Haltom & Taylor, Albuquerque, N. M., for plaintiff-appellee.

Before DOYLE and SEYMOUR, Circuit Judges, and BOHANON, District Judge *.

WILLIAM E. DOYLE, Circuit Judge.

This action was originally filed by the Jicarilla Apache Tribe in the year 1975. The object of the suit was to obtain a general adjudication of water rights on the Navajo River and its tributaries in the State of New Mexico. The tribe also sought an injunction prohibiting alleged illegal diversions on the Navajo River by the Secretary of the Interior pursuant to the San Juan-Chama Project Act, 43 U.S.C. 615 et seq. (1976).

In July 1977 the district court ordered the case dismissed for lack of jurisdiction on the basis that a water right adjudication of the entire San Juan River system, including the Navajo River, was already pending in state court. This court upheld the dismissal relative to the adjudication of water rights, but remanded the case for trial of the question of alleged illegal diversion from the Navajo. Jicarilla Apache Tribe v. United States, 601 F.2d 1116 (10th Cir.), cert. denied, 444 U.S. 995, 100 S.Ct. 530, 62 L.Ed.2d 426 (1979).

During the pendency of the mentioned appeal, the Bureau of Reclamation 1 signed an agreement with the City of Albuquerque under which the Bureau agreed to deliver all of the city's share of the San Juan-Chama Project water for storage in Elephant Butte Reservoir. Thereupon, the tribe amended its complaint and the action was changed to one in which the tribe sought a declaratory judgment that the agreement between the Bureau and the City was void and contrary to law. The City of Albuquerque and the State of New Mexico, ex rel. Interstate Stream Commission, were allowed to intervene.

At the second trial the issues were limited to the following:

(a) Whether storage by Albuquerque of San Juan-Chama water in Elephant Butte would constitute a beneficial use;

(b) Whether the agreement for storage by the City was authorized by Congress; and

(c) Whether the City was required to obtain a permit from the New Mexico State Engineer for such storage.

The trial court found for the defendants on the first issue, but for the plaintiffs on the second and third issues. The agreement was, therefore, declared invalid. The identical issues which were tried below are presented here on appeal by defendants.

The San Juan-Chama Project diverts water from the Navajo River in Colorado. The Navajo River flows from Colorado into New Mexico through the Jicarilla Reservation and back into Colorado to eventually join the San Juan River, a tributary of the Colorado River. Diverted water is carried through tunnels under the Continental Divide and proceeds into Heron Reservoir. This reservoir is located on a small tributary to the Rio Chama. The Rio Chama runs into the Rio Grande. Albuquerque is on the Rio Grande about 100 miles downstream from Heron Reservoir. Elephant Butte Reservoir is about 150 miles downstream from Albuquerque on the Rio Grande. Appended to this opinion is a map which was prepared by the parties.

Since 1907 New Mexico has been one of those states which have adopted the permit system of prior appropriation to determine priority for use of water. 72-1-1 to 72-13-12, NMSA (1978). On most New Mexico sources of water all the rights to use reliably available natural water have been acquired. This is true of the Rio Grande drainage system in the state.

Albuquerque is a rapidly growing metropolitan city which meets its inhabitants' water needs by pumping from wells in the Rio Grande River Basin. Because of the hydrologic connection of the alluvial aquifer, any lowering of the water table caused by Albuquerque's pumping has a direct, although delayed, effect on the surface and underground water downstream on the Rio Grande. The long range predictions as to the population growth of Albuquerque and its water requirements to meet the needs of such growth show that by the late 1980's or early 1990's the effect of ground water diversion by the City on the Rio Grande will exceed its presently vested rights in the natural water. These vested rights amount to 18,700 acre feet annually.

The anticipated shortage of water available to Rio Grande appropriators was realized at an early date. To meet their needs, Albuquerque, Rio Grande Valley irrigators and the State of New Mexico convinced Congress that a need existed to build a system for importing more water into the Rio Grande valley. In 1966 Congress authorized the San Juan-Chama Project for "municipal, domestic and industrial uses, and for providing recreation and fish and wildlife benefits." 43 U.S.C. 615 et seq. (1976).

The plan was carried out on a smaller scale than was originally planned. As its share, Albuquerque contracted to receive 17,700 acre feet of water per year through 1981 as measured at the outlet of Heron Reservoir, and 48,200 acre feet per year thereafter. As required by reclamation law, the contract contains a further provision that the City has to repay the federal government with interest, the portion of the project construction costs allocated to the City's water supply, along with annual operation and maintenance charges. This requires the City to pay fifty annual installments of approximately one million dollars each, regardless of whether the contract water is actually utilized by the City. This sizeable overhead shows why the City wishes to take advantage of any use that is available so as to help offset the costs. The City's position is found on page 8 of the July 8, 1970 Report to the City Commission from the Albuquerque Resources Committee:

It should be stressed that the city's obligations under the diversion contract begins (sic) in 1972, regardless of whether or not the city can use the water. Under terms of the contract no water will be distributed unless it is put to beneficial use on this side of the divide. Under no circumstances should the city's water be allowed to flow down the Colorado to be used in other states.

At the time of the trial of this case seven other entities had contracted with the Secretary of the Interior for San Juan-Chama water, but Albuquerque will eventually be the largest user.

Starting in 1982 Albuquerque will be authorized to put to beneficial use 48,200 acre feet of project water annually. The basic facts which were found at the trial and supported by the evidence are that the City will not need for municipal use its full 48,200 acre feet until the year 2025, but, of course, will need steadily increasing yearly amounts until then. By its own projection, based on the difference between its needs and the amount authorized, Albuquerque, in effect, will have 1,121,900 acre feet of "excess" water. It is not argued that the City, or a lessee of the City's right, may not take delivery if it can put the water to beneficial use. It is the delivery of this "excess" for the use which the City proposes which is in dispute.

One of the big disputes is that the provisions of the contract between Albuquerque and the government shows that Albuquerque plans to run the excess water, that which it cannot use, into Elephant Butte Reservoir. If this water remains stored with the annual excess added to storage for the 40 years until it is needed by the city population, 93% of all the water stored will be lost to evaporation. The City contends, however, that the stored water will be put to several beneficial uses: present sales to beneficial users; exchanges with other beneficial users for return when the City's needs surpass the 48,200 acre feet; enhancement of power generation; municipal use; recreation. The City further argues that each of the planned uses is authorized by the San Juan-Chama Project Act and the plans do not require approval of the New Mexico State Engineer. But for the finding that recreation is a beneficial use, the trial court ruled against the City in all regards. We must consider and evaluate these contentions.


It generally can be said that state law governs the distribution of water from federal projects unless Congress expresses a different approach. See California v. United States, 438 U.S. 645, 98 S.Ct. 2985, 57 L.Ed.2d 1018 (1978). 2 The Reclamation Act of 1902, 43 U.S.C. § 372 et seq. (1976), which is incorporated into the San Juan-Chama Project Act, 43 U.S.C. §§ 615 and 620c (1976), specifies that "beneficial use shall be the basis, the measure, and the limit of the right," to use the project water. The concept of beneficial use expressed in language similar to that of the Reclamation Act is contained in New Mexico's permit system of prior appropriation, N.M.Const. Act XVI § 3; 72-1-2 NMSA (1978), and the determination of beneficial use is a question of fact. State ex rel Reynolds v. Rio Rancho Estates, Inc., 95 N.M. 560, 624 P.2d 502 (1981). The state controls the use of water because it does not part with ownership; it only allows a usufructuary right to water. Holguin v. Elephant Butte Irrigation District, 91 N.M. 398, 575 P.2d 88 (1977); State ex rel Bliss v. Dority, 55 N.M. 12, 225 P.2d 1007 (1950), app. dismd. 341 U.S. 924, 71 S.Ct. 798, 95...

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