Miller v. Jennings

• Decision Date: 12 April 1957
• Docket Number: No. 16135.,16135.
• Citation: 243 F.2d 157
• Parties: Ronald MILLER et al., Appellants, v. Robert W. JENNINGS et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

243 F.2d 157 (1957)

Ronald MILLER et al., Appellants, v. Robert W. JENNINGS et al., Appellees.

No. 16135.

United States Court of Appeals Fifth Circuit.

April 12, 1957.

W. Morgan Hunter, Austin, Tex., Theodore Andress, El Paso, Tex. (Andress, Lipscomb, Peticolas & Fisk, El Paso, Tex., Powell, Wirtz, Rauhut & McGinnis, Austin, Tex., of counsel), for appellants.

Eugene T. Edwards, El Paso, Tex., William H. Veeder, David R. Warner, Alfred H. O. Boudreau, Jr., Dept. of Justice, Washington, D. C., Perry W. Morton, Asst. Atty. Gen., Wm. Monroe Kerr, Asst. U. S. Atty., Louis A. Scott, El Paso, Tex., Russell B. Wine, U. S. Atty., San Antonio, Tex., Holvey B. Williams, Asst. U. S. Atty., El Paso, Tex., for appellees.

Before HUTCHESON, Chief Judge, and CAMERON and JONES, Circuit Judges.

JONES, Circuit Judge.

Again this court has for decision another of the frequently recurring controversies resulting from the drouth in the watershed of the upper Rio Grande. The appellants, who were plaintiffs below, are Hudspeth County Conservation & Reclamation District No. 1, a municipal corporation under Texas law; and five individuals who are landowners and water users in the Hudspeth District, and who assert that they are members of and represent a class of about 90 other landowner water users in the District. They brought an action in the District Court of Hudspeth County, Texas, against Robert W. Jennings, Regional Director of the Bureau of Reclamation, W. F. Resch, Project Manager of the Rio Grande Reclamation Project; El Paso County Water Improvement District No. 1, a Texas municipal corporation lying northwesterly of and upstream from the Hudspeth District; N. B. Phillips, Manager of the El Paso District; eleven individuals resident in Texas who are the owners of land below the Elephant Butte Dam and above the El Paso-Hudspeth County line claiming irrigation rights in the waters of the Rio Grande and alleged to represent over a thousand others, some residents of Texas and some residing in New Mexico, who are of like situation; and against the United States.

The Rio Grande Reclamation Project, as appears from the record before us, is operated by the United States for the purpose of impounding and distributing the waters of the upper Rio Grande, primarily for irrigation purposes. The waters are impounded at Elephant Butte Dam in Elephant Butte Reservoir, about 125 miles north of and upstream from the City of El Paso. The waters are distributed through a series of ditches. Seepage and return flow waters are used and sometimes reused. The project serves an area extending from the dam and reservoir to or nearly to Fort Quitman, Texas, about 85 miles southeast of and downstream from El Paso. Nearly all the lands served or intended to be served by the Project are within the confines of an irrigation district, of which there are three in number. The farthest upstream of these is the Elephant Butte Irrigation District of New Mexico, lying wholly in New Mexico. The farthest downstream of the districts is the Hudspeth District, a plaintiff in this action, situated in Hudspeth County, Texas. Between these is the El Paso District, a defendant, situate in El Paso County, Texas.

The action, instituted in the District Court of Hudspeth County, Texas, was removed to the United States District Court for the Western District of Texas pursuant to 28 U.S.C.A. §§ 1441, 1442, 1446.

Seeking declaratory and injunctive relief, the plaintiffs by their petition assert that there are seven controversies between them and the defendants. The totality of the averments sets forth the plaintiffs' claim that they have rights to water of which they are being or will be deprived by or through acts and conduct of the defendants. Of these controversies the first is as to the effect of and priorities under the laws of Texas relating to appropriative water rights; the second relates to rights in drainage waters; the third raises the question as to whether methods of financing of facilities can affect water rights; the fourth and fifth call for construction of the Warren Act, 43 U.S.C.A. § 523 et seq.; the sixth asserts that the upper Rio Grande usually has a normal measurable flow to which riparian rights attach; and by the seventh it is contended that the consumption of water for generating electric power is an unlawful invasion of the rights of users of water for irrigation. Motions to dismiss were filed by all defendants and a number of grounds were assigned, among them being the ground that the United States had not consented to be sued nor in any way waived its sovereign immunity from suits of the character here involved. On this ground the motion was sustained and the plaintiffs' complaint was dismissed. The other grounds of the motions were not passed upon. Whether the district court erred in dismissing the complaint is the question presented to us on this appeal.

Substantially the same relief was sought by substantially the same plaintiffs in a suit against the Regional Director of Reclamation, the Project Manager, individuals as class representatives of land-owning water users and against El Paso County Water Improvement District ...