El Paso County Water Imp. Dist. No. 1 v. City of El Paso, Civ. A. No. 1409.

• Decision Date: 01 August 1955
• Docket Number: Civ. A. No. 1409.
• Citation: 133 F. Supp. 894
• Parties: EL PASO COUNTY WATER IMPROVEMENT DISTRICT NO. 1, L. D. McComas, Francis J. Warnock, J. S. Samples, Marion Briggs and W. L. Summers, together with the United States of America, Plaintiffs, v. CITY OF EL PASO, Defendant.
• Court: U.S. District Court — Western District of Texas

133 F. Supp. 894

EL PASO COUNTY WATER IMPROVEMENT DISTRICT NO. 1, L. D. McComas, Francis J. Warnock, J. S. Samples, Marion Briggs and W. L. Summers, together with the United States of America, Plaintiffs, v. CITY OF EL PASO, Defendant.

Civ. A. No. 1409.

United States District Court W. D. Texas, El Paso Division.

August 1, 1955.

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Burges, Scott, Rasberry & Hulse, El Paso, Tex., Edwards, Belk, Hunter & Kerr, El Paso, Tex., for plaintiff El Paso County Water Improvement District No. 1.

Russell B. Wine, U. S. Atty., San Antonio, Tex., Holvey Williams, Asst. U. S. Atty., El Paso, Tex., for plaintiff United States.

Hardie, Grambling, Sims & Feuille, El Paso, Tex., H. E. Brockmoller, El Paso, Tex., Guinn & Guinn, El Paso, Tex., for defendant City of El Paso.

DOOLEY, District Judge.

This suit primarily is a contest over the rights to the waters of the Rio Grande River in the vicinity of El Paso, Texas, but along with that are a cluster of satellite controversies. The frame of the principal dispute is that the plaintiffs, El Paso County Water Improvement District No. 1, a political subdivision of Texas, together with some individuals owning land in said district, and the United States of America, contend that the waters in question have been committed to the needs and uses of a federal reclamation development, lying partly in New Mexico and partly in Texas along the river, including the territory of plaintiff district, and known as "The Rio Grande Project", under senior appropriations made by the government in the Territory of New Mexico, and a senior appropriation in Texas assigned to the government, but the defendant City claims that it has a priority of some measure in such water as a riparian land owner, and also by appropriation rights under a permit issued by the Board of Water Engineers of Texas, as well as other ways. The ramification of details will be supplied later, as the opinion moves from one part to another of the law suit.

Rio Grande Waters

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 internatonal boundary. The physical aspects of the river, as it stretches through hundreds of miles of arid territory, make an environment quite unlike the rivers of humid climes and verdant lands such as England or the eastern seaboard of this country, where the doctrine of riparian water rights is dominant. The full strength common law riparian rule in a nutshell is, "the river runs, let it run on and on". The Rio Grande was not made for such a riparian law world. It has never been dependably navigable in fact on any general scale within the span of history, except to a limited extent in the lower reaches of the river. Obviously, by the order of nature, it was destined for use in irrigation of the valleys along its banks and it has been such a life line for hundreds of years. The Indians first and the Spaniards next began such use of the river. The acequias of the Spaniards go back to the 17th century. The community of Ysleta, a few miles south of El Paso, is among the oldest settlements of the kind.¹ The riparian rights principle has never been recognized in New Mexico and has been strictly modified in Texas, but appropriative water rights are in the law of both States. The clash between the two kinds of water rights and property, particularly in the western half of the United States, is familiar history, but more of such comparative water law later.

The Reclamation Act was approved June 17, 1902,² and in 1905 Congress authorized the Rio Grande Project.³ In 1906 the government, acting by a Supervising Engineer of the Reclamation Service in the Department of the Interior, in conformity with a statute of the Territory of New Mexico,⁴ filed a written claim to appropriate 730,000 acre-feet per year from the unappropriated waters of the Rio Grande at the later site of the Elephant Butte Dam, to serve the Rio Grande Project; and in 1908 similar notice of claim was filed by the government, but this time to take all of the unappropriated waters of the Rio Grande and its tributaries, for the same use above specified, in conformity with a later statute of the Territory of New Mexico.⁵

In 1880 some desultory correspondence in diplomatic channels began between the United States and Mexico over mutual grievances about the diversion and use of Rio Grande waters in the vicinity of El Paso, Texas, and Juarez, Mexico, and was renewed in 1894, growing more persistent all the time, until it was finally resolved by a Treaty, or Convention, between the United States and Mexico, of May 21, 1906.⁶

The planning of the Rio Grande Project, and the settlement of differences with Mexico went hand in hand. The integration of the Project and the Convention is manifest from the first two articles of the Treaty.⁷

The Congress appropriated funds for the construction of the Elephant Butte Dam, as the main unit, or facility, of the Project, in 1907, and thereafter the work progressed from stage to stage, taking a number of years, until completed. The total costs have been over $20,000,000.

The Legislature of Texas in 1913 enacted a comprehensive act⁸ regulating the water resources of Texas and providing for an administrative Board of Water Engineers. This statute made it necessary for holders of old water right appropriations under earlier laws to file a certificate thereof, as well as certain specified information, with the newly created Board of Water Engineers. In 1914, the United States, by its Project Manager of the Rio Grande Project, made such certified filing in compliance with said law in respect to the declaration of water appropriation filed by Loomis and others in 1889, and later acquired by the United States, (as again mentioned hereafter) but a reservation of all rights was inserted in said certified filing.⁹

The United States, as owner of the physical works and facilities of the water storage and irrigation system built and being built to serve the Rio Grande Project, and the El Paso County Water Improvement District No. 1, thereunto duly authorized, signed a contract dated January 17, 1920, covering improvements and irrigation service for District lands as a component part of said Project and, by the terms thereof, the said District became obligated to pay the United States a maximum of nearly $5,000,000 in reimbursement for its proper part of the construction costs for the works, facilities and irrigation system to be used in carrying on the functions of the Project, and previously a somewhat similar contract, dated January 7, 1918, had been executed between the United States and the Elephant Butte Irrigation District of New Mexico, and lands within that District were thereby made the other component part of said Project. A few months after the first contract mentioned, the said El Paso County Water Improvement District No. 1 was enlarged by consolidation with another district and thereafter the additional lands, coming from said consolidation, were also brought into said Project by agreement with the United States.

On March 18, 1938, the states of Colorado, New Mexico and Texas, by their duly appointed Commissioners, "desiring to remove all causes of present and future controversy among these states and between citizens of one of these states and citizens of another state with respect to the use of the waters of the Rio Grande above Fort Quitman, Texas," executed a compact, signed by said Commissioners respectively, and also signed for approval by the duly appointed representative of the United States. The compact was ratified by Colorado February 21, 1939,¹⁰ by New Mexico March 1, 1939,¹¹ and by Texas March 1, 1939,¹² and was approved by the United States May 31, 1939.¹³

Article I of the Compact enumerates several definitions and the ones presently most material are quoted in the margin.¹⁴

Article II designates stream gauging stations.

Article III defines the obligation of Colorado to deliver water at the Colorado-New Mexico state line.

Article IV defines the obligation of New Mexico to deliver water into the Elephant Butte Reservoir at San Marcial, New Mexico, (which is some 125 miles above the point where the river leaves New Mexico and becomes the International Boundary between the United States and Mexico.)

Article VIII has material bearing and is set out in the margin.¹⁵

Articles IX, X, XI, XII, XIII, XVI and XVIII are immaterial in this controversy, but the remaining two Articles, Articles XIV and XV, are pertinent and will be found in the foot note.¹⁶

An application by the City of El Paso, dated September 23, 1948, was filed with the Board of Water Engineers of Texas on November 1, 1948, for a permit to appropriate, store and divert 27,000 acre-feet of water per annum "of the unappropriated storm and flood waters of the State of Texas, and the unused return flow water of the Rio Grande Project of the Bureau of Reclamation of the Department of the Interior, for municipal and domestic use, from the Rio Grande in El Paso County, Texas."

It was proposed to impound 16,000 acre-feet per annum in a storage reservoir and to take the remaining 11,000 acre-feet per annum by direct diversion of return and flood waters without the use of storage. The City's plan, as outlined in said application, definitely relied upon making use of the American Dam, (located only about 100 feet upstream in the Rio Grande from the intersection of the International Boundary Line between the United States and Mexico with the river) and the American Irrigation Canal and the Franklin Canal, all property of the United States, although the City at that time had no authority or agreement from the United States...