State ex rel. Martinez v. Lewis

• Decision Date: 12 May 1993
• Docket Number: No. 11718,11718
• Citation: 116 N.M. 194,861 P.2d 235,1993 NMCA 63
• Parties: STATE of New Mexico, ex rel., Eluid MARTINEZ, State Engineer, and Pecos Valley Artesian Conservancy District, Plaintiffs-Appellees/Cross-Appellants, v. L.T. LEWIS, et al., Defendants-Appellees, v. UNITED STATES of America, Mescalero Apache Tribe, Defendants-Appellants/Cross-Appellees. STATE of New Mexico, ex rel., Eluid MARTINEZ, State Engineer, and Pecos Valley Artesian Conservancy District, Plaintiffs-Appellees, v. HAGERMAN CANAL CO., et al., Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 235

861 P.2d 235

116 N.M. 194

STATE of New Mexico, ex rel., Eluid MARTINEZ, State

Engineer, and Pecos Valley Artesian Conservancy

District, Plaintiffs-Appellees/Cross-Appellants, v. L.T. LEWIS, et al., Defendants-Appellees, v. UNITED STATES of America, Mescalero Apache Tribe,

Defendants-Appellants/Cross-Appellees.

STATE of New Mexico, ex rel., Eluid MARTINEZ, State

Engineer, and Pecos Valley Artesian Conservancy

District, Plaintiffs-Appellees, v. HAGERMAN CANAL CO., et al., Defendants-Appellees.

No. 11718.

Court of Appeals of New Mexico.

May 12, 1993.

Certiorari Denied Aug. 25, 1993.

[116 N.M. 196] Martha C. Franks, Sp. Asst. Atty. Gen., Santa Fe, for plaintiffs-appellees/cross-appellants State of N.M., ex rel., Eluid Martinez, State Engineer, and Pecos Valley Artesian Conservancy Dist.

Richard A. Simms, James C. Brockman, Simms & Stein, P.A., Neil C. Stillinger, Santa Fe, for defendant-appellee, Water Defense Ass'n.

Herbert A. Becker, Asst. U.S. Atty., Albuquerque, Blake A. Watson, Andrew C. Mergen, Appellate Section, U.S. Dept. of Justice, Washington, DC, for defendant-appellant/cross-appellee, U.S.

Leslie L. Seckler, Albuquerque, George Fettinger, Fettinger & Bloom, Alamogordo, for defendant-appellant/cross-appellee, Mescalero Apache Tribe.

OPINION

PICKARD, Judge.

This case is a continuation of the general adjudication of the Rio Hondo River system. It specifically involves the water rights of the Mescalero Apache Indian Reservation. See State ex rel. Reynolds v. Lewis, 88 N.M. 636, 637, 545 P.2d 1014, 1015 (1976) [hereinafter Lewis I ], in which our Supreme Court held that the McCarran Amendment, 43 U.S.C. § 666(a) (1970), granted state courts jurisdiction over the United States as owner, in a trust capacity, of the Indians' water rights when state courts are conducting general stream adjudications. The issues not addressed in Lewis I, i.e., the extent of the Mescalero Tribe's water rights and the measure by which they should be determined, were adjudicated by the court below. Specifically, that court ruled that the United States on behalf of the Tribe was entitled to a diversion of 2322.4 acre-feet per year with a priority date of no earlier than 1873, the date of the first executive order delineating the boundaries of the Mescalero Apache reservation.

In contrast, the United States and the Tribe contended that they were entitled to a diversion of 17,750.4 acre-feet per year with a priority date of time immemorial based on an aboriginal water right or, in the alternative, at least a priority date of 1852, based on a federally reserved water right, pursuant to the treaty between the Apache and the United States, in which the latter promised to establish a reservation for the former. The United States and the Tribe appeal.

For convenience, when we refer to Appellants or to the Tribe in its role as appellant, we intend to refer to both the United States and the Tribe. The Appellees are the State of New Mexico on the relation of the state engineer and various cities, villages, counties, acequia associations, and individual downstream land owners who are members of or represented by the Water Defense Association. Again for convenience, we will refer to them as Appellees or the Water Defense Association. In addition to the Tribe's appeal, the State has cross-appealed. We set out in some detail the issues on appeal and cross-appeal.

The Tribe's first issue is that it is entitled to a priority date of time immemorial for its water right based on its aboriginal title to the reservation and all things within it. The Tribe's second issue is that it is entitled to a priority date of 1852 based on the date of the treaty. The Tribe's third issue is that it is entitled to 15,428 acre-feet of water beyond what the trial court awarded it, because Indian water rights based on a federal reservation are to be measured by the standard of "practicably irrigable acreage" (PIA) and because Appellants proved they could practicably irrigate enough acreage to result in an additional diversion right of 15,428 acre-feet.

The State's cross-appeal raises two issues. First, the State challenges the trial court's decision to use a PIA analysis rather than an analysis that would afford the Tribe their minimal needs or a moderate living. However, the State indicates that its challenge to the use of the PIA standard need not be addressed if we affirm the trial court's ruling rejecting the Tribe's request for additional water rights under the PIA analysis. Second, the State contends that the trial court erred in failing to impose a consumptive use cap on the 2322.4 acre-feet of water awarded, which would result in the lowering of the award to 1224.7 acre-feet.

We first announce our ruling and, in doing so, summarily dispose of the Tribe's first issue and both issues on the State's cross-appeal. We next dispose of a miscellaneous matter involving a motion filed during the pendency of the appeal. We finally address the Tribe's second and third issues at length. We reverse the trial court's setting of the 1873 priority date and hold that the priority date should have been 1852, the date of the treaty. We affirm the trial court's PIA analysis.

At oral argument, the Tribe conceded that it was seeking no practical relief from its issue arguing for an aboriginal water right with a time-immemorial priority. Specifically, the Tribe conceded that it was not seeking any different or greater quantification by seeking an aboriginal right, and that the difference between a priority date of 1852 and an earlier priority date would afford no practical relief because the area was not settled by non-Indians until after 1852. Thus, an 1852 priority date would establish the Tribe as the most senior water right holder.

Because we will not issue advisory opinions, Behles v. New Mexico Pub. Serv. Comm'n (In re Timberon Water Co.), 114 N.M. 154, 162, 836 P.2d 73, 81 (1992), we do not address the Tribe's time-immemorial-priority issue or the State's quantification issue on cross-appeal. The Tribe's concession and our decision on its 1852-priority issue has made moot its time-immemorial-priority issue. Our decision on the Tribe's PIA issue has made moot the State's quantification issue. As for the State's consumptive-use-cap issue on cross-appeal, the State concedes that it did not raise this issue below until after the judgment was entered. Its request for findings and conclusions on the consumptive use cap at that time came too late to preserve this issue for appeal. See Hidalgo v. Cortese (In re Guardianship of Caffo), 69 N.M. 320, 323, 366 P.2d 848, 850 (1961); American Bank of Commerce v. United States Fidelity & Guar. Co., 85 N.M. 478, 513 P.2d 1260 (1973).

We deny the Tribe's motion to strike the statement of the real parties in interest and enjoin participation by non-parties. It is not clear to us what practical relief would be afforded by granting the motion, and the motion appears to us to be technical niggling. The briefs had already been filed at the time the motion was filed, the alignment of parties and the representation had already been fixed, and oral argument was had in this case with only the attorneys who had filed the briefs (or their substitutes) participating. We do not see what purpose would be served by granting the Tribe's motion.

PRIORITY DATE BASED ON TREATY OR EXECUTIVE ORDERS

The trial court ruled that the 1852 treaty was a "peace and amity" treaty that expressly did not designate a reservation of land. It found that numerous acts by federal government officials between 1852 and 1873 established that the 1852 treaty did not create the reservation. It found that the reservation was created by five executive orders, dated 1873, 1874, 1875, 1882, and 1883. The trial court found that the first three executive orders drew boundaries with the specific intent of excluding arable lands along the river valleys that had been settled by non-Indian farmers prior to 1873. The trial court found that the fourth order deleted some of the reservation land and returned it to the public domain either in response to non-Indian mining interests or because it was occupied by non-Indian settlers. Based on these findings, the trial court concluded that the 1852 treaty did not create the reservation and, accordingly, the treaty could not be used as the basis for a federally reserved water right. It also concluded that the series of executive orders did create the reservation and, therefore, formed the basis of the Tribe's water right such that the water right attributable to each sector of land would be prioritized from the date of the executive order that first withdrew that particular land for the reservation.

In Lewis I, our Supreme Court agreed with the Arizona v. California, 373 U.S. 546, 600, 83 S.Ct. 1468, 1497, 10 L.Ed.2d 542 (1963) [hereinafter Arizona v. California I ], description of federally reserved water rights originally outlined in Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908):

The Court in Winters concluded that the Government, when it created that Indian Reservation, intended to deal fairly with the Indians by reserving for them the waters without which their lands would have been useless.... We follow it now and agree that the United States did reserve the water rights for the Indians effective as of the time that Indian Reservations were created.

Lewis I, 88 N.M. at 639, 545 P.2d at 1017 (emphasis omitted and added). The question we must answer in this case is whether the trial court was correct in determining that the reservation was not created for the purpose of establishing a priority date for water rights at the time of the treaty. While this matter is not entirely free from doubt, we believe that the applicable rules of law support the conclusion that the trial court was incorrect in determining that the Tribe's water rights did not date from 1852.

In addition to reading...