State of New Mexico v. Aamodt

• Decision Date: 11 August 1976
• Docket Number: 75--1106,Nos. 75--1069,s. 75--1069
• Citation: 537 F.2d 1102
• Parties: STATE OF NEW MEXICO, Plaintiff-Appellee, v. R. Lee AAMODT, et al., Defendants-Appellees, United States of America, et al., Intervenors and Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1102

537 F.2d 1102

STATE OF NEW MEXICO, Plaintiff-Appellee, v. R. Lee AAMODT, et al., Defendants-Appellees, United States of America, et al., Intervenors and Appellants.

Nos. 75--1069, 75--1106.

United States Court of Appeals, Tenth Circuit.

Argued Nov. 12, 1975.

Decided June 28, 1976.

Rehearing Denied Aug. 11, 1976.

Walter Kiechel, Jr., Deputy Asst. Atty. Gen., Washington, D.C. (Wallace H. Johnson, Asst. Atty. Gen., Washington, D.C., Victor R. Ortega, U.S. Atty., Albuquerque, N.M., and Kathryn A. Oberly and Charles N. Estes, Attys., Dept. of Justice, Washington, D.C., on the brief), for appellant U.S.

Philip R. Ashby and William C. Schaab, Albuquerque, N.M. (John D. Donnell, Zinn & Donnell, Santa Fe, N.M., Ashby, Rose & Sholer and Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, N.M., on the brief), for Pueblo appellants.

Paul L. Bloom, Sp. Asst. Atty. Gen., Santa Fe, N.M., for appellee State of N.M.

Neil C. Stillinger of Watson, Stillinger & Lunt, Santa Fe, N.M. (Sumner Buell of Montgomery, Federici, Andrews, Hannahs & Buell, Thomas B. Catron of Catron, Catron & Sawtell, G. Stanley Crout of Bigbee, Byrd, Carpenter & Crout, L. C. White of White, Koch, Kelly & McCarthy, Santa Fe, N.M., on the brief), for private landowner appellees.

James C. Thompson, Espanola, N.M., filed a brief for amicus curiae Bd. of Directors EL Llano Conservancy Dist.

L. Lamar Parish of Ussery, Burciago & Parrish, Albuquerque, N.M., filed a brief for amici curiae Pueblo of Isleta and the Pueblo of Sandia.

Before BREITENSTEIN, HILL and BARRETT, Circuit Judges.

BREITENSTEIN, Circuit Judge.

The basic issue before us is whether water uses by Pueblo Indians in New Mexico are controlled by state water law based on the doctrine of prior appropriation. The United States District Court for the District of New Mexico made an interlocutory order that the Indian uses were controlled by state law. On the petitions of the United States and the Indians we allowed an appeal in No. 75--1106 pursuant to 28 U.S.C. § 1292(b) and now reverse.

In 1966 New Mexico brought suit in accordance with its water adjudication statutes, Chap. 75, Art. 4, N.Mex.Stats.Ann 1953, for determination of rights to the use of water of the Nambe-Pojoaque River System. That system, lying entirely in New Mexico, is tributary to the Rio Grande. Substantially all of the drainage area is within the boundaries of the San Ildefonso, Pojoaque, Nambe, and Tesuque Pueblos. The United States, the four Pueblos, and about 1,000 others were named defendants. The United States, on its own behalf and on behalf of the Pueblos, intervened to remove any immunity problem and was aligned as plaintiff. No jurisdictional question is presented. The district court referred the case to a Special Master.

The United States intervened in its proprietary capacity as owner of the Santa Fe National Forest and in its fiduciary capacity as trustee or guardian for the Pueblos. The Commissioner of Indian Affairs determined that provision of private counsel for the Pueblos was the only practical means of protecting fully the rights of the Pueblos in the face of significant conflicts of interest between the Pueblos and the United States, the far-reaching importance of the suit, and the urgency of the situation. A contract for private legal counsel was approved by the delegate of the Secretary of the Interior and funds were provided by the Bureau of Indian Affairs.

On behalf of the Pueblos the private attorneys filed a complaint in intervention. The court, on its own motion, held that the private attorneys 'may not separately and independently represent the Pueblos which are already represented by government counsel', and struck the tendered complaint in intervention. No. 75--1069 is an appeal by the Pueblos from this order. The issues raised will be discussed later.

Historical background is important to an understanding of the controversy. When, in 1541--1543, the first Spanish Conquistadors invaded what is now known as New Mexico, they found numerous established Indian agricultural communities. Among those were the Pueblos with which we are concerned. The Kingdom of Spain ruled the area until 1821 when Mexico won independence. The Republic of Mexico held dominion until 1848 when, by the Treaty of Guadalupe Hidalgo, 9 Stat. 922, it ceded the the area to the United States. Articles VIII and IX of that treaty protect rights recognized by prior sovereigns. In 1851, Congress extended the provisions of the Indian Trade and Intercourse Act of 1834, 4 Stat. 729, to the Indians of the territory newly acquired from Mexico. See 9 Stat. 574, 587. The Act of 1834 prohibited settlement on lands belonging to Indian Tribes and provided that Indians could sell their lands only to the United States. The Pueblos' land titles had long been recognized by the Spanish and Mexican governments. In 1858, these titles were confirmed by Congress. 11 Stat. 374.

Efforts of federal officials to protect the Pueblos' property were frustrated by the New Mexico territorial courts, which held that the Pueblos were outside the protection of federal laws. See United States v. Lucero, 1 N.Mex. 422, 442. The rationale of the New Mexico court was upheld by the United States Supreme Court in United States v. Joseph, 94 U.S. 614, 24 L.Ed. 295.

The 1910 New Mexico Enabling Act, 36 Stat. 557, 558--559, specified that the term 'Indian country' includes 'all lands now owned or occupied by the Pueblo Indians' and that such lands are 'under the absolute jurisdiction and control of the Congress of the United States.' The constitutionality of this provision was upheld in United States v. Sandoval, 231 U.S. 28, 34 S.Ct. 1, 58 L.Ed. 107, which specifically overruled United States v. Joseph. Congress then had to consider the situation created by the activities of non-Indians in acquiring and occupying land within the Pueblos after acquisition of federal sovereignty. The Pueblo Lands Act of 1924, 43 Stat. 636, created the 'Pueblo Lands Board' and authorized it to investigate and determine the claims of both the Indians and non-Indians to Pueblo land. In 1933 Congress authorized payment of claims presented under the 1924 Act. 48 Stat. 108. The 1924 and 1933 Acts will be discussed in detail later.

In the arid southwestern states water scarcity presents a critical problem. Colorado River Water Conservancy District v. United States, --- U.S. ---, 96 S.Ct. 1236, 47 L.Ed.2d 483, 44 L.W. 4372, 4373 (1976). The New Mexico constitution, adopted in 1911, establishes the doctrine of prior appropriation to control the use of water. N.Mex.Const. Art. XVI, § 2. One acquires a right to water by diversion and application to a beneficial use. Priority of appropriation gives the better right. Ibid. Determination of water rights is made in suit brought by the State. N.Mex.Stats.Ann., 1953, §§ 75--4--4 through 75--4--8. The instant suit to determine rights to the use of the waters of the Nambe-Pojoaque System was brought by the State in federal district court.

New Mexico and the private parties joined as defendants assert that the rights of the Pueblos are governed by the state law of prior appropriation. The United States and the Indians say that (1) the Indians have a reserved right prior to that of all non-Indians and (2) the Indians have an aboriginal right derived from the laws of Spain and Mexico and recognized by the United States in the Treaty of Guadalupe Hidalgo. This controversy is presented in case No. 75--1106.

I.

We first consider procedural problems. No. 75--1069 is an appeal from the district court's denial of the right of the Pueblos to representation by private attorneys and its rejection of the complaint in intervention filed by them on behalf of the Pueblos. The State and the private defendants-appellees moved to dismiss the appeal because the notice of appeal was not signed by counsel for the United States but by private counsel who have no standing to represent the Pueblos.

Reliance is had on Waters v. Western Company of North America, 10 Cir., 436 F.2d 1072, which dismissed, as improvidently granted, an appeal from an interlocutory order. The court noted that the attorney filing the petition for review was not the sole counsel of record of the petitioner. Ibid. at 1073. The court recognized the ethical problem involved. Ibid. In Waters, the various counsel were not in agreement. In the instant case counsel for the United States have filed a memorandum opposing the motion to dismiss. Thus harmony rather than contrariety exists among counsel for the Pueblos and counsel for the United States. The orders under attack did not operate against the United States. It had no reason to appeal or to join in an appeal.

The State also asserts that the district court's orders denying representation by private counsel and dismissing the Pueblos' complaint in intervention are not final decisions appealable under 28 U.S.C. § 1291. Fullmer v. Harper, 10 Cir., 517 F.2d 20, 21, holds that the denial of a motion to disqualify counsel is a final decision within the meaning of § 1291. In that case a remand was ordered for the determination of facts because a serious ethical question was presented. No such complications are present in the instant case. Appealability under § 1291 does not depend on the grant or denial of a motion to disqualify. The grant of the motion is just as final as the denial thereof. The order is appealable under § 1291.

The denial of intervention is appealable if the applicant can intervene as a matter of right under Rule 24(a), F.R.Civ.P., or if the trial court abused its discretion in denying a permissive intervention under Rule 24(b). Degge v. City of Boulder, Colorado, 10 Cir., 336 F.2d 220, 221. The Pueblos claim an interest in the water which is the subject of the action and disposition may affect their ability to protect that interest. The claim that the Pueblos are adequately represented by government counsel is not...