State of New Mexico v. Backer

• Decision Date: 22 October 1952
• Docket Number: No. 4453.,4453.
• Citation: 199 F.2d 426
• Parties: STATE OF NEW MEXICO et al. v. BACKER et al.
• Court: U.S. Court of Appeals — Tenth Circuit

199 F.2d 426 (1952)

STATE OF NEW MEXICO et al. v. BACKER et al.

No. 4453.

United States Court of Appeals Tenth Circuit.

October 22, 1952.

Quincy D. Adams, Albuquerque, N. M. (Claron E. Waggoner, Socorro, N. M., on the brief), for appellants.

Fred W. Smith, Atty. Dept. of Justice, Washington, D. C. (Ralph J. Luttrell, Acting Asst. Atty. Gen., Maurice Sanchez, U. S. Atty., Albuquerque, N. M., and Roger P. Marquis, Atty. Dept. of Justice, Washington, D. C., on the brief), for appellees.

Before PHILLIPS, Chief Judge, and MURRAH and PICKETT, Circuit Judges.

PICKETT, Circuit Judge.

The State of New Mexico and the City of Truth or Consequences brought this action in the District Court of Sierra County New Mexico, against Labon Backer, acting construction engineer in charge of the Elephant Butte Dam and Reservoir, and certain employees of the United States Bureau of Reclamation, to restrain them from reducing the water level of the reservoir to a point which would destroy the fish in the reservoir and create a health menace to the people of the City of Truth or Consequences. The state court granted a temporary injunction as prayed for. Backer removed the action to the United States District Court for the District of New Mexico under the provisions of 28 U.S.C.A. § 1442. Upon motion, all of the defendants who were served were dismissed from the action except Backer. After a hearing, Backer moved to dismiss the action upon the grounds that the action was a suit against the United States and that the Secretary of the Interior was an indispensable party. By amendment, the Secretary of the Interior was made a party but was never legally served with process. The court dismissed the action upon the grounds that the Secretary of the Interior was an indispensable party.

In substance, the amended complaint alleges that Backer is an employee of the United States Bureau of Reclamation in charge of the Elephant Butte Dam and Reservoir in Sierra County, New Mexico; that the reservoir contains fish belonging to the State of New Mexico; that the reservoir has long been a fishing resort and place of recreation for citizens of New Mexico, particularly for the people of the City of Truth or Consequences, and is of great economic importance; that the reservoir has been drained to such a level that many of the fish have died and the value of the reservoir for recreational purposes has been impaired; and that further drainage is threatened which would cause more fish to die and create a health menace to the people of the City of Truth or Consequences from which irreparable damage would result. The prayer of the complaint was for temporary and permanent injunctions against further drainage. Pending final hearing the Federal District Court continued the temporary restraining order entered by the state court but made modifications which permitted the withdrawal of additional water for irrigation and power purposes. The last of these orders authorized the reduction of water in the reservoir to 15,000 acre feet provided no health menace developed as a result. The irrigation season was completed without further change.

The dam and reservoir is an integral part of the reclamation project known as the Rio Grande project which was undertaken and constructed by the United States under the provisions of the reclamation laws of the United States and the amendatory laws thereto, 32 Stat. 388, 43 U.S.C.A. § 371 et seq. The purpose of the project which could be accomplished only by the storage of water of the Rio Grande River, was to supply water to fulfill the obligations of a treaty entered into with the Republic of Mexico, Convention of May 21, 1906, 34 Stat. 2953, and to irrigate approximately 200,000 acres of arid land in New Mexico and Texas. The treaty with Mexico requires the United States to deliver to Mexico at a designated point 60,000 acre feet of water annually. The treaty also provides that if continued drouth caused a reduction in the use of water in the United States, the delivery requirements of the treaty would be reduced in the same proportion. Pursuant to the reclamation laws, the Secretary of the Interior appropriated all the unappropriated waters in the Rio Grande River and entered into contracts with irrigation districts in New Mexico and Texas which comprised the project lands. These contracts required delivery of the water as specified in the contracts. Thereafter the United States constructed plants on the project for the generation of electric power and the districts, in consideration of a reduction of project costs chargeable to them, conveyed to the United States all their right, title and interest in the use of the dam and other project works including the project water supply for the development of electricity. The United States had entered into numerous contracts for the sale of electric power which was developed on the project. The entire irrigation works, together with the power installations and transmission lines, were owned and operated by the United States. Backer was an officer of the United States in charge of all of the installations. There is no suggestion in the pleadings or the evidence that his duties were not those prescribed by the United States in conformity with valid statutes. Part of his duties was the release of water from the reservoir to meet the obligations of the United States for the supply of irrigation water and electricity, and to meet the treaty obligations of the United States with the Republic of Mexico. We have no doubt but that the enjoining of government officials in this case interferes with the management and control of property of the United States and raises questions of law and fact upon which the United States would have to be heard.

It is settled law that the United States cannot be sued without its consent. United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058; United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888; Moody v. Wickard, C.A.D.C., 78...