U.S. v. City of Las Cruces

Decision Date07 May 2002
Docket NumberNo. 00-2459.,No. 00-2451.,No. 00-2473.,00-2451.,00-2459.,00-2473.
Citation289 F.3d 1170
PartiesUNITED STATES of America, Plaintiff-Counter-Defendant-Appellant, v. CITY OF LAS CRUCES; Hudspeth County Conservation and Reclamation District No. 1; City of El Paso; New Mexico State University; Stahmann Farms, a New Mexico corporation; State of New Mexico, ex rel. State Engineer, Defendants-Appellees, El Paso County Water Improvement District No. 1, Defendant-Counter-Claimant-Cross-Claimant, v. Elephant Butte Irrigation District of New Mexico, Defendant-Cross-Defendant-Appellee. State of Texas; Lower Valley Water District; Pueblo of Isleta Del Sur; State of Colorado; James Scott Boyd, Administrator of the Estate of Nathan Ellington Boyd, Intervenors. United States of America, Plaintiff-Counter-Defendant, v. City of Las Cruces; Hudspeth County Conservation and Reclamation District No. 1; New Mexico State University; Stahmann Farms, a New Mexico corporation; State of New Mexico, ex rel. State Engineer, Defendants-Appellees, El Paso County Water Improvement District No. 1, Defendant-Counter-Claimant-Cross-Claimant, and City of El Paso, Defendant-Appellant, v. Elephant Butte Irrigation District of New Mexico, Defendant-Cross-Defendant-Appellee. State of Texas; Lower Valley Water; Pueblo of Isleta Del Sur; State of Colorado; James Scott Boyd, Administrator of the Estate of Nathan Ellington Boyd, Intervenors. United States of America, Plaintiff-Counter-Defendant, v. City of Las Cruces; Hudspeth County Conservation and Reclamation District No. 1; City of El Paso; New Mexico State University; Stahmann Farms, a New Mexico corporation; State of New Mexico, ex rel. State Engineer, Defendants-Appellees, and El Paso County Water Improvement District No. 1, Defendant-Counter-Claimant-Cross-Claimant-Appellant, v. Elephant Butte Irrigation District of New Mexico, Defendant-Cross-Defendant-Appellee. State of Texas; Lower Valley Water; Pueblo of Isleta Del Sur; State of Colorado; James Scott Boyd, Administrator of the Estate of Nathan Ellington Boyd, Intervenors.
CourtU.S. Court of Appeals — Tenth Circuit

Andrew C. Mergen, Attorney, U.S. Department of Justice, Washington, D.C. (John Cruden, Acting Assistant Attorney General, Washington, D.C.; Jeffrey Dobbins, Attorney, U.S. Department of Justice, Washington, D.C.; Lynn Johnson, Attorney, U.S. Department of Justice, Washington, D.C.; John W. Zavitz, Assistant U.S. Attorney, Albuquerque, NM; Chris Rich, U.S. Department of the Interior, Salt Lake City, UT; with him on the briefs), for Plaintiff-Counter-Defendant-Appellant.

Jay F. Stein, James C. Brockmann, Stein & Brockmann, P.A., Santa Fe, NM, on the briefs for Defendant-Appellee City of Las Cruces.

Benjamin Phillips, Rebecca Dempsey, White, Koch, Kelly & McCarthy, P.A., Santa Fe, NM; Douglas G. Caroom, Delgado, Acosta & Bickerstaff, Heath, P.L.L.C., on the briefs for Defendant-Appellee City of El Paso.

Luis G. Stelzner, John W. Utton, Sheehan, Sheehan & Stelzner, P.A., Albuquerque, NM; Charles T. DuMars, Christina Bruff DuMars, Law & Resource Planning Assoc., Albuquerque, NM, on the briefs for Defendant-Appellee New Mexico State University.

Joel T. Newton, Miller, Stratvert & Torgerson, P.A., Las Cruces, NM, on the briefs for Defendant-Appellee Stahmann Farms.

Susanne Hoffman-Dooley (Gregory C. Ridgley, with her on the briefs), Santa Fe, NM, for Defendant-Appellee State of New Mexico, ex rel. State Engineer.

James M. Speer, Jr., El Paso, Texas, for Defendant-Counter-Claimant-Cross-Claimant-Appellant El Paso County Water Improvement District No. 1.

Beverly J. Singleman, Stephen A. Hubert, Las Cruces, NM, on the briefs for Defendant-Cross-Defendant-Appellee Elephant Butte Irrigation District of New Mexico.

Before BRISCOE, MURPHY, Circuit Judges, and OBERDORFER, District Judge.*

MURPHY, Circuit Judge.

I. INTRODUCTION

This is an appeal from the district court's order dismissing the United States' suit to quiet title to water rights in a portion of the Rio Grande River. The district court dismissed the suit under the Colorado River doctrine and, in the alternative, under the Brillhart doctrine. This court has jurisdiction under 28 U.S.C. § 1291 and holds that the district court did not abuse its discretion when it refused to exercise jurisdiction over the federal action pursuant to Brillhart. The district court, however, did not articulate why it decided to dismiss the action rather than stay it. For that reason alone, we vacate and remand, with instructions to consider the propriety of a stay.

II. FACTS
A. Background

This dispute centers around the Rio Grande Reclamation Project (the "Project"). In 1902, Congress passed the Reclamation Act. Act of June 17, 1902, ch. 1093, 32 Stat. 388 (1902) (codified as amended in scattered sections of 43 U.S.C. beginning at 43 U.S.C. § 371). The purpose of the Reclamation Act was to facilitate irrigation of arid and semi-arid western territories and states by providing for the construction of large-scale irrigation works. See Henkel v. United States, 237 U.S. 43, 49, 35 S.Ct. 536, 59 L.Ed. 831 (1915). The Project is one that grew out of the Act. It is expansive, running through New Mexico and Texas. The Project begins in the north at Elephant Butte Reservoir, near the town of Truth or Consequences, New Mexico. Just below Elephant Butte Reservoir is Caballo Reservoir. From the reservoirs, water is released into the Rio Grande riverbed. The water is then diverted by one of six diversion dams into canals running on either side of the river. From the canals, river-water is further diverted into channels and ditches running to farmland. The water is used to irrigate crops. Other channels and ditches return both run-off from the farmland and groundwater back to the Rio Grande. The process is repeated several times over the length of the Project to irrigate land in both southeastern New Mexico and western Texas.

Irrigation in the United States is not the sole use of Project water. The river runs through or near several towns and cities. At least one, El Paso, Texas, uses Project water to supplement its municipal water system. Project water is also used outside of the United States. Pursuant to a 1906 treaty with Mexico, the federal government is obligated to provide 60,000 acre-feet of water a year to Mexico.1 See Convention Between the United States and Mexico Providing for the Equitable Distribution of the Waters of the Rio Grande for Irrigation Purposes, May 21, 1906, U.S.Mex., 34 Stat. 2953 [hereinafter 1906 Treaty]. To fulfill its treaty obligations, the United States diverts Project water from the Rio Grande to Mexico at the International Diversion Dam, which is located approximately two miles northwest of El Paso.

Several legal regimes govern the use of Project water. The Rio Grande Compact is an agreement entered into by the states of Colorado, New Mexico, and Texas and ratified by the United States Congress in 1939. See Rio Grande Compact, 53 Stat. 785 (1939); reprinted at N.M. Stat. Ann. § 72-15-23 (1978). The Compact is an attempt to equitably apportion Rio Grande water among the three states. See id. pmbl.

State law governs the United States' acquisition of water rights. Federal reclamation law provides that the United States must act in accordance with state law to acquire title to water used in reclamation projects.2 See Reclamation Act § 8, 32 Stat. 390 (codified in part at 43 U.S.C. § 383); see also California v. United States, 438 U.S. 645, 665, 98 S.Ct. 2985, 57 L.Ed.2d 1018 (1978). The United States asserts in its complaint that it acquired title to all Project water by filing notices with the New Mexico Territorial Engineer in 1906 and again in 1908. Cf. N.M. Stat. Ann. § 72-5-1 (1978) (requiring any entity, including the United States, who intends to appropriate surface water to first apply for a permit from the State Engineer).

State law also governs the rights of individual water users in both New Mexico and Texas. In New Mexico, state law provides for a hierarchy of water users along a river such as the Rio Grande. Those who first appropriate water for beneficial use have rights superior to those who appropriate water later. See N.M. Const. art. XVI, § 2; Snow v. Abalos, 18 N.M. 681, 140 P. 1044, 1048 (1914) (affirming that New Mexico follows the "prior appropriation" doctrine). In years of drought or when the water level is otherwise low, those with priority use their appropriation as they wish; those with inferior rights may be left without. See Norman K. Johnson & Charles T. DuMars, A Survey of the Evolution of Western Water Law in Response to Changing Economic and Public Interest Demands, 29 Nat. Resources J. 347, 350 (1989) (describing the "first in time is first in right" characteristic of prior appropriation doctrine).

The hierarchy is established through a state proceeding called a "stream adjudication." See generally N.M. Stat. Ann. §§ 72-4-15 to -19 (1978). The State Engineer first prepares a hydrographic survey of the disputed stream. See N.M. Stat. Ann. §§ 72-4-13, -15, -17 (1978). Following completion of a portion of the survey, all water claimants in that portion are joined in the adjudication. Each claimant is served with a summons and complaint, to which an "offer of judgment" is attached. The offer consists of an amount of water that the offeree, a defendant in the litigation, will be entitled to use in a set time period; a priority date to determine where in the hierarchy the offeree stands; and other locational information. Those rejecting offers are given an opportunity to mediate or adjudicate their claims.

Texas has statutorily adopted a prior appropriation scheme. See Tex. Water Code Ann. §§ 11.022-.027 (Vernon, WESTLAW through 2001 Reg. Sess.); State v. Hidalgo County Water Control & Improvement Dist. No. 18, 443 S.W.2d 728, 737-38 (Tex.Civ.App.1969). The "first in time is first in right" principle is...

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