United States v. Bluewater-Toltec Irr. Dist., Civ. No. 82-1466BB

• Court: United States District Courts. 10th Circuit. District of New Mexico
• Citation: 580 F. Supp. 1434
• Docket Number: 83-1462BB and 83-1540BB.,Civ. No. 82-1466BB
• Parties: UNITED STATES of America, in its own right and for and on behalf of the Acoma and Laguna Indian Pueblos, Plaintiffs, v. BLUEWATER-TOLTEC IRRIGATION DISTRICT, et al., Defendants. KERR-McGEE CORPORATION, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants. CITY OF GRANTS, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
• Decision Date: 27 February 1984

580 F. Supp. 1434

UNITED STATES of America, in its own right and for and on behalf of the Acoma and Laguna Indian Pueblos, Plaintiffs,
v.
BLUEWATER-TOLTEC IRRIGATION DISTRICT, et al., Defendants.
KERR-McGEE CORPORATION, et al., Plaintiffs,
v.
UNITED STATES of America, et al., Defendants.
CITY OF GRANTS, et al., Plaintiffs,
v.
UNITED STATES of America, et al., Defendants.

Civ. Nos. 82-1466BB, 83-1462BB and 83-1540BB.

United States District Court, D. New Mexico.

February 27, 1984.

580 F. Supp. 1435

COPYRIGHT MATERIAL OMITTED

580 F. Supp. 1436

White, Koch, Kelly & McCarthy, P.A., Benjamin Phillips, Paul L. Bloom, Santa Fe, N.M., for plaintiffs in No. 83-1540BB

Peter C. Monson, Land and Natural Resources Div., Dept. of Justice, Washington, D.C., Herbert A. Becker, Asst. U.S. Atty., Albuquerque, N.M., for United States in Nos. 83-1540BB, 83-1462BB, 82-1466BB.

Stephenson, Carpenter, Crout & Olmstead, William P. Templeman, Santa Fe, N.M., for defendant UNC in No. 83-1540BB.

Campbell, Byrd & Black, P.A., Bruce D. Black, Santa Fe, N.M., Robert W. Micsak, Denver, Colo., for defendant Gulf Oil in No. 83-1540BB.

Mason & Rosebrough, P.A., James Jay Mason, Gallup, N.M., Hinkle, Cox, Eaton, Coffield & Hensley, Richard A. Simms, Santa Fe, N.M., for plaintiff Kerr-McGee, Atlantic Richfield & Fernandez Co. in No. 83-1462BB.

Peter White, State Engineers Office, Santa Fe, N.M., for defendant S.E. Reynolds in No. 83-1462BB.

Douglas Meiklejohn, Kevin V. Reilly, Asst. Attys. Gen., Santa Fe, N.M., for defendant State of N.M. in Nos. 83-1462BB, 83-1540BB.

Modrall, Sperling, Roehl, Harris & Sisk, P.A., Clifford K. Atkinson, Albuquerque, N.M., for Exxon in No. 83-1540BB.

Rodey, Dickason, Sloan, Akin & Robb, P.A., John D. Robb, Albuquerque, N.M., for defendant Sohio in No. 83-1540BB.

Kendall Fischer, Hugh W. Parry, Asst. Attys. Gen., New Mexico State Highway Dept., Santa Fe, N.M., for defendant N.M. State Game Com'n N.M. State Highway Com'n in No. 83-1540BB.

Montgomery & Andrews, P.A., John B. Draper, Santa Fe, N.M., for defendant El Paso Natural Gas in No. 83-1540BB.

MEMORANDUM OPINION

BALDOCK, District Judge.

These three suits involve the determination of water rights to the Rio San Jose which runs through McKinley, Cibola and Valencia Counties in New Mexico. N.M. State Hwy. Dep't and Commerce and Ind. Dep't, Travel Map of New Mexico. The Rio San Jose empties into the Rio Puerco in the southwest corner of the Isleta Indian Reservation. T.M. Pearce, New Mexico Place Names—A Geographical Dictionary 135 (1965). The river touches Grants and crosses the Acoma and Laguna Indian Reservations. Id.

The first suit, United States in its own right and for and on behalf of the Acoma and Laguna Indian Pueblos v. Bluewater-Toltec Irrigation District, et al., (hereinafter referred to as Bluewater-Toltec) was followed by Kerr-McGee Corp., et al. v. United States, et al. (hereinafter referred to as Kerr-McGee) and City of Grants, et al. v. United States, et al., (hereinafter referred to as City of Grants). A brief procedural history of these three suits is necessary before reaching the substantive issues of subject matter jurisdiction, federal removal and the choice between federal or state adjudication of water rights.

I. Procedural History

The first suit, Bluewater-Toltec, was filed on December 22, 1982, by the United States "in order to fulfill its trust responsibility to the tribes involved to preserve their rights from being barred by the lapse of the Statute of Limitations—28 U.S.C. § 2415; shortly thereafter Congress amended 28 U.S.C. § 2415 and extended the Statute of Limitations." Bluewater-Toltec,

580 F. Supp. 1437

Plaintiff's Memorandum in Support of Motion to File an Amended Complaint at 1. According to the complaint, the United States itself and on behalf of the Acoma and Laguna Indian Pueblos, sought a declaratory judgment as to the priority and quantity of the Pueblos' water rights as against the defendants. Bluewater-Toltec Complaint at ¶ 1. The United States also sought damages and a permanent injunction on a trespass theory against the defendants. Id. The complaint expressly stated that the action "does not seek a general stream adjudication to determine the full extent and measure of the Pueblos' rights to the use of the Rio San Jose, its tributaries, and underlying groundwater basin." Bluewater-Toltec Complaint at ¶ 1

Various defendants in Bluewater-Toltec then sought a more definite statement in accordance with F.R.Civ.P. 12(e). By minute order filed July 7, 1983, the court ordered the United States to file a more definite statement. Rather than filing a timely more definite statement, the United States filed a motion to amend the complaint to seek precisely what the original complaint said was not sought—a general adjudication of the Rio San Jose. The United States has yet to provide a more definite statement and the court has not granted its motion to amend its complaint.

Two groups of defendants named in Bluewater-Toltec then sought a general stream adjudication pursuant to § 72-4-17, N.M.Stat.Ann. (1978), in state court. The first of these actions, Kerr-McGee, was filed in the District Court of the Thirteenth Judicial District, Cibola County, on August 15, 1983. The second action, City of Grants, also was filed in the District Court of the Thirteenth Judicial District, Cibola County, but on September 19, 1983. Both actions were removed to federal court by the United States within a month after each was filed. 28 U.S.C. § 1446(b). Plaintiffs in both cases filed motions for remand. 28 U.S.C. § 1447(c).

There are numerous pending motions in all three of these actions. Many issues overlap, therefore, the court will address the issues of subject matter jurisdiction, removal jurisdiction and the proper forum for adjudication of water rights in the context of certain pending motions.

While it is clear that the court has jurisdiction to consider the original federal court action, Bluewater-Toltec, under 28 U.S.C. § 1345, both plaintiffs and defendant United States contest whether the court's jurisdiction is properly invoked in the state court actions that were removed. The state court actions seek an adjudication of the Rio San Jose stream system under New Mexico's "all embracing" procedure for the determination of water rights on a stream system. See El Paso & R.I. Ry. Co. v. Dist. Ct. of Fifth Judicial Dist., 36 N.M. 94, 8 P.2d 1064 (1931). This adjudication would be accomplished under chapter 72, N.M.Stat.Ann. (1978 & 1983 Supp.), and under 43 U.S.C. § 666, commonly known as the McCarran Amendment. The McCarran Amendment allows the United States to be sued in water rights adjudication matters. It operates as a waiver of sovereign immunity in either state or federal court. In re Green River Drainage Area, 147 F.Supp. 127 (D.Utah 1956).

Assuming that this court has jurisdiction over the state court actions, the parties contest whether the removal was proper in either action because all defendants did not join in the removal petitions. 28 U.S.C. § 1441 & 1446. Another key issue is whether this federal court should stay or dismiss the federal action in favor of the state court actions.

The court holds that the state court actions are sufficiently comprehensive to withstand the United States' motion to dismiss based on a failure to name all claimants and Indian sovereign immunity. There is a want of federal jurisdiction, however, over the removed actions. But even if removal jurisdiction could be sustained on a federal question theory, the removal of these state court actions would be defective because all defendants did not join in the removal petitions. After a review of this water litigation, the court concludes

580 F. Supp. 1438

that the federal action should be deferred in favor of a general adjudication of the Rio San Jose in state court

II. Subject Matter Jurisdiction

United States' Motions to Dismiss the Removed State Court Actions of Kerr-McGee and City of Grants

The United States wants the state court actions dismissed, after having removed them to federal court. Alternatively, the United States wants the state court actions consolidated with the federal court action, Bluewater-Toltec.

A. Sovereign Immunity and the Sufficiency of the State Water Rights Adjudication

As to dismissal, the United States maintains that neither federal nor state court could entertain the state court water rights adjudication suits because neither action is sufficiently comprehensive so as to come under the McCarran Amendment's waiver of sovereign immunity. The actions are not comprehensive enough because the plaintiffs have failed to name all the claimants, according to the United States. If neither federal or state court had jurisdiction, dismissal of the removed actions would be proper.

Section 72-4-17, N.M.Stat.Ann. (1978), requires that record claimants and all other claimants, so far as they can be ascertained, with reasonable diligence, shall be made parties to a general adjudication. Before a decree as provided in section 72-4-19, N.M.Stat.Ann. (1978), can be entered, known claimants must be impleaded. New Mexico ex rel. Reynolds v. Sharp, 66 N.M. 192, 196, 344 P.2d 943, 945 (1959). That is not to say, however, that all potential claimants must be made parties at the time the complaint is filed. In New Mexico ex rel. Reynolds v. Sharp, 66 N.M. 192, 194, 344 P.2d 943, 944 (1959), the New Mexico Supreme Court approved of adding parties as their identity became known, once the statutorily required hydrographic survey had been completed. 66 N.M. at 196, 344 P.2d at 945. This method complied with New Mexico's all embracing procedure for the adjudication of a stream system.

At this stage, either state court suit is adequate to constitute a general adjudication within the meaning of the McCarran Amendment. The United States Supreme Court has recognized New Mexico's "elaborate procedures for allocation of...