United States v. Martin, 5960.

• Decision Date: 01 July 1959
• Docket Number: No. 5960.,5960.
• Parties: UNITED STATES of America, Appellant, v. Earl MARTIN and De Berard Cattle Company, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

267 F.2d 764 (1959)

UNITED STATES of America, Appellant, v. Earl MARTIN and De Berard Cattle Company, Appellees.

No. 5960.

United States Court of Appeals Tenth Circuit.

May 27, 1959.

Rehearing Denied July 1, 1959.

COPYRIGHT MATERIAL OMITTED

William H. Veeder, Washington, D. C. (J. Lee Rankin, Perry W. Morton, Washington, D. C., Donald E. Kelley, Denver, Colo., Roger P. Marquis, Washington, D. C., H. Lawrence Hinkley, Denver, Colo., and Walter B. Ash, Washington, D. C., were with him on brief), for appellant.

Frank Delaney, Glenwood Springs, Colo., for appellees.

Before MURRAH, PICKETT and LEWIS, Circuit Judges.

MURRAH, Circuit Judge.

This is an appeal from an order of the trial court allowing appellees to jointly intervene, and from a judgment on De Berard Cattle Company's counterclaim, in this declaratory class action by the United States, for an adjudication of the respective rights of the affected parties, to the use of water of the Colorado River, arising out of the Colorado Big-Thompson diversion project.

This project had for its primary objective the diversion of the waters of the Colorado River from the Western Slope to the Eastern Slope of the Rockies for irrigation purposes, by means of a system of reservoirs, canals and a 13-mile transmountain tunnel. The initial funds for the project were appropriated by the Act of August 9, 1937, 50 Stat. 595, "for construction in accordance with the plan described in Senate Document Numbered 80, Seventy-fifth Congress." The Document, embodying the salient features of the project, was Congressional sanction for a conciliation of conflicting interests of affected water users on both sides of the Rockies. The project, as described in the Document, contemplated a change in the regimen of the Colorado River with consequent modification of vested water rights on the Western Slope. And, it accordingly provided for the construction of reservoirs to impound and hold surplus waters for the primary purpose: "(1) to preserve the vested and future rights in irrigation", and "(5) to maintain conditions of river flow for the benefit of domestic and sanitary uses of this water." To that end, Paragraph 5(j) of the Document pertinently provided for an "adequate system as determined by the Secretary of the Interior * * * for the irrigation of the lands in the vicinity of Kremmling, now irrigated by either natural or artificial means, and the installation made therefor shall be a part of this project. The rights to the use of water for the irrigation of these lands shall be considered to have a date of priority earlier than that of the rights to the use of water to be diverted through the works of this project to the Eastern Slope."

The Secretary of the Interior was charged with the responsibility of constructing and operating the project for the effectuation of the declared beneficial purposes. And, when the project was near completion, the United States brought this declaratory class action seeking a construction of the provisions of Document 80, and for an adjudication of the rights and liabilities of the affected parties thereunder, including the duties and responsibilities of the Secretary of the Interior to manage and operate the same. It was specifically alleged that by reason of its incorporation by reference in the appropriating act, Senate Document 80 had the force and effect of law and was therefore binding upon the Government and all those who now or hereafter use any of the water impounded and released from the Green Mountain Reservoir; that it was also "contractual in nature" and therefore binding on all parties; and that actual controversies exist concerning the priority rights and dates of the waters involved in the project, not only between water users on the Western Slope, but as between water users on the Western and Eastern Slopes as well.¹ The affected water users were alleged to fall into three distinct classes: first, those claiming rights in the Colorado River for domestic and irrigation purposes; second, generation of electricity; and third, industrial purposes.

The court was asked, inter alia, (1) to declare whether the United States was legally bound to maintain the project in conformity with the provisions of Senate Document 80, and if so, to adjudicate and determine the nature and extent of the liabilities, duties and obligations owing to the respective parties and classes of which they were representative; to settle all rights and interests between the respective parties as they may arise on the trial of the case, and to quiet the title of the United States and the respective parties to such adjudicated rights.

The appellees, De Berard Cattle Company, Earl Martin, and others not directly involved in this appeal, are the owners of ranch and meadow lands near the confluence of the Blue and Colorado Rivers, who have for many years depended upon the overflow of the River for natural irrigation of the meadow lands. In their motion to intervene, it was alleged that the controversies between the United States and these movants were in various particulars different from the controversy between it and other defendants; that the representation of the movants' interest by existing parties is or may be inadequate; that the movants would be bound by any judgment entered in the action; and furthermore common questions of law and fact inhere in the movants' answer and counterclaim and the main action. The answer and counterclaim specifically referred to the declared purpose of Senate Document 80 "to preserve the vested and future rights in irrigation", and "to maintain conditions of river flow for the benefit of domestic and sanitary uses of this water." Reference was also made to Subparagraph 5(j) of the Document relating to the rights of landowners like the intervenors, whose lands were irrigated by natural means, and the duty of the Secretary of the Interior to provide an adequate system for the irrigation of these lands. It was then alleged that the construction of a reservoir upstream from the intervenors' lands had diminished the seasonal overflow of the intervenors' lands, thus depriving them of their vested right to the irrigation of their meadow lands by natural means. It was alleged that the Secretary of the Interior had refused to provide an adequate system for the artificial irrigation of the lands, as a result of which De Berard Cattle Company was compelled to construct a dam and other works on Big Muddy Creek and other like works, which, when completed, would cost more than $5,000. Other items of damages were later claimed by amendment in the aggregate of $10,000 for which judgment was prayed.

After challenging the sufficiency of the counterclaim to state a claim on which relief could be granted, the United States moved to dismiss it as an unconsented suit against it, and as one wholly unrelated to the gravamen of the Government's suit. The court denied the motion to dismiss, allowed intervention and then entered judgment in the original action in accordance with stipulated facts, fully adjudicating the rights and duties of all the parties to the original action, but reserving the issues tendered by the counterclaim for future disposition.

On the trial of these issues, the court found that the intervenors Martin and De Berard Cattle Company had for many years owned lands which were irrigated by the natural overflow of the Colorado River and its tributaries, and were part of the lands for which the adequate system of irrigation was to be provided under Subparagraph 5(j) of Senate Document 80; that such Document was negotiated and designed to effect contractual relations between the United States and water users whose water rights would be affected by the operation of the project, unless precautionary measures were taken to prevent injury; that the vested interest of the intervenors in the natural overflow of the river had been greatly impaired by the impounding of the water in the reservoirs upstream; that the United States undertook and agreed in Document 80 to provide an adequate system of irrigation for the said lands, but had failed to do so. The court retained jurisdiction in order to give the Secretary of the Interior reasonable time in which to provide an adequate system of irrigation in lieu of the impairment of intervenors' water rights, and when the Government declined to take any further steps, the court then entered judgment in accordance with the findings of fact in favor of the intervenor, De Berard Cattle Company, in the sum of $10,000. No final judgment was entered for intervenor Martin, and he has moved to dismiss this appeal for that reason.

Denying that the intervention was authorized by Rule 24, F.R.Civ.P., 28 U.S.C.A., the United States emphasizes the difference in the character of the relief sought and adjudicated in the main action, and the relief sought by this counterclaim. The independence of the two actions is said to lie in the fact that in the main suit, the United States sought a determination of the priorities of the various claimed water rights and a construction of its duties and responsibilities under the requirements of Senate Document 80 relating to the release of the water under the system of irrigation, but not including the rights and duties of the Government and the class who, like the intervenors, claim overflow rights in the diverted water. In that regard, our attention is called to the intervenors' pleadings to the effect that the controversy between the Government and the intervenors is "in very essential particulars different from the controversy and dispute between plaintiff and any of the defendants in this case."

True, the declaratory class action failed to name any of the owners of the lands with overflow rights as parties defendant, or as members of a representative class. Indeed, the complaint astutely avoided any reference to overflow rights or to seek their adjudication in the main...