| Endangered Species |
RIO GRANDE SILVERY MINNOW |
Nos. 02-2254, 02-2255, 02-2267, 02-2295 & 02-2304 |
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
RIO GRANDE SILVERY MINNOW,
Hypognathous amartus; SOUTHWESTERN
WILLOW FLYCATCHER Empidonax trailii
extimus; DEFENDERS OF WILDLIFE;
FOREST GUARDIANS; NATIONAL
AUDUBON SOCIETY; NEW MEXICO
AUDUBON COUNCIL; SIERRA CLUB;
SOUTHWEST ENVIRONMENTAL CENTER,
Plaintiffs-Appellees
v. Nos. 02-2254, 02-2255,
02-2267, 02-2295 & 02-2304
JOHN W. KEYS, III, Commissioner, Bureau
of Reclamation; KENNETH MAXEY, Albuquerque
Area Manager, Bureau of Reclamation; BUREAU
OF RECLAMATION, an agency of the United States;
LT. GEN. ROBERT B. FLOWERS, Chief Engineer,
Army Corps of Engineers; LT. COL. DANA HURST,
Albuquerque District Engineer, Army Corps of
Engineers; UNITED STATES ARMY CORPS OF
ENGINEERS, an agency of the United States;
UNITED STATES OF AMERICA; GALE NORTON,
Secretary, Department of Interior; and FISH AND
WILDLIFE SERVICE, an agency of the United States,
Federal Defendants-Appellants,
MIDDLE RIO GRANDE CONSERVANCY DISTRICT; CITY
OF ALBUQUERQUE; RIO CHAMA ACEQUIA ASSOCIATION,
and THE STATE OF NEW MEXICO, ex rel. the New Mexico
Attorney General, the Office of the State Engineer and the
New Mexico Interstate Stream Commission,
Defendants-Intervenors-Appellants.
ORAL ARGUMENT IS REQUESTED
On Appeal from the United States District Court
for the District of New Mexico
The Honorable James Parker
No. CIV-99-1320-JP/RLP
NATIONAL WATER RESOURCES ASSOCIATION
AMICUS CURIAE BRIEF
HUBERT & HERNANDEZ, P.A.
Steven L. Hernandez
P.O. Drawer 2857
Las Cruces, NM 88004-2857
(505) 526-2101
Attorneys for National Water
Resources Association
TABLE OF CONTENTS
TABLE OF AUTHORITIES -ii-
I. PETITION FOR LEAVE TO FILE BRIEF AMICI CURIAE 1
II. INTEREST OF AMICI CURIAE 1
III. SUMMARY OF ARGUMENTS 5
IV. DISCUSSION 6
A. The District Court’s Order and Judgment Regarding
Discretion Have Severe Impacts on the Western States. 6
B. The BOR Does Not Own Water Rights in New Mexico
Projects and Therefore Has No Authority to Reallocate
Their Use. 15
1. Federal Law Defers to State Law in the Authorization
and Operation of Reclamation Projects. 15
2. Under New Mexico State Law, the United States is
Not the Owner of Project Water Rights. 18
3. The Lower Court Erroneously Failed to Distinguish
Between the Different Types of Contracts With the
United States for the Middle Rio Grande Project
and SJC Water and What Level of Discretion Should
be Given to the BOR Under Each One. 27
V. CONCLUSION 29
TABLE OF AUTHORITIES
CASES:
California v. United States, 438 U.S. 645 (1978) 16, 17
Colorado v. New Mexico, 459 U.S. 176 (1982) 4
Dept. of Ecology v. Acquavella, Cause No. 77-2-01484-5
(Wash. Superior Ct. in and for Yakima Co., filed Mar. 8, 1996) 23
Forest Guardians v. United States Department of the Interior
Bureau of Reclamation, CIV02-0749-JP LFG 27
Holguin v. Elephant Butte Irrigation District, 91 N.M. 398,
575 P.2d 88 (1977) 19?21, 23, 25
Ickes v. Fox, 300 U.S. 82 (1937) 25
Jicarilla Apache Tribe v. United States, 657 F.2d 1126 (1981) 26
Murphy v. Kerr, 296 F. 536 (D.N.M. 1923) 19
Natural Resources Defense Council v. Patterson, 791 F. Supp. 1425,
(E.D. Cal. 1992) 17
Nebraska v. Wyoming, 325 U.S. 589 (1945) 4, 21
Olsen v. H & B Properties, Inc., 118 N.M. 495, 882 P.2d 536,
(N.M. 1994) 22
Snow v. Abalos, 18 N.M. 681, 140 P. 1044 (1914) 19
State ex rel. State Game Commission v. Red River Valley Co.,
51 N.M. 207, 182 P.2d 421 (1947) 25
State ex. rel. Erickson v. McLean, 62 N.M. 264, 308 P.2d 983 (1957) 19
State of New Mexico ex rel. State Engineer, et al. v. L.T. Lewis, et al.,
Nos. 20294 and 22600 23, 24
State v. McLean, 62 N.M. 264, 308 P.2d 983 (1957) 22
United States v. Alpine Land & Reservoir Co., 697 F.2d 851
(9th Cir. 1983) 17
United States v. California State Water Resources Control Board,
694 F.2d 1171 (9th Cir. 1982) 17
Wilson v. Denver, 1998 NMSC 016, 961 P.2d 153 19
Wyoming v. Colorado, 259 U.S. 419 (1922) 4
CONSTITUTION:
N.M. Const. art. XVI, § 2; NMSA 1978, §72-1-1 (1907) 18
N.M. Const. art. XVI, § 3; NMSA 1978, § 72-1-2 18
STATUTES:
Colorado River Compact, 42 Stat. 171 (1921) 4
NMSA 1978 § 75-1-2 (1953) 21
NMSA 1978 §72-5-33 23
NMSA 1978, § 72-1-2 19, 25
Reclamation Act of 1902, ch. 1093, 32 Stat. 388 16
Republican River Compact, 57 Stat. 86 (1943) 4
Rio Grande River Compact, 53 Stat. 785 (1939) 4
South Platte River Compact, 44 Stat. 195 (1926) 4
Upper Colorado River Compact, 63 Stat. 31 (1949) 4
I. PETITION FOR LEAVE TO FILE BRIEF AMICI CURIAE
Pursuant to Fed. R. App. P. 29, the National Water Resources Association (NWRA) requests leave to file the accompanying brief as amicus curiae in support of the Defendants-Intervenors-Appellants. Consent for amicus participation was requested of all parties and was denied only by the Plaintiffs- Appellees.
II. INTEREST OF AMICI CURIAE
Amici curiae, the National Water Resources Association (NWRA), submits this brief in support of Defendants-Intervenors-Appellants State of New Mexico, the City of Albuquerque and the Middle Rio Grande Conservancy District.
NWRA is a voluntary organization of state water associations whose members include cities, towns, water conservation and conservancy districts, irrigation and reservoir companies, ditch companies, farmers, ranchers and others with an interest in the Endangered Species Act issues in the Reclamation states of the Western United States. Its members range from the Metropolitan Water District of Southern California, with a service area population in excess of 17 million, to Dirk Parkinson, a member of the Idaho Water Users Association and the owner of the McCormick Rowe Ditch in St. Anthony, Idaho, which is used to irrigate 240 acres of farmland. As described in greater detail below, NWRA members directly engage in, or are the recipients of water from, projects throughout the West that utilize native and transbasin waters. If these diversion and storage activities and the thousands of water users for each project were to lose a portion of their water due to the ruling of the court below, NWRA members would be unable to meet essential domestic, municipal, agricultural and industrial water demands. Many NWRA members depend upon transbasin water diversions both to meet municipal water supply requirements and to sustain, by virtue of water transport or wastewater discharge, riparian ecosystems that have developed in ephemeral or intermittent stream systems and are now dependent on the continued delivery of foreign or imported waters.
In the West, diversion of water in the spring as mountain snows melt, is transported through tunnels, canals, pipelines and natural stream systems to the place of need, and its subsequent storage in reservoirs until the time of use are all essential steps in meeting water supply requirements. According to the Upper Colorado River Commission, in the Upper Colorado River Basin alone there exists at least 36 transbasin diversions which remove approximately 700,000 acre feet per annum (a/f/a) of water from the basin of origin in any one year and transport it to the basin of receipt. Included within these diversions are the transbasin projects operated by the Northern Colorado Water Conservancy District, whose Colorado Big Thompson Project transports an average of 228,000 a/f/a to irrigate over 600,000 acres, the waterworks of the City of Colorado Springs, whose transbasin diversions in 2001 totaled approximately 75,000 a/f/a, representing almost 80% of the City’s total water supply, and the City of Denver’s Roberts and Moffat Tunnels, which convey in excess of 200,000 a/f/a for municipal use, thereby meeting 45% of the Denver municipal system demand. Other examples of transbasin diversions include the Provo River Project in Utah, which imports over 100,000 a/f/a for use in the Salt Lake City metropolitan area, the Westlands Water District in California where over two-thirds of the water used to irrigate 570,000 acres comes from transbasin deliveries, the Colorado River Aqueduct as operated by the Metropolitan Water District of Southern California and which can deliver 1.25 million a/f/a.
New Mexico’s San Juan Chama Project, which is directly affected by the district court’s decision, diverts from the San Juan River Basin to the Rio Grande River Basin, supplying water to Santa Fe, Albuquerque, and various Indian tribes.
Finally, it must be noted that a significant number of transbasin water diversions, including many of those noted above, occur on interstate stream systems, the waters of which have been allocated between the states by interstate compact or Supreme Court decree. Allowing the Bureau of Reclamation (BOR) discretion to take waters from any Project for Endangered Species Act purposes could hold significant future implications for such interstate allocation schemes. For example, under the Rio Grande Compact, waters in the Middle Rio Grande Valley eventually flow to make up New Mexico’s delivery obligation to Texas. The ability of New Mexico to deliver that water to Texas would necessarily be called into question by the deviation from historical releases. Such potential confrontations have tremendous public policy implications and need to be avoided at all costs.
III. SUMMARY OF ARGUMENTS
A. In today’s world, the ability to freely divert, transport, store and use water in accordance with state law and water allocations made thereunder is vital to the social and economic well-being of the West. This includes the ability to move water, utilizing pipelines, canals, ditches and natural stream systems from one river basin or sub-basin to another so as to meet municipal, agricultural and industrial water demands. The BOR does not have unfettered discretion to take water from these sources. The impact on Projects in New Mexico and the other western states could be catastrophic.
B. The Bureau of Reclamation (BOR) does not own water rights in New Mexico Projects and therefore has no authority to reallocate their use.
IV. DISCUSSION
A. The District Court’s Order and Judgment Regarding Discretion Have Severe Impacts on the Western States.
On September 22, 2000, the City of Santa Fe moved to intervene in this action in District Court which was denied on April 6, 2001. (Docs. 143 and 200). Judge Parker determined that Albuquerque adequately represented Santa Fe’s interests in the San Juan-Chama (SJC) Water. (Doc. No. 200). On September 23, 2002, the District Court entered its Memorandum Opinion and Findings of Fact and Conclusion of Law and Order and Partial Final Judgment (Doc. Nos. 445 and 446), ruling that SJC Water owned, in part, by the City and County of Santa Fe be released in order to meet flow requirements for the Silvery Minnow. The City of Santa Fe is filing an Amicus brief in this action and sets forth the consequences of losing its SJC Water under the discretionary standard applied by Judge Parker.
Santa Fe has a Water Contract with the United States Department of the Interior BOR under which the BOR is obligated to deliver to Santa Fe approximately 5,605 acre feet per year (“afy”) of water that is stored in Heron reservoir. In a non-drought year, Santa Fe’s demand for water is approximately 12,483 afy. Santa Fe’s Buckman wells supply approximately 5,200 afy of Santa Fe’s demand, which amount represents approximately 42% of Santa Fe’s average demand for water. For illustrative purposes, NWRA asked its members to provide the court with information on what a similar loss in water supply would mean to Projects in the 17 reclamation states. The results are most revealing.
ARIZONA
The Roosevelt Water Conservation District (RWCD) is a political subdivision of the state of Arizona, incorporated in 1924 as an irrigation and water conservation district. RWCD serves approximately 41,500 acres of land situated east of the Salt River Project (SRP). Based on their appropriations of surface water per a 1924 agreement between RWCD and SRP, they provide Salt and Verde River water for irrigation to approximately 3,500 urban, municipal, industrial, and agricultural customers. Additionally, they provide surface water for potable needs to the east valley cities of Mesa, Chandler, and Gilbert. Finally, the District, like many other state entities, has entered into water rights settlements and compacts with the Fort McDowell Indian Community, the Salt River Pima-Maricopa Indian Community, and the Gila River Indian Community (the “Settlements”). These Settlements are based on the delivery of an annual apportionment of RWCD’s surface water right to those respective municipalities and Indian communities. Each delivery agreement is based on an average of the long-term supply provided by the Salt and Verde River systems as stored in Roosevelt Lake for future delivery. The average long-term supply is based on a normal year for rainfall and a full or near-full capacity at the reservoir, inclusive of the capacity created under New Conservation space, constructed by the BOR.
The potential economic impacts of an artificial reduction in RWCD’s annual allotment are immediate, extreme, and prolonged for RWCD’s landowners and partners. In a normal year, RWCD would expect to receive approximately 35,000 a/f of Salt and Verde River water from SRP per the entitlement provided by the 1924 agreement; approximately 35% of their annual supply. Due to the ongoing drought, they are realizing a severely depleted supply. As such, the District has been forced to revert to more expensive groundwater pumping in order to meet their current customer needs and maintain their surface water obligations. An artificial reduction in the amount of water available from Roosevelt Lake, coupled with the recent drought, would seriously jeopardize the District’s economic future by forcing them to produce more costly groundwater, and potentially exposing RWCD to lengthy and costly litigation relating to RWCD’s obligations under Indian water rights settlements and their agreements with Mesa, Chandler, and Gilbert.
The water management effects of a reduction in this supply are severe as well. Arizona has developed a proud legacy of innovative and forward thinking water conservation measures. The Arizona Department of Water Resources was created in 1980 and tasked with providing the means necessary to reduce the state’s dependency on groundwater. However, the current drought has caused RWCD, like many others, to increase its groundwater pumping to meet the needs of its customers. Coupling the drought with a reduction in the operating capacity and flow at Roosevelt Lake would cause RWCD and others to produce groundwater in ever increasing amounts. Once again, they would be forced to become dependent on available groundwater supplies to meet the needs of their right holders, impacting the goal of the 1980 Arizona Ground-water Management Act, the current conservation requirements of the Arizona Department of Water Resources’ Third Management Plan, and the future Fourth and Fifth Management Plans. A decision of this magnitude would have the unfortunate result of sending this issue to the courts, causing many state agencies and municipalities in Arizona to expend funds better left to aiding the current financial crisis faced by the state and the nation as a whole.
IDAHO
A study done by the BOR was prepared several years ago, estimating the economic impacts of providing 1.427 maf from reservoirs in the Upper Snake River Basin for flow augmentation. This is about 20% of the eight maf storage capacity that the BOR has above Hells Canyon. To provide 1.427 maf on a reliable basis, between 600,000 and 800,000 acres (out of approximately 2 million surface irrigated and 4 million total irrigated acres) would have to be dried up. The annual, indirect economic impacts would be in the hundreds of millions of dollars. While this water would come from “willing sellers”, the numbers nevertheless demonstrate what would happen without the water supply. Fortunately, this plan has never been implemented.
NEW MEXICO
The San Juan Water Commission is a water commission is made up of three cities, nine rural water user associations in San Juan County, New Mexico, to assure the M&I water supply to more than 110,000 people. It is located in Northwestern New Mexico and serves the San Juan County, New Mexico area. The San Juan Water Commission is affected by the District Court’s decision directly and severely. Among the severe consequences of taking more water for the silvery minnow would be potential deprivation of water for their endangered minnow, the Colorado pikeminnow (formerly the Colorado squawfish) and the razorback sucker, that are native to the San Juan River. The SJC Project currently depletes approximately 108,000 a/f/y from the San Juan Basin for use in the Rio Grande Basin, and is subject to shortage sharing. However, the District Court’s ruling could mean that more water could be taken from the San Juan River; water that in short years would go to their endangered fish. This sets up the impossible situation of having endangered fish in two basins compete for the same scarce water. Also, the San Juan Basin Recovery Implementation Program (RIP), which has been ongoing for more than a decade, has brought a measure of stability and predictability to the economy of the arid San Juan River Basin. The District Court ruling puts this stability in question, and the economic effects could be disastrous. The RIP also makes possible the settlement of Winter’s water rights claims by three Indian tribes, the Jicarilla Apache Nation, the Ute Mountain Ute Indian Tribe, and the Southern Ute Indian Tribe, as well as the operation and completion of the Navajo Indian Irrigation Project (NIIP). Consequently, any changes could undermine and even unravel these existing settlement, and prevent any potential settlement of the Navajo Nation.
Within the San Juan Basin in New Mexico, there are two major federal reservoirs, built or under construction, Navajo Reservoir and Animas La Plata Project (ALP). A loss of 40% of the water supply for the NIIP would devastate an already struggling agriculture industry for improving the economic well being of the Navajo Nation, and likely breach their promise as a country to build this project to satisfy water claims. The ALP Project for New Mexico will provide a stable water supply during water short periods and, in the future, water for the growing demands. A loss of 40% of this supply in a year such as 2002 would mean a wet water shortage. Economically, they have lost, since 1956, more than three-quarters of a million dollars because of failure to develop the ALP supply, and could assume greater losses in the future. If we were to lose the 1998 monies, 40% of water supplies, ALP (M&I) New Mexico would lose an estimated $1,475,000, and NIIP would be estimated at $12,192,000. The estimated dollar values in 1998 were made from observations and actual water exchanges of $140 per acre-foot for water in urban areas and $60 in the agricultural sector. These values do not consider the economic activity losses that might occur.
NORTH DAKOTA
The Garrison Diversion Conservancy District, as the sponsor for the Garrison Diversion Project, has long struggled with the transbasin diversion issue. One of the central themes of the project is to divert water from areas of surplus to areas of need. The biggest source of water in North Dakota is the Missouri River (representing 95% of the surface water). Diversions to the arid regions of the state within the basin have already been accomplished, but much remains to be done. One diversion from the Missouri Basin to the Hudson Bay is under construction. The Northwest Area Water Supply project, funded as a unit of the Garrison Project, will deliver Missouri River water from Lake Sakakawea to Minot and the surrounding communities for municipal, rural and industrial use.
Another part of the Project seeks to evaluate alternative ways to meet water shortages in the eastern part of the state. This region known as the Red River Valley is the most populated and economically prosperous region of the state. The most popular alternative way to meet the need would involve diversion of Missouri River water to the region utilizing existing canals and buried pipelines. If transbasin diversions are subject to taking for Endangered Species Act purposes for use in the move to location, the result would be devastating to North Dakota.
CALIFORNIA
The California Urban Water Agencies (CWUA) authorized Spectrum Economics, Inc., to conduct a survey of industrial plants in California in relation to water shortages. Targeted industries were those most affected by water policy, whose activities have the greatest impact on the health of the California economy: high volume water using industries with a large employment base. The surveyed industries shipped products valued at $127 billion in 1990. The survey’s purpose was to determine industrial water use patterns, the extend of adopted conservation and the potential for plant production losses and employment reductions associated with hypothetical 15% summer-seasonal and 30% year-long reductions in water supplies. The study completed in October 1991 estimated the impacts that shortages in water supplies of 15% and 30% would have on manufacturing industries. For a 30% one-year shortage in water supplies, the study estimated that output from the manufacturing industries statewide would be reduced by about $12 billion, keyed to 1990 value shipments. The study estimated that direct employment losses would be 46,000 lay-offs for the same 30% water shortage.
The Tehama-Colusa Canal Authority operates the northern portion of the Central Valley Project (CVP). Current CVP water under contract by the 17 districts is 318,700 afy. A 40% reduction of water supply would be a loss of 127,4809 afy. Most of the 17 districts have little or no usable groundwater resources so any curtailment in supply has an immediate effect on crops grown in any year. Using an applied water requirement of 3 afy, a 40% reduction in supply would mean approximately 40,000 acres would not be planted and all corresponding economic impacts such as loss of revenues, taxes, wages for farmworkers and secondary community business losses would result. Needless to say, the economic impacts to the poorer counties in Northern California would be extremely serious. One should also note that under Reclamation’s current pricing policies, Reclamation’s rate for the remaining 60% of the water would almost double.
B. The BOR Does Not Own Water Rights in New Mexico Projects and Therefore Has No Authority to Reallocate Their Use.
1. Federal Law Defers to State Law in the Authorization and Operation of Reclamation Projects.
The Reclamation Act of 1902 provides the statutory authority for the federal government to undertake federal reclamation projects. The Act was based on cooperation between the federal and state governments. See California v. United States, 438 U.S. 645, 650 (1978). Particularly reflective of this cooperative effort is Section 8 of the Act, which provides great deference to state water law in the implementation of reclamation projects. Id.
The United States Supreme Court set the parameters for evaluating ownership and control issues in federal water projects in California v. United States. The Court recognized that state water law plays a controlling role in the administration of water projects under the Reclamation Act of 1902. "The history of the relationship between the Federal Government and the States in the reclamation of the arid lands of the Western States is both long and involved, but through it runs the consistent thread of purposeful and continued deference to state water law by Congress. See id. Section 8 of the Act provides that state water law controls in the appropriation and later distribution of water. See id. at 664-67. In interpreting Section 8, the United States Supreme Court has formulated a rule that provides the cornerstone of federal-state relations in water management activities. The Court held in California that, under the clear language of Section 8 and its legislative history, a state may impose conditions on the "control, appropriation, use or distribution of water" in a federal project that is not inconsistent with the clear congressional directives respecting the project. See id. at 664-67. Since California, the federal courts have consistently deferred to state law in federal project water management issues where the state law is not inconsistent with a clear congressional directive. See United States v. California State Water Resources Control Board, 694 F.2d 1171, 1176-77 (9th Cir. 1982) (a state statute dose not conflict with a congressional directive unless it is an obstacle to accomplishing the purposes and objectives of Congress); United States v. Alpine Land & Reservoir Co., 697 F.2d 851, 857 (9th Cir. 1983) (rejecting Reclamation's contention that it should approve changes of purpose of use of project water rather than the State Engineer); Natural Resources Defense Council v. Patterson, 791 F. Supp. 1425, 1431-32 (E.D. Cal. 1992) (the Secretary is subject to state laws in operating dams when such operation affects water distribution and use).
It is against this backdrop of federal deference to state law that federal authority over federal water projects must be evaluated. State law applies to the control, appropriation, use, and distribution of water in federal projects to the extent that it is not inconsistent with clear congressional directive. Thus, unless the Reclamation Act of 1902 expressly provides otherwise, New Mexico law is controlling.
2. Under New Mexico State Law, the United States is Not the Owner of Project Water Rights.
New Mexico water law is based on the doctrine of prior appropriation and application to beneficial use. Under this doctrine and in accordance with New Mexico law, all natural waters in the streams and watercourses of New Mexico belong to the public. See N.M. Const. art. XVI, § 2; NMSA 1978, §72-1-1 (1907). However, these waters are subject to appropriation by persons for application to a beneficial use. Id. The amount of water that a person has applied to beneficial use determines his future right to the use of the waters of the State. As stated by New Mexico law, "Beneficial use shall be the basis, the measure and the limit of the right to the use of water." N.M. Const. art. XVI, § 3; NMSA 1978, § 72-1-2.
The courts have explained these constitutional and statutory rights to water in New Mexico. Water belongs to the State, which authorizes its use. There is no ownership in the corpus of the water, but water may be appropriated for beneficial use. See Murphy v. Kerr, 296 F. 536, 540 (D.N.M. 1923); State ex. rel. Erickson v. McLean, 62 N.M. 264, 271, 308 P.2d 983 (1957); Snow v. Abalos, 18 N.M. 681, 693, 140 P. 1044 (1914). New Mexico law recognizes a property right in the use of water, known as a usufructuary right or the water right. The ownership of water rights in this State is entirely dependent on the amount of water put to beneficial use. See Wilson v. Denver, 1998 NMSC 016, 961 P.2d 153.
Water appropriated for irrigation is appurtenant to the land owned by the person having the right to use the water, except as otherwise provided by contract between the landowner and the owner of the ditch, reservoir, or other works for conveyance or storage of the water. See NMSA 1978, § 72-1-2.
The New Mexico Supreme Court has explained, on several occasions, the nature of water ownership in the situation where the water is delivered by an entity such as the BOR, a ditch association, or a conservancy district. The Court has consistently held in such situations that the water belongs to the state or to the public and the right to use the water belongs to the beneficial users.
The New Mexico Supreme Court addressed ownership of water delivered by Reclamation in the lower Rio Grande in Holguin v. Elephant Butte Irrigation District, 91 N.M. 398, 575 P.2d 88 (1977). In Holguin, landowners brought suit for declaratory judgment to establish their water rights on land located within the Elephant Butte Irrigation District (EBID). Id. at 398. The landowners also claimed damages for EBID's failure to supply them with water. Id. at 399. The lands in question were not irrigated by EBID; rather, the landowners had been pumping water from the Rio Grande since 1930. Id. at 400. EBID moved to dismiss for failure to name the United States as an indispensable party based on several different grounds. One ground posited by EBID was that the United States owned the water and must be a party to the suit but had not consented to being sued. Id. at 401. The Supreme Court rejected this argument, holding that the United States does not own the water in federal water projects; the water belongs to the state and the right to beneficial use belongs to the landowners. Id. at 401-02. The Court rejected the argument that the United States was indispensable based on a claim of federal ownership of water. However, the Court affirmed the trial court's granting of the motion to dismiss for failure to join the United States as an indispensable party because of the United States' water-delivery obligations under the Rio Grande Project and the Treaty with Mexico that might be disrupted by validating the landowners' unauthorized appropriations of water. Id. at 403.
The Court relied on state and federal law in reaching its conclusion. The Court reasoned that the Reclamation Act declared that irrigation water is appurtenant to the land which is being irrigated and "beneficial use shall be the basis, the measure, and the limit of the right." Id. at 401. The same language that beneficial use is the basis, the measure, and the limit of a water right is embodied in the New Mexico Constitution in Article XVI, Section 3, in NMSA 1978, Section 75-1-2 , and in Section 8 of the Reclamation Act of 1902. The water was not appropriated for the use of the government but for the use of the landowners. The government was only a carrier or a trustee for the owners. Id. at 401. The Court stated that the property right in water is separate and distinct from the property right in the reservoirs, ditches or canals. The water right is appurtenant to the land, the owner of which is the appropriator. The water right is acquired by perfecting an appropriation, i.e. by an actual diversion followed by an application within a reasonable time of the water to a beneficial use. Id. at 402, citing Nebraska v. Wyoming, 325 U.S. 589, 614 (1945).
Finally, the Court in Holguin cited New Mexico precedent that holds that water is appurtenant to the land and entities such as conservancy districts only store and deliver the water to the users. Id. at 402, citing Middle Rio Grande Water User's Association v. Middle Rio Grande Conservancy District, 57 N.M. 287, 258 P.2d 391 (1953). Also, the water belongs to the state that authorizes its use, and the use may be acquired but there is no ownership in the corpus of the water. Id. at 402, citing State v. McLean, 62 N.M. 264, 308 P.2d 983 (1957). Thus, the Court concluded that the United States was not an indispensable party based on water ownership because the United states had no ownership rights to the water. Id.
New Mexico cases have long recognized that ditch rights and water rights are distinct, are derived from different sources, and are governed by different rules of law. . . . water rights are derived from appropriation for beneficial use while ditch rights are derived from ownership of the ditch and an easement therein. . . . The physical structure of the ditch is real property, owned by the community who built it . . . The right of way for water flow through the irrigation ditch, as distinguished from ownership of the ditch itself, is an easement.
Olsen v. H & B Properties, Inc., 118 N.M. 495, 498, 882 P.2d 536, 539 (N.M. 1994). Finally, in the case of conservancy districts, the Court's reasoning is the same. Water rights are appurtenant to the land and conservancy districts only store and deliver water to the users. See Middle Rio Grande Water User's Ass'n v. Middle Rio Grande Conservancy Dist., 57 N.M. 287, 299-300, 258 P.2d 391 (1953).
The Fifth Judicial District of New Mexico has recently addressed the water right ownership question for a BOR Project as a threshold issue in the ongoing adjudication of the Pecos River Stream System in State of New Mexico ex rel. State Engineer, et al. v. L.T. Lewis, et al., Nos. 20294 and 22600. This adjudication involves the BOR Carlsbad Project which derives its water from the Pecos River Stream System and through a system of storage reservoirs deliver water to 25,055 acres within the Carlsbad Irrigation District (CID). Water rights were claimed by landowners within the CID and by the United States. The United States claimed water rights ownership by a 1905 deed conveyance from the predecessor to CID (Pecos Irrigation District) and by appropriating rights under NMSA 1978 §72-5-33. The threshold issue before the Fifth Judicial District was whether project water rights were rights of the United States or rights of the irrigation members. Relying primarily on Dept. of Ecology v. Acquavella, Cause No. 77-2-01484-5 (Wash. Superior Ct. in and for Yakima Co., filed Mar. 8, 1996) and Holguin, the New Mexico court found that "the beneficial ownership of Project water rights is vested in landowners in the Project measured by the amount of water devoted to beneficial use. Ownership of water rights in the Project are appurtenant to land in the Project upon which they are devoted to beneficial use. Project water rights are not owned by the United States or the CID." Opinion Re Threshold Legal Issue No. 3, at 26-27, Nov. 3, 1997, Lewis.
It is important to note that, while finding that the United States had no interest in "water rights," the court did find that the United States and the CID have certain ownership rights and interests in the physical works and in diverting and storing water. Decision and Orders Re United States' Motion for Reconsideration and Clarification and Clarification of Court's Decisions and Orders Re Threshold Legal Issue No. 3 or for Entry of Judgment Pursuant to Rule 54(c), at 6-7 (March 19, 1998) [hereinafter referred to as “Reconsideration”] The court characterized these governmental rights and interests as the authority to divert and appropriate water for the use and benefit of landowners pursuant to the Reclamation Act, and the right and interest in storage and distribution of Project water to accomplish project purposes. The court stated that the "rights, interests, duties and obligations of the parties in connection with dams, reservoirs, storage and distribution facilities, and of the landowners to receive water therefrom are set forth in the agreements among the respective parties and New Mexico statutes pertaining thereto."Opinion RE Threshold Legal Issue No. 3, at 27. In its Reconsideration of the issue, the court left open the determination of what the government's precise ownership rights and interests were; however, the court was clear in determining that the government's rights were not water rights. See Reconsideration, at 6-7. Thus, the court followed long-established New Mexico law that vests water rights in the landowners who apply the water to beneficial use.
In the case of federal water projects, the federal government appropriates water for the users, not for its own benefit or profit. Thus, in federal water projects, the rule from Holguin is controlling: the water rights belong to the landowner who applies the water to beneficial use.
There is substantial authority for the proposition that the mere impoundment and storage of water does not establish ownership. The New Mexico Supreme Court has held that water impounded behind a dam remains waters of the public until applied to beneficial use. State ex rel. State Game Commission v. Red River Valley Co., 51 N.M. 207, 213, 224, 182 P.2d 421 (1947) (water flowing in streams remains public water even after artificial impoundment by the Army Corps of Engineers until diverted and applied to a beneficial use). The Tenth Circuit Court of Appeals similarly found, based on New Mexico law, that storage of water in and of itself, even though destined for eventual resale, power generation, or municipal use, does not constitute a beneficial use under New Mexico law. See Jicarilla Apache Tribe v. United States, 657 F.2d 1126, 1137-38 (1981). Without beneficial use, there can be no ownership right. See N.M. Const. art. XVI, § 3; NMSA 1978 §72-1-2 (beneficial use is the basis, the measure, and the limit of the right to the use of water).
In sum, under New Mexico law, the public owns the natural waters of the state. Persons may appropriate this water for beneficial use, thereby establishing a usufructuary right to the use of the water, which is called a water right. This water right is a property right belonging to the persons who apply the water to beneficial use. In New Mexico, entities such as irrigation districts, conservancy districts, and the U.S. BOR are merely carriers and deliverers of water, agents for the water users. The rights to water that the federal government appropriates for its projects are appropriated for the beneficiaries. The rights to such water are appurtenant to project lands and the rights belong to the beneficiaries who applies the water to beneficial use.
3. The Lower Court Erroneously Failed to Distinguish Between the Different Types of Contracts with the United States for the Middle Rio Grande Project and SJC Water and What Level of Discretion Should be Given to the BOR Under Each One.
The briefs of Defendant-Intervenor-Appellants indicate the very different nature of the types of contracts that the United States has in each project and even among each contractor for SJC water. As argued by MRGCD, they do not believe their district involves a contract dealing with Project water. Even the contracts among the SJC parties vary. Santa Fe’s contract is not the same as the City of Albuquerque yet they were denied intervention status to protect their water supply. The court completely ignored the different contractual provisions that apply in each circumstance.
Plaintiffs Forest Guardians are now asking Judge Parker to apply the new discretion standard in another stream system in New Mexico involving the Pecos Bluntnose Shiner. See Forest Guardians v. United States Department of the Interior Bureau of Reclamation, CIV02-0749-JP LFG. The Carlsbad Project which delivers water to the CID is the object of the litigation. Based on the District Court’s ruling, the contractual relationship between the CID and the BOR would be irrelevant. This illustrates an alarming aspect of the District Court’s decision.
Pre-1939 reclamation projects were for the sole purpose of impounding of waters for irrigation. How can the court dismiss evaluating each contract to see what the exact nature of the discretion may be if any? Certainly with pre?1939 single purpose projects, there is no discretion by the BOR to change the purpose of use of an irrigation project for other uses and this cannot be done without going through the state permitting system to change the purpose of use that is on file with the Office of the State Engineer. As argued above, the initial ruling in the Pecos Stream Adjudication is that the United States is not the owner of the water rights in the Carlsbad Project. How can the United States request this change of use for Endangered Species Act purposes when it is not the owner of the water right?
The lower court ignores the different types of contracts that exist, the status of the ownership of the water rights under New Mexico law and then attempts to equalize the situation by ordering the BOR to compensate those contractors of SJC water. All this does is further complicate the situation. The damage is inflicted upon the waterusers of each contract. How is a farmer that no longer receives water in the middle of a season to be compensated? Who does he sue? Where does a municipality go to obtain a substitute water supply?
Each farmers situation is different from his neighbors. There are different crops, different soils and different growing seasons. How will the court system handle this flood of claims? Which courts would be tasked to handle them? What are the damage claims and how will they be fairly and uniformly handled? Are the parties to this litigation the farmers or the irrigation districts? What about the contracts the farmers have entered into with wholesalers and what about the wholesaler’s contracts with the retailers? Judge Parker’s decision, if upheld, will surely lead to the greatest increase in litigation in a century. His decision ignores the suffering that will occur across the irrigated West on American farms and cities.
V. CONCLUSION
Amicus NWRA submits that this Court should find that the Endangered Species Act does not require release of stored water for listed species or authorize the breach of existing water contracts.
Respectfully submitted,
HUBERT & HERNANDEZ, P.A.
Steven L. Hernandez
Attorneys for Amicus National Water
Resources Association (NWRA)
2100 N. Main Street, Suite 1
P.O. Drawer 2857
Las Cruces, New Mexico 88004
(505) 526-2101
CERTIFICATE OF MAILING
I hereby certify that a true copy of this Amicus Curiae Brief was mailed to the following counsel of record, on this day of November, 2002:
John Stroud and Karen FisherSpecial Assistant Attorney GeneralNM State Engineer & Stream Comm.PO Box 25102Santa Fe, NM 87504-5102Bradley S. Bridgewater, Esq.US Department of Justice999 18th Street, Suite 945Denver, CO 80202Laird J. Lucas, Esq.Land & Water Fund of the RockiesPO Box 1612Boise, ID 83701Peggy E. Montano, Esq.Trout, Witwer & Freeman1120 Lincoln Street, Suite 1600Denver, CO 80203Andrew A. Smith, Esq.Jan Elizabeth Mitchell, Esq.US Department of Justicec/o US Attorney’s OfficePO Box 607Albuquerque, NM 87103Fred Abramowitz, Esq.115 Gold Ave., SW, Suite 205Albuquerque, NM 87102Thomas A. Simons, IV, Esq.Frank M. Bond, Esq.The Simons Firm LLPPO Box 5333Santa Fe, NM 87502-5333 Andrew Mergen, Esq.Susan L. Pacholski, Esq.PO Box 232795L’Enfant Plaza StationWashington, DC 20026Alletta Belin, Esq.Steven C. Sugarman, Esq.Belin & Sugarman618 Paseo de PeraltaSanta Fe, NM 87501Patricia A. Madrid, Attorney GeneralStephen Farris, Special Asst. AGTracy Hughes, Assistant AGPO Drawer 1508Santa Fe, NM 87504Lynn Slade, Esq.Maria O’Brien, Esq.Modrall Law FirmPO Box 2168Albuquerque, NM 87103-2168Robert M. White, City AttorneyCharles Kolberg, Asst. City AttorneyPO Box 2248Albuquerque, NM 87103Fred Waltz, Esq.PO Box 6390Taos, NM 87571-6390Reid Payton Chambers, Esq.Hilary C. Tompkins, Esq.Anne D. Noto, Esq.Sonosky Firm501 Tijeras Ave., NW, Suite 200Albuquerque, NM 87102
Steven L. Hernandez
STATEMENT REGARDING ORAL ARGUMENT
Due to the uniqueness of the issues raised in this appeal and the potential of this Court’s opinion as nationwide precedent, the National Water Resources Association believes oral argument is essential and will be of assistance to the Court. The NWRA requests oral argument.
CERTIFICATE OF COMPLIANCE
As required by Fed. R. App. P. 32(a)(7)(c), I certify that this amicus curiae brief on appeal is proportionally spaced and contains 6636 words.
I relied on my word processor to obtain the count which was Corel WordPerfect 8.
I certify that the information on this form is true and correct to the best of my knowledge and belief after a reasonable inquiry.
Steven L. Hernandez
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