HOLGUIN V. ELEPHANT BUTTE IRRIGATION DIST., 1977-NMSC-073, 91 N.M. 398, 575 P.2d
88 (S. Ct. 1977)
CASE HISTORY ALERT: affected by
1991-NMSC-049
David HOLGUIN, Robert Bullard, O. L.
Smith, Lawrence Horner
and Mrs. Robert S. Hayner, Plaintiff-Appellants,
vs.
ELEPHANT BUTTE IRRIGATION DISTRICT, Defendant-Appellee.
SUPREME COURT OF NEW MEXICO
1977-NMSC-073, 91 N.M. 398, 575 P.2d 88
Martin, Martin & Lutz, James T.
Martin, Jr., William L. Lutz, Las Cruces, for plaintiffs-appellants.
Threet, Threet, Glass & King, Martin
E. Threet, R. Michael Hooe, Albuquerque, for defendant-appellee.
EASLEY, J., wrote the opinion. SOSA and
PAYNE, JJ., concur.
{1} Plaintiff, David Holguin
and five others (hereinafter Landowners -- which shall at times refer to
plaintiffs predecessors in title) brought suit against Elephant Butte
Irrigation District (EBID) for a declaratory judgment to establish their water
rights on land located within the geographical limits of the irrigation
district. Landowners also
{*399} claimed
damages for failure of EBID to provide irrigation facilities and prayed for
damages for improvements made by them because of alleged representations by
EBID agents that their water rights would not be contested. EBID petitioned for
dismissal for failure to join the New Mexico State Engineer and the United
States of America as indispensable parties and asked for summary judgment with
regard to the other claims. The effect of the trial court's decision was to
grant summary judgment as to all issues. Landowners appealed to this court. We
affirm the decision of the trial court that the United States is an
indispensable party, which is the dispositive issue.
{2} Although there are a
multitude of unique and interesting questions raised in this case, the
controlling issue is whether the United States, which owns the dams and the
irrigation works and contracts with EBID through the Federal Bureau of
Reclamation and Irrigation (Bureau) for the distribution of the water, is an
indispensable party, particularly in light of the fact that the United States
has a treaty with Mexico to deliver specified quantities of water to Mexico on
a periodic basis and has other obligations and duties under the law and by
contract.
{3} The Rio Grande River has
played a vital role in hundreds of years of colorful history in Colorado, New
Mexico, Texas and Mexico. "The Rio Grande is not only a river of song and
story, but also a symbol of the Spanish heritage in what is now the American
Southwest. It is the second longest river in the United States and is the only
river of this country having long segments, first wholly within this nation and
next forming an international boundary."
1
Of all the interesting developments in the history of the river, none could be
as dramatic and far-reaching in its effect as the federal government's decision
to harness the unappropriated waters of the Rio Grande and its tributaries for
irrigation and other purposes in southern New Mexico and southwest Texas.
{4} On June 17, 1902, the
Reclamation and Irrigation Act was passed by Congress authorizing the
construction of irrigation dams and works.
2
The Rio Grande Project was passed by Congress in 1905.
3 The Territorial Legislature in New
Mexico in 1907 passed a comprehensive water code in which it was provided that
the United States under the Reclamation Law could give notice to the state of
its intention to utilize certain specified unappropriated water and that water
would not be subject to appropriation by others, provided the federal
government proceeded thereafter to construct irrigation works under the
Reclamation Law.
4
{5} The Reclamation Service
(now Bureau) gave notice to the New Mexico State Engineer in 1906 that the
federal government intended to appropriate 730,000 acre-feet of water per year
from the unappropriated waters of the Rio Grande which water would be impounded
for the Rio Grande Project. In 1908, the claim was expanded to cover all of the
unappropriated waters of the Rio Grande and its tributaries.
{6} In conjunction with the
development of the Rio Grande Project, the federal government found it
necessary to negotiate with Mexico to settle longstanding differences regarding
the delivery of water to that country. A treaty was signed on May 21, 1906, in
which the irrigation developments under the Rio Grande Project were mentioned
indicating an intent by our government to integrate the two developments.
5 The treaty called for the United
States to deliver to Mexico a specified amount of
{*400}
water each month totaling 60,000 acre-feet per year.
{7} The United States
executed a contract with EBID on January 7, 1918. On January 17, 1920, a
contract was entered into between the United States and the El Paso County
Water Improvement District No. 1. By May 1, 1939, an interstate compact had
been ratified and had become effective among the states of Colorado, New Mexico
and Texas, whereby "causes of present and future controversy" would
be removed.
6 The compact sets out in detail the
amounts of water to be delivered by the upstream states and when it will be
forthcoming.
{8} EBID was organized by
property owners on the lower Rio Grande in New Mexico to cooperate with the
Bureau to provide irrigation for their lands. EBID negotiated numerous
contracts over the years with the Bureau regarding the construction, operation
and maintenance of the elaborate irrigation works and the details of furnishing
water to the members. Unfortunately, the contracts that were in effect at the
time of the decision of the trial court on EBID's motion in this case were not
made a part of the record.
{9} All of the acreage owned
by Landowners is what EBID characterizes as suspended land, or land not to be
irrigated. The undisputed evidence is that it would not be economically
feasible for EBID to construct irrigation works that would deliver water to
this property. EBID has made no effort since its inception to construct works
to deliver water to the lands in question. However, these Landowners have paid
a nominal "general assessment" which is charged against all suspended
land in the district, with the exception of those tracts that consist of less
than two acres. Landowners were not charged and never paid for any water used
from the project, although all the other property owners who had contracted to
join EBID were obligated to do so.
{10} Landowners never made
applications to EBID to have their lands become a part of the district, nor had
they been granted water rights by the New Mexico State Engineer. Nevertheless,
Landowners and their predecessors have been appropriating water by pumping in
varying amounts from the Rio Grande at least since 1930. One of them may have
had water rights prior to the time the Bureau gave notice to the State of the
intent to appropriate all the unappropriated waters of the Rio Grande and its
tributaries in 1908.
{11} At least by July 3,
1933, the Board of Directors of EBID was aware that Landowners were pumping
from the river although they had not signed water contracts in the manner
prescribed by law. EBID on that date made it known to the Bureau that
Landowners were appropriating the water without a contract and without paying
for it. EBID requested that water be denied to those persons using it without a
contract. After that, for over forty years, letters went back and forth between
EBID and the Bureau, surveys were made of the unauthorized appropriations,
letters were written to the appropriators demanding that they pay for the water
and that they enter into contracts with EBID. However, there is no evidence in
the record that either EBID or the Bureau made demands that the persons stop
pumping water. Nothing of consequence was done to end what was called the
"illegal appropriations."
{12} In 1973 EBID notified
the State Engineer of the details involving this situation. His investigation
and subsequent actions gave rise to the filing of this declaratory judgment and
damage action.
Indispensable Parties -- N.M.R. Civ.P. 19
{13} Our present rule of
procedure regarding joinder of parties, N.M.R. Civ.P. [§ 21-1-1(19), N.M.S.A.
1953], was adopted in 1969. It provides in material part that "[a] person
* * * shall be joined as a party in the action if (1) in his absence complete
relief cannot be accorded among those already parties, or (2) he claims an
interest * * * and * * * the disposition of the action in his absence may (i) *
* * impair or
{*401} impede his ability
to protect that interest * * *."
{14} Subsection (b) of the
rule states in part: "If [such] a person * * * cannot be made a party, the
court shall determine whether in equity and good conscience the action should
proceed * * * or * * be dismissed, the absent person being thus regarded as
indispensable." Thus deeming a party "indispensable" is a
conclusion the court reaches after weighing various factors, some of which are
mentioned in the remaining part of Rule 19(b). The obvious purpose behind the
amended rule is to insure that courts reach decisions regarding
indispensability only after a careful and thoughtful analysis as to whether it
is feasible to proceed.
{15} In
Provident
Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S. Ct. 733,
19 L. Ed. 2d 936 (1968) the U.S. Supreme Court explained the same rule in the
Federal Rules as follows:
To say that a court "must" dismiss in the absence
of an indispensable party and that it "cannot proceed" without him
puts the matter the wrong way around: a court does not know whether a
particular person is "indispensable" until it has examined the
situation to determine whether it can proceed without him.
Id. at 119, 88 S. Ct. at 743.
Whether a person is "indispensable," that is,
whether a particular lawsuit must be dismissed in the absence of that person,
can only be determined in the context of particular litigation. There is a
large category, whose limits are not presently in question, of persons who, in
the Rule's terminology, should be "joined if feasible," and who, in
the older terminology, were called either necessary or indispensable parties.
Assuming the existence of a person who should be joined if feasible, the only
further question arises when joinder is not possible and the court must decide
whether to dismiss or to proceed without him. To use the familiar but confusing
terminology, * * * the decision to dismiss is a decision that he is
"indispensable."
Id. at 118, 88 S. Ct. at 742.
{16} This court has held, in
cases prior to the adoption of Rule 19, that a court cannot proceed without an
indispensable party,
C. de Baca v. Baca, 73 N.M. 387,
388 P.2d 392
(1964), because the absence of such a party raises a question as to the court's
jurisdiction to hear the case.
State ex rel. Clinton Realty v. Scarborough,
78 N.M. 132,
429 P.2d 330 (1967);
State Game Comm'n v. Tackett, 71 N.M.
400,
379 P.2d 54 (1962);
Sellman v. Haddock, 62 N.M. 391,
310 P.2d 1045
(1957);
Keirsey v. Hirsch, 58 N.M. 18,
265 P.2d 346 (1953).
{17} Thus, failure to join an
indispensable party renders the suit defective.
Richins v. Mayfield, 85
N.M. 578,
514 P.2d 854 (1973). Rule 19 does not expressly state whether such an
inability to proceed is a jurisdictional defect, but we have consistently held
that it is.
E. g., Perez v. Gallegos, 87 N.M. 161,
530 P.2d 1155 (1974);
Richins v. Mayfield, supra.
The United States as an Indispensable Party
{18} Defendant was granted
summary judgment by the trial court, one of the stated reasons being that the
United States is an indispensable party. Defendant argued to the court below
that the United States is the owner of the water and must be a party to the
suit, but has not consented to be sued. This reasoning is not well-founded. The
Reclamation Act declared that irrigation water is appurtenant to the land which
is being irrigated and states that "beneficial use shall be the basis, the
measure, and the limit of the right." 43 U.S.C. § 372 (1970). The same
language is employed in
N.M. Const. art. XVI, § 3, and in § 75-1-2, N.M.S.A.
1953. 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.
Ickes v. Fox, 300 U.S. 82, 57 S. Ct. 412, 81 L. Ed. 525 (1937).
This principle was affirmed by the U.S. Supreme Court in
Nebraska v.
Wyoming, 325 U.S. 589, 65 S. Ct. 1332, 89 L. Ed. 1815 (1945) in which the
court stated:
{*402} The property
right in the water right 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., 325 U.S. at 614, 65 S. Ct. at 1349.
{19} Our court has stated
that the waters are appurtenant to the land and that the district only stores
and delivers them to the users.
Middle Rio Grande Water Users Ass'n v.
Middle Rio Grande Conservancy Dist., 57 N.M. 287,
258 P.2d 391 (1953). In
State
v. McLean, 62 N.M. 264,
308 P.2d 983 (1957) this court held that water
belongs to the state which authorizes its use. The use may be acquired but
there is no ownership in the corpus of the water.
{20} Summary judgment against
Landowners for not joining the United States as a party, based solely on the
theory that the government owned the water, would be error.
{21} Landowners contend that
this court is precluded from considering the Mexican Treaty in determining
whether or not the United States is an indispensable party because the issue
has been raised for the first time on appeal and the trial court was not
altered to this claim. However, the treaty was placed in evidence by
Landowners.
{22} The U.S. Const. art. VI,
cl. 2 provides that "all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land;" and
that "the Judges in every State shall be bound thereby...." Because
of our constitutional provision, a U.S. treaty is regarded in this country not
as a mere contract between nations but as part of the supreme law of the land.
United
States v. Rauscher, 119 U.S. 407, 418-419, 7 S. Ct. 234, 30 L. Ed. 425
(1886);
Head Money Cases, 112 U.S. 580, 58 S. Ct. 247, 28 L. Ed. 798
(1884);
Foster v. Neilson, 27 U.S. (2 Pet.) 164, 201, 7 L. Ed. 415 (1829).
{23} Since treaties are the
supreme law of the land, judges in all courts of this country are
"bound
to take judicial notice [thereof]."
Rauscher, supra, 119 U.S. 419,
7 S. Ct. 240 (emphasis added),
see Valentine v. United States, 299 U.S.
5, 11, 57 S. Ct. 100, 81 L. Ed. 5 (1936);
Asakura v. Seattle, 265 U.S.
332, 341, 44 S. Ct. 515, 68 L. Ed. 1041 (1924).
{24} "Treaties are the
supreme law of the land and the courts must take judicial knowledge thereof and
of the historical data leading up to them, as well as the construction of them
by both the executive and judicial branches of the government."
San
Lorenzo Title & Improv. Co. v. Caples, 48 S.W.2d 329, 331 (Tex. Civ.
App.1932); 29 Am. Jur.2d Evidence § 33 (1967).
{25} An appellate court can
properly take judicial notice of any matter of which a court of original
jurisdiction may properly take notice.
Landy v. FDIC, 486 F.2d 139 (3d
Cir. 1973) cert. denied, 416 U.S. 960, 94 S. Ct. 1979, 40 L. Ed. 2d 312 (1973);
Nev-Cal Elec. Sec. Co. v. Imperial Irr. Dist., 85 F.2d 886 (9th Cir.
1936), cert. denied, 300 U.S. 662, 57 S. Ct. 493, 81 L. Ed. 871 (1936).
{26} We take judicial notice
of the Mexican Treaty and consider whether the obligations of the United States
under that document makes the government an indispensable party. The same
general principles apply as to the
Rio Grande Compact, supra, which
instrument was not called to the attention of the trial court or of this court
on appeal. However, we take judicial notice of this document also, pursuant to
N.M.R. Civ.P. 44(d) [§ 21-1-1(44)(d), N.M.S.A. 1953], since it is a part of the
statutory law of New Mexico. Section 75-34-3, N.M.S.A. 1953.
{27} In
New Mexico v.
Backer, 199 F.2d 426 (10th Cir. 1952) the acting construction engineer in
charge of EBID and employees of the Bureau were sued by the State and City of
Truth or Consequences to enjoin them from reducing the water level of the
reservoir to a point that would destroy the fish and create a health menace to
the people of Truth or Consequences. The defendants
{*403}
claimed that the action should be dismissed for the reason that it was a
suit against the United States and that the Secretary of Interior was an
indispensable party.
{28} The court outlined the
general history of the
Rio Grande Project and stated:
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.
{29} The court ruled that if
the flow of the water could be enjoined by court decree directed to the
engineer in charge, he would be under the direction of the court and not his
superiors as representatives of the United States. It would be a complete
ouster of the United States over the control and management of its own property
and facilities.
{30} The court in
Backer
distinguished
Ickes v. Fox, supra, heavily relied upon by Landowners in
this case, and stated that a reading of
Larson v. Domestic & Foreign
Corp., 337 U.S. 682, 69 S. Ct. 1457, 93 L. Ed. 1628 (1949) clearly
indicates that the Supreme Court held that the theory of
Ickes must be
rejected insofar as it applies to injunctive relief against a public official
under those circumstances. The court affirmed the trial court's dismissal of
the suit.
{31} Although the factual
situation in
Backer is not the same as that in the instant case, the
reasoning behind the decision in
Backer applies equally well to our case
where Landowners are attempting to validate unauthorized appropriations of
water which affect the obligations of the United States in its administration
of the
Rio Grande Project and its delivery of water to Mexico. Questions
of law and fact are raised upon which the United States would have to be heard.
{32} El Paso County Water
Impr. Dist. No. 1 v. City of El Paso, 133 F. Supp. 894 (W.D. Tex.1955) involved
a number of issues present in our case. The Board of Water Engineers of Texas
had granted El Paso a permit to appropriate 27,000 acre-feet of water from the
Rio Grande. The water district contested the appropriation on the grounds that
El Paso was not entitled to take water that was already appropriated for use of
the Rio Grande Project, of which the City was not a part. The City argued that
it was entitled to the water because of riparian rights, which legal theory is
partially recognized in Texas, and by right of prior appropriation.
{33} The court held that a
water right, unlike a fee simple title, is not a fixed and absolute estate,
but, instead, "is a defeasible interest, which never comes to rest, but is
always at the risk of loss by unjustifiable delay in making or continuing
beneficial use thereof. These water rights, however, [sic] denominated, in any
event, are subject to the restraints in the Reclamation Act * * *" Id.,
905. The court recognized that the Reclamation Law specifically prohibits the
disturbance of state authority
{*404} and
that the federal government "shall proceed in conformity with such [state]
laws." Id., 904 [43 U.S.C. § 383 (1970)]. However, the court attached
significance to the fact that the water district had contracted an indebtedness
to the United States which called for orderly self-liquidation. The court
reasoned that inroads in the name of a higher priority, claimed by El Paso
under the terms of Texas law, might substantially deplete the water for
irrigation in the district which "might well hinder or disrupt the entire
project." Id., 906. The court stated:
The Republic of Mexico, as well as the United States, has
interests at stake. The Rio Grande has been the subject of Conventions and
Treaties between these nations. * * * In short, Texas does not and cannot have
a free hand with this particular river.
{34} The court called
attention to what it characterized as "a number of peculiar
provisions" in the
Rio Grande Compact among the states of New
Mexico and Texas. The water owed to Texas by New Mexico is to be delivered at
Elephant Butte Reservoir, one hundred miles above the point where the Rio
Grande leaves New Mexico, not at the mutual state lines. The compact does not
leave the Texas share of the water open for disposition under the general water
statutes of Texas, it plainly directs that the water is for irrigation in the
project. The project lands are in New Mexico and Texas with the water being
used to irrigate lands in both states in the project. The court stated:
The apparent reason for all this is that when the Compact was
negotiated, the Rio Grande Project, in all of its far flung works and physical
properties was, and for some time had been superimposed on the Rio Grande and
its adjoining valleys all the way from the Elephant Butte Reservoir in New
Mexico, to a point below Fabens in Texas and that fait accompli colored the
whole Compact. * * * In any event, an analysis of the Compact shows
convincingly that the water belonging to Texas is definitely committed to the service
of the Rio Grande Project. This Compact is binding on Texas and the defendant
City and, for that matter, is binding on the inhabitants and citizens of Texas.
The court held that the City's claims must yield to the
paramount disposition made by the Rio Grande Compact. Although the United
States was joined as a party plaintiff in this action, the reasoning of the
court nevertheless has some applicability to our case and is persuasive. The
Landowners are in a comparable position with the City of El Paso in that they
are asserting claims to water already appropriated for EBID. To grant
Landowners water rights might hinder or disrupt the project and interfere with
the fulfillment of the federal government's obligations.
{35} The Mexican Treaty came
under view in another EBID case,
EBID v. Gatlin, 61 N.M. 58,
294 P.2d
628 (1956). The district attempted to enjoin subordinate officials of the
Department of Interior from diverting Rio Grande water to Bosque del Apache
Refuge and Wild Life Reserve. The court called attention to the fact that the
game refuge had been lawfully established in aid of treaties with Mexico for
the delivery of irrigation water and with Great Britain and Mexico with regard
to the protection of migratory birds. The court held that the game refuge, the
title to which was in the United States, could not be operated without the use
of the water in question. The opinion quoted extensively from
Becker and
held that a judgment would expend itself upon the United States, its properties
and administration and that the United States was an indispensable party. The
case was ordered dismissed.
{36} There is no material
difference in the facts in
EBID v. Gatlin and our case, except that the
facts in the latter instance give more support to the necessity of the United
States being a party.
{37} Determination of whether
the federal government is an indispensable party depends to some extent upon
the presence of
{*405} federal questions
in the case. A number of cases have addressed this issue regarding the
Reclamation Act and furnish some direction for a decision in our case.
{38} In
El Paso County
Water Impr. Dist. No. 1 v. City of El Paso, supra, the City was attempting
to appropriate river waters from the Rio Grande, the distribution of which
water was covered by a water-use compact executed by the three states through
which the river runs. The court ruled that this presented a federal question.
{39} The case of
Yellen v.
Hickel, 352 F. Supp. 1300 (S.D. Cal.1972) in the United States District
Court for the Southern District of California considered questions of
considerable interest in connection with the instant case. Plaintiffs who were
residents of the Imperial Valley brought suit against the Secretary of Interior
to mandamus enforcement of Section 5 of the Reclamation Law of 1902. 43 U.S.C.
§ 431 (1970). They were attempting to enforce the requirement in that section
that water users be residents. The court held that this involved the
interpretation of a federal statute and that it was therefore a federal
question, stating that federal courts are not bound by state court precedent on
federal questions.
{40} The defendant landowners
in
Yellen contended that Section 5 imposed only a "threshold
requirement;" not a "durational requirement." A
"threshold" requirement would, in effect, be an initial prerequisite
to the receipt of water right and would terminate upon the water right being
granted rather than continuing on in duration. The court held that the policy
of the Reclamation Law would best be advanced by imposing a durational
residency requirement even after the construction costs have been paid, stating
that the holder of a water right does not own any water and that "the use
of the water, can be, and most always is, subject to state and federally
imposed conditions." 352 F. Supp. at 1306. The court stated further:
An appropriative water right is a usufructuary right. The
holder of the right has the privilege of enjoying a thing (water) the property
of which is vested in another (the state). A water right, which is in the
nature of a privilege, can be made conditional upon continued residence.
{41} The court reasoned that
if the Imperial Valley landowners wished to evade the strictures of the
Reclamation Law, they were free to turn to their water rights which allegedly
existed prior to the organization of the district. Attention was called to the case
of
Arizona v. California, 376 U.S. 340, 84 S. Ct. 755, 11 L. Ed. 2d 757
(1964) in which the U.S. Supreme Court had issued a decree requiring the
landowners in the Imperial Valley to submit their Colorado River water claims
through the State of California and then have them acknowledged by the
Secretary of Interior. The court stated that this question had been pre-empted
by the Supreme Court and should not be subject to determination by a lower
court, and stated:
[P]re-project water rights are irrelevant because it need
only be shown that the Imperial Irrigation District is deriving a benefit from
the use of a government facility for reclamation law to be applicable.
Therefore, even if landowners comply with the Arizona v. California
decree and have their rights acknowledged, they will still have to comply with
the reclamation law.
The court held that Section 5 was not an administrative
regulation and subject to interpretation but that it was "an expression of
national policy," and that it had been national policy for over a half
century. The ruling was that there was no discretion left in the Secretary of
Interior in the enforcement of Section 5 but that the language was mandatory.
{42} In
Yellen the
court relied on the decision in
Evanhoe Irrigation District v. McCracken,
357 U.S. 275, 78 S. Ct. 1174, 2 L. Ed. 2d 1313 (1958) in which it was similarly
held that the application of the one-hundred-sixty acre limitation on the lands
irrigated of the same Section 5 to individual landowners in the Central Valley
of California was a
{*406} durational
restriction that was to be enforced by the Secretary of Interior, whereas in
Yellen
the question involved the residency requirement of that section.
{43} In
Ivanhoe, the
Supreme Court stated that the rights and duties of the United States under
Reclamation contracts are matters of federal law in which that court had the
final word, and that Section 8, supra, providing that state laws shall govern,
merely requires the United States to comply with state law when, in the
construction and operation of the Reclamation Project, it becomes necessary for
it to acquire water rights. The court stated that the acquisition of water
rights must not be confused with the
operation of federal projects and
held that Section 5 "is a specific and mandatory prerequisite laid down by
the Congress." Id. at 291, 78 S. Ct. at 1184.
{44} Of some interest in our
case is a third clause in Section 5, presumed to be mandatory under the above
decisions, which will ultimately be material in the resolution of the issues
between the parties. In addition to the restrictions on residency and acreage,
the law specifies that no water right "shall permanently attach until all
payments therefor are made." 43 U.S.C. § 431 (1970). The record shows that
Landowners have made no payments for the water received. They have never filed
a petition with EBID to have their land included in the district as mandated by
§ 75-22-36, N.M.S.A. 1953, an applicable law. They have not made any payments on
construction charges. 43 U.S.C. § 477, et seq. (1970). There is no evidence of
any effective compliance with a multitude of state and federal laws that govern
entry into the district and retention of water rights.
{45} For all the reasons set
forth herein we hold that the United States is an indispensable party to this
action. Since the federal government has not consented to be sued, we remand
the case to the trial court with instructions that the cause be dismissed. We
do not reach other issues raised.
SOSA and PAYNE, JJ., concur.
1
El Paso County Water Imp. Dist. No. 1 v. City of El Paso, 133 F. Supp.
894 (W.D. Tex.1955).
2
43 U.S.C. §§ 372, 373, 381, 383, 391, 392, 411, 416, 419, 421, 431, 432, 434,
439, 461, 491 and 498 (1970).
3
Act of February 25, 1905, ch. 798, 33 Stat. 814.
4
Ch. 102, § 22, 1905 N.M. Laws, § 75-5-1, N.M.S.A. 1953.
5
Convention of May 21, 1906, 34 Stat. 2953.
6
Ch. 33, 1939 N.M. Laws, § 75-34-3, N.M.S.A. 1953.