State Ex Rel. State Engineer v. Commissioner of Public Lands , 145 N.M. 433 ( 2008 )


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  • Certiorari Denied, No. 31,377, November 20, 2008
    IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
    Opinion Number: 
    2009-NMCA-004
    Filing Date:   September 24, 2008
    District No. 27,654
    STATE OF NEW MEXICO ex rel.
    STATE ENGINEER,
    Plaintiff-Appellee,
    and
    UNITED STATES OF AMERICA,
    JICARILLA APACHE NATION,
    NAVAJO NATION, UTE MOUNTAIN
    UTE TRIBE, SAN JUAN WATER
    COMMISSION, and BHP NAVAJO COAL
    COMPANY,
    Defendants/Intervenors-Appellees,
    v.
    COMMISSIONER OF PUBLIC LANDS
    FOR THE STATE OF NEW MEXICO,
    Defendant-Appellant.
    APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
    Rozier E. Sanchez, District Judge Pro Tempore
    Gary K. King, Attorney General
    DL Sanders, Chief Counsel
    Tracy L. Hofmann, Special Assistant Attorney General
    Santa Fe, NM
    1
    for Appellee
    United States Department of Justice, Environment & Natural Resources Division
    Ronald J. Tenpas, Assistant Attorney General
    David W. Gehlert
    Mark R. Haag
    Washington, D.C.
    for Appellee United States of America
    Holland and Knight
    Shenan R. Atcitty
    Albuquerque, NM
    for Appellee Jicarilla Apache Nation
    Navajo Nation Department of Justice
    Stanley M. Pollack
    Bidtah Becker
    Window Rock, AZ
    for Appellee Navajo Nation
    Daniel H. Israel
    Boulder, CO
    for Appellee Ute Mountain Ute Tribe
    Taylor & McCaleb, P.A.
    Jolene L. McCaleb
    Elizabeth Newlin Taylor
    Corrales, NM
    for Appellee San Juan Water Commission
    Modrall, Sperling, Roehl, Harris & Sisk, P.A.
    Maria O’Brien
    Walter E. Stern
    Albuquerque, NM
    for Appellee BHP Navajo Coal Company
    New Mexico State Land Office
    2
    Robert A. Stranahan, IV, General Counsel
    Stephen G. Hughes, Associate Counsel
    John L. Sullivan, Associate Counsel
    Santa Fe, NM
    for Appellant
    Ryley Carlock & Applewhite
    James M. Noble
    Denver, CO
    for Amicus Curiae Freeport-McMoRan Corporation
    Tanya Trujillo
    Christopher D. Shaw
    Santa Fe, NM
    for Amicus Curiae New Mexico Interstate Stream Commission
    Gallegos Law Firm, P.C.
    J.E. Gallegos
    Michael J. Condon
    Santa Fe, NM
    Terry Goddard, Attorney General
    Patrick B. Sigl, Assistant Attorney General
    Phoenix, AZ
    for Amicus Curiae State of Arizona
    OPINION
    WECHSLER, Judge.
    {1}     This appeal arises from a district court subfile proceeding in the course of a general
    adjudication of water rights in the San Juan River stream system. At issue is the
    applicability of the federal reserved water rights doctrine to state lands that the federal
    government granted and conveyed to New Mexico in trust for the purpose of supporting
    New Mexican schools. As the manager and acting trustee for New Mexico’s trust lands, the
    Commissioner of Public Lands for the State of New Mexico (the Commissioner) asserted
    a claim in the underlying adjudication for federal reserved water rights. The Commissioner
    argued that by legislatively designating specific sections of land to be used for the support
    of New Mexican schools and conveying them in trust to New Mexico, the United States
    3
    Congress also impliedly intended to reserve and convey water rights in those lands. The
    State Engineer of the State of New Mexico (the State Engineer) and several other interested
    parties opposed the Commissioner’s claim. Ultimately, the district court granted summary
    judgment in favor of the parties opposing the Commissioner. For the reasons that follow,
    we affirm the district court’s decision and hold that the federal reserved water rights doctrine
    does not apply in this case.
    HISTORICAL BACKGROUND
    {2}      Since 1802, the United States Congress has passed enabling acts that have granted
    federal lands to each new “public-land” state admitted to the Union for the purpose of
    supporting its schools. Andrus v. Utah, 
    446 U.S. 500
    , 506 (1980). Unlike the original
    thirteen states, many newly created states, including New Mexico, encompassed vast tracts
    of federal land that were immune from taxation. 
    Id. at 522
     (Powell, J., dissenting). In order
    to put those new states on equal footing with the original thirteen states in generating
    revenue for the public good, Congress granted them “a fixed proportion of the lands within
    [their] borders for the support of public education” in exchange for a “pledge not to tax” the
    granted lands. 
    Id. at 523
    . Following approval of the federal survey, “[t]itle to the sections
    vested in the [s]tate.” 
    Id.
     Thereafter, the state became subject to “a binding and perpetual
    obligation to use the granted lands for the support of public education,” and “[a]ll revenue
    from the sale or lease of the school grants was impressed with a trust in favor of the public
    schools.” 
    Id. at 523-24
    .
    {3}     Congress first promised some of the school trust lands at issue in this case in the
    Organic Act of 1850. See ch. 49, § 15, 
    9 Stat. 446
    , 452 (1850). Several decades later,
    Congress enacted the Ferguson Act of 1898, ch. 489, § 1, 
    30 Stat. 484
    , 484 (1898), which
    granted to the Territory of New Mexico the lands promised in the Organic Act, along with
    some additional lands. Finally, Congress conveyed the school trust lands at issue in this case
    to the State of New Mexico in the Enabling Act of 1910, ch. 310, §§ 1, 10, 
    36 Stat. 557
    , 557-
    58, 563 (1910), which authorized the establishment of the State. The Enabling Act included
    additional lands and transferred to the State the lands that Congress had previously granted
    to the Territory in the Ferguson Act. See Enabling Act §§ 6-10, 36 Stat. at 561-65. The
    Enabling Act also imposed specific trust obligations upon the State with respect to its
    management of the lands, including detailed limitations on the State’s use of the proceeds
    from the sale, rental, and use of them. See id. § 10, 36 Stat. at 563-64. In this case, the
    Commissioner relies on these statutes in support of his claim to federal reserved water rights
    in New Mexico’s school trust lands, and we will discuss each statute in greater detail in our
    analysis of the merits of the Commissioner’s claim.
    PROCEDURAL BACKGROUND
    {4}     On March 13, 1975, the State Engineer commenced the general stream adjudication
    at issue in this case by filing a complaint in district court. Roughly nineteen years later, on
    August 13, 2004, the Commissioner became involved in the adjudication by filing a
    4
    “Declaration of State of New Mexico Trust Reserved Water Rights” (Declaration). The
    Commissioner’s Declaration described the basis upon which he anticipated claiming federal
    reserved water rights as part of the adjudication. In doing so, the Commissioner claimed,
    under federal law, the state trust’s entitlement to reserved surface and groundwater rights for
    approximately 281,155 acres of school trust land within the San Juan Groundwater Basin.
    After the district court set a briefing schedule regarding the Commissioner’s Declaration, the
    Commissioner attempted to either withdraw or dismiss his Declaration without prejudice by
    invoking Rule 1-041(A)(1)(a) NMRA. The district court refused to allow the Commissioner
    to withdraw or dismiss his Declaration, and this Court subsequently denied the
    Commissioner’s petition for an interlocutory appeal of that ruling.
    {5}     On June 15, 2006, the State Engineer petitioned for the commencement of a subfile
    proceeding on the Commissioner’s Declaration. In the subfile proceeding, the
    Commissioner moved for declaratory relief with respect to his argument that there existed
    federal reserved water rights in New Mexico’s school trust lands, and the State Engineer
    moved for summary judgment that no such rights existed in those lands. Shortly thereafter,
    the United States, along with several other interested parties, intervened in the proceeding.
    {6}      On February 20, 2007, the district court issued an order denying the Commissioner’s
    request for declaratory relief and granting summary judgment in favor of the State Engineer.
    In doing so, the district court concluded that the federal reserved water rights doctrine did
    not apply to the school trust lands at issue in this case and set forth several reasons why the
    Commissioner’s claim failed. First, the district court found that the “specific purpose”
    argued by the Commissioner as the basis for Congress’s decision to convey the trust lands
    did not, under the applicable federal case law, require a conclusion that it also impliedly
    reserved water rights. Specifically, the district court reasoned that the application of water
    to the land was not a direct purpose of granting the land. See, e.g., United States v. New
    Mexico, 
    438 U.S. 696
    , 716-17 (1978) (explaining that when a potential use of water is not
    “a direct purpose of reserving the land,” there can be no finding of an implied reservation
    of water rights). Second, the district court noted that unlike the federal reservations that
    have been held to include federal reserved water rights, the United States did not retain any
    ownership interest in the school trust lands. See, e.g., Cappaert v. United States, 
    426 U.S. 128
    , 131-32, 138 (1976) (concluding that Congress impliedly reserved water rights in land
    owned by the United States that was “set aside as a national monument”). Finally, the
    district court concluded that congressional intent to reserve water rights in the school trust
    lands could not be inferred because “Congress made no declaration in [the legislation upon
    which the Commissioner relies] that the New Mexico Education System, without water,
    would be entirely defeated.” See New Mexico, 
    438 U.S. at 700
     (“Each time this Court has
    applied the ‘implied-reservation-of-water doctrine,’ it has carefully examined both the
    asserted water right and the specific purposes for which the land was reserved, and
    concluded that without the water the purposes of the reservation would be entirely
    defeated.”). Based on these findings, the district court concluded that the Commissioner
    failed to meet his burden of showing that (1) Congress intended to withdraw and reserve
    federal lands “for New Mexico Trust Lands as a federal purpose” and (2) “Congress
    5
    intended to reserve, by implication, appurtenant waters to accomplish educational purposes
    in New Mexico Trust Lands.” The Commissioner appeals from that ruling.
    WITHDRAWAL OR DISMISSAL UNDER RULE 1-041
    {7}     We first address the Commissioner’s contention that the district court erred in
    refusing to allow him to withdraw or dismiss his Declaration. The Commissioner argues that
    he had an “unconditional” right to withdraw or dismiss his Declaration without prejudice
    under either Rule 1-041(A)(1)(a) or Rule 1-041(C). In response, the parties opposing the
    Commissioner argue that (1) Rule 1-041 does not apply to the Commissioner’s Declaration;
    (2) even if Rule 1-041 were applicable, the Commissioner would not have an unconditional
    right to withdraw or dismiss his Declaration; and (3) the district court properly refused to
    allow the Commissioner to withdraw or dismiss his Declaration. We review de novo the
    issue of whether the Commissioner had an unconditional right to voluntarily withdraw or
    dismiss his Declaration without prejudice under Rule 1-041. See Becenti v. Becenti, 2004-
    NMCA-091, ¶ 6, 
    136 N.M. 124
    , 
    94 P.3d 867
     (“[W]hen called upon to apply and interpret
    rules of civil procedure, we review these questions de novo.”).
    {8}     We first observe that, by its terms, Rule 1-041(A)(1)(a) does not apply to the
    Commissioner’s Declaration. Rule 1-041(A)(1)(a) provides that “an action may be
    dismissed by the plaintiff without order of the court . . . by filing a notice of dismissal at any
    time before service by the adverse party of an answer or other responsive pleading.”
    (Emphasis added.) In this case, the Commissioner is not a “plaintiff” in the underlying
    adjudication, which is a special statutory proceeding commenced by the State Engineer. See
    NMSA 1978, § 72-4-15 (1907) (stating that it is, in most instances, the responsibility of the
    attorney general, at the request of the state engineer, to file suit to determine the respective
    rights of individual parties to appropriate water from a stream system). Additionally, the
    Commissioner’s Declaration does not constitute an “action” that can be voluntarily
    dismissed. We view the Declaration as a single claim within the overarching water
    adjudication action brought by the State Engineer in 1975, and as such, Rule 1-041(A) does
    not permit a voluntary dismissal of the Declaration. See Gates v. N.M. Taxation & Revenue
    Dep’t, 
    2008-NMCA-023
    , ¶ 12, 
    143 N.M. 446
    , 
    176 P.3d 1178
     (explaining that Rule 1-041(A)
    does not permit a plaintiff to dismiss less than all of the claims that make up an action).
    Finally, no responsive pleading was required, or even allowed, in this case with respect to
    the Commissioner’s Declaration. Compare Rule 1-012(A)-(B) NMRA (explaining the
    procedure that a defendant in a civil action is required to follow in filing a responsive
    pleading), with NMSA 1978, § 72-4-17 (1965) (explaining the procedure that the district
    court must follow in determining the water rights of individual claimants with respect to a
    stream system).
    {9}     Alternatively to his purported right to voluntarily dismiss his Declaration under Rule
    1-041(A), the Commissioner argues that Rule 1-041(C) governs. Rule 1-041(C) allows for
    the same type of voluntary dismissal described in Rule 1-041(A) for “any counterclaim,
    cross-claim or third-party claim.” However, we agree with the State Engineer that the
    6
    Commissioner’s Declaration does not fall under this rule. We simply cannot characterize
    his Declaration as either a counterclaim, a cross-claim, or a third-party claim. See Rule 1-
    013(A)-(B) NMRA (explaining that a counterclaim is a claim that a defendant in a civil
    action has against a plaintiff in the same action); Rule 1-013(G) (explaining that a cross-
    claim is a claim that one party in a civil action has against a co-party in the same action);
    Rule 1-014(A) NMRA (explaining that a defendant in a civil action may make a third-party
    claim against “a person not a party to the action who is or may be liable to him for all or part
    of the plaintiff’s claim against him”).
    {10} Furthermore, even if we were to conclude, contrary to our legal holding above, that
    the Commissioner was a plaintiff and that his Declaration was an action, counterclaim, cross-
    claim, or third-party claim subject to Rule 1-041, our result would not change. The purpose
    of Rule 1-041(A) “is to preserve a plaintiff’s right to dismiss an action unilaterally, but to
    limit that right to an early stage of the litigation.” 8 James W. Moore, Moore’s Federal
    Practice § 41.33[1], at 41-45 (3d ed. 2007) (emphasis added). “The rule is thus intended to
    fix the point at which the resources of the court and the defendant are so committed that
    dismissal without preclusive consequences can no longer be had as of right.” Id. § 41.33[1],
    at 41-45 to -46 (internal quotation marks and citation omitted). The stream adjudication at
    issue in this case is over thirty years old, the notice of withdrawal of the Declaration was
    filed nearly a year after the filing of the Declaration, and a delay in the litigation of the
    substance of the Commissioner’s claim would cause even further unnecessary delay, waste
    judicial resources, and trigger great uncertainty regarding the individual claimants’
    respective water rights.
    {11} Accordingly, we agree with the district court that Rule 1-041 was not a procedural
    vehicle that was available to the Commissioner in this case. We therefore proceed to address
    the merits of the federal reserved water rights claim that the Commissioner made in his
    Declaration.
    SUMMARY JUDGMENT
    A.      Standard of Review
    {12} “Summary judgment is appropriate where there are no genuine issues of material fact
    and the movant is entitled to judgment as a matter of law.” Self v. United Parcel Serv., Inc.,
    
    1998-NMSC-046
    , ¶ 6, 
    126 N.M. 396
    , 
    970 P.2d 582
    . In reviewing whether a genuine issue
    of material fact exists, “we view the facts in the light most favorable to the party opposing
    summary judgment.” Gormley v. Coca-Cola Enters., 
    2005-NMSC-003
    , ¶ 8, 
    137 N.M. 192
    ,
    
    109 P.3d 280
     (internal quotation marks and citation omitted). Ultimately, we review de novo
    the legal question of whether a party is entitled to summary judgment as a matter of law. 
    Id.
    {13} The Commissioner argues that the question of implied congressional intent to create
    federal reserved water rights presents a factual issue to be decided by a factfinder and that
    the district court therefore erred in concluding that no such rights exist in the school trust
    7
    lands as a matter of law. However, whether a particular act of Congress establishes a federal
    reservation with attendant implied water rights is a question of legislative intent that requires
    an interpretation of the relevant acts. See Cappaert, 
    426 U.S. at 139
     (“In determining
    whether there is a federally reserved water right implicit in a federal reservation of public
    land, the issue is whether the Government intended to reserve unappropriated and thus
    available water.”). Such matters are traditionally legal questions that may properly be
    resolved on summary judgment. See Union Pac. Land Res. Corp. v. Moench Inv. Co., 
    696 F.2d 88
    , 93 n.5 (10th Cir. 1982) (“Questions of statutory construction and legislative history
    traditionally present legal questions properly resolved by summary judgment.”). Other
    aspects of federal reserved water rights, beyond the mere existence of such rights in a given
    piece of land, may involve questions of fact that should not be decided on summary
    judgment. For example, a determination of the quantity of water reserved (i.e., the minimum
    amount necessary to accomplish the purpose of the reservation) would likely involve factual
    issues that would require the factfinder to consider expert testimony. See, e.g., United States
    v. Washington, 
    375 F. Supp. 2d 1050
    , 1066 (W.D. Wash. 2005) (noting that the quantity of
    water impliedly reserved in an Indian reservation under a treaty was “a factual issue to be
    determined at trial”). However, the only issue in the present case involves whether certain
    acts of Congress can be interpreted to impliedly create any federal reserved water rights in
    New Mexico’s school trust lands. Any inquiry relating to the nature and quantity of the
    rights that the Commissioner claims is not before this Court. Thus, we are presented with
    questions of law that the district court was permitted to decide on summary judgment and
    that we must now review de novo.
    B.      The Federal Reserved Water Rights Doctrine and Its Relationship to State
    Water Law
    {14} The federal reserved water rights doctrine is a judicially created doctrine that had its
    genesis in Winters v. United States, 
    207 U.S. 564
     (1908). In Winters, the United States
    Supreme Court recognized and affirmed the power of the federal government, under certain
    circumstances, to impliedly reserve water and exempt it from appropriation under state law.
    
    Id. at 577
    . In doing so, the Court concluded that when Congress established the Fort
    Belknap Indian Reservation in Montana, it also impliedly reserved with it the right to the
    amount of water necessary to achieve the reservation’s purpose. 
    Id. at 565, 577
    . Subsequent
    United States Supreme Court decisions extended the doctrine to other, non-Indian federal
    enclaves. See, e.g., Cappaert, 
    426 U.S. at 138
     (finding that the reservation of a national
    monument by executive order also included federal reserved water rights); Arizona v.
    California, 
    373 U.S. 546
    , 601 (1963) (concluding that “the principle underlying the
    reservation of water rights for Indian Reservations” could be extended to national recreation
    areas and national forests), disavowed on other grounds by California v. United States, 
    438 U.S. 645
    , 674 (1978). As elaborated on and defined in these decisions, the doctrine currently
    requires a claimant to establish two elements in order to demonstrate the existence of a
    federal reserved water right: (1) that the federal government withdrew the land from the
    public domain and reserved it for a federal purpose and (2) that a certain amount of water
    is necessary to accomplish the purpose for reserving the land. See Cappaert, 
    426 U.S. at
    8
    138.
    {15} Overall, the doctrine of federal reserved water rights represents a limited exception
    to the general rule that individual states govern water rights within their respective borders.
    See New Mexico, 
    438 U.S. at 702
     (“Where Congress has expressly addressed the question
    of whether federal entities must abide by state water law, it has almost invariably deferred
    to the state law.”). Generally, water rights must be obtained by appropriation under state
    water law, even if those rights are developed in land owned by the federal government. See
    Cal. Or. Power Co. v. Beaver Portland Cement Co., 
    295 U.S. 142
    , 163-64 (1935) (stating
    that “following the [Desert Land Act] of 1877, if not before, all non-navigable waters then
    a part of the public domain became publici juris, subject to the plenary control of the
    designated states, including those since created out of the territories named, with the right
    in each to determine for itself to what extent the rule of appropriation or the common-law
    rule in respect of riparian rights should obtain”). In New Mexico, water law is governed by
    the doctrine of prior appropriation. Walker v. United States, 
    2007-NMSC-038
    , ¶ 21, 
    142 N.M. 45
    , 
    162 P.3d 882
    . Under that doctrine, “water rights are both established and exercised
    by beneficial use, which forms the basis, the measure and the limit of the right to use of the
    water.” Id. ¶ 22 (internal quotation marks and citation omitted). The appropriation of water
    for beneficial use establishes the priority date of a water right in relation to other water
    rights, and the full right of an earlier appropriator will be protected, to the extent of that
    appropriator’s use, against a later appropriator. See N.M. Const. art. XVI, § 2 (“Priority of
    appropriation shall give the better right.”). However, because the prior appropriation
    doctrine rewards the use of water—and use determines both the priority date and quantity
    of water to which one holds a right under the doctrine—state water rights can be forfeited
    by non-use. State ex rel. Reynolds v. S. Springs Co., 
    80 N.M. 144
    , 148, 
    452 P.2d 478
    , 482
    (1969) (“[U]nder the prior appropriation doctrine of water rights applicable in New Mexico,
    nonuse involves forfeiture.” (internal quotation marks and citation omitted)).
    {16} Similar to water rights developed under our state law, federal reserved water rights
    have the attributes of priority and quantity, allowing such rights to be administered within
    the hierarchy of state water rights. See Navajo Dev. Co. v. Sanderson, 
    655 P.2d 1374
    , 1379-
    80 (Colo. 1982) (en banc). However, the determination of those attributes for a federal
    reserved water right follows a far different logic from that of a state water right. See id. at
    1379 (“Federal reserved water rights must be understood as a doctrine which places a federal
    appropriator within the state appropriation scheme by operation of federal law.”). Unlike
    a state water right, the priority of a federal reserved water right is not established by
    appropriation for beneficial use; rather, such a right is determined by the withdrawal and
    reservation of the applicable land for a federal purpose. See United States v. Jesse, 
    744 P.2d 491
    , 493-94 (Colo. 1987) (en banc). A federal reserved water right, therefore, has a priority
    date corresponding to the date of the statute, executive order, or treaty creating the
    reservation, regardless of whether the water at issue has ever been put to actual use. See id.
    at 494. Similarly, the quantity of a federal reserved water right is not determined by the
    amount of water put to beneficial use; rather, it is determined by the amount of water
    necessary to carry out the primary purpose of the reservation. Id. Further, as is apparent
    9
    from the fact that the priority date of a federal reserved water right is unconnected to the use
    of water, such a right cannot be lost by non-use, unlike a water right secured under state law.
    Id.
    {17}   Thus, as the Colorado Supreme Court observed in Jesse:
    In contrast to the doctrine of prior appropriation, which . . .
    recognizes only the right to divert a quantified amount of water at a specific
    location for a specific purpose, the federal doctrine of reserved water rights
    vests the United States with a dormant and indefinite right that may not
    coincide with water uses sanctioned by state law.
    Id. (citations omitted). Such dormant and indefinite rights can be very problematic when it
    comes to adjudicating and administering water rights in an arid state, such as New Mexico.
    Many stream systems in such states are already fully appropriated, and a determination that
    federal reserved water rights exist often requires “a gallon-for-gallon reduction in the amount
    of water available for water-needy state and private appropriators.” New Mexico, 438 U.S.
    at 705. Further, as demonstrated by this case, claims to federal reserved water rights are
    potentially very large with very early priority dates and can therefore be highly disruptive
    to rights existing under state law. See Jesse, 744 P.2d at 494 (“Because the priority date of
    the [federal] reserved right relates back to the date of the reservation, reserved water rights
    threaten existing appropriators with divestment of their rights without compensation.”).
    Accordingly, in recognition of the predominance of state law in the area of water rights and
    the potentially substantial and detrimental impact on state rights in fully appropriated stream
    systems, courts must construe the doctrine of federal reserved water rights narrowly. See id.
    Our analysis of the Commissioner’s claim to federal reserved water rights in New Mexico’s
    school trust lands therefore follows this principle of narrow construction.
    C.      Withdrawal and Reservation
    {18} “In determining whether there is a federally reserved water right implicit in a federal
    reservation of public land, the threshold question necessarily is whether the government has
    in fact withdrawn the land from the public domain and reserved it for a public purpose.”
    Sierra Club v. Block, 
    622 F. Supp. 842
    , 853 (D. Colo. 1985). Despite their facial
    similarities, the terms “withdrawal” and “reservation” have distinct meanings when used in
    the context of public land law. 
    Id. at 854-55
    . As the Tenth Circuit Court of Appeals recently
    explained,
    A withdrawal makes land unavailable for certain kinds of private
    appropriation . . . . It temporarily suspends the operation of some or all of the
    public land laws, preserving the status quo while Congress or the executive
    decides on the ultimate disposition of the subject lands.
    A reservation, on the other hand, goes a step further: it not only
    10
    withdraws the land from the operation of the public land laws, but also
    dedicates the land to a particular public use.
    S. Utah Wilderness Alliance v. Bureau of Land Mgmt., 
    425 F.3d 735
    , 784 (10th Cir. 2005)
    (citations omitted). Ultimately, the act of withdrawing and reserving land ensures that it will
    not be transferred out of federal ownership pursuant to homesteading or other land disposal
    statutes. See Winters v. United States, 
    143 F. 740
    , 748 (9th Cir. 1906) (“[W]hen the lands
    of the government have been legally appropriated or reserved for any purpose, they become
    severed from the public lands, and . . . no subsequent law or sale should be construed to
    embrace or operate upon them.”); see also Sierra Club v. Watt, 
    659 F.2d 203
    , 206 (D.C. Cir.
    1981) (concluding that a claim for federal reserved rights failed because “Congress did not
    withdraw land from the public domain when it passed the [act in question], it merely set
    forth purposes, goals and authority for the use of the public domain” (internal quotation
    marks and citation omitted) (footnote omitted)).
    {19} The Commissioner essentially asks us to consider the requirements of withdrawal and
    reservation to be formalistic criteria that are unnecessary for the creation of a federal
    reservation of land. According to the Commissioner, the “reserved rights doctrine focuses
    on the purpose of the reservation, not the mechanics.” However, this statement presupposes
    that a federal withdrawal and reservation of land has actually occurred. As we have
    explained, the question of whether a withdrawal and reservation has occurred necessarily
    involves mechanics. The Commissioner does not reference any case in which a court has
    held that federal reserved water rights existed on land that was not previously withdrawn and
    reserved, and we are aware of no such case.
    {20} In the seminal cases in which the United States Supreme Court considered the
    existence of implied federal reserved water rights—including New Mexico, Cappaert,
    Arizona, and Winters—the Court did not focus on the threshold question of whether the
    relevant congressional acts, executive orders, or treaties withdrew land from the public
    domain and created a reservation for a federal purpose. In each of those cases, it was
    undisputed that the federal government had done so. See, e.g., New Mexico, 
    438 U.S. at 707
    (national forests); Cappaert, 
    426 U.S. at 140-41
     (national monuments); Arizona, 
    373 U.S. at 601
     (national recreation areas, national wildlife refuges, and national forests); Winters,
    
    207 U.S. at 577
     (Indian reservations). Therefore, those cases are only helpful to our analysis
    as models of what constitutes, as opposed to what does not constitute, a withdrawal and
    reservation of land for a federal purpose. Our question is whether the legislation on which
    the Commissioner relies actually created a federal reservation of the school trust lands at
    issue by withdrawing and reserving them for a particular public use to further a federal
    purpose.
    {21} First, the Commissioner relies on the Organic Act of 1850, which established the
    boundaries of the Territory of New Mexico and provided for the establishment of a territorial
    government. Sections 2-5, 9 Stat. at 447-49. In accordance with the federal government’s
    policy of granting public domain land to new “public-land” states in furtherance of
    11
    supporting public education, see Andrus, 
    446 U.S. at 506
    , the Organic Act provided as
    follows:
    [W]hen the lands in said Territory shall be surveyed under the direction of
    the government of the United States, preparatory to bringing the same into
    market, sections numbered sixteen and thirty-six in each township in said
    Territory shall be, and the same are hereby, reserved for the purpose of being
    applied to schools in said Territory, and in the States and Territories hereafter
    to be erected out of the same.
    Section 15, 9 Stat. at 452. In making his argument, the Commissioner seizes on the term
    “reserved” in this provision to support his position that the Act satisfied the threshold
    requirement of creating a reservation. However, the mere use of the term “reserved” in a
    congressional act does not necessarily create a federal withdrawal and reservation of land.
    See S. Utah Wilderness Alliance, 425 F.3d at 785 (“[J]ust because a withdrawal uses the term
    ‘reserved’ does not mean that it reserves land ‘for public uses.’”). As the United States
    Supreme Court has explained, when Congress granted school trust lands to the Western
    states, it neither withdrew nor reserved those lands. In fact, “[p]rior to survey, those sections
    [were] a part of the public lands of the United States and [could have been] disposed of by
    the Government in any manner and for any purpose consistent with applicable federal
    statutes.” United States v. Wyoming, 
    331 U.S. 440
    , 443 (1947); see also United States v.
    Morrison, 
    240 U.S. 192
    , 198-99, 210 (1916) (concluding that language similar to the
    Organic Act in the congressional act creating the Territory of Oregon meant that title did not
    immediately vest in Oregon and that “Congress was at liberty to dispose of the land” until
    “the sections were defined by survey”); Dallas v. Swigart, 
    24 N.M. 1
    , 6, 
    172 P. 416
    , 417
    (1918) (“[T]he reservation from entry under the general land laws shall come into operation
    only when the [school trust] lands are surveyed in the field, whereupon they are withdrawn
    from entry.”). The Organic Act, like the statute at issue in Wyoming, made conveyance of
    the designated lands subject to the completion of the official survey, which, as the
    Commissioner acknowledges, did not occur until many years later. Until completion of the
    survey, the trust lands remained in the public domain and were subject to disposal by the
    federal government. Thus, the Organic Act did not contemplate a withdrawal or reservation
    of the lands that it identified for purposes of now asserting a federal reserved water rights
    claim. See S. Utah Wilderness Alliance, 425 F.3d at 784 (explaining that withdrawal for the
    purpose of asserting a federal implied water right requires a temporary suspension of “the
    operation of some or all of the public land laws”).
    {22} Second, the Commissioner relies on the Ferguson Act of 1898, which was essentially
    the realization of Congress’s promise in the Organic Act to grant the Territory of New
    Mexico sections sixteen and thirty-six of each township in the Territory. Ferguson Act § 1,
    30 Stat. at 484. Of importance in this case, Section 1 of the Ferguson Act, passed roughly
    fifty years after the Organic Act, indicates that at least some of the lands promised in the
    Organic Act had either been disposed of by the federal government or officially reserved by
    the federal government; therefore, the Act promised the Territory of New Mexico indemnity
    12
    lands to compensate for those lands that were no longer available in sections sixteen and
    thirty-six. Ferguson Act § 1, 30 Stat. at 484. Section 1 states:
    [S]ections numbered sixteen and thirty-six in every township of the Territory
    of New Mexico, and where such sections, or any parts thereof, are mineral
    or have been sold or otherwise disposed of by or under the authority of any
    Act of Congress, other non-mineral lands equivalent thereto . . . in lieu of
    which the same is taken, are hereby granted to said Territory for the support
    of common schools, such indemnity lands to be selected within said Territory
    in such manner as is hereinafter provided: Provided, That the sixteenth, and
    thirty-sixth sections embraced in permanent reservations for national
    purposes shall not at any time be subject to the grants of this Act, nor shall
    any lands embraced in Indian, military, or other reservations of any character
    be subject to the grants of this Act[.]
    Id. We infer from this promise of different lands to compensate for Congress’s disposal or
    reservation of lands within the promised sections that Congress was well aware of its ability
    to reserve lands for a federal purpose, as well as the technical requirements for doing so, and
    that it chose not to create a federal reservation with respect to New Mexico’s school trust
    lands.
    {23} Finally, the Commissioner relies on the Enabling Act of 1910, which ushered the
    Territory of New Mexico into statehood. Section 1, 36 Stat. at 557-58. Among other things,
    the Enabling Act recognized that sections sixteen and thirty-six had already been granted to
    the Territory and additionally granted “sections two and thirty-two in every township . . . for
    the support of common schools.” Id. § 6, 36 Stat. at 561. As it did in the Ferguson Act,
    Congress guaranteed in the Enabling Act indemnity lands to be granted when portions of the
    newly designated sections were or became unavailable because they
    [were] mineral, or [had] been sold, reserved, or otherwise appropriated or
    reserved by or under the authority of any Act of Congress, or [were] wanting
    or fractional in quantity, or where settlement thereon with a view to
    preemption or homestead, or improvement thereof with a view to desert-land
    entry has been made heretofore or hereafter, and before the survey thereof in
    the field.
    Id. Again, the language of the Enabling Act did not sufficiently withdraw or reserve lands
    to create implied federal reserved water rights; rather, it simply conveyed lands out of federal
    ownership to the State of New Mexico. Similar to the Ferguson Act, by providing for
    indemnity lands that were meant to replace lands in the original grant that were, in fact,
    disposed of or reserved for a federal purpose, the Enabling Act displays Congress’s
    cognizance of the difference between a reservation and a grant. Thus, like the Ferguson Act,
    we cannot read the Enabling Act to have sufficiently withdrawn and reserved the school trust
    lands to reach a conclusion that it created a federal reservation in which federal reserved
    13
    water rights can be inferred.
    {24} In summary, none of the congressional acts upon which the Commissioner relies
    either adequately withdrew the school trust lands from the public domain or reserved them
    for a particular public purpose. See S. Utah Wilderness Alliance, 425 F.3d at 784.
    Accordingly, the Commissioner has failed to prove the threshold requirements of
    demonstrating the existence of implied federal reserved water rights.
    D.      Federal Purpose
    {25} Even if we were to conclude that the congressional acts upon which the
    Commissioner relies adequately withdrew and reserved the state trust lands at issue in this
    case, our result would be the same. To establish that an implied federal water right exists
    in a certain tract of land, one must, in addition to proving that the land was withdrawn and
    reserved, show that the reservation was for a federal purpose. See Cappaert, 
    426 U.S. at 138
    . Although we do not deny that the support of common schools is a matter of national
    interest, we cannot conclude that it is also a federal purpose in the context of the implied
    federal water rights doctrine. As the term “federal purpose” has been construed in non-
    Indian federal reserved water rights cases, continuing federal ownership of the reserved
    lands appears to be a prerequisite to a determination that such rights exist. See, e.g., New
    Mexico, 
    438 U.S. at
    707 & n.14; Cappaert, 
    426 U.S. at 140-42
    ; Arizona, 
    373 U.S. at 601
    .
    {26} The Commissioner argues that the oversight powers retained by the federal
    government to ensure that the trust is administered properly, along with the federal
    government’s authority to enforce the trust’s terms, represent the equivalent of federal
    ownership for purposes of establishing implied reserved water rights. Although we agree
    with the Commissioner that the Enabling Act imposes strict trust obligations on the State,
    see § 10, 36 Stat. at 564-65, we do not agree that such obligations constitute a federal
    purpose in conjunction with the school trust lands. We reiterate that the federal reserved
    water rights doctrine must be construed narrowly, and we are aware of no authority that
    supports the proposition that by retaining oversight or enforcement power over a state’s
    disposition of its trust lands, the federal government also retains the title to the land that is
    necessary to create a federal reservation and impliedly reserve water rights.
    {27} We note that there is one context in which federal reserved water rights are not
    dependent on continuing federal ownership, namely, Indian reservation lands allotted and
    conveyed in fee to individual tribal members. See, e.g., United States v. Powers, 
    305 U.S. 527
    , 532 (1939) (“[W]hen allotments of land were duly made for exclusive use and
    thereafter conveyed in fee [from the United States government to tribal members], the right
    to use some portion of tribal waters essential for cultivation passed to the owners.”). The
    Commissioner relies on Powers in asserting that federal reserved water rights passed along
    with the school trust lands when they were conveyed to New Mexico. However, in Powers,
    it was clear and uncontested that the federal government, by treaty, withdrew the land at
    issue from the public domain and reserved it for a federal purpose before it was allotted and
    14
    conveyed to individual tribal members. See 
    id. at 528, 532-33
    . Because the federal purpose
    under which that land was reserved required water to support the tribe’s “exclusive right of
    cultivation,” 
    id. at 533
    , the Court concluded that the treaty creating the reservation also
    impliedly reserved water rights to adequately irrigate the land and refused to rule that those
    rights were extinguished simply because the land was conveyed in fee to individual
    landowners. See 
    id.
     On the contrary, as explained above, the lands conveyed to New
    Mexico in the Organic Act, the Ferguson Act, and the Enabling Act were never withdrawn
    from the public domain and reserved for a federal purpose. As such, it necessarily follows
    that any attendant federal reserved water rights that the Commissioner now claims in
    connection with those lands were also not impliedly reserved. Accordingly, the result
    reached in Powers cannot be reached in this case.
    E.      Congressional Intent
    {28} In addition to arguing that Congress withdrew and reserved the school trust lands for
    a federal purpose, the Commissioner also contends that the circumstances surrounding
    Congress’s grant of those lands indicates its intent to also grant water rights. Specifically,
    the Commissioner argues that because Congress was aware of the arid nature of New
    Mexico’s lands when it granted the school trust lands, it must have impliedly intended to
    reserve water rights in order to make the lands more valuable. In response, the United States
    argues in its answer brief that other express acts of Congress aimed at compensating for the
    aridity of New Mexico’s trust lands indicate that no such implied intent existed in the
    congressional acts upon which the Commissioner relies.
    {29} The United States argues that Congress demonstrated its consciousness of the aridity
    of New Mexico’s lands and took action to compensate for it in at least two distinct ways,
    neither of which involved granting water rights along with the school trust lands. First, the
    United States Supreme Court has recognized that Congress, in granting school trust lands
    to New Mexico, made the express decision to grant four sections per township, “instead of
    the one section per township ordinarily given in the earlier grants,” in order to compensate
    for the fact that the value of the lands that it was granting was comparatively little as a result
    of the lack of water. Lassen v. Ariz. ex rel. Ariz. Highway Dep’t, 
    385 U.S. 458
    , 463 n.7
    (1967). Second, as our Supreme Court recognized in State ex rel. Interstate Stream
    Commission v. Reynolds, 
    71 N.M. 389
    , 391, 
    378 P.2d 622
    , 623 (1963), the Ferguson Act
    granted the Territory of New Mexico 500,000 acres of land for the express purpose of
    establishing permanent water reservoirs for irrigation. Section 6, 30 Stat. at 485. However,
    we note that Congress did not expressly reference the need for irrigation of the school trust
    lands in its grant of those lands in the Ferguson Act. See id. § 1, 30 Stat. at 484.
    {30} We agree with the United States that both actions of Congress referenced above
    demonstrate an acknowledgment of the aridity of the school trust lands and that both can be
    considered measures that were implemented to compensate for the relatively low value of
    those lands as a result of their aridity. Accordingly, we cannot agree with the Commissioner
    that we must infer a congressional intent to grant water rights along with the school trust
    15
    lands in order to guarantee that the arid lands that were granted remained as “productive”
    as possible.
    CONCLUSION
    {31} The Commissioner has not established that the various congressional acts promising
    or conveying trust lands for the support of New Mexican schools withdrew those lands from
    the public domain and reserved them for a federal purpose—the necessary prerequisites to
    a finding of congressional implied intent to reserve water rights. Therefore, we affirm the
    district court’s grant of summary judgment.
    {32}    IT IS SO ORDERED.
    JAMES J. WECHSLER, Judge
    WE CONCUR:
    LYNN PICKARD, Judge
    CELIA FOY CASTILLO, Judge
    Topic Index for State of N.M. ex rel State Engineer v. Commissioner of Public Lands, No.
    27,654
    GV             Government
    GV-PL          Public Lands
    GV-SE          State Engineer
    NR             Natural Resources
    NR-WL          Natural Resources - Water Law
    16
    

Document Info

Docket Number: 27,654

Citation Numbers: 2009 NMCA 4, 145 N.M. 433, 2009 NMCA 004

Judges: Castillo, Celia, Foy, Lynn, Pickard, Wechsler

Filed Date: 9/24/2008

Precedential Status: Precedential

Modified Date: 8/6/2023

Authorities (21)

union-pacific-land-resources-corporation-a-corporation-champlin-petroleum , 696 F.2d 88 ( 1982 )

Sierra Club, a Non-Profit California Corporation v. James ... , 659 F.2d 203 ( 1981 )

Walker v. United States , 142 N.M. 45 ( 2007 )

State Ex Rel. Interstate Stream Commission v. Reynolds , 71 N.M. 389 ( 1963 )

State Ex Rel. Reynolds v. South Springs Co. , 80 N.M. 144 ( 1969 )

Sierra Club v. Block , 622 F. Supp. 842 ( 1985 )

United States v. Morrison , 36 S. Ct. 326 ( 1916 )

United States v. Wyoming , 331 U.S. 440 ( 1947 )

United States v. Powers , 59 S. Ct. 344 ( 1939 )

Gates v. State, Taxation & Revenue Department , 143 N.M. 446 ( 2007 )

Becenti v. Becenti , 136 N.M. 124 ( 2004 )

Arizona v. California , 83 S. Ct. 1468 ( 1963 )

Winters v. United States , 28 S. Ct. 207 ( 1908 )

Self v. United Parcel Service, Inc. , 126 N.M. 396 ( 1998 )

California Oregon Power Co. v. Beaver Portland Cement Co. , 55 S. Ct. 725 ( 1935 )

California v. United States , 98 S. Ct. 2985 ( 1978 )

United States v. New Mexico , 98 S. Ct. 3012 ( 1978 )

Andrus v. Utah , 100 S. Ct. 1803 ( 1980 )

Lassen v. Arizona Ex Rel. Arizona Highway Department , 87 S. Ct. 584 ( 1967 )

Cappaert v. United States , 96 S. Ct. 2062 ( 1976 )

View All Authorities »