USA For Jemez, Santa, et al v. Abousleman, et al
Filing
4421
MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez DENYING WITHOUT PREJUDICE 4403 MOTION Action on SM Report and Issue 4 and entry of final judgment ; GRANTING 4404 MOTION to Certify for Interlocutory Appeal; and GRANTING 4405 MOTION to Certify Court's September 30,2017 Order for Interlocutory Appeal. See Order for Specifics. (gr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA, on its
own behalf and on behalf of the
PUEBLOS OF JEMEZ, SANTA ANA, and ZIA,
and
STATE OF NEW MEXICO, ex rel.
State Engineer,
Plaintiffs,
83cv01041 MV/JHR
JEMEZ RIVER ADJUDICATION
and
THE PUEBLOS OF JEMEZ, SANTA ANA, and ZIA,
Plaintiffs-in-Intervention,
v.
TOM ABOUSLEMAN, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Coalition’s Motion for: 1) Action on A)
the Special Master’s October 1, 1991 Report and B) Issue 4; and 2) the Entry of a Final Judgment
on the Pueblos’ Water Rights and Memorandum in Support, Doc. 4403, filed January 4, 2018
(“Coalition’s Motion”), on the Motion of the Pueblos of Santa Ana, Zia and Jemez to Certify the
Court’s September 30, 2017 Order for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b), Doc.
4404, filed January 9, 2018 (“Pueblos’ Motion”), and on the United States’ Motion to Certify
Court’s September 30, 2017 Memorandum Opinion and Order for Interlocutory Appeal, Doc.
4405, filed January 9, 2018 (“U.S.’ Motion”).
Background
After several years of settlement negotiations regarding the Pueblos’ water rights, the
Court ordered the Parties to submit a discovery plan by April 13, 2012, in the event they did not
complete a settlement agreement by that date. See Doc. 4229, filed July 29, 2011. The Parties
notified the Court that they believed it would be necessary to resume litigation, and that “[p]rior to
proceeding with a discovery plan, the parties believe that there are several critically important
threshold legal issues outstanding that, in the interest of judicial economy and the parties’
economic resources, must be decided by the Court before the parties can meaningfully prepare for
trial and present relevant evidence and, hence, before we can submit a discovery plan.” Doc.
4234, filed March 15, 2012. On April 13, 2012, the Parties identified five threshold legal issues.
See Doc’s 4237 and 4239. One of those threshold legal issues was whether Spain, Mexico or the
United States had extinguished the Pueblos’ aboriginal water rights.
After two and a half days of expert testimony, extensive briefing, entry of Judge Lynch’s
Proposed Findings and Recommended Disposition (“PFRD”), and objections to the PFRD, the
Court adopted the PFRD that Spain extinguished the Pueblos’ aboriginal water rights. See
Doc.4329, filed September 30, 2017.
Request for Certification for Interlocutory Appeal
The United States and the Pueblos filed motions asking the Court to certify the Court’s
September 30, 2017, ruling that Spain extinguished the Pueblos’ aboriginal water rights for
interlocutory appeal. “The United States requests that the following specific question of law be
certified to the Tenth Circuit: whether the aboriginal water rights of the Pueblos of Jemez, Santa
Ana, and Zia were extinguished by the Spanish Crown under colonial law where the Crown took
no affirmative action to reduce or alter the water use of the Pueblos.” U.S.’ Motion at 1. The
Pueblos indicate that the question of law at issue is “whether the mere extension of Spanish
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authority over the Southwest, in the absence of any formal [affirmative] act, extinguished the
Pueblos’ aboriginal water rights.” Pueblos’ Motion at 7.
The United States and the Pueblos seek certification for interlocutory appeal pursuant to
28 U.S.C. § 1292(b) which states:
When a district judge, in making in a civil action an order not otherwise appealable
under this section, shall be of the opinion that such order involves a controlling
question of law as to which there is substantial ground for difference of opinion and
that an immediate appeal from the order may materially advance the ultimate
termination of the litigation, he shall so state in writing in such order. The Court of
Appeals which would have jurisdiction of an appeal of such action may thereupon,
in its discretion, permit an appeal to be taken from such order, if application is made
to it within ten days after the entry of the order: Provided, however, That
application for an appeal hereunder shall not stay proceedings in the district court
unless the district judge or the Court of Appeals or a judge thereof shall so order.
Controlling Question of Law
The Court’s Order involves a controlling question of law. See Paper, Allied-Industrial,
Chemical And Energy Workers Intern. Union v. Continental Carbon Co., 428 F.3d 1285, 1291
(10th Cir. 2005) (“Interlocutory appeals originate from the district court's order itself, not the
specific question certified by the district court or the specific question framed by the appellant”)
(citing United States v. Stanley, 483 U.S. 669, 677 (1987)). “[T]he correct test for determining if
an issue is appropriate for interlocutory review is (1) whether that issue was raised in the certified
order; and (2) whether the issue can control the disposition of the order.”
Paper,
Allied-Industrial, Chemical And Energy Workers Intern. Union v. Continental Carbon Co., 428
F.3d 1285, 1291 (10th Cir. 2005). The issue of whether the Pueblos’ aboriginal water rights were
extinguished by the imposition of Spanish authority without any affirmative act was raised in the
Court’s Order. See Order at 4-5, 7. Resolution of that issue on appeal could affect the outcome
of this case. See 16 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper § 3930 (3d ed.
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2012) (“There is no doubt that a question is ‘controlling’ if its incorrect disposition would require
reversal of a final judgment”).
Substantial Ground for Difference of Opinion
There is substantial ground for difference of opinion regarding the controlling question of
law.
There is a substantial ground for difference of opinion which supports a certificate
for an interlocutory appeal if a trial court rules in a manner which appears contrary
to the rulings of all courts of appeals which have reached the issue, if the circuits
are in dispute on the question and the court of appeals of the circuit has not spoken
on the point, if complicated questions arise under foreign law, or if novel and
difficult questions of first impression are presented. A "substantial ground for
difference of opinion" exists under 28 U.S.C.A. § 1292(b) where reasonable jurists
might disagree on an issue's resolution and not merely where they have already
disagreed.
To determine if a substantial ground for difference of opinion exists, as required to
certify an order for interlocutory appeal, courts must examine to what extent
controlling law is unclear; however, just because a court is the first to rule on a
particular question or just because counsel contends that one precedent rather than
another is controlling does not mean there is such a substantial difference of
opinion as will support interlocutory appeal. On the other hand, when novel legal
issues are presented, on which fair-minded jurists might reach contradictory
conclusions, a novel issue may be certified for interlocutory appeal without first
awaiting the development of contradictory precedent.
2 Fed. Proc., L. Ed. § 3:218 (footnotes omitted) (collecting cases). The issue of whether the
imposition of sovereign authority without an affirmative act is sufficient to extinguish the Pueblos’
aboriginal water rights is a novel and difficult question of first impression. While several cases
cited by the United States and the Pueblos show that Indian title was extinguished by affirmative
acts, the United States and the Pueblos have not cited, and the Court has not found, any authority
which expressly states an affirmative act is required to extinguish Indian title. Because the
Supreme Court has indicated that Indian title may be extinguished in a number of ways including
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“by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of
occupancy, or otherwise,” without expressly stating that an affirmative act is required to
extinguish Indian title, fair-minded jurists might reach contradictory conclusions regarding
whether Spain extinguished the Pueblos’ aboriginal water rights by exercising complete dominion
over the determination of the right to use public waters.
Immediate Appeal may Materially Advance the Ultimate Termination of this Case
“In certifying an interlocutory appeal pursuant to 28 U.S.C.A. § 1292(b), the district judge
must find that the interlocutory appeal may materially advance the ultimate termination of the
litigation.”
This requirement reflects the policy that the court of appeals will grant
interlocutory review only in extraordinary cases where a decision might avoid
protracted and expensive litigation. If it appears that an interlocutory appeal will
delay a trial rather than expedite or eliminate it, leave to appeal should be denied.
Moreover, the fact that the certification is sought shortly before trial is scheduled to
begin is good reason for denying interlocutory review. When litigation will be
conducted in substantially the same manner regardless of the district court's
decision, an appeal cannot be said to materially advance the ultimate termination of
the litigation.
The determination of whether an interlocutory appeal may materially advance the
ultimate termination of litigation properly turns on pragmatic considerations,
assessed by reviewing the procedural and substantive status of the case with respect
to the progress or completion of discovery, the disposition of pretrial motions, the
extent of the parties' preparation for trial, and the nature and scope of the requested
relief. For certification, an interlocutory appeal need not have a final, dispositive
effect on the litigation as it is required only that it "may materially advance" the
litigation.
2 Fed. Proc., L. Ed. § 3:219 (footnotes omitted) (collecting cases).
An immediate appeal from the Court’s Order may materially advance the ultimate
termination of this case. If the Court proceeds under an incorrect legal standard and is reversed on
appeal, the Court and the Parties would have to expend time and resources to re-litigate the issue.
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Certifying the Order for interlocutory appeal is also consistent with the Parties’ request that
“[p]rior to proceeding with a discovery plan, the parties believe that there are several critically
important threshold legal issues outstanding that, in the interest of judicial economy and the
parties’ economic resources, must be decided by the Court before the parties can meaningfully
prepare for trial and present relevant evidence and, hence, before we can submit a discovery plan.”
Doc. 4234.
Certification for Interlocutory Appeal
The Court is of the opinion that its Order ruling that Spain extinguished the Pueblos’
aboriginal water rights, see Doc. 4329, filed September 30, 2017, involves a controlling question
of law as to which there is substantial ground for difference of opinion and that an immediate
appeal from the Order may materially advance the ultimate termination of this case. The Court
therefore certifies its Order, Doc. 4329, filed September 30, 2017, for immediate appeal.
The Jemez River Basin Water Users’ Coalition’s Motion
The Jemez River Basin Water Users’ Coalition (“Coalition”) asks the Court to act on
Special Master Zinn’s October 1, 1991 Report (“Zinn Report”), issue a ruling on Issue 4 and enter
a final judgment on the Pueblos’ water rights. Because the Zinn Report presents findings of fact
and recommended conclusions of law regarding the Pueblos’ water rights based upon the Pueblos’
past uses of water, the Court will defer acting on the Zinn Report until after the Tenth Circuit rules
on the interlocutory appeal regarding the Court’s ruling that Spain extinguished the Pueblos’
aboriginal water rights. The Court denies the Coalition’s Motion and stays proceedings in this
case pending a decision by the Tenth Circuit on the interlocutory appeal.
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IT IS ORDERED that:
(i) the Motion of the Pueblos of Santa Ana, Zia and Jemez to Certify the Court’s September
30, 2017 Order for Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b), Doc. 4404, filed
January 9, 2018, and the United States’ Motion to Certify Court’s September 30, 2017
Memorandum Opinion and Order for Interlocutory Appeal, Doc. 4405, filed January 9, 2018, are
GRANTED.
(ii)
The Court CERTIFIES its Order, Doc. 4329, filed September 30, 2017, for
immediate appeal.
(iii) The Coalition’s Motion for: 1) Action on a) the Special Master’s October 1, 1991
Report and b) Issue 4; and 2) the Entry of a Final Judgment on the Pueblos’ Water Rights and
Memorandum in Support, Doc. 4403, filed January 4, 2018, is DENIED without prejudice.
(iv) Proceedings in this case are STAYED until the Court of Appeals for the Tenth
Circuit declines to permit an interlocutory appeal or issues a ruling on the interlocutory appeal.
MARTHA VÁZQUEZ
UNITED STATES DISTRICT JUDGE
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