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United States v. The Pueblos of Jemez

United States District Court, D. New Mexico

September 11, 2018

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,
v.
TOM ABOUSLEMAN, et al., Defendants. and THE PUEBLOS OF JEMEZ, SANTA ANA, and ZIA, Plaintiffs-in-Intervention,

         JEMEZ RIVER ADJUDICATION

          MEMORANDUM OPINION AND ORDER

          MARTHA VÁZQUEZ UNITED STATES DISTRICT JUDGE.

         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 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. 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 ...


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