Clark v. Haaland

1

GUY CLARK; LINDA CORWIN; CRAIG CORWIN; WESLEY HANCHETT; RICHARD JONES; MICHAEL WRIGH; and SAN JUAN AGRICULTURAL WATER USERS ASSOCIATION, Plaintiffs, v. DEB HAALAND, in her official capacity as Secretary of the Interior; CAMILLE C. TOUTON, in her official capacity as Deputy Commissioner, United States Bureau of Reclamation; MARTHA WILLIAMS, in her official capacity as Principal Deputy Director, U.S. Fish & Wildlife Service; DR. RUDY SHEBALA, in his official capacity as Executive Director, Navajo Nation Division of Natural Resources; DAVID ZELLER, in his official capacity as head of Navajo Indian Agricultural Products Industries; MIKE HAMMAN, in his official capacity as State Engineer of the State of New Mexico; and ROLF SCHMIDT-PETERSON, in his official capacity as Director of the New Mexico Interstate Stream Commission, Defendants.^[1]

Civ. No. 21-1091 KG/SCY

United States District Court, D. New Mexico

September 28, 2022

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on three separate but related Motions to Dismiss: 1) Defendants John D'Antonio's and Rolf Schmidt-Peterson's Motion to Dismiss for Failure to State a Claim and for Eleventh Amendment Immunity (Doc 14) (State MTD), which is fully briefed (Docs. 42, 48); 2) the United States' Motion to Dismiss (Doc. 15) (USA MTD) which is fully briefed (Docs. 42, 46); and 3) Dr. Rudy Shebala's and Dave Zeller's Motion for Dismissal on the Ground of Sovereign Immunity (Doc. 16) (Navajo MTD), which is fully briefed (Docs. 42, 48).^[2] Having reviewed the briefing and applicable law, and being otherwise fully advised, the Court grants the Motions to Dismiss (Docs. 14, 15, 16).

I. BACKGROUND^[3]

a. The Complaint

Plaintiffs are residential users of water in Bernalillo, Sandoval, and San Juan Counties. (Doc. 1) at ¶¶ 13-17. One Plaintiff relies on a domestic well, id. at ¶ 13, while the others rely on municipal water sources or water supplied by various tributaries, id. at ¶¶ 14-17. The Plaintiffs claim that the Defendants, all sued in their official capacity only, id. at ¶ 12, “have not complied with or enforced” myriad federal laws, id. at ¶ 58.^[4] Plaintiffs further assert that the “present controversy arises in part because of certain state court rulings, including State ex rel. State Engineer v. United States, 2018-NMCA-053, 425 P.3d 723.” (Doc. 1) at ¶62.

Indeed, Plaintiffs' Complaint is predicated on purportedly erroneous rulings of federal law made by the state appellate court? By way of example, the New Mexico Court of Appeals allegedly held:

that NIIP is not a BOR project, [2018-NMCA-053,] ¶ 18; that NIIP is not subject to the beneficial use requirement, or the PIA standard, ¶¶ 24-26, 30; that Congress created water rights by authorizing the construction of NIIP, ¶ 32; that the state's water laws and regulations are pre-empted by federal law, ¶¶ 10, 13, 14, 16; and that a state court can adjudicate water rights in interstate rivers without considering global warming, lack of available water, endangered species, or other federal reserved water rights, ¶ 40.

(Doc. 1) at ¶ 62. Based on these and other alleged errors, Plaintiffs contend “[a]n irreconcilable conflict between state and federal law now exists,” such that this Court should “issue declaratory judgments to resolve the conflicts.” (Doc. 1) at ¶ 63. Notably, Plaintiffs assert they were “not served with process, not parties to the [state] case, and . . . had no opportunity to litigate the issues on their merits, and therefore they are not bound [by the state court's judgment] as a matter of res judicata or collateral estoppel.” Id. at ¶ 66.^[5]

Plaintiffs claim that “[t]hese state court rulings overthrow the first principles of federal water law, so they must be corrected by the federal courts, which have the ability to issue authoritative decision on questions of federal law.” Id. at ¶ 68. To that end, Plaintiffs ask this Court to make declaratory judgments “on the straightforward points of federal law which apply to the defendants.”^[6] Id. at ¶ 69.

With respect to the state court case, State ex rel. State Engineer v. United States, 2018-NMCA-053, Plaintiffs provide a fairly detailed timeline of events and, they argue, evidence of judicial bias. Id. at ¶¶ 77-90. Plaintiffs contend the appellate opinion, which constitutes the law of the land in New Mexico at this time, “contradicts, nullifies and abrogates federal laws on water as set forth in federal statutes and the decisions of the United States Supreme Court.” Id. at¶91.

Plaintiffs appear to make the following substantive claims:

1. they “are being subjected to ongoing deprivations of their fundamental rights of due process under the federal Constitution,” id. at ¶ 92, and the Office of the State Engineer told a state court judge in the underlying adjudication that it would take 200 (two hundred) more years to complete the adjudication, which “is a denial of the right to be heard at a meaningful time in a meaningful manner,” id. at ¶ 93; 2. they have been denied due process by the federal, state, and Navajo Nation governments based on “constitutionally inadequate” service of process in the “Expedited Inter Se, Case No. AB-07-1,” which is itself “a vehicle for impairing defendants' due process rights,” id. at ¶ 95;

3. the federal, state, and Navajo Nation governments “worked in concert... to nullify . . . statutory and constitutional requirements” related to a hydrographic survey for the area, and thus intentionally deprived the Plaintiffs of constitutionally adequate notice, id. at ¶¶ 96-100;

4. the state judge “refused to allow local water owners to file an answer and counterclaim” in the Expedited Inter Se case, and thus “denied local owners a meaningful opportunity to present and prove their side of the case at a meaningful time,” id. at ¶ 101;

5. the stream adjudication process impairs Plaintiffs' water rights, which are property rights and constitutional rights under New Mexico law, id. at ¶¶ 103-104;

6. the state court deprived Plaintiffs of their “federal constitutional right to impartial judges,” id. at ¶ 105, based on the judge's prior connection with the Navajo Nation and the judge's child being paid for the state for legal work on water cases, id. at ¶¶ 106-118; the specially appointed appellate judge not being authorized by the New Mexico Constitution to serve on the case, id. at ¶¶ 119-120; the specially appointed appellate judge working as a lawyer and investigator for the State on other matters, id. at ¶¶ 121-129; and the underlying state court judge's ex parte contacts with the Office of the State Engineer, id. at ¶ 135;

7. the Plaintiffs' First Amendment rights have been impaired by attorney discipline proceedings against their now-former-counsel, Victor Marshall, based on representations he made regarding the aforementioned state court judges and their purported conflicts of interest, id. at¶¶ 130-133;

8. the Plaintiffs' due process rights have been impaired by the attorney disciplinary board's refusal to consider after-acquired evidence in the proceedings against Plaintiffs' nowformer counsel, id. at ¶ 134;

9. the Plaintiffs have been denied equal protection of the law because the Expedited Inter Se proceeding “has . . . given favorable and expedited treatment” to one litigant, the Navajo Nation, “at the expense of water owners who hold valid water rights,” id. at ¶ 136; and

10. the Plaintiffs have been denied substantive due process because they “will not be heard in a reasonably foreseeable time” and the state, federal, and Navajo Nation governments have worked together for the following invidious purposes: to prevent local water owners from ever being heard; to evade and violate all of the water laws set forth above; and to nullify the Colorado Compacts by allowing the Navajo Nation to export San Juan River water from New Mexico to other states, while charging New Mexico's compact share for water that is actually used in other states.

Id. at ¶ 138.

Plaintiffs then reiterate their request for declaratory judgment, as outlined above, and purportedly reserve the right to later seek money damages.

b. The Motions to Dismiss

The Defendants filed three separate motions to dismiss: the State MTD, the USA MTD, and the Navajo MTD. For slightly different reasons, each motion asserts that the individual defendants are protected by various immunity doctrines that divest this Court of jurisdiction.

The State MTD seeks dismissal pursuant to Eleventh Amendment Immunity on the basis that this official-capacity suit does not allege the State Engineer (through Hamman) or the Interstate Stream Commission (through Schmidt-Peterson) has violated federal law or will continue to violate federal law. (Doc. 14) at 7-9. Additionally, the State MTD seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) on the basis that Plaintiffs failed to state a claim against Hamman or Schmidt-Peterson. Id.

The USA MTD seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction on the basis of sovereign immunity. (Doc. 15). Specifically, the USA MTD asserts that none of the statutes cited by Plaintiffs expressly waive the sovereign immunity of the United States for this case, and the McCarran Amendment does not apply because this case does not constitute a “comprehensive adjudication of water rights[.]” Id. at 4.

The Navajo MTD also seeks dismissal pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction, based on tribal sovereign immunity. (Doc. 16). The Navajo MTD argues first that the Plaintiffs fail to establish any waiver of immunity with respect to Dr. Shebala or Mr. Zeller, and second that the claims would in fact run against the Navajo Nation itself, not the...