State of New Mexico Ex Rel. Reynolds v. United States, 408 F. Supp. 1029 (D.N.M. 1975)

*1030 Paul L. Bloom, Special Asst. Atty. Gen., Santa Fe, N. M., for plaintiff.

Victor R. Oretega, U. S. Atty., James B. Grant, Asst. U. S. Atty., Albuquerque, N. M., Charles N. Estes, Jr., Atty., Dept. of Justice, Washington, D. C., for U.S.A.

Dwight D. Arthur, Farmington, N. M., for City of Farmington.

Joe A. Palmer, Farmington, N. M., for Echo Ditch Co.

Bigbee, Byrd, Carpenter & Crout (Richard N. Carpenter), Santa Fe, N. M., and C. C. Dietrich, San Francisco, Cal., for Utah International, Inc.

This case involves a New Mexico adjudication of water rights to which the United States was joined as a defendant to establish its claims on behalf of various federal agencies and as trustee over Indian lands using or claiming water of the San Juan River.

The United States removed the case here and the plaintiff moved to remand the action to the District Court for San Juan County. The motion to remand is well taken.

The United States was properly before the State Court pursuant to 43 U.S.C. § 666 in its capacity as trustee over Indian lands, Arizona v. California, 373 U.S. 546, 83 S. Ct. 1468, 10 L. Ed. 2d 542; United States v. Akin, 504 F.2d 115 (10th Cir. 1974) (where the United States brought the action as Plaintiff on behalf of two Indian tribes); and United States v. District Court for Eagle County, 401 U.S. 520, 91 S. Ct. 998, 28 L. Ed. 2d 278. The right of removal which the United States seeks to exercise is not implicit in 43 U.S.C. § 666, nor in the mere fact that the United States is a defendant.

There is presently no federal question jurisdiction and the removal cannot be sustained under 1441(c). Section 1442 also is not available. In re Green River Drainage Area, 147 F. Supp. 127 (D.C. Utah 1956); Andersen v. Bingham & G. Ry. Co., 169 F.2d 328 (10th Cir. 1948). Now, Therefore,

It is ordered that the action is remanded to the District Court for San Juan County, New Mexico.