                                                                              FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                     October 3, 2011
                       UNITED STATES COURT OF APPEALS
                                                    Elisabeth A. Shumaker
                                                                       Clerk of Court
                              FOR THE TENTH CIRCUIT


    STATE OF NEW MEXICO, ex rel.,
    S.E. Reynolds, State Engineer,

                 Plaintiff-Appellee,

    and                                                     No. 10-2258
                                                (D.C. No. 6:66-CV-06639-MV-WPL)
    UNITED STATES OF AMERICA,                                (D. N.M.)

                 Plaintiff-Intervenor,

    v.

    JOE GUTIERREZ; BERTHA
    GUTIERREZ,

                 Defendants-Appellants.


                              ORDER AND JUDGMENT *


Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.


          This appeal arises out of the adjudication of water rights in the

Nambe-Pojoaque-Tesuque river system (NPT), a tributary of the Rio Grande river


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
in the State of New Mexico. Pro se Defendants-Appellants Joe and Bertha

Gutierrez challenge the district court’s order denying their motion to vacate a

special master’s determination that their priority objection was untimely.

Because we lack jurisdiction, we DISMISS this appeal.

                                   B ACKGROUND

      In 1966, New Mexico filed suit to establish the water rights in the NPT.

The suit named a multitude of defendants and sought to determine:

             a.    The water rights adjudged each party.
             b.    The source, priority, amount, purpose, periods, and
                   place of use of each [water] right.
             c.    The specific tracts of land to which the water right for
                   irrigation is appurtenant.
             d.    Such other matters as may be necessary to define a
                   particular right and its priority.

Supp. R., Vol. 1 at 41. Despite the passage of several decades, numerous issues,

including priority of use, remained unresolved.

      In 2008, however, the district court took up the priority issue, and ordered

the claimants to show cause why the priority dates for the “stream system

community and private ditches” should not be the “dates proposed by the State.”

R., Vol. 1 at 206. The district court set a June 15, 2009, deadline for filing a

priority-date objection.

      In January 2010, the Gutierrezes objected pro se to the State’s “propos[al]

to assign a priority date of 1832 to the Acequia del Rancho, which feeds the

lateral irrigation ditch situated in [the Gutierrezes’] property.” Id. at 68. They

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claimed that a priority date of 1740 had been established in a civil case decided in

1940.

        A special master dismissed the Gutierrezes’ objection as untimely. In

response, the Gutierrezes filed a motion under Fed. R. Civ. P. 60(b) to vacate the

special master’s decision, arguing that their late filing would not

“inconvenience . . . the court or prejudice the plaintiff” or other claimants. Id. at

53; see also Supp. R., Vol. 1 at 106.

        The district court denied the motion. It reasoned that the Gutierrezes had

provided no explanation for the six-month delay in filing their objection, and that

the State would be prejudiced if the Gutierrezes were allowed to pursue their

objection because notice would have to be served on thousands of interested

parties at considerable expense to the State.

        The Gutierrezes appealed, and we directed the parties to address our

jurisdiction over this matter.

                                     D ISCUSSION 1

        This court has appellate jurisdiction over the “final decisions” of district

courts. 28 U.S.C. § 1291. To be final, a decision ordinarily “ends the litigation

on the merits and leaves nothing for the court to do but execute the judgment.”

Cunningham v. Hamilton Cty., Ohio, 527 U.S. 198, 204 (1999) (internal quotation


1
       Because the Gutierrezes are proceeding pro se, we construe their arguments
liberally. See de Silva v. Pitts, 481 F.3d 1279, 1283 n.4 (10th Cir. 2007).

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marks omitted). In other words, “[a] final judgment is one that terminates all

matters as to all parties and causes of action.” Utah v. Norton, 396 F.3d 1281,

1286 (10th Cir. 2005) (internal quotation marks omitted). “The finality

requirement in § 1291 evinces a legislative judgment that restricting appellate

review to final decisions prevents the debilitating effect on judicial administration

caused by piecemeal appeal disposition of what is, in practical consequences, but

a single controversy.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 471 (1978)

(internal quotation marks omitted).

      The district court’s order denying the Gutierrezes’ motion to vacate is not a

final order, as NPT water-right issues remain unresolved. According to the State,

no final adjudication has been rendered as to the priority of any claimant’s water

rights; moreover, there are water-right issues beyond priority that remain to be

adjudicated. Indeed, trial proceedings are ongoing. Thus, the order denying the

Gutierrezes’ motion “adjudicates fewer than all the claims or the rights and

liabilities of fewer than all the parties [and] does not end the action as to any of

the claims or parties.” Fed. R. Civ. P. 54(b).

      Nevertheless, the Gutierrezes argue that the denial of their motion to vacate

is appealable under the collateral order doctrine. In a “small class” of cases, we

have jurisdiction over interlocutory appeals from non-final orders that “finally

determine claims of right separable from, and collateral to, rights asserted in the

action, too important to be denied review and too independent of the cause itself

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to require that appellate consideration be deferred until the whole case is

adjudicated.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).

To establish appellate jurisdiction under the collateral order doctrine, an appellant

must show that the district court’s order (1) conclusively determined the disputed

question, (2) resolved an important issue completely separate from the merits of

the case, and (3) is effectively unreviewable on appeal from a final judgment. See

Midland Asphalt Corp. v. United States, 489 U.S. 794, 799 (1989). These

requirements “are stringent, and unless they are kept so, the underlying doctrine

will overpower the substantial finality interests § 1291 is meant to further.” Mesa

Oil, Inc. v. United States, 467 F.3d 1252, 1254 (10th Cir. 2006) (internal

quotation marks omitted). A district court order that “fails to satisfy any one of

[the Cohen] requirements” is not reviewable under the collateral order doctrine.

Id. (alteration in original).

       We conclude that the Gutierrezes have not shown that the timeliness of a

priority objection is effectively unreviewable by postjudgment appeal. “[T]he

decisive consideration is whether delaying review until the entry of final

judgment would imperil a substantial public interest or some particular value of a

high order.” Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599, 605 (2009)

(internal quotation marks omitted). The timeliness of a priority objection is a

procedural issue that can adequately be resolved after a final judgment in the

case. If the objection was erroneously deemed untimely in the district court,

                                         -5-
remand for reconsideration of the water-right claimant’s priority is available on

appeal. We are aware of no substantial public interest or high-order value that

demands interlocutory review of the timeliness of a priority objection.

      In short, the collateral order doctrine does not apply here.

      The appeal is DISMISSED.


                                                    Entered for the Court


                                                    Michael R. Murphy
                                                    Circuit Judge




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