Water Users Suing Middle Rio Grande Conservancy District: The Devil is in the Details

By SAM MARKWELL

In early August the Board of Directors of the Middle Rio Grande Conservancy District (MRGCD) stopped the flow of surface water to farms within its boundaries. The move cames months before the standard October 31 end of season.

Low reservoir and river levels, the result of intense drought conditions that have persisted across the watershed over the past few years, were cited as the reason for the early curtailment. The decision went into effect on August 16.

In late September a group of farmers shut off from water by the District filed a lawsuit against the MRGCD, an authority created in the 1920’s to manage irrigation activities and infrastructure across the 150-mile stretch of the Rio Grande valley from Cochiti Pueblo in the north to San Marcial in the south.

Janet Jarratt, one of the plaintiffs and former board member of the District (when folks aren’t running for the board of the District they are suing it), said that the plaintiffs were contesting the way curtailment was being enforced uniformly over irrigators who have different rights to water. The plaintiffs claim private rights to water. Pointing to the potential economic losses farmers could suffer from not being able to irrigate crops, it seems that Jarratt and other plaintiffs are questioning whether the Conservancy should be able to regulate their private rights to water in the same way it regulates permit rights.

The six Pueblos within the Conservancy (Cochiti, Santo Domingo, San Felipe, Santa Ana, Sandia and Isleta) have leveraged federal recognition of their “prior and paramount” right to water on roughly 8,000 of their nearly 20,000 irrigated acres, and limited irrigation on some Pueblo farms has been able to continue.

Federal interventions into Conservancy authority have enabled the Pueblos to continue irrigating based on the recognition of the “priority” of rights to lands that have been irrigated for centuries. The plaintiffs argue that their water rights, also used on land that has been irrigated for centuries (or at least one century), should receive similar consideration.

While the ways in which people come into possession of water and the ends to which it is put vary, the criteria by which water use is legally recognized as a right in New Mexico and much of the U.S. West hinges on the Doctrine of Prior Appropriation. Hence, the lawsuit points to the enshrinement of the Doctrine of Prior Appropriation in Article 16 of the New Mexico State Constitution, alleging that the MRGCD’s policy of irrigation curtailment is in violation of the doctrine. The board response has been minimal, arguing that the District does in fact have the power, legislated and court-affirmed, to curtail water rights despite the apparent contradiction with the Doctrine of Prior Appropriation.

The principle underlying the Doctrine of Prior Appropriation holds that first in time is first in right, so that in times of shortage the oldest, or “senior” rights are first in line for distribution with “junior” rights taking the back seat. The year 1907 marks the divide between the two categories. Uses of water that can trace a lineage to an initial appropriation prior to 1907 (such as Pueblo, land grant acequia and U.S. territorial-era ditch systems) are recognized as “senior” private property rights, and all uses initiated after 1907 are “junior” rights  (which are a mix of newer ditch systems and municipal and industrial uses that are predominantly drawn from groundwater pumping).

Pre-1907 rights are recognized as private property rights while post-1907 rights are recognized as state permitted rights to appropriate use (not ownership) of public waters at the discretion of the state.

Why 1907? That is the year the Territorial Water Code was instituted, which then became the basis of the State Water Code. Most of the lands that were irrigated prior to the creation of the District have claims to pre-1907 water rights, while lands that were brought under irrigation only after the creation of the District use post-1907 permitted water rights.

Further complications arise because water throughout the state has been over-appropriated. That is, more water is claimed than reliably exists in the interconnected surface-groundwater system at any given time. Over-appropriation is the result of liberal state-permitting processes, which have doled out access to surface and groundwater to public and private appropriators for over a century, despite political and legal contestations alleging that these new appropriations violate existing rights.

In fact, the focus on priority administration in the 1907 code was part of U.S. efforts to overwrite existing indigenous and Mexicano political and economic systems of water use and distribution by privatizing and individualizing systems of use and distribution. The Territorial-then-State Engineer’s Office was the executive power tasked with the duty of promoting and regulating development of water resources. The Engineer’s office has always had to manage the gap between its imperative to increase the use of water in capitalist economic production and its responsibility to protect existing rights.

In 1897, decades before the Conservancy began digging its first canals, Pueblo and Mexicano plaintiffs filed lawsuits against the Albuquerque Land and Irrigation Company (ALIC) for violating existing water rights. ALIC was surveying lands between Cochiti and Isleta and its employees were consistently prevented from entering Pueblo and land grant lands that were already irrigated by acequias.  The surveys were the first stage of a plan to build new canals and bring additional acreage in the valley under irrigation. The plaintiffs alleged that there was already an over-appropriation of the waters of the Rio Grande, and that ALIC was creating new demands that would inevitably compete with the existing uses of water by Pueblo and land grant villages.

The territorial courts firmly took sides with the defendants, citing the Desert Lands Act of 1877, which granted “public corporations” the right to exercise eminent domain in the service of “improvement and colonization” of desert lands.  Luckily for the plaintiffs, ALIC went bankrupt, and it would not be until the creation of the Conservancy District as a public corporation, this time assisted and subsidized by a number of federal agencies, that the aspirations for colonization and improvement that drove ALIC would take a more permanent form.

The Conservancy District was the development machine designed to maximize the capitalist productivity of irrigated agriculture in the valley while minimizing the possibilities of political contestation of those farming communities subject to its reign. When the Conservancy was created in 1923, it slowly and unevenly began to incorporate the 71 existing Pueblo and Mexicano acequias and newer community ditches into its system of canals and drains. It is perhaps one of the most neglected facts in official histories of the Conservancy that it was deeply contested from the get-go.

The petition that led to the passage of the Conservancy Act in 1923 contained about one hundred signatures from mostly urban elites.  Within a year over 5,000 signatures from valley farmers were collected in efforts to contest the legal and political legitimacy of the District.  Concerns raised against the formation of the District included the lack of accountability and participation of farmers that was structured into the political direction of the District, as board members were appointed by two local judges—not elected by farmers.  Lawsuits were pushed through state courts, and the judicial decisions rendered essentially affirmed the power of the District over those concerns raised against it.

A revised Conservancy Act was passed in 1927 and further specified the extent of its powers and ambitions. The next step was to negotiate an agreement with the Department of Interior to determine the inclusion of the Pueblos, which was accomplished during the 1928 Congressional session.

In 1930, when the District began digging ditches, widespread protests emerged. Valley communities physically stopped draglines from cutting through existing acequias and farmlands.  Arrests were made and protests were criminalized and repressed by District officials, local judges and sheriffs’ offices.

The Great Depression stunted the prospects of even the most industrialized capital-endowed farmers, and the taxes levied by the District began to drive poor farmers into delinquency.  In the late 1930’s, a number of groups appealed to Congress to relieve farmers’ debts, often comparing the situation of poor farmers to that of the six Pueblos and arguing that similar federal support was necessary. Some groups, including land-grant heirs and the labor union La Liga Obrera, referenced the Treaty of Guadalupe-Hidalgo, arguing that the District’s operations were a violation of the terms of the treaty. These groups took the strong position that the only remedy was to relieve indebtedness and repair harms visited upon farmers whose rights were ostensibly protected under the treaty.

Huge amounts of properties were under threat of foreclosure, and political organizing was successful in maintaining limits on foreclosure until 1945.  With the end of the war, the moratorium was lifted, and nearly 9,000 farms were foreclosed by the District as it fell into bankruptcy (this does not include the number that were foreclosed on prior to 1945, estimated at 2,000). But the new strategic importance of the Middle Rio Grande Valley to national security programs was a key factor in the federal bail-out of the MRGCD by the Bureau of Reclamation (BR) that kept the District and its financiers in business while farmers were massively dispossessed.

Protests continued in various forms through the 1940’s, but the resistance was dissipated through attrition and the elusiveness of promises for reform.  In 1951, as the MRGCD was incorporated into BR management, a new set of laws was passed that further entrenched the District’s authority over democratic contestations. These laws are contained in NM State Law Chapter 73, Article 14 “Conservancy Districts; Definitions; Organization and Management.”  These laws, along with the Conservancy Act and a handful of legal decisions, will play a major role in the interpretation of the farmers’ lawsuit against the MRGCD. Key passages are quoted below:

73-14-48. General grant of power. The board of directors is…hereby vested with all powers necessary and requisite for the accomplishment of the purposes for which the district is organized…and no enumeration of particular powers hereby granted shall be construed to impair any general grant of power herein contained, nor to limit any such grant to power or powers of the same class or classes as those so enumerated.

73-14-49. Declaration of policy. It is recognized that in conservancy districts heretofore or hereafter organized under New Mexico law that certain land therein has or may have vested irrigation water rights. While fully recognizing such rights, nevertheless, in the proper operation of such districts, and especially in time of droughts, it is essential that the districts have the specific and unquestioned power to distribute the water remaining available for irrigation and to properly allocate the same for the purposes most essential for the welfare and the economy of landowners within the district. To this end, the legislature deems it of manifest importance that conservancy districts have the unquestioned power to make such distribution and allocation of irrigation waters. While such power is present in the existing laws, the method of enforcement is doubtful. To avoid any question in the future, this act is enacted, with the aforesaid legislative intent and policy in mind.

73-14-50 Distribution of irrigation waters. All conservancy districts…are specifically empowered to make such proper and necessary distribution and allocation of the waters…as the board of directors thereof, in consultation with the chief engineer…shall determine to be reasonable and proper.

73-14-51. Rules and regulations. The method of distribution…shall be set forth in rules and regulations to be adopted by the board of directors…in consultation with the chief engineer…[which] shall be published in English only in two issues, one week apart, of one legal newspaper in each county embraced within such conservancy district…at least seven days before the effective date.

Together these laws outline a minimally limited power of discretion, coded as “proper and reasonable”, disseminated in English (not the Spanish, Keres and Tiwa languages of valley communities), that seems to abrogate the Constitutionally-recognized status of vested property rights. The significance of the transition to an elected board of directors in the 1970s and subsequent revisions of policy will certainly enter the legal fray of the current lawsuit. But the exceptions to laws prohibiting the violation of communal land and water rights should also be recognized as crucial to the authority of the District.

THE Deacon from St. Anne’s Catholic Church blessing the waters of the Armijo acequia during San Ysidro ceremony with Matachines dancers in background. Photo by Author

Over the past decade individuals throughout the South Valley of Albuquerque organized and re-constituted eight acequia associations comprised of acequias that pre-existed the Conservancy.  After going through the formal process of re-constituting and gaining recognition from the New Mexico Acequia Association in 2006, the acequias began seeking state recognition and financial support to undertake governance and infrastructural responsibilities that the Conservancy had neglected.  While an initial appropriation of funds was successful, the Conservancy, private irrigators within the Conservancy, and the Office of the State Engineer all called into question whether these acequias were legitimate and recognizable legal and political entities.  The most commonly cited concerns about the acequias was that their collective interests in water distribution could interfere with individual irrigation as well as individual sales of private water-rights from within the acequia system.

When the South Valley acequias challenged the District, private interests were clearly present within organizing efforts, but broader political horizons often animated the desires for transformation that were mobilized into organizing efforts. Arguing for the “Acequia Freedom and Protection Act” in the 2008 and 2009 New Mexico legislative sessions, Senator Jerry Ortiz y Pino defined the stakes of the act in terms of sovereignty and self-determination.  For better or worse, this emphasis drove certain irrigators—those who saw the references to U.S. colonialism and the language of sovereignty as too divisive— away from organizing efforts. These concerns made it possible for many whites to characterize the acequias as a collectivist ethno-racial project that was a threat to their private property rights.

The current lawsuit’s portrayal of the District as overbearing “Big Government” violating individual private rights marks the limits of this form of contestation. If successful, the challenge will not significantly intervene in the injustices of the District that reproduce the hegemony of U.S. settler colonial and capitalist socio-natural relations. While appeals to the private rights of citizens as the limit and end of governmental power may be efficacious, these appeals only reinforce the founding premises of liberal capitalist social relations. Without sustained attention to how discourses of private rights and capitalist relations have been central to the authority of the array of state agencies that govern irrigation, the broader stakes of resistance will remain unrecognizable.

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