Another Case of Priority Administration: Will the Lower Rio Grande Adjudication Court Let it be Heard?

By KAY MATTHEWS

As we head into a summer of extreme drought in most parts of New Mexico the legal machinations in the Lower Rio Grande (LRG) adjudication continue to confound and obscure the real issue of there being almost no water over which to fight. The state’s inability to manage water on the priority system will leave many farmers incapable of surviving this year’s curtailed water flows through Elephant Butte Irrigation District, or, for that matter, any other area in the state struggling through its own shortages and lawsuits (La Jicarita, April 23).

Dropping water levels at the base of the so-called "elephant" that names Elephant Butte Dam. http://otrwjam.wordpress.com photo
Dropping water levels at the base of the so-called “elephant” that names Elephant Butte Dam. http://otrwjam.wordpress.com photo

However, in the latest filing in the LRG adjudication of a motion by six landowners claiming pre-1906 senior water rights, there is recognition of the on-the-ground dire circumstances: “The recent drought conditions and the over appropriations of the Rio Grande have shown that those who have prior appropriated rights (pre 1906 or pre federal rights) cannot rely upon EBID [Elephant Butte Irrigation District], OSE [Office of the State Engineer] or the U.S. to defend their rights for the full delivery of their prior appropriated allotments of water. . . . [and] will leave the farmers once again, as it did one hundred years ago, without a current legal remedy to protect themselves and once again place them in economic peril.”

The reference to “as it did one hundred years ago” is at the heart of this case. As I reported extensively in our former iteration, La Jicarita News, this long and complicated adjudication will determine federal water rights on the Rio Grande with regard to Elephant Butte Irrigation District, whether those rights were fraudulently acquired from the Rio Grande Project, and the state of New Mexico’s right to make offers of judgment and issue permits.

One hundred years ago the federal government seized Nathan Boyd’s Rio Grande Dam and Irrigation Company (Rio Grande Project), including all rights of way, the dam he had constructed to serve the irrigation needs of Lower Rio Grande irrigators, and the water rights the farmers had already turned over to the company. It took this action under what is referred to as Application 8, citing the War Powers Act to make the claim that the Rio Grande was a navigable river above El Paso and Boyd’s dam interfered with ship travel. This allowed the Bureau of Reclamation to proceed with construction of Elephant Butte Dam and the administration of LRG water rights. Those water rights, as stated in Application 8, were “all unappropriated water of the Rio Grande,” obviously not including senior, or prior appropriation water rights.

However, the State of New Mexico then filed an application so that the OSE could begin permitting these water rights, essentially commingling these senior, and subsequent junior, water rights. The OSE set a universal senior priority date of 1906, the date of Application 8.

LowerRioGrande-450In April of 2000 the state filed A Notice of Intent to Make an Offer of Judgment Describing the United States’ Storage and Diversion Rights and Proprietary Claims in the Rio Grande Project. The U.S. District Court stayed the suit until the federal government’s water rights could be determined, however, after being assured that these rights could be “expeditiously” adjudicated in state court. More than 10 years later the state has yet to present an offer of judgment regarding the Elephant Butte water rights.

The pre-1906 senior water rights claimants are asking the court to reconsider hearing their case as Stream System Issue 106 (the court denied their first motion in April of this year), meaning a “global” issue or one that affects the interest of all or most of the parties to the adjudication. This would be the sixth issue to be classified as such: the first three deal with Consumptive Irrigation Requirements/Farm Delivery Requirements, EBID groundwater claims, and domestic wells. The fourth issue, Stream System Issue SS-97 104, is the claim by Scott Boyd, great-grandson and representative of the estate of Nathan Boyd, that the federal government illegally seized the Rio Grande Company to construct the Elephant Butte Dam to supply irrigation water to LRG farmers and that those water rights have to be quantified and validated as part of this process. The fifth Stream Issue addressed the water right claims of the Estate of Nathan Boyd, as well as any related claims by Scott Boyd, as an inter se proceeding. This issue was subsequently dismissed but has been appealed to the New Mexico Court of Appeals.

Essentially, the senior water rights claimants want their claims to be heard first in court, which they believe will also benefit the adjudication process by focusing on the Rio Grande Dam & Irrigation Company Project’s historical diversions and infrastructures that predated the takeover by the federal government. The court is saying pre-1906 rights will be heard sub-file by sub-file, i.e., on a case by case basis, after the other stream system issues are addressed over an estimated period of five years (the claimants see the time frame as totally unrealistic and too late to save their farms and ranches from drought).

The Rio Grande near the Texas/New Mexico border. Photo by Nick Miller, borderzine.com
The Rio Grande near the Texas/New Mexico border. Photo by Nick Miller, borderzine.com

Just as Scott Boyd believes the federal government illegally seized his great-grandfather’s Rio Grande Project, these senior water rights claimants believe that their historical rights were not legally appropriated under Application No. 8. The landowners whose lands would have been irrigated by the Rio Grande Project, some 90,000 acres, have a priority date of 1894, not 1906, when the Project was seized, and therefore the court should proceed with the “simultaneous” adjudication of pre-1906 claimants and the federal claims, which are based upon “the seizure by fraud and trespass of RGD&IC’s and the Boyd family’s and the farmers’ legally existing rights.”

On the last page of the claimants’ motion to the court it states: “If this global Issue over project rights is not settled by the court by allowing Movant’s [legalese for claimants] motion, Movant’s only remedy is to motion the Federal District Court to lift its administrative stay to take up the issue of whether Pre-1906 Claimants have a right to Project Rights that pre-date and thus are prior in right to the U.S. Movant’s have been plagued by corruption in the Courts of New Mexico ever since 1900 when the Courts of this Territory applied the laws of this Territory in a discriminatory manner.”

Rio Grande dams

It remains to be seen if the Third District Court in Las Cruces will address what many see as a historical illegal taking, and by so doing actually uphold priority water rights, which could potentially impact both water rights allocations and transfers throughout the Rio Grande Valley; there were no declared basins in 1906 and therefore no boundaries between the lower, middle, and upper basins. Conceivably (and admittedly, unlikely), if the court determines that the federal government’s water rights are nonexistent, it could proceed with a standard adjudication of senior water rights, invalidating the state’s permits for the entire Rio Grande.

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2 comments

  1. Really good and comprehensive article. I would have like to have seen a bit more detail from the Motion to Reconsider which I have posted but unfortunately the court has not yet seen fit to post that motion: the failure of the court to do so raises other issues. Another overview that could be of interest is http://econintersect.com/wordpress/?p=34034

  2. Application No. 8 is: 1) unsigned, 2) Completely incomplete, 3) a forgery, 4) Never signed as approved by the Territorial Engineer and 5) no permit exists (See Turner v. State Engineer)

    I am unaware if any Application filed by the State Engineer to allow for issuance of permits.

    You are incorrect regarding the 90,000 acre feet. Pre-1906 water rights were applied to about 31,000 acres of bottom land and used the perrenial flow of the river. The RGP added about another 60,000 acres of upland to be irrigated from the stored flood flow.

    The farmers never surrendered their title to their water rights to the EBWUA (predecessor to the EBID. They did give the management of their to the EBWUA. The EBWUA assured the farmers at the time that there was a humongous amount of water and there would never be shortages. The Doctrine of Prior Appropriations exists with the EBID at times of shortage. EBID distribution policies do not override the NM Constitution.

    Nathan Boyd finished Leasburg. The feds came in and rebuilt their Leasburg in 1908. This is stated on the Application No. 8 in the State Engineer’s Big Application Book.

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