Keeping Water Lawyers Afloat During the Drought

By KAY MATTHEWS

How many lawyers does it take to change a light bulb? Fifty four. Eight to argue, one to get a continuance, one to object, one to demur, two to research precedents, one to dictate a letter, one to stipulate, five to turn in their time cards, one to depose, one to write interrogatories, two to settle, one to order a secretary to change the bulb, and twenty-eight to bill for professional services.

How many lawyers will it take to reach a settlement on the Lower Rio Grande Adjudication? Judging from the number of filings, responses, answers, motions, and appeals in the LRG I’d say 54 wouldn’t be too far off the mark.

Here’s a sampling from the District Court website showing filings in just one day, August 5, of this year, which include a motion by pre-1906 senior water rights claimants and responses of the other parties to the adjudication: the U.S; the Office of the State Engineer (represented by the SNM acronym); the City of Las Cruces; New Mexico State University; the El Paso Water Improvement District No. 1; the New Mexico Pecan Growers; Elephant Butte Irrigation District; Southern Rio Grande Diversified Crop Farmers Association:

· Pre-1906 Claimants Consolidated Reply to the US, OSE, CLC, EBID, NMSU, EPCWD1 and Verde Group’s Response to the US, Las Cruces, OSE< and the Pre-1906 Claimants’ Motions for Summary Judgmetn Regarding the US’ Claims in SSI-104 in the LRGA; 8-5-13;
· City of Las Cruces’ Reply to the US’ Consolidated Response in Opposition to the SNM and CLC Motions and Memoranda in Support of Summary Judgment; 8-5-13;
· City of Las Cruces Reply to City of El Pasos Combined Response to Motions for Summary Judgment on Project Priority and Amount; 8-5-13;
· City of Las Cruces’ Consolidated Reply to New Mexico Pecan Growers’ Response to City of Las Cruces’ Motion for Summary Judgment and EBID’s Response to All Pending Motions Regarding Summary Judgment; 8-5-13;
· US Consolidated Reply to Responses filed to Motions in Support of Summary Judgment; 8-5-13;
· US’ Supplement to its Motion and Memorandum for Summary Judgment; Affidavit of Andrew Gahan; 8-5-13;
· SNM’s Reply to US Consolidated Response in Opposition to the SNM’s and the CLCs’ Motions and Memoranda in Support of Summary Judgment; 8-5-13;
· SNM’s Reply to EBID’s Response to All Pending Motions for Summary Judgment; 8-5-13;
· SNM’s Reply to City of El Paso’s Combined Response to the MSJ on Project Priority and Amnt; 8-5-13;
· SNM’s Reply to NMPGs and SRGDCFA’s Responses to its MSJ on the Amnts of Wtr and Priority Dates for the US’ Rio Grande Project Right; 8-5-13;
· Reply of SNM and the CLC to the Pre-1906 Claimants Response to the Mtns for SJ of US, State, LC; 8-5-13;
· EBIDs Mtn for Leave to Reply and Reply State of New Mexicos Response Regarding Motions for Summary Judgment; 8-5-13;
· City of El Paso’s Motion for Leave to Reply and Reply to SNM’s Response in Opposition to US MSJ; 8-5-13;

In my La Jicarita article in May I discussed the motion in court by the pre-1906 senior water rights claimants 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. 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 by the federal government, and therefore believe the court should proceed with the “simultaneous” adjudication of pre-1906 claimants and the federal claims. Scott Boyd, whose great-grandfather Nathan Boyd founded the Project, claims that the federal government has no water rights because of the illegal seizure and has taken his claim to the New Mexico Court of Appeals. The pre-1906 water rights claimants have intervened in this appeals court case as a third party whose rights are being affected, and are prepared to take their case from District Court into Federal Court to force a decision regarding their priority water rights.

The two other New Mexico adjudications we have covered extensively in La Jicarita, Abeyta and Aamodt, have resulted in settlements but continue to employ their own retinue of lawyers as they undertake the machinations to implement their agreements. They need to move many acre feet of water around to fulfill its terms, so there will be plenty of water transfer applications filed by lawyers to the Office of the State Engineer. Many of these lawyers are the same ones working in the LRG adjudication.

Cabresto Lake, which feeds the Questa acequias
Cabresto Lake, which feeds the Questa acequias

In the Aamodt settlement, the County of Santa Fe and the Bureau of the Interior will soon apply to transfer 1,700 afy of water rights from Top of the World, in northern Taos County, to the Pojoaque Valley water delivery system. El Prado Water and Sanitation District in the Taos Valley, a party to the Abeyta settlement, has filed eight applications with the OSE that seek to appropriate underground water from deep wells linked to the Rio Grande aquifer and transfer water rights from Top of the World and area acequias. The newest application, by the Acequia Madre del Rio Lucero y del Arroyo Seco, under the auspices of the Taos Valley Acequia Association, also an Abeyta party, is seeking to transfer approximately 200 acre feet per year from the Llano Community Ditch in Questa (and needs an additional 60 afy to meet the terms of the settlement). Under the terms of the Abeyta settlement the acequia will divert water from the Rio Lucero for six months in the winter; the water will be pumped 1,000 underground into an Acequia Storage and Recovery system and pumped back to the surface during the irrigation season.

As suspected, much of the water that is being sought to meet the terms of the Abeyta settlement is situated north of the Taos Valley in communities and areas that are not parties to the agreement. When this likelihood was initially raised by members of the committee working to draft a public welfare committee to monitor transfers as part of the Taos Regional Water Plan, many of the Abeyta parties opposed its formation, claiming the terms of the settlement should be inviolable. This often manifests in the perception that the Abeyta parties have the authority to buy and transfer water rights without having to submit an application to the OSE, which is not the case. They must proceed through the transfer process and parties impacted by the transfers may file protests of the application. The Taos County Public Welfare Advisory Committee, under the auspices of the Public Welfare Ordinance, also has the authority to review all water transfers except those that might conflict with the sovereignty of either Taos or Picuris pueblos or any acequia or community ditch that incorporated bylaws allowing the commissions to assess whether a transfer application is detrimental to the functioning of the acequia. The Committee then makes a recommendation to the Taos County Commission whether or not to protest the proposed transfer. The committee will meet on August 19 at 10:00 am at the county complex to review the TVAA proposed transfer.

In his online publication Taos Friction, longtime Taoseño Bill Whaley has this to say about the Abeyta settlement: “Currently, parciantes and members of TVAA (55 Taos Valley acequias only) are receiving letters from the Office of the State Engineer, notifying them of the opportunity to sign on the dotted line of the Abeyta agreement. They might discover, if they read the 100 page document, that some mayordomos were asleep and signed off on what critics call a multi-million dollar shell game, providing little in the way of additional water or conservation but much in the way of rewards for attorneys, hydrology engineers, Taos Pueblo, and major players like El Prado Water and Sanitation or Palemon [Martinez, president of the TVAA] and the TVAA.” While the TVAA been a galvanizing force in organizing the valley’s acequias, it has also been at the forefront of trying to prevent oversight of the movement of area water that will affect other water rights holders in Taos County. As another Taoseña observed, “The Abeyta Settlement is a good political settlement but does not settle real wet water issues.” All the water lawyers in the world can’t turn paper water into wet water and they’ll sink like the rest of us when their flotation devices deflate.

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