By KAY MATTHEWS
The breaking news is that the U.S. Supreme Court ruled on Monday that Texas can proceed with its lawsuit against New Mexico in which it claims that because of over pumping on the Rio Grande New Mexico has failed to deliver Texas’s share of surface and groundwater required by the Rio Grande Compact. The ruling allows New Mexico to file a motion to dismiss the action, perhaps forestalling a lengthy courtroom battle.
The broken record news is that this year’s drought looks to be as bad—and perhaps worse— than that of 2013. Last April I wrote about what the third year of drought looked like—and foretold—in the Sangre de Christo Mountain watershed where I live. Now, in January of 2014, we’ve had no measurable precipitation since before Christmas. The fields around my house, at 8,000 feet, are bereft of snow, and the road up Las Trampas Canyon is navigable, by car, all the way to the trailheads that lead into the Pecos Wilderness. The normally snow-laden peaks—Truchas, Diamante, Sheep’s Head—hold some of the early December snows in their canyons and ravines, but the steep slopes of the peaks are that blue tinged color we never want to see in the middle of winter.
The Natural Resource Conservation Service Snowpack Update for January 26 shows the percentages of average departure from snow water equivalents for all the state’s water basins, Chama to the Mimbres, and they are all negative, varying from minus 16 percent in the Animas Basin to minus 84 in the Zuni/Bluewater. The Sangre de Cristo Mountain basins average out at negative 35 percent. Pictured below is the National Weather Service’s Climate Prediction Center’s precipitation forecast into the first few weeks of February: below normal precipitation coupled with above average temperatures.
It is within this context that I take a look at the current status of three ongoing adjudications in New Mexico: the Lower Rio Grande, Aamodt, and Abeyta. The parties to the LRG are still in District Court in Las Cruces trying to hammer out a settlement while the court in Santa Fe has sent out “A Notice and Order to Show Cause” to all water rights owners in the Aamodt settlement, which adjudicates rights for Tesuque, Pojoaque, Nambe, and San Ildefonso pueblos in the Pojoaque Valley, and the Abeyta settlement, which adjudicates rights for Taos Pueblo in the Taos Valley.
These intimidating letters, classifying the water rights holders as “defendants”, require that all those who object to the settlements—documents that are the result of years of negotiations—file their objections and statements of reason. The filing deadline in the Abeyta was October 28 of last year, and those who objected then had to file their statement of reason by January 10 with the Office of the State Engineer. The filing deadline for the Aamodt is April 7, and those who object to that settlement may also be asked to submit a statement as to the basis of their objection. The deadline for the court to issue final decrees in the adjudications is 2017.
As we have reported extensively in La Jicarita over the years, the various parties involved in these settlements reached compromises that pleased some of the people some of the time and displeased others all the time. It’s the displeased others that now have the chance to “Object” to the settlement and state their reasons. From talking with folks involved in both the settlements it appears that the court will be dealing with hundreds of objections.
One of the defendants in the Abeyta adjudication sent me a copy of his objection. His primary concerns are fourfold: 1) the settlement calls for the drilling of deep wells to provide water to some of the settlement parties that may negatively impact his water rights, as well as his neighbors’ water rights; 2) the settlement unjustly provides money to select parties to underwrite acquisition of additional water rights; 3) the settlement provides for increased development and water use while the state of Texas pursues a lawsuit against New Mexico for under delivery of its water rights; and 4) the settlement allows “Native Americans [Taos Pueblo] to transfer their water rights or purchase water rights without abiding by state laws by which others are bound.”
In the Abeyta settlement, El Prado Water and Sanitation District in the Taos Valley 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 Acequia Madre del Rio Lucero y del Arroyo Seco, under the auspices of the Taos Valley Acequia Association, also an Abeyta party, will receive $2 million under the terms of the settlement to purchase approximately 200 acre feet per year of water rights from the Llano Community Ditch in Questa, plus the cost of a system that 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.
Most of the opposition to the Aamodt settlement revolves around the water delivery system, which many non-pueblo residents didn’t want in the first place, and who now must decide if they will voluntarily give up their wells and hook up to the system. The County of Santa Fe and the Department of the Interior must soon file applications, or amend the existing 1999 application still on file, to transfer 1,700 acre feet of water rights from Top of the World Farms in northern Taos County, to help meet the settlement’s water commitments.
Santa Fe County is sponsoring two workshops prior to the filing deadline to go over the terms of the settlement on Tuesday, February 18 from 6 to 8 pm at the Pojoaque Middle School Auditorium and Thursday, February 20 from 6 to 8 pm at the Tesuque Elementary School Gym.
Lower Rio Grande Adjudication
In May of 2013 I detailed the efforts of the pre-1906 water rights owners to have their claims heard in the Lower Rio Grande Adjudication. The latest development in this adjudication is the court’s December 11, 2013 decision that grants summary judgment on the amounts of water involved in the adjudication but denies summary judgment to the pre-1906 claimants, which I will address momentarily.
With the drought in mind, reading through all the responses to the court’s decision regarding the amounts of water that will be available through the various Rio Grande dams in the adjudication is like reading the fairy tale Rumplestiltskin where the miller’s daughter is supposed to spin straw into gold. The parties to the suit—the State, El Paso Water Improvement District, the Elephant Butte Irrigation District, and others—quibble over the wording regarding the maximum amount of water the dams can hold and release and over the wording “the U.S. has an unlimited right to divert surface water from the Percha, Leasburg and Mesilla diversion dams.” What water, pray tell? The irrigation district shut down in mid July of 2013 because irrigators ran out of stored lake water months earlier than in non-drought years. Elephant Butte’s end-of-irrigation-season low was at three percent full, Caballo at two percent. Even with the unanticipated rains in September Elephant Butte held 122,700 acre feet of water. The full capacity of all the dams is 2,638,860 acre feet (this is the figure cited in the City of Las Cruces’s response to the court’s December 11 decision).
With regard to the denial of the pre-1906 claimants readers need to remember that the main issue being heard in this adjudication is what water rights the federal government, or the Bureau of Reclamation that operates Elephant Butte Dam, actually owns. Because the feds acquired those water rights through a seizure of the original, privately owned Rio Grande Project to build a dam and divert the water for irrigation, the waters have been muddied, so to speak.
The pre-1906 claimants are senior water rights owners who had asked the court to consider their case as a “global” issue, or one that affects the interest of all or most of the parties to the adjudication (the court denied their first motion in April of last year). These people have lands that would have been irrigated by the Rio Grande Project, 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 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. But the adjudication court wants their claims to 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).
In their objection to the court’s denial, their lawyer Robert Simon wrote: “If justice delayed is justice denied, this is a classic example.” On the New Mexico State Water Plan Yahoo Group Sig Silber had this to say about the case: “ . . . watching this case unfold [is] even more interesting than the NFL since although there are occasional errors by the officials in pro football, you generally at least know who is allowed to be on the field and participate in the game. With the law, especially in New Mexico, it is not clear who is allowed to participate.”
There is good reason why the court and the other parties to the adjudication don’t want the pre-1906 senior water rights claimants at the table. The attorney for the claimants makes it quite clear in their response just what could be at stake if the court was forced to recognize their priority: “If the pre-1906 Claimants are correct, that their appropriation of all the flood waters of the Rio Grande has a priority date of 1893, then all persons claiming later rights are affected by this adjudication, including water rights claimants with later priority dates throughout the entire stretch of the Rio Grande. This Court probably cannot meet its obligation to adjudicate all the rights of the claimants without considering all priority claims on the river.”
The response also lays out what a resolution of their priority rights should look like:
• The federal government will negotiate with the representatives of the Boyd family to acquire the project rights for the entire LRG irrigation system, which they illegally seized.
• The court will take evidence of the date of first use of the pre-1906 claimants either individually or communally based on the creation of a community ditch or acequia.
• Claimants who first used water after 1893 will have a priority date of 1893 because they were part of the irrigation system that was served by the Rio Grande Project initiated on this date.
• Each claimant will be delivered the water they are entitled to based upon their historic use of water. If there is a shortfall on delivery of water due to lack of available water, then the federal government, OSE and EBID [Elephant Butte Irrigation District] will need to make a call on junior water rights holders’ water up and down the river in order to meet the historic delivery amount to each farmer and claimant in the LRG is entitled to.
If New Mexico’s motion to dismiss the Texas lawsuit is denied and the Supreme Court claims jurisdiction over this interstate dispute, this issue of adjudicating the Rio Grande as one stream system may be heard in that court. We’ll have to wait and see on that one. In the meantime, the drought continues and summer predictions are dire.