All the Way to the Federal Appeals Court: Priority Water Rights in the Lower Rio Grande Adjudication

By KAY MATTHEWS

La Jicarita has been covering the Lower Rio Grande Adjudication (LRGA) since 2009, after the Third Judicial District Court in Las Cruces ordered the State of New Mexico and the U.S. Government to determine the amount of water rights the federal government owns of the Rio Grande Project, or Elephant Butte Irrigation District (EBID). While water wonks all over the state have been closely following the procedure, and most of the state’s water lawyers represent the many parties to the adjudication, there has been little coverage in the mainstream press. No doubt, water law is complicated, and this particular adjudication displays those complications in spades. But the fundamental issue of first priority rights is what is at stake in the LRGA, and we should be paying attention. Scott Boyd recently filed a federal appeal of his priority water right case in the adjudication, which I will review after I provide some background on the situation.

History of Adjudication

One hundred years ago the federal government seized Nathan Boyd’s Rio Grande Company, 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 Office of the State Engineer (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.

In 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 governments’ water rights could be determined, however, after being assured that these rights could be “expeditiously” adjudicated in state court. That adjudication continues today.

Scott Boyd’s Case

There have been many twists and turns in the case, but Scot Boyd, great-grandson of Nathan Boyd, has been trying to rectify the government takeover of the Rio Grande Project water rights, along with a group of Doña Ana County farmers (Claimants) who own water rights with a priority date of 1893. These rights pre-date the 1906 priority date established by the OSE and conflict with the Rio Grande Project rights that the court has confirmed to the U. S. Government. The court has continually denied the Claimants petitions to litigate their collective rights as a “global” stream issue in the adjudication, or one that affects the interest of all or most of the parties to the adjudication. These farmers have lands that would have been irrigated by the Rio Grande Project, have a priority date that precedes 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 claims that the federal government has no water rights because of the illegal seizure and that the Boyd estate has project, storage, and diversion rights.

Both Boyd and the Claimants took their claims to the New Mexico Court of Appeals, which denied the Claimants’ motion to stay proceedings until all pre-1906 claims are determined and also dismissed their collective claim, stipulating they must be heard as sub-files, i.e., on a case by case basis. On May 4, 2015, Boyd filed an appeal to the United States Court of Appeals in which the Claimants have joined. Meanwhile, OSE is proceeding with the adjudication process, sending out “summonses” to the approximately 18,000 “defendants” to declare their water rights.

In an e-mail to La Jicarita, Boyd stated he believes the “Tenth Circuit Federal Court of Appeals is our only hope for a true and meaningful due process review of the pre-1906 rights, as those water rights vested prior to the federal claims.” An “Interim Pretrial Conference and Motion Hearing” will be held on May 21 at 9:00 am in the Court of Appeals in Santa Fe, 237 Don Gaspar. There will also be a hearing on “Pre-1906 Claimants’ Motion for Threshold Issue”, in which the Claimants are asking the court to reexamine its claim that they and the Boyd estate forfeited their 1893 rights based on new information that has been presented in the adjudication court.

As I quoted in my January 2014 La Jicarita article, Robert Simon, the attorney for Boyd and the Claimants explains why the court and the other parties to the adjudication don’t want the pre-1906 senior water rights Claimants at the table: “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.”

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