The administrators and enforcers met to discuss the ongoing water adjudications in New Mexico on June 25 and it wasn’t pretty. At their yearly “Joint Working Session” Third District Judge James Wechsler invited the Office of the State Engineer (OSE) legal team to report on its progress regarding the adjudications over which he presides—San Juan, Pecos, Rio San Jose, and Santa Fe River—as well as the Lower Rio Grande Adjudication (LRG) in the south and the long-standing ones in the north—Aamodt, Abeyta (Taos), Jemez, and Chama. The OSE mantra was “We don’t have the resources to get these adjudications finished in a timely manner” and “we’re doing triage”, while the court complained that there seemed to be no consistent pattern to how the agency establishes priority and procedure.
When OSE attorney Arianne Singer presented the update on the status of the northern adjudications she declared that the agency was trying to do just what Wechsler wanted: the new State Engineer, Tom Blaine, has directed staff to expedite adjudication procedures by taking a year to “evaluate the feasibility of different approaches” and “think outside the box.” This didn’t seem to impress Wechsler, who said he didn’t want the OSE’s “move to reassess your methods” to interfere with getting the already overdue adjudications completed, particularly the San Juan. Some folks in the audience weren’t impressed, either. Bob Simon, who represents the pre-1906 water rights claimants and Scott Boyd in the LRG, suggested the OSE establish a system whereby it addresses adjudications chronologically: determine senior water rights first. Retired OSE attorney D.L. Sanders, a controversial figure over the years, said “we [the OSE] had the conversation 26 years ago” that the agency needs to devote its resources to one adjudication at a time, prioritized by the court.
Singer’s response to this was expected: most of these adjudications have been delayed because they involve Pueblo and Indian water rights, which have dragged on over three decades. Many of the non-Pueblo and non-Indian rights in these cases have already been adjudicated; if we want to expedite these processes we must “finish up Indian water cases either through litigation or settlement, and settlement is the better choice.”
Obviously the OSE has pushed for settlements in the Aamodt, Abeyta, and the San Juan adjudications despite opposition from non-Pueblo and non-Indian irrigators and water users. The San Juan adjudication, where the Navajo Nation has already signed a settlement agreement, could potentially have as many claimants as the LRG (18,000). The Aamodt and Abeyta adjudications must have final decrees by 2017 or the settlements will be null and void. There are numerous objectors to both settlements and Taos County is protesting the transfer of water from Top of the World Farm to facilitate the Aamodt settlement.
Just as obvious, it is in the interests of the Indians to settle these adjudications. In the case of the Aamodt Adjudication, a ruling by U.S. District Court Judge E.L. Mechem in 2001 stated that the involved Pueblos — Pojoaque, Nambe, Tesuque, and San Ildefonso — are limited to their domestic water use that was established between 1846 (the year the United States seized control of New Mexico) and 1924 (the year of the Pueblo Lands Act which sought to resolve disputes over Pueblo land and water rights). In a previous district court decision in 1985, Mechem limited the pueblos’ stream water rights to the acreage irrigated between these same two dates. Settlement talks took on urgency after these rulings.
In 2006, when Santa Fe County proposed trading TOW water rights for the San Juan/Chama rights set aside for the Abeyta Adjudication, Taos Pueblo turned it down because San Juan/Chama water is more marketable.
The LRG adjudication, which doesn’t involve federal Indian rights, has also seen its share of delays and mistakes. This huge adjudication has 14,000 subfiles and 18,000 claimants. The OSE attorney reported that 60 percent of the claimants have been served since 2001, but that percentage has slowed down significantly, partly because the agency tried to serve more claimants at once than the staff could handle. That staff has also been hit by the loss of several paralegals and the attorney who was the lead in Stream System 104, which will determine federal water rights. But the biggest factor in the slow down of this adjudication is the number of stream issues, or global issues that affect the entire case, that have been added as the adjudication proceeds. The pre-1906 water rights owners are in court trying to get their claims heard as Stream System 106 before the court can proceed with SS 104. Scott Boyd’s claim, in SS 105, that his great-grandfather’s dam and irrigation company was illegally seized by the federal government under a bogus War Powers Act claim, and that those water rights being administered by the OSE are fraudulent, is currently being appealed in federal court. And the LRG proceeded with the adjudication for years without including groundwater rights, which subsequently had to be rolled into the proceedings.
Bearing in mind the OSE’s position regarding the benefit of settlements in Pueblo and Indian water rights adjudications, Taos County’s protest of the TOW water transfer before the Hearing Unit of the OSE has many strikes against it. Not only does the OSE have a stake in getting these settlements signed, sealed, and delivered, any protests based on public welfare are anathema to both the OSE and the Interstate Stream Commission (ISC). I’ve quoted Michael Jensen of Amigos Bravos previously in La Jicarita: “The ISC/OSE never wanted to have public welfare applied to intra-state water transfers and is perfectly happy passing the buck to the Regional Water Plans, as long as they don’t do something crazy like actually developing an implementation plan that is in step with the ‘values’ contained in the Public Welfare Statement.” In other words, the OSE will no doubt take the position that the public welfare of the state, i.e., getting these adjudications completed, will supersede the public welfare of Taos County, which will lose 1,700 acre feet of water to the Pojoaque Valley.