New Mexico Water Adjudications: Oh What a Tangled Web We Weave

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.

Advertisements

6 comments

  1. I looked up judge James Wechsler in the 3rd Jud. District but did not fine him listed. Might this be the NM Ct. of Appeal Weschler? Thank you for your work.

  2. Hi Kay, i am tom harris in Santa Doloris aka Arroyo Hondo. i am writing to you about the article in the Taos news, today, about water transfers. It seems that now there is more information about what is happening, the comment period is extended to July 11( “before the 12th”). Responses are required to be with in the subject of “three Criteria”. i assume that these criteria are those that are predicated and promulgated under The National Environmental Policy Act. i think that We must have also missed that Public Notification also. i do not know how any: “studies have shown people use less water when it is metered than when it’s free from a well”. It”s probably difficult to comment on another publication! i have become another reader of La Jicarita and i appreciate your work. tom harris

    • Tom, New Mexico State Statutes set the criteria for protests of water transfers, not the National Environmental Policy Act. The Aamodt transfer application was filed in January with the Office of the State Engineer, but the protest period began when the application was published in the Taos News and Santa Fe New Mexico at the end of June. Protests must be filed with the OSE by July 11. It remains to be seen if other entities or individuals besides Taos County will file protests. It’s a costly and difficult process to fight these transfers, which Utton basically says is a “done deal.” But it’s very important that Taos County argues its case based on Public Welfare, with the weight of the Taos County Public Welfare Ordinance behind it, as this argument has never been established as case law.

  3. 2007-16 The TC Public Welfare Ordinance was ever signed in to law? i am looking at the down load and ca, half of the 15 pages are missing. The clerks office has found only the notice. This all becomes of some interest with the State water plan in revision.

    • The Public Welfare Ordinance 2010-4 was adopted in 2010 and then amended and adopted in 2013 as Ordinance 2013-9. I looked at the Taos County website and saw that only TC Ordiance 2010-4 is listed (http://www.taoscounty.org/index.php/government/document-center/file/220-committee-on-public-welfare). I don’t know why that is and I’m going to ask County Commissioner Candyce O’Donnell to look into it. I was chair of the Public Welfare Water Advisory Committee that was established by the Ordinance from 2011 through 2013. I quit the committee when it started getting pressure from the newly constituted county commission to refrain from reviewing any water transfers under the auspices of the Abeyta Settlement from its jurisdiction, which I felt was an abrogation of the Ordinance’s intent. Neither am I participating in the Taos County Regional Water Plan revision. Candyce would be able to give you some info on how that is progressing.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s