Judge Set to Sign Aamodt Adjudication Final Decree When Top of the World Water Rights are Still Contested?

By KAY MATTHEWS

I received a copy of this notification from the United States District Court judge who is overseeing the Aamodt Adjudication:

CONTINGENT NOTICE OF SIGNING AND ENTRY OF

FINAL JUDGMENT AND DECREE

 THE COURT intends to sign and enter the Final Judgment and Decree of the Water Rights of the Nambé, Pojoaque and Tesuque Stream System at 10:00 a.m. Friday, July 14, 2017, in the Aspen Courtroom, Second Floor, Santiago E. Campos United States Courthouse, 106 S. Federal Place, Santa Fe, New Mexico.

 The signing and entry of the Final Judgment and Decree is contingent on the Court granting the State of New Mexico’s pending Motion for Entry of Final Judgment and Decree, Doc. 11186, filed December 9, 2017. The Court will preface the signing and entry of the Final Judgment and Decree with comments about this case. Parties and counsel are welcome to attend, but are not required to attend. Finally, the only speakers at this hearing will be those individuals designated by the Court.

The Final Judgment and Decree means that the Aamodt Adjudication is a done deal after 60 years of litigation. How it can be a done deal when there is still an outstanding protest by Taos County on the transfer application of 1,752 acre feet of water from Top of the World (TOW) Farms in the northern part of the county to serve the water users in the Aamodt Adjudication, in Santa Fe County. The Aamodt Adjudication Settlement Act that was signed in 2010 stipulates that in order to meet the terms of the settlement the water rights have to have been “acquired and entered into appropriate contracts” and “permits have been issued by the New Mexico State Engineer to the Regional Water Authority” and that “the permits shall be free of any condition that materially adversely affects the ability of the Pueblos or the Regional Water Authority to divert or use the Pueblo water supply . . . .” The State Engineer has not issued a permit for the TOW water rights: he has yet to render a decision in the protest.

The citizens of Taos County have been fighting the transfer of the TOW water rights since 1998, when Santa Fe County bought 588 acre feet of these rights with the intention of transferring them to San Ildefonso Pueblo where they would be taken out of the Rio Grande and piped to the city and county of Santa Fe’s water source, the Buckman Well Field. TOW water rights are groundwater rights that were used for many years in the Sunshine Valley of northern New Mexico to grow an array of agricultural products. San Ildefonso Pueblo is situated above Otowi Gauge, which separates the upper Rio Grande basin from the middle and lower basins, but the water would be piped below the gauge to meet the needs of the city and county. Many folks in the acequia community cried foul: the Otowi Gauge has functioned as a defacto barrier to the transfer of water from the agriculturally rich north to the urban areas of the middle Rio Grande; nineteen groups and individuals filed a protest before the Office of the State Engineer (OSE). (Disclosure: I was a protestant).

That protest lingered in the OSE into the 2000s as what were labeled “threshold” issues had to be resolved: contested ownership of the water rights the County has applied to transfer; whether the application was in violation of the Rio Grande Compact; whether the water rights are ground or surface water; the place of use; lack of a county water conservation plan; questions regarding the technical and financial feasibility of an infiltration gallery to access the water rights; and issues of access on Pueblo land.

Before we could even get to the substantive issues of the protest—whether the transfer would impair other water rights or was contrary to the conservation of water or the public welfare—the Aamodt Adjudication of the Pojoaque Valley subsumed the TOW protest. When the sitting judge in the adjudication, Edwin Mechem, ruled in 2001 that the four pueblos being adjudicated—Pojoaque, San Ildefonso, Tesuque, and Nambe—were 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 that sought to resolve disputes over pueblo land and water rights), political hell broke loose. The pueblos’ development plans would never be met by such a limited water supply, and in the wake of the decision, Senator Pete Domenici met with both the pueblos and the Pojoaque Valley Irrigation District (PVID) to push for a negotiated settlement of the adjudication to preclude Mechem’s decision. Domenici insisted there was consensus for a regional water delivery system, which could potentially supply all domestic water needs within the valley, both Pueblo and non-pueblo users.

Under continuing pressure from Senator Domenici, and despite fierce opposition from the non-pueblo residents of the Pojoaque Valley who did not want to give up their wells for a delivery system, Santa Fe County abandoned the project to use the TOW water rights at the Buckman Well Field and instead slated them to supply the water delivery system as part of the Aamodt settlement.

The initial proposal in the settlement agreement stipulated that non-pueblo residents would be required to hook up to the water delivery system but after the federal government announced it would not commit to underwriting the cost in 2004, negotiators went back to the table and in May released a “draft conceptual proposal” that would make hooking up to the system voluntary, although post-1980 well allotments were reduced from 3-acre feet to 1-acre foot.

Once the TOW water rights were consigned to the Aamodt Settlement, Santa Fe County tried to convince the protestants to drop their protest now that the TOW water would not be piped south of Otowi Gauge to the Buckman Well Field (the city and county still reserved the right to construct a pipeline from a diversion north of the gauge to the Buckman Well Field to meet their growth and development demands). In 2006 the county bought an additional 1,100 afy of water rights at TOW to complete the needed water rights for the water delivery system. The protestants didn’t want to set a precedent that might affect a protest of the second transfer and rejected the county’s settlement offer. That supposedly meant the case would go to a hearing before the OSE, where the protestants intended to argue that the transfer was detrimental to the public welfare of New Mexico and contrary to sound conservation practice. But that hearing never happened once Santa Fe County committed the TOW water rights to the Aamodt Settlement and combined the initial 588 afy transfer application with the second 1,171 afy transfer.

Another wrinkle in this long, complicated process occurred in 2006 when the Aamodt settlement parties attempted to acquire the San Juan/Chama water rights that were then designated for settlement of the Abeyta Adjudication, which involves Taos Pueblo and the non-pueblo residents of the Taos Valley who were also involved in settlement negotiations. In exchange, Taos Pueblo and the other Abeyta settlement parties would get the water rights from Top of the World. Taos Pueblo struck down that deal as it considered the San Juan/Chama water rights more marketable. (San Juan/Chama water is diverted from a Colorado River tributary and piped under the Continental Divide into Heron Lake, then the Chama River, and finally comingled with Rio Grande waters and delivered under contract to many downstream users.)

While the Aamodt settlement negotiations continued, our TOW protest sat in limbo. Local governments and Congress approved the settlement adjudications (Aamodt, Abeyta, and the Navajo Nation) in 2010, but in 2011 the federal government decided that the terms of the settlement were inconsistent with the legislation that for written for implementation. An “Implementation Committee” spent several years revising the agreements and finally, in 2015, Santa Fe County applied to transfer the entire 1,752 afy of rights it had acquired. Taos County protested the application. The hearing before the OSE was held in October of 2016 and there has thus far been no decision issued by the State Engineer.

I called John Utton, who has represented Santa Fe County since the original transfer application was made, to ask him how the court can sign the Final Judgment and Decree with the outstanding protest yet resolved. He had no answer for me. (He does, however, maintain that the Aamodt deadline of September 15, 2017, when all condition-free permits for water must be in place, does not require that all appeals be exhausted, only that the State Engineer approve the transfer prior to September. See La Jicarita April 2017 article. ) He referred me to Arianne Singer, who is with the OSE legal division. She never returned my call. I called the Taos County manager Leandro Córdova to find out if the Taos County attorney will be at this signing or has raised an objection, but he never returned my call.

Then I spoke with Dave Neal, the vice-president of Northern New Mexicans Protecting Land, Water, and Rights (NNM Protects) and one of the 300 Pojoaque Valley water rights owners who have objected to the Aamodt Settlement Agreement. Neal, and others who have been fighting the terms of the settlement for many years, will appeal the Final Judgment and Decree if it’s signed on Friday the 14th. But they believe that Santa Fe County is not going to come up with the funding for the regional water system that is required by the settlement agreement, thus negating the need for the Top of the World Water Rights. The county has been at odds with the pueblos over access and easement rights on county roads that fall within the exterior boundaries of the four pueblos involved in the Aamodt Settlement—Tesuque, Nambe, Pojoaque, and San Ildefonso—and in 2015 passed Resolution 2015-25, which requires that the legal status of the county roads be resolved before the county commission appropriates funding for the regional water system. (NNMProtects currently has a lawsuit in the 10th Circuit Court of Appeals over the easement issue.)

Neal told me about a meeting scheduled for Thursday, July 13 in Santa Fe, when county commissioners are scheduled to meet with representatives of the four pueblos; the U.S. Department of the Interior; the U.S. Bureau of Reclamation; the U.S. Bureau of Indian Affairs; and the State Engineer’s Office to discuss the road dispute. The meeting is not open to the public, and Neal has requested that the attorneys for NNMProtects be allowed to attend the meeting. The president of the New Mexico Foundation for Open Government and House Speaker Brian Egolf have objected to the meeting as well. Neal, in an article in the July 11 New Mexican said “the closed meetings reminded him of the negotiations for the Aamodt settlement. Too often over the course of the years-long settlement process . . . objectors to the system were shut out of important conversations.”

It remains to be seen if the road dispute and county resolution will indeed forestall the movement of Taos County’s water to Santa Fe County: only 611 afy of TOW water rights are slated for the non-pueblo users. But La Jicarita will continue to follow this story, as it has for 18 years.

 

 

 

 

 

 

 

 

 

 

 

Advertisements

4 comments

  1. So complicated – I read the whole article (and the April 2017 article) and still don’t really get it. (Philosophically, I believe that water rights should remain tied to the land where the water flows.)
    Well, I do appreciate your hard work in following and writing about this.

  2. Kay Matthews, do you know that Santa Fe County has already begun planning to pipe up to 1,000 acre feet of Aamodt water south to Santa Fe? . They recently had a water testing fair in the basin in cooperation with the Environment Department presumably partially motivated by the desire to scare more people into to being interested in signing up for the regional water system. However, they are being realistic in anticipating that few will sign up and Santa Fe County will have excess water from Aamodt. People will install their own filtration systems or buy bottled water in preference to signing up for an inherently expensive system run by five governments. I post about this occasionally on Facebook in Pojoaque Valley Forum. I am relatively new to this and grateful for your articles.

    • I don’t know as it’s 1,000 afy, but as I said in my article, Santa Fe County reserved the right to pipe water south to Santa Fe after the TOW water rights were slated for the Aamodt settlement. That’s where they originally wanted to move them. Even if the county refuses to pay its portion of the cost of the regional water system and the water ends up being piped only to the pueblos by the BIA, the county is not going to give up the TOW water rights.

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