By KAY MATTHEWS
On Thursday, July 13, the day before U.S. District Judge William P. Johnson was scheduled to sign the Aamodt Final Judgment and Decree, Taos County Manager Leandro Córdova called to tell me that Taos County contract attorney Peter Shoenfeld had been authorized to submit a Motion for Leave to Appear in a Limited Manner at the signing. The motion sought to bring to the court’s attention that provisions of the Aamodt Settlement Act require that before any final judgment can be issued the State Engineer must grant a permit for the Top of the World water rights, located in northern Taos County, to a location that will serve the four pueblos in the Aamodt adjudication—Pojoaque, Tesuque, Nambe, and San Ildefonso—and the proposed Pojoaque Valley Regional Water System. That permit has not been granted: the State Engineer has not rendered a decision in Taos County’s protest of the TOW water transfer at a hearing before the Office of the State Engineer in October of 2016. Judge Johnson rejected the motion and signed the final judgment and decree, thus ending the more than 50-year-old Aamodt Adjudication.
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 . . . .” As I wrote in my previous La Jicarita article, “Judge Set to Sign Aamodt Adjudication Final Decree When Top of the World Water Rights are Still Contested?”, none of the attorneys who represent parties to the adjudication were able to explain to me how the Final Decree could be signed in light of these requirements. John Utton, who is the attorney for Santa Fe County, could or would not answer my question, yet he is the attorney who signed the “Notice of Certification by Santa Fe County and City of Santa Fe of Satisfactions of Conditions”, or in other words, that the conditions of the Aamodt Settlement Act have been met “for entry of a Final Decree.” Arianne Singer, who represents the state in the adjudication, signed off and has never returned my phone calls. The U.S. Attorney signed off as well as did all the attorneys for the pueblos.
Although this Final Judgment and Decree also denies all other objections, parties to the adjudication can appeal to the 10th Circuit Court of Appeals. Three hundred non-pueblo water rights owners, many of whom never wanted implementation of a water delivery system in lieu of their wells, filed objections to the adjudication. Some objectors have already retained attorneys with the Western Agriculture, Resource and Business Advocates, who also represent members of Northern New Mexicans Protecting Land, Water, and Rights (NNMProtects) in the controversy between the pueblos and county residents 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. In 2015 the Santa Fe County Commission passed Resolution 2015-25, which requires that the legal status of the county roads be resolved before the commission appropriates funding for the regional water system. The water system must be completed by 2024 under the terms of the Settlement or the Decree will be null and void.
NNMProtects attorneys were prevented from attending a closed door meeting between the Santa Fe County Commission and representatives of federal agencies and the pueblos on Thursday, July 13 to discuss the road easement controversy. So was Rep. Carl Trujillo, D-Santa Fe, whose district covers part of northern Santa Fe County.
So we have two situations in which the parties substantively affected by the terms of the Aamodt Settlement are denied recourse: the citizens of Taos County are denied due process in their protest of the loss of 1,751 acre feet of water from Top of the World and the citizens of the Pojoaque Valley are excluded from meetings that will determine funding for a regional water system that many of them never wanted. While the Aamodt objectors have the opportunity to file an appeal, it will prove costly and decidedly difficult to contest a Final Decree that is being gleefully celebrated by those who benefit from its terms. It seems highly unlikely that Taos County will file an appeal if the State Engineer approves the TOW transfer; the integrity of the protest has already been negated with the issuance of the Final Decree.