By KAY MATTHEWS
The attorneys for many Pojoaque Valley objectors to the Aamodt Settlement filed an appeal of the Final Judgment and Decree on October 30, 2017 in the 10th Circuit Court of Appeals. As you may recall, New Mexico District Court Judge William Johnson signed that Decree on July 14, 2017, and Interior Secretary Ryan Zinke signed it into law on September 15. More than 375 appellant names are on the appeal.
The appeal is based on several basic arguments: 1) That the New Mexico state executive branch officials who signed the Settlement Agreement are not authorized to approve settlements of water rights, only the legislature is; 2) The settlement subverts the rights of junior water rights users based on whether they went along with the United States settlement demands; and 3) Lack of due process.
This is the concluding statement of the appeal that addresses the first argument:
“The District Court erred in entering the Partial Final Judgment and Decree on the Water Rights of the Pueblos of Nambe, Pojoaque, San Ildefonso and Tesuque (incorporated into the Final Decree and Judgment) on the basis of approving the Settlement Agreement (compact) thereby creating and/or improperly extending New Mexico law, creating state financial appropriation obligations and agreeing to Mutual-Benefit projects, based solely on State Executive branch approval. The District Court erred in failing to recognize that settlement of this type is properly vested in the New Mexico Legislature per the State Constitution and should not have entered final judgment absent a valid legal and binding settlement agreement. This court should remand the matter back to the District Court with instructions to require the New Mexico executive branch officers to obtain the required state legislative approval of the Settlement Agreement and require any settlement agreement fully comply with all provisions of relevant law including both the US and NM Constitutions before final decree and judgment may be entered.”
This is an interesting argument in light of a lawsuit that that was filed back in 2014 by three New Mexico State lawmakers—Republicans Paul Bandy and Steve Neville of Aztec and Democrat Carl Trujillo of Nambe—against the New Mexico State Engineer and Interstate Stream Commission over the Navajo Water Rights Settlement claiming that former Governor Bill Richardson pushed the settlement through his office in 2010 without getting authorization from the legislature to fund the state’s part of the $800 million total price tag. Trujillo represents the constituents of the Pojoaque Valley who are parties to the Aamodt Adjudication. According to Trujillo, the Supreme Court declined to hear their case until all the appeals of the Navajo Settlement have been heard. While the New Mexico Appeals Court issued the final decree in 2013, appeals were filed by Non-Native ditch associations, conservancy districts, and numerous acequia parciantes in January of 2016.
The second argument, that junior water rights users are subverted in the settlement, is based on the fact that their rights have been “tiered” according to whether they accepted or objected to the settlement. The deadline for objecting to the settlement was April 7, 2014; 792 objections were filed in court by that time. On March 3, 2016 the District Court entered an order overruling all the objections and approving the Settlement Agreement. The appellants claim that the settlement punishes those junior water rights owners who objected to the settlement by forcing them to accept the curtailment of future priority calls by the Pueblos while owners who signed the settlement but own water rights that may be junior to those of the objectors’ will be exempt from priority calls. According to the appeal, because such an exception to priority administration doesn’t exist in the law, the executive branch of the government is in essence creating a new law, which under the New Mexico Constitution (New Mexico Constitution Article XVI Sec. 2) is only within the purview of the legislature.
The third argument is that the settlement is an abrogation of due process in that it provides no protection for those who objected to its terms. The appeal cites a previous court case that “the policy of our law is to favor amicable settlement of claims without litigation when the agreements are fairly secured, are without fraud, misrepresentation, or overreaching, and when they are supported by consideration.” The appellants point out that in the Aamodt Settlement not all parties agreed to enter into a settlement in which they gave up their rights, in which they received “no/unacceptable compensation or benefit,” and in a settlement “that can result in disparate access to water and/or costs for water access (flowing from operations and maintenance of systems) in which they have no voice per the settlement terms.”
When I spoke with Representative Trujillo about his own lawsuit against the Aamodt, I asked him if he felt the appeal by the objectors had any chance of success. He thought not, but went on to hold out hope that the settlement would be derailed because of the ongoing conflict between Santa Fe County and the Pueblos over easement rights. As I reported in La Jicarita in 2017, 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. The water system must be initiated by 2018 and completed by 2024 under the terms of the Settlement or the Decree will be null and void.
The Santa Fe County Commission and representatives of federal agencies and the pueblos have met to discuss the road easement controversy several times over the past few months but have prevented Trujillo, whose district covers part of northern Santa Fe County, from attending these closed door meetings. The deadline for approval of funding for the settlement has been moved up to December 1, after several previous deadlines were missed. Trujillo is skeptical the county and pueblos will reach an agreement because of the pueblos’ unwillingness to issue rights of way. If the county and state fail to meet their fiduciary obligations and the deadlines for the regional water system are not met will this signal the end of this long (50 plus years), hotly debated, and burdensome adjudication? Stay tuned.