By KAY MATTHEWS
Aamodt Adjudication Settlement
The County of Santa Fe and the four pueblos of Tesuque, Nambe, Pojoaque and San Ildefonso have apparently resolved the conflict over road easements on Indian lands in the Pojoaque Valley that were holding hostage the county’s funding requirements for the Pojoaque Basin Regional Water System.
In 2015 the Santa Fe County Commission passed Resolution 2015-25, which required that the legal status of the access and easement rights on county roads that fall within the exterior boundaries of the four pueblos involved in the Aamodt Adjudication Settlement be resolved before the commission appropriates its share of the $261 million price tag of the regional water system. Several years ago San Ildefonso Pueblo claimed ownership of roads in the El Rancho area that have been maintained by the county for decades and are used by non-Pueblo residents as access to their homes.
Under the agreement, signed on January 30, all roads in question will become public roads and access issues will be resolved for 90 percent of non-Indian property owners, according to the county attorney. The agreement is good for 99 years and then automatically renewed for the next 99 (why not 200?). The county has agreed to construct new roads within San Ildefonso to connect with existing roads within five years. Compensation payments will be made to the other pueblos: Tesuque will receive $185,000, Nambé $1 million and Pojoaque $1.7 million now, and payments of $500,000 on the 25th and 50th anniversaries of the agreement.
But El Rancho landowner Joe Gutierrez says not so fast: he knows of plenty of documents that prove the pueblos extinguished their ownership of these roads years ago. Gutierrez is a longtime norteño activist who is featured in the Whistleblower chapter in the book I co-wrote with Peter Malmgren, Los Alamos Revisted: A Workers’ History. He was instrumental in revealing Los Alamos National Laboratory’s violations of the Clean Air Act in the 1990s and was also a founder of the Pajarito Plateau Homesteaders Association that lobbied for compensation when the Army removed them from their lands on the mesa to make way for the Manhattan Project.
Now Gutierrez is involved in both the road easement issue and has filed a lawsuit challenging the legitimacy of the Aamodt Adjudication Settlement. As a party to the adjudication Gutierrez filed a lawsuit against the Office of the State Engineer (OSE) that assigned his acequia, the Acequia del Rancho, a priority date of 1832. He claims the priority date is almost a hundred years older than that, around 1740, and that he has documents to prove it. His lawsuit reached the 10th Circuit Court of Appeals but was remanded back to federal district court until the Aamodt final decree was signed in July of 2017. He now has a year from that date to present his case to the district court.
Gutierrez was also one of the more than 700 objectors to the settlement, but all those objections were categorized and categorically denied by the court, losing the sense of what the issues are, according to Gutierrez. Approximately 375 of those objectors are now part of another lawsuit against the settlement that’s before the 10th Circuit Court. Gutierrez has been working on the Aamodt case with Northern New Mexicans Protecting Land, Water, and Rights (NNMProtects), many of whom are parties to the lawsuit, and believes that the regional water system may well dry up domestic wells in the El Rancho/San Ildefonso area where the takeout will be located, forcing people to hook up to the system, which is voluntary under settlement rules. He laments the entire idea of the adjudication, which pits the Hispano and Pueblo communities against each other and encourages development through this large distribution system that depends on the movement of water from another watershed. He anticipates that the county will subsequently force the Pojoaque Valley residents to also implement a wastewater treatment system. The costs are going to be enormous and the financial burden will be born by the residents. At the very least he believes the adjudication should have proceeded through the courts to ensure a more equitable settlement.
As for the easement issue, we’ll see if the agreement holds up or is challenged by county landowners. An Albuquerque Journal article quoted Phil Roybal, one of those living near San Ildefonso who still has access issues: “I’m one of the 10 percent. It’s a win-win for the BIA [Bureau of Indian Affairs], it’s a win-win for San Ildefonso, but it’s not a win-win for us.”
The other outstanding issue that is ignored by the Aamodt Settlement parties is the appeal by Taos County of the Top of the World water transfer of 1,752 acre feet to the Pojoaque Valley to supply water for the regional water system for both the Pueblo and non-Pueblo residents. Taos County filed the appeal in district court after the State Engineer denied the county’s protest of the transfer. As I discussed in a former La Jicarita article, the Aamodt Final Decree was signed in July of 2017 before the State Engineer denied the protest and now the Aamodt parties continue to ignore the extant appeal.
Abeyta Adjudication Settlement
The implementation committee of the Abeyta Settlement continues to meet in Santa Fe, rather than Taos, to the disgruntlement of parciantes who would like to be able to attend them to stay informed. When the issue came up at the December 6, 2017 meeting, the attorney Bradley Bridgewater of the Bureau of the Interior, who represents Taos Pueblo, told the parciantes who showed up that the meeting was “not open to the public.” John Painter, who represents El Prado Water and Sanitation District in the adjudication, told me in a phone conversation that the next scheduled meeting will be held in Taos, but I haven’t been able to confirm that.
Interior Secretary Ryan Zinke has signed the partial final decree of the settlement but before it becomes final the OSE has to complete the adjudication of domestic wells. There is also considerable opposition to some of the terms of the settlement, mostly with regard to the deep mitigation wells assigned to each stream system within the Taos Valley and to the proposed Aquifer Storage and Recovery (ASR) wells assigned to the Acequia Madre del Rio Lucero y Arroyo Seco in the El Salto community. (The settlement calls for a water transfer to the acequia, from the Llano Community Ditch in Questa, paid for by the federal government and the state of New Mexico, to compensate the ditch for a “taking” by Taos Pueblo in 1935.) Many of the domestic well members, acequias, and parciantes on the Acequia Madre worry about the cost and maintenance of the wells; the unknown chemical composition of the deep well water on the rivers; and the potential drawdown on the aquifer and domestic wells. According to the settlement, the mitigation wells, which reach a 1,000 feet or more into the deep aquifer, will be used by the town of Taos, El Prado Water and Sanitation District, and the mutual domestics to offset at least 50 percent of any Taos Valley tributary surface water depletions resulting from future groundwater pumping.
I recently went out to meet with Acequia Madre Commissioner Chris Pieper to look at the headgate where the Rio Lucero meets the Rio Arroyo Seco to become the Acequia Madre. The parciantes on the acequia continue to question the need and their ability to maintain these wells and may eventually turn down the project. It’s unclear if the water rights that were assigned to the Acequia Madre in the settlement will be lost or accessed in another manner. Several of the mutual domestic associations and acequias where the mitigation wells will be located are still negotiating with settlement attorneys over the locations and costs.
Texas/New Mexico Lawsuit
The U. S. Supreme Court just ruled that the federal government can intervene in the lawsuit brought by Texas against New Mexico in 2013 alleging that New Mexico has failed to comply with the Rio Grande Compact. The decision was based on “treaty obligations to Mexico” and doesn’t look good for New Mexico, as some believe it will allow the feds to support Texas’s compact arguments. The case will be sent back to a water master for arbitration.
The 2013 lawsuit claims that because of groundwater pumping below Elephant Butte Reservoir Texas isn’t getting its required water delivery. Rio Grande flows in Elephant Butte had been way below normal for the prior two years, and with the dire warning issued by the Natural Resources Conservation Service regarding 2013’s flows, there was going to be even more pumping of groundwater by the farmers in the irrigation district—and these are big-time farmers who are already involved in the litigation of the Lower Rio Grande Adjudication. One of the Stream System issues being heard in this case is the connection of ground and surface waters, which has to be factored into the final decree determining everyone’s water rights. In an earlier agreement between Texas and New Mexico it was agreed that New Mexico would deliver more surface water to offset its groundwater pumping, but that deal fell apart and Texas took the case to the Supreme Court. In a third year of drought, without adequate surface irrigation water, farmers and ranchers were going to continue to pump groundwater to meet their needs. In 2016, a special master assigned by the U.S. Supreme Court recommended the rejection of a motion by New Mexico to dismiss the case, meaning it could move forward as long as the high court agreed. In early 2017 the case headed to the Supreme Court, and in January of 2018 oral arguments were heard over whether the federal government could intervene in the case. The feds believe that because the New Mexico farmers have been over pumping groundwater, the Bureau of Reclamation may fail to deliver the amount of water from Elephant Butte Reservoir that is required by the Rio Grande Compact and the international treaty with Mexico.