A Tale of Two Books by the Academic and the Activist

When I was preparing to write a review of Eric Perramond’s book, Unsettled Waters: Rights, Law, and Identity in the American West, I happened to read a review of Henry Louis Gates Jr.’s new book about Reconstruction in The New Yorker. In his review Adam Gopnik had this to say:

“. . . the greatest divide among historians is between the academics who tend to see people as point of compressed social forces and those popular historians, chiefly biographers who see actors as nearly the whole of the story. The academics study the tides of history, while the popular historians go out fishing to find (and tag) the big fish that presumably make the ocean worth watching.”

Perramond is a professor of geography and Environmental and Southwest Studies at Colorado College who describes his book this way: “This book is a geographic ethnography that makes use of living testimony, historical and legal archives, and on-the-ground observations from New Mexico.” I couldn’t help but compare Eric’s academic “social forces” critique of the complicated world of New Mexico water law and adjudication to my own book, ¡No Se Vende! Water as a Right of the Commons, by the “popular historian” autobiographer who tags the fish in the big ocean. In other words, Eric’s book does the heavy lifting of putting the testimony he gathers from parciantes, technicians, water experts, and lawyers into historical and social context while my book, the product of an activist/journalist, names those players and judges their roles in the “ocean.”

Both of our books focus on the process of water rights adjudication in New Mexico, and both highlight two of the most controversial of them: the Aamodt Adjudication in the Pojoaque Valley and the Abeyta Adjudication in the Taos Valley. Much of the controversy of these adjudications, and subsequent settlements, is generated by the fact that they include water rights of pueblos, which are under the jurisdiction of the federal government, while the non-pueblo water rights are adjudicated by the state. While the 1952 McCarran Act allows pueblos and tribes to adjudicate in state court, the Act does nothing to alleviate the ensuing issues of sovereignty that erupted in both of these adjudications. As Eric points out, “Simplification through the state’s water accounting process [adjudication] made water inordinately more complicated, contentious, and capitalized. It also highlighted how identity governance was tied to water.”

By “capitalized” Eric is referring to the fact that adjudication is essentially the privatization of water, whereby the water is declared state-owned while individual use rights remain private. Not only is this contrary to the traditional practice of water managed commonly under Spanish and Mexican rule, it opens the door to the separation of water from the land and its movement within the capitalized system. Much of the “complicated [and] contentious” fallout of adjudication is how the water rights owners are identified in the process: “These complexities of identity were simplified, often reduced to a binary of “Indian” and “non-Indian” identity.” Eric uses the example of two brothers, one of whom is a parciante on a Chamita acequia who identifies as a Nuevomexicano, of Indian and Hispano descent under the purview of the state, while the other brother, who identifies as a member of Ohkay Owingeh Pueblo, is under federal purview.

I reference this issue often in my book, how it manifests in both the Aamodt (Pojoaque, San Ildefonso, Nambe, and Tesuque pueblos) and the Abeyta (Taos Pueblo), where pueblo and non-pueblo neighbors live side by side in these valleys but are now pitted against one another in determining prior appropriation and the calculation of the amount of water rights that designation determines. Eric quotes Taoseña anthropologist Sylvia Rodriguez: “The state underwrites differences by conferring trust status on the Pueblos and other tribes and by ordaining who is or may become a citizen of the nation or province and what that involves . . . Water rights adjudication exploits the difference produced by the Pueblo, the state, the tourist market, and individual actors.”

Pueblo water rights are senior rights, but in both the Aamodt and the Abeyta, parties chose to eventually settle, rather than litigate a final decree due to the legal wrangling over those amounts, both current and future. In the Aamodt, the pueblos ended up with transferred water rights for future use that “demanded that hydrological connections exist even when groundwater and surface water users may not be connected” (water rights transferred from Top of the World in northern Taos County). The non-pueblo water rights holders ended up with a regional water system they didn’t want to replace their wells. Eric quotes a Pojoaque woman on the water system: a “deal to transfer away groundwater rights that we don’t pay for to a new plumbed regional system that would be metered for [sic] and we’d have to pay for.” The Abeyta, a controversial and complex settlement, left parciantes largely in the dark as to how it was conceived and whether it was based on “sound hydrological or legal opinions.” He goes on to say: “Agreements, in the form of negotiated settlements, like the Aamodt and Abeyta, are no less complicated [than adjudication in state court]. They are often more expensive, less ‘clear’ in terms of what they resolve, and may rely on water that does not exist. . . . New Mexicans will continue to face the unintended consequences of these long-term agreements that took decades to resolve.”

Eric points out the absurdity of the length of time and difficulty in reaching settlements in these two adjudications: “What is stunning about the Aamodt and the Abeyta cases is how little water was involved overall given the decades of time and resources spent. The quantities bickered over, litigated, and finally settled for pale in comparison to what awaits when the state decides to address the water rights of the Albuquerque and Middle Rio Grande region.” Indicative of this absurdity is what he calls the “adjudication-industrial complex.” Just as so much is being privatized by those at the federal level of government who have imposed drastic austerity measures, the New Mexico Office of the State Engineer lacks the staff and resources to manage adjudications, particularly when they involve a pueblo: “Lawyers may suffer the brunt of adjudication jokes, but a wide range of professionals have benefitted from the state’s failure to adjudicate quickly using mainly public funding and resources.” Lawyers whom Eric spoke with estimated that “some two hundred to three hundred private practice water lawyers have made their livings from ongoing adjudications in New Mexico.”

Unlike ¡No Se Vende!, Perramond’s book isn’t in the business of identifying who those lawyers are, who they’re paid to represent, and if that representation is in the public interest of the citizens of New Mexico. While he quotes a rather flippant remark made by John Utton about the Top of the World (TOW) water rights transfer (they’re “as good as gone”), which he helped negotiate as a contract attorney for the County of Santa Fe, he focuses on the whys and wherefores of the adjudication mess we’re in: “As one legal expert working for the OSE told me, ‘We know it’s complicated and expensive, but we’ve been doing it for so long, that it is hard to say what other system might work better for the state. We’ve done it for too long to give up now . . . is what I’m saying.’ Although the alternatives might be more logical, more tangible, and immediate, the state has already invested much time, money, and expertise of all kinds into the current general stream adjudication and settlements. It is hard to see the state and private experts turning away from this system.” I, on the other hand, write about the long-standing adversarial relationship I’ve had with Utton as a protestant of that TOW transfer.

Eric has a brief passage regarding the Taos County Public Welfare Advisory Committee, formed in 2010 to review all water transfer both within and from Taos County and assess their impact on the public welfare of Taos County citizens. The committee (disclaimer: I was chair of the committee from 2011 to 2013) came under attack by the Abeyta parties, led by attorney Jim Brockman, representing El Prado Water and Sanitation District, who didn’t want any oversight on transfers needed to meet the terms of the settlement (several of which are located in watersheds outside the Taos Valley). Brockman’s law firm, Stein and Brockman, of Santa Fe, have represented numerous clients that seek to move water out of acequia and agriculture and have sought to make the process of protesting water transfers before the OSE more difficult. I name and give plenty of space to Brockman’s involvement in these machinations, including his fight to deny me standing on the issue of public welfare when I protested a water transfer in the Abeyta Settlement.

Eric also includes accounts of some of the other adjudication already completed or still in the works. He uses the example of the Mimbres Adjudication, in the southwest corner of the state, to demonstrate that sometimes an adjudication can be completed in a relatively short period of time, contingent on several facts: that it is a closed basin, with no flows going into a river or ocean, and most importantly, that there is no pueblo or Indian reservation involved. An interesting component of this adjudication was the fact that it led to an attempt by the OSE “to explore the implementation of a spot market water-leasing program.” The agency actually commissioned consultants at Sandia National Laboratories to explore this possibility: “The goal of the effort being to develop a template that could be replicated ” in other basins in New Mexico.

An adjudication that has turned out to be critical in setting precedent for other adjudications is the Jemez, or Abousleman Adjudication. Parties to this adjudication include three pueblos, Zia, Santa Ana, and Jemez. As Eric describes it, in the midst of the adjudication in the early 1990s, after the pueblos were denied a restraining order on non-pueblo use of surface water in the basin, the parties came together and agreed to share water in times of shortage instead of the pueblos exerting their senior water rights status.

But in 2017, as the adjudication proceeded in court, Judge Martha Vasquez ruled that contrary to the idea that the pueblos’ senior water rights entitle them to sufficient present and future water use (practicably irrigable acreage), or Aboriginal water rights, their right to water was defined and limited under Spanish colonial law. This is similar to the decision made by Judge Edwin Mechem in the Aamodt Adjudication in 1985 (the Mechem Doctrine) that pueblo water rights were limited to historical beneficial use between 1846 and 1924 (the Mexican-American War and the Pueblo Lands Act). This decision was circumvented by the Aamodt Settlement, which provides future water use rights to the pueblos. As Eric points out, the Jemez ruling “is something that neither the Aamodt nor Abeyta managed to produce; a clear legal precedent for awarding quantified rights to Indian water claims . . . . Settlements do not have legal teeth . . . . Observers following the Jemez case are particularly interested in any court patterns or agreements that might be useful for upcoming adjudications along the mainstem of the Rio Grande.”

In subsequent chapters Eric discusses the water situation in both Santa Fe and Albuquerque, neither of which has been adjudicated. While Santa Fe is still “entangled in the long and ongoing Anaya adjudication case . . . . [t]his does not mean that the city has not secured its water.” He describes how Santa Fe “in many ways exemplifies the gradual yet contested way that cities accumulated water rights at the cost of other water users in the twentieth century, sometimes on legally shaky grounds. . . . The Santa Fe adjudication also serves as a parable for southwestern areas that quickly outgrow their original water resources and became hooked on groundwater.” For many years the city of Albuquerque assumed that what it thought was its vast underground aquifer would adequately supply the growing urban area: now both Santa Fe and Albuquerque are contractors of San Juan/Chama water to supplant their over-pumped aquifers. An adjudication of the Middle Rio Grande, or as Eric calls it, the “belly of the beast,” will involve the Middle Rio Grande Conservancy District, six pueblos, numerous acequias, and the larger Albuquerque community.

In one of his last chapters, “Beyond Adjudication: Nature’s Share of Water,” Eric touches on how adjudication will deal with the fact that there is going to be less water in the future, primarily due to climate disruption. Ultimately, “Instead of hoping to allocate more water than may have ever existed, the state could view adjudications and their data sets as tools for planning a fully allocated state.” I think Eric is a bit more optimistic than I that the state will rise to the challenge. In my chapter called “How Not To Manage Water in a Drought” I have this to say: “Government institutions continue to manage water resources as a commodity and those who ‘doth protest too much’ face bureaucratic and legalistic impediments in the narrow window of opportunity they have to challenge that management. If at this point in the game the repartimiento, or sharing of water, can only be achieved on a very small scale within community water systems, at the very least water adjudications must be completed to protect senior water rights and serious conservation measures must be implemented to avoid all the political machinations that are promoted as solutions—the pipelines, the dams, the groundwater pumping, and the money—lots of it.”

Eric Perramond’s book is available through the University of California Press.

 

 

 

 

 

 

 

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