By KAY MATTHEWS
In 2017 those of us who follow water management and law were jolted by Martha Velasquez’s District Court decision in the Abousleman Adjudication of the pueblos of Zia, Santa Ana, and Jemez. She ruled that contrary to the idea that the pueblos’ senior or aboriginal water rights entitle them to sufficient present and future water use (practicably irrigable acreage), their right to water was defined and limited under Spanish colonial law. This ruling was also contrary to decisions made in settlement agreements in other extant adjudications involving pueblos—e.g., the Aamodt and Abeyta—and provided a clear legal precedent for awarding water rights in Indian water claims, particularly in the upcoming adjudications along the Rio Grande.
Well, three years later, in September of 2020, the 10th Circuit Court of Appeals overturned the District Court ruling that Spanish colonial law limited the pueblos’ aboriginal water rights claims. The ruling states that because neither Spain nor Mexico ever took issue with pueblo water use on the Jemez River there was no extinguishing of water rights. The dissenting judge, Timothy Tymkovich, wrote: “It is problematic to decide whether the Pueblos have aboriginal water rights entitling them to an as-yet-undefined right to expanding or future uses, without also considering the implications for the many other water users on the Jemez, some of whose water rights date to Spanish colonial rule, to say nothing of water users on the Rio Grande, on which other Pueblos may claim a similar aboriginal right to expanding or future uses.”
Richard Hughes, attorney for Santa Ana Pueblo, defended the ruling, stating, “Eventually, we’ll get to the issue of the measure of aboriginal water rights, which will be a hard-fought and complex period in litigation.”
So once again, the question arises: Whose best interests are served by litigating adjudications, where courts make the decisions involving the amount of water assigned to the parties, both pueblo and non-pueblo, and whose best interests are served in settlement agreements among the parties that are not legally binding?
There’s no easy answer. As La Jicarita has reported since its inception, the agonizingly long path to settlement agreements in the Aamodt Adjudication in the Pojoaque Valley (San Ildefonso, Nambe, Tesuque, and Pojoaque pueblos), and the Abeyta Adjudication in the Taos Valley (Taos Pueblo) that awarded future water rights to all of the involved pueblos but left the non-pueblo acequia communities burdened with complex water rights agreements that many deem unfair. In the Aamodt, the pueblos ended up with transferred water rights for future use transferred from Top of the World Farms in northern Taos County, supposing a hydrological connection of ground and surface water that may not exist. The non-pueblo water rights holders ended up with a regional water system they didn’t want to replace their wells.
As Eric Perramond states in his book Unsettled Waters: Rights, Law, and Identity in the American West, “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.”
The Office of the State Engineer, or OSE, which oversees these adjudications, has long advocated for settlements rather than court decisions, particularly when pueblos are involved. While the Winters Doctrine of 1908 stipulated that Indian reservations were entitled to reserved water rights, the pueblos, not designated as reservations, were not included in that Supreme Court case, thus open to interpretation of senior water rights and the extent of their claims. In a similar decision to Velasquez’s 2017 Abousleman ruling, in 1985 Judge Edwin Mechem ruled as the Mechem Doctrine in the Aamodt Adjudication that the pueblos’ stream water rights were limited to historical beneficial use between 1846 and 1924 (the Mexican-American War and the Pueblo Lands Act, during which time the Indians were Mexican citizens). Again, in 2001, he ruled that their domestic water was also limited to use established during this period.
The Mechem Doctrine was circumvented by the Aamodt Settlement, which allowed San Ildefonso, Pojoaque, Tesuque, and Nambe pueblos to claim future use water rights. Taos Pueblo, in the Abeyta Settlement, was also awarded future water rights: 2,440 acre feet of San Juan/Chama water. The Middle Rio Grande Adjudication, which includes six pueblos, has yet to be adjudicated, although the city and the Middle Rio Grande Conservancy District have acquired “wet” water before the pueblos’ water rights were determined. Will the appeals court ruling that stipulates the Jemez River pueblos can claim aboriginal water rights even though the amount of those rights has yet to be determined be the precedent ruling in the Middle Rio Grande? That adjudication is a nightmare in the offing.
Back in 2015 I wrote an article in La Jicarita called “New Mexico Water Adjudications: Oh What a Tangled Web We Weave,” in which Third District Judge James Wechsler invited the OSE legal team to report on its progress regarding the adjudications over which he presides—San Juan, Pecos, Rio San Jose, and Santa Fe River—as well as the Lower Rio Grande Adjudication (LRG) in the south and the long-standing ones in the north—Aamodt, Abeyta (Taos), Jemez, and Chama. As I stated in the article, “it wasn’t pretty.” The OSE complained they didn’t have the resources to finish adjudications in a timely manner and the judge complained that there seemed to be no consistent pattern in how the agency established priority and procedure.
But as these adjudications slowly wend their way through the courts or in settlement hearings, there seems to be no acknowledgment, by either the parties or the courts, that the water being assigned to each river system is not only “paper water,” meaning theoretical water rights based on historical or potential beneficial use, but may not exist at all. After the excruciating drought we experienced this year, where water managers had to release emergency flows from the upper watershed reservoirs to keep farmers alive down south, and the forecast of increased climate change disruption to our water supply, one would hope that future adjudications will incorporate these factors into their court decrees or settlements. I think the dissenting judge in the Abousleman Adjudication was right that entitling “as yet un-defined” water rights is a danger to not only other water users but to the very existence of our ecosystem.