THE PROPOSED AAMODT SETTLEMENT AGREEMENT
WATERING SANTA FE CONIFERS WITH WATER FROM THE NAMBE-POJOAQUE-TESUQUE AREA
Dr. William M. Turner
UPDATED NOVEMBER 25, 2004
The Nambe-Pojoaque-Tesuque water rights adjudication has been in federal court since 1966. It now holds the record as the longest-standing case in the Federal Court System. Water rights were actually adjudicated more than 10 years ago and most if not all non-Indian water-rights owners accepted the Offers of Judgment. The case now is in what is called the inter se phase where individuals and legal entities can challenge the courts awards among themselves.
Pojoaque was awarded 250 acre feet by Judge Mechem but that is not enough for their gold courses and hotel. So the Settlement Agreement gives them another 475 acre feet. Tesuque originally claimed about 8,000 acres of irrigated land, as I recall. Judge Mechem awarded them 800 acres of irrigated land based on studies and expert testimony of agronomists. Nambe, Pojoaque, Tesuque, and San Idelfonso could file suit against everyone who had already been awarded a water right based on their use of water since time immemorial and their senior priority to the water. However, one questions whether the Pueblo People played golf.
Their use is, in this authors opinion, only a right to the use of water and not a real property right in the water that gives them any right to lease it.
THE SETTLEMENT AGREEMENT
In an effort to resolve all of the potential inter se claims the Pueblos may raise against non-Indians, 35 attorneys, more or less, representing the State Engineer, the U.S. Government, the Santa Fe Opera, the Pueblos, non-Indians and acequias have been negotiating in secret for several years. Were all 3,000 non-Indian Defendants in the suit represented? And, by what right does the Santa Fe Opera, presumably a private entity, gain access to the negotiations.
On February 5, 2004, the Final Proposed Settlement Agreement was released. The document will be presented to the court. Parties opposed to its acceptance will have an opportunity to object to it. There is no opt out available.
The objective of the Settlement Agreement is to have the court accept the settlement and issue an Order obligating everyone to it. The negotiation of this agreement has been a long and arduous effort to settle many difficult problems.
The major effort (hidden in Section 2.1.5(b) of the Agreement) was to create a method by which the Indians can market their water rights and Santa Fe and Santa Fe County can obtain additional water while at the same time compelling participation of non-Indians and blocking their ability to interfere with the plan.
First, the agreement seeks to establish a Regional Water Authority, named the Pojoaque-Santa Fe Basin Water Authority, that will sell water to the Santa Fe County Water Authority for use in the Santa Fe Basin.
Second, one of four engineering alternatives was selected and the agreement contemplates the construction of a huge network of water-supply pipelines, wells, and wastewater pipelines. This has been talked about for a number of years.
Third, the Agreement cements in place the water rights of the Pueblos without stating whether the amount in the Agreement is the actual amount adjudicated to them or an increase in water rights just to make them settle.
Fourth, and most importantly, the Settlement Agreement allows the Pueblos to lease their water to the County Water Authority for use outside of the Nambe-Pojoaque-Tesuque River Basin (NPT area) in the Santa Fe River Basin for new development, and if new wells they are entitled to drill cause any impairment on those persons with adjudicated water rights in the NPT area, the impaired water rights owner can claim payment from a fund established by the Agreement. It is highly unlikely that water-rights owners will be able to obtain a fair-market value and a great deal of litigation will develop.
Fifth, the Settlement Agreement requires that all who own domestic wells must transfer their water rights to the Authority and cease their use of their well and then pay for a connection to the new distribution lines and pay for the water.
It is clear from the text that the real agenda is to solve the water shortage problems of the City of Santa Fe and Santa Fe County. At the same time it sets in concrete a market for the Pueblo water and enables the Pueblos to sell your water rights. Here is how it is done. The following analysis is only the prognostication of the author based on what the Settlement allows.
The Santa Fe County Water Authority will lease water from the Pueblos for use in the Santa Fe area for 99 years. The Pueblos are granted water rights under the Agreement that can never be lost through non-use. Also, water rights that are presently owned by Santa Fe and Santa Fe County can never be challenged even though Santa Fe and Santa Fe County water rights are not properly under consideration by the Aamodt Court. And, the Pueblos can drill new wells to provide the water.
If anyone in the NPT area is impaired, a fund is set up to pay them off. This could not have been accomplished by Santa Fe County because they need a pipeline to transfer the water out of the NPT basin that they cannot pay for and have no guarantee they can fill. They cannot buy non-Indian water rights and simply transfer the water rights to Santa Fe. Water rights cannot be transferred from one adjudicated river basin to another. The water rights would remain in the NPT basin. Finally, neither the City of Santa Fe nor Santa Fe County can condemn water rights because they would have to pay market price plus the cost of litigation.
At the end of 99 years with the Santa Fe and Santa Fe County now totally dependent on the Pueblo water, Santa Fe and the County of Santa Fe become completely vulnerable to rate hikes by the Pueblos for a further 99-year lease. A lease of this duration violates the 10-year limitation on leases of water rights and the very long leases violate state law against perpetuities. But, I guess if the State Engineer approves it in violation of the law and the Court the sanctions it, it is alright.
The Agreement also requires water-rights owners to agree to extinguishment of their water rights after five years of non-use. While this is consistent with state law, under present state law, the State Engineer is required to place a party on notice to use the water or lose it. The Agreement is not a statute and it is contrary to present state law. It does not offer the owner of the water right a grace period to re-assert their water right.
To carry the purposes of this scheme even further, I predict the Pojoaque-Santa Fe Basin Water Authority will eventually be given the power of condemnation. The handwriting is already on the wall in the form of Senate Bill-422 now working its way through the legislature. SB-442 gives the legislatively created Albuquerque-Bernalillo Water Utility the power to condemn water rights virtually anywhere in the Rio Grande Valley. This power was not in the original enabling legislation because it was too controversial. We see here the process of creeping and incremental growth and power of the Albuquerque Bernalillo Water Utility. Who can doubt, knowing the way our legislature and private interest groups work, but that the RWU will be given similar power.
The Agreement then amounts to a scheme by which Santa Fe County, through their proxy the RWA, will effectively be able to condemn water rights in the NPT area for use the Santa Fe River Basin. The Agreement does not encourage communities and municipalities to live within their water supply means.
This proposal is contrary to the policy of the New Mexico Acequia Commission because it will take water allocated to the acequias as well.
Finally, the Agreement, in my opinion, violates the Equal Rights and Protection Clause of the Constitution. It allows one group of people rights and protections that are denied to others. It sets the Pueblos and Cities and Counties up as super citizens with sole and super rights. The Agreement does not give the State Engineer any right to administer the Indian water rights. It also requires those who agree with the Settlement to waive all of their future rights to challenge the Agreement. There must come a day when the rights of Pueblos are no different from the rights of other New Mexico municipalities which, for example, can only protect unused water rights for 40-years. Certainly the trusteeship days must end for New Mexico Pueblos where the conditions that brought them under the tutelage of the Federal Government are no longer present.
Well this is all fine and good but is there an alternative. The alternative is for Santa Fe County and the City of Santa Fe and the Pueblo Indians to purchase existing adjudicated water rights within the NPT basin at market prices and to build the pipelines necessary to divert the water based on their own bonding capacity. At present, there are at least 50 acre feet of consumptive use rights available in the NPT area on the open market and more become available almost daily. North of Espanola, there are about 700 acre feet available for purchase and the water under these water rights can be moved south of the Otowi gage without increasing New Mexicos delivery to Texas and forcing Santa Fe Basin water users to be dependant on the RWU.
WaterBank believes in the free market and is opposed to regulatory takings or court orders that result in takings of property rights.
For those who own adjudicated water rights in the Nambe Pojoaque Tesuque River Basin, we recommend you review the Settlement Agreement
UPDATE MARCH 7, 2004
On March 2, 2004, the State Engineer sent out a letter to all post-moratorium well owners for whom they had address asking all to verify their ownership of such wells. If they no longer own property with a post-moratorium well, they should notify the new land owners. Under New Mexico law, when a well changes ownership, a change-of-ownership form must be filed with the State Engineer. After approval by the State Engineer it must be filed of record in the Santa Fe County Clerks Office. Those who do not do this will not receive notice from the State Engineer or the federal court of proceedings in the Aamodt litigation.
For further information, you should contact:
Edward C. Bagley, Esq.
The law firm of Holland & Hart sent out an undated newsletter that most people received on March 5, 2004. The newsletter seeks to explain the rational for the settlement and to explain why the negotiations have been held in secret. The explanation is very difficult to understand. But it is clear that instead of the Pueblos filing 3,000 lawsuits against everyone in the Nambe-Pojoaque-Tesuque area they would rather have you roll over and just give up your water rights under the agreement so that they can sell their water to Santa Fe and Santa Fe County while requiring you to give up your domestic water rights to the new regional water system after which they will charge you $70 per month for water service. Of course, you will not have to worry about your well going dry or carrying out maintenance on your well if the pump stops working. And, you won't have to worry about water quality problems.
The newsletter states that the federal government will buy 2,500 acre feet of water rights at market prices to give to the Pueblos. We wonder what market prices they are talking about. If this agreement is approved by the court, water rights in the Nambe-Pojoaque-Tesuque area will have little to no value. At present, we have completed transactions in the $35,000 per acre foot of consumptive use range.
The agreement will also begin to extinguish adjudicated water rights that have not been used for 5 years. I personally agree with this. As the largest water rights broker in the state, I can point to many who own adjudicated water rights but have not used them for many years. These water rights should be extinguished or sold to someone who can gainfully use them. An unused water right is a hindrance to the economic life of our communities and out state.
But, the devil is in the details and you should read the agreement. To help explain the settlement several public meetings were held. Additional meetings will be held. Please see the May 19, 2004 update.
Tuesday March 9 Pojoaque School District
MARCH 10, 2004 UPDATE
The meeting at the Pojoaque School District Administration building had to be moved to one of the school gymnasiums because of the overflow crowd of about 200 people. Mark Sheridan exerted prodigious effort in overcoming the din of basketball practice and squawk horns for three hours as he explained the settlement and answered questions. His presentation focused almost entirely on the issue of domestic wells. He also discussed the requirement for: metering and reporting of ground-water production from wells, the waiver of future claims by the Pueblos against non-Indians, water quality, and the protest process. His explanations displayed an immense knowledge of the legal issues and the technical issues and as a water resources professional and hydrologist who has worked in New Mexico for almost 40 years, In can verify that he was correct in nearly every detail. To recapitulate:
PRIORITY OF INDIAN WATER RIGHTS
It has become virtual dogma that the courts will grant prior and paramount water rights to Pueblo Indians whether in New Mexico or Arizona. The Pueblo Indians are corn people from meso-America and agriculturists of great antiquity. The irrigation works of the Hohokam and the Gila River Indians in Arizona are truly amazing. This is an unarguable fact. One may argue that in New Mexico the Pueblo Indians had no concept of property or ownership of water or any other natural resource. One may say they were one with the ecosystem and have always had difficulty with the European concept of real property rights in land and other resources. And, you would be right. Golf did not fit into their worldview. Times have changed and the Pueblos will accept the white man's ways where it benefits them and the courts have bestowed those benefits upon them. The government will bend over backwards to reach final settlements with the Pueblo People from the Arizona Waters Settlement Act now before Congress to this Aamodt settlement agreement.
DOES THE AAMODT AGREEMENT REQUIRES LEGISLATION AND GOVERNMENT ACTION
Mr. Sheridan made this comment last night and it is simply not true from a legal point of view. The Aamodt suit is between the State Engineer and all water users as defendants. No legislative approval is necessary. Regarding the Aamodt litigation, it is all up to the court. However, there are other forces and hidden agendas at play here that do require governmental action and legislation. The present Aamodt settlement is only part of the overall puzzle that I will address later, a fly in the ointment.
Mr. Sheridan correctly classified domestic wells as pre-basin or pre-1956 - the year the State Engineer cast his administrative authority over the Nambe-Pojoaque-Tesuque drainage basin. Well drilled prior to that date may extract as much water for the original purpose for which the well was drilled - the so-called Mendenhall Doctrine.
Upon the filling of a Declaration of Underground Water, a Proof-of-Well Completion and a Proof of Beneficial Use with the State Engineer, the State Engineer upon inspection of the property or use must issue a License. Now, the Hydrographic Survey of the area should show these wells and the amount of water rights associated with them. The acceptance by the well owner of the Offer of Judgment from the court based on the Hydrographic Survey and the entry of the Order is for all intents and purposes equivalent to the License. It is the State Engineer's opinion expressed in an amicus curiae brief filed with the Supreme Court on February 17, 2004 in Turner v. Bassett that only a License is dispositive proof of a real property right in water. I agree. However, the State Engineer must be really pushed to issue a License. But, it is his duty to do so regardless of what his office may say.
If you read the Offers of Judgment, they will require that you file a Proof of Beneficial Use with the State Engineer by a specific date. In lieu of the PBU, the State Engineer will accept an Extension of Time request. We were involved in the first inter se proceeding following the main phase of the Aamodt adjudication. Many will remember the old Williams Egg Ranch (now the Shidoni Foundry). Their water rights eventually passed to the late Charles Spencer. We objected to the fact that Charles Spencer had filed his EOTs five years after the date the PBU should have been filed. They were all accepted by the State Engineer. In fact, it was our position that the State Engineer, as an administrative agency has no right to modify an order of the court by accepting EOTs. Apparently the State Engineer feels otherwise and the court has never reviewed this question.
So, for those who have pre-basin wells, look at your Order of Judgment and make sure you have complied with the Order.
Permitted Wells 1956 - 1983
Then there are wells drilled between 1956 and 1983 that required a permit under NMSA 72-12-1. These wells were to be used for domestic use only and the irrigation of non-commercial gardens not to exceed one acre in size. If you have one of these wells, then you likely have no water rights other than those that are for non-commercial purposes and these water rights cannot be sold. They are a stranded asset. They can be used for external water use. The extent of the water right will be based on actual metering and proof submitted to the State Engineer.
Post-1983 or Post-Moratorium Wells.
Then there are the post-1983 wells or post-moratorium wells in which the court ordered that water from these wells can only be used for indoor purposes.
Because the Pueblos have prior and paramount water rights, the Pueblos could issue a call on the junior priority water rights from the domestic wells and shut them all down. You would be without water for your homes. Mr. Sheridan is technically correct in this.
One must, however, look at the practical reality of doing this. It is this author's opinion that no court will shut down 2,875 domestic wells. It is contrary to public health and safety. As pointed out at the meeting last night by John Romero, the Pueblos have about 6,000 acre feet of water rights while the non-Indians have about 1,000 acre feet. At present the Pueblos do not use nearly the water they are authorized to even with the new golf courses. Even if Nambe builds the huge mobile home park it had planned, there is probably still enough water. If a call were issued by the court it would be against the very old agricultural surface water rights. There are a substantial number of them. And, if memory serves correctly, Tesuque did just that about 10 years ago but no domestic wells were turned off.
ALTERNATIVE PROTECTIVE STRATEGIES
Regardless of when your well was drilled, you can move valid and very old surface water rights to your domestic well and use this water instead of the water authorized under NMSA 72-12-1. As the settlement agreement states, these old water rights will not be subject to forfeiture under the agreement as long as their use continues. The Pueblos agree in the settlement not to disturb those very very old adjudicated rights unless they are not used.
WaterBank® has, in fact, done this very thing. In the early 90's we moved some old acequia rights on the Tesuque to a post-moratorium well east of Bishop's Lodge Road so the well owner could use ground water outside. Ironically, we are in the process of moving some other acequia water rights back to the well from which they were originally severed. She may continue to use her well regardless of the settlement.
THE SETTLEMENT PROCESS
For the past three years, as stated above, the settlement process has been taking place under a mediation order of the court. As the Natural Resources Trustee for New Mexico under the Johnson Administration, I, myself, have first hand knowledge of the settlement process.
Mr. Sheridan correctly explained the process as it has taken place so far. There were many people at the meeting who felt that they had not been represented in the negotiations and were unhappy with the agreement. They felt that they were now presented with a fait d'accomplis (a finished work) and that they had no opportunity to change it.
Mr. Sheridan pointed out that the negotiations were to be held in confidence at the direction of the court but that there would be opportunity for those who opposed the settlement to make their opposition known to the court and that the court would consider it. This is factually correct. However, the reality is somewhat different.
The settlement court is charged with driving everyone to an outcome and it has rather extraordinary powers to compel settlement and even threaten parties with contempt of court and penalties. I know because I have been there.
In negotiations to settle a ground-water contamination suit on the west side of Albuquerque, the defendant in the case brought in a matter that was not properly before the court - an issue that had never been raised in the complaint that gave rise to the settlement negotiations. The defendant, when it learned of my authorities to collect monetary damages for contamination of the ground water, insisted on settling that issue also. I objected and refused to sign the agreement. The federal judge threatened to hold me in contempt and impose penalties if I did not sign it. If I had been a salaried state employee, I would have gone to jail and ultimately won. However, I served with no salary and only acquiesced to the settlement.
The point to the story is that knowing how the federal settlement judges work, those who are in opposition may make their protests known. If the negotiated settlement is so far down the road and the judge feels there is no merit and the greater good will be served, he or she will impose the judgment of the court and approve the settlement.
Essentially, the only way to prevent this is by retaining experienced legal counsel, who will file an objection citing any number of Constitutional and other legal issues. This may force the parties back to the negotiating table. This is exactly what has happened in the Pecos River Settlement described on this web site.
In all fairness to the non-Indian parties, in my view, the onerous (and possibly unconstitutional) requirements of the court have deprived most non-Indians of fundamental fairness required by the 5th and 14th Amendments of our Constitution. The rules of settlement imposed by the court may be sufficient and proper when dealing with very few private parties; but, they are, in my humble opinion, unfair and likely illegal when dealing with large numbers of the general public who cannot afford proper legal representation.
The entire matter in which the state is urged to deal with and negotiate with the Indians is clearly set out on Page 74 of the State Water Plan adopted by Bill Richardson on January 15th. Basically it says that non-Indians should not be present for "reconnaissance phase" negotiations. When agreement is reached on the "reconnaissance phase negotiations" they should be implemented with all haste. I have written the Governor and asked him to remove Section E as a violation of the State Open Meetings Act and a deprivation of due process and a violation of the equal protection clause of the Constitution. But, this is essentially what has happened in the present settlement. It was negotiated under a confidentiality order, without most of the non-Indian parties present and now the parties seek cram it through as fast as they can. The State Engineer tried this in the Pecos Case as well and water-rights owners with experienced legal representation stopped the settlement cold in its tracks. That settlement agreement is virtually dead.
THE BIG PICTURE
Though Mr. Sheridan was quite correct in what he did say, it is what he did not say in his presentation and in replying to questions that is also important. He was not necessarily evasive or perhaps just didn't have the big picture himself. Not many do.
The proposed Aamodt settlement is not really about the Aamodt case. The Aamodt case is just a small but troubling cog in the overall plan to provide water to Santa Fe. Here is the big picture.
1. Santa Fe's needs lots of water to satisfy the demands of the many large subdivision that are frozen because of lack of water and we all know who they are. Together they comprise development and continued development of more than 50,000 acres. Among them is the rather small 1,700-acre San Cristobal Project owned by the State Land Office south of Santa Fe. This project reportedly has only about 25 acre feet of water rights - enough for about 75 homes.
2. Santa Fe is broke. They can't even repair potholes. They have no money and no ability to raise the $200+ million in construction costs or money for purchase of water rights and the construction costs of this system. They need to incorporate the Pueblo Indians in their master plan simply to make the case for federal funds. So they need lots of state and federal funds and state and federal legislation.
3. Large acequias north of the Otowi gage in northern New Mexico need markets for their water and they have plenty of it if water rights owners can be prevented from dealing with their own water.
4. The Otowi gage stands in the way because it is a percentage of the water over the Otowi gage that dictates how much we must deliver to Texas downstream of Elephant Butte Dam under the Rio Grande Compact
5. The Pueblos are in the middle and they want more water and markets for their water and are using the threat of inter se proceedings as a hammer. The quid pro quo is this: We (the Pueblos) will let you (Santa Fe) use us to get federal funds provided you get us more water and then buy it.
So here is how it works and what was not said.
Several years ago, Santa Fe, struck a bargain with San Idelfonso to construct a large Ranney well in the alluvium of the Rio Grande. This well is under State Engineer File Number RG-68622. Why? It is upstream of the Otowi gage. Using a Ranney well Rio Grande water that the city or county buys or leases upstream of Otowi can be produced and through a regional water system it can be piped around the gage to Santa Fe.
I have 700 acre feet of water north of Otowi that I would love to sell to the government but probably will not be given the chance. And, here is the why to answer that.
Top of the World Water
Top of the World Farms is situated north of Taos in the Sunshine Valley. They have 4,200 acre feet of consumptive use water rights, In 1997 they contracted to sell 588 acre feet of these water rights to Santa Fe County under Application RG-1441 through RG-1441-S-11 - B into RG-68622. This application was protested and it has been languishing in the State Engineer Hearing Unit since 1998 because all conditions precedent including production studies of the Ranney well were not completed.
With the Aamodt settlement and the federal funding of the system, all of the pieces will be in place to move the TOW water to the Ranney well. Of course, any irrigation deficiencies between the Sunshine Valley and the Ranney well will be augmented under the law of the river and the water may not ultimately reach the diversion point. This is one source of water.
A year ago, the Legislature passed a law that prevents, water rights owners on acequias from selling their water rights off of the acequias if the acequia board of directors has approved by-laws that prevent it. Those behind this legislation pushed it in the name of preserving traditional lifestyles. Some of them are now functionaries in the Richardson Administration.
Not all acequias have passed these by-laws. But to hasten things along and put one more block into place, this session of the legislature authorized $100,000 to help the acequias pass the by-laws. The first demonstration of this practice is the Santa Cruz irrigation district water bank that has been authorized. This district has substantial water rights and some of my clients have been pressured to put their water rights into their water bank.
The overall plan is for the Santa Cruz Irrigation District or other acequias to lease their water to the Santa Fe County Water Utility. The SFCWU will take the leased water from the Rio Grande at the San Idelfonso Ranney well and pipe this water around the Otowi gage to Santa Fe. The well has been finished. By piping the water around the Otowi gage, there is no conflict with the Rio Grande Compact because it is wet water that is entitled to be consumed in agriculture in the north that would not get to the Otowi gage in any event. The fact that it is now piped south of the gage does not affect the Compact accounting.
Clever and so this is how it is done. It really is an ingenious and wonderful plan bringing back images of "Chinatown" and it requires lots of state and federal legislation and funding. I wonder if Rio Arriba County officials know how they are being done to by Santa Fe County, the federal courts, and our U.S. Congressmen some of whom have already started work on the funding. I wonder how much of this is known by Tom Udall. I am not disparaging anyone. I am saying that this has not been an open process either with regard to most non-Indians and perhaps with regard to city and county officials in the area. It does solve a lot of water problems but on the backs of a lot of other people and political subdivisions.
The U.S. Government will lease 2,500 acre feet of this water for the Pueblos and your help is required for the overall plan to succeed. You need to give up your ability to challenge the settlement with the Pueblos in order to make the regional system a reality. Of course, everyone in the Santa Cruz Irrigation District and all of the Pueblos will benefit financially while you will be required to transfer your water rights to the regional water utility and pay up to $5000 and about $70 per month for a reliable water service for your home and the peace of mind of knowing you will not have to replace your well or worry about the quality of the water. All of this so that Santa Fe can continue living beyond its means while it sucks the economic vitality out of Northern New Mexico by using its water. It is a wealth transfer, impoverishing northern New Mexico of its life blood while transfusing it into Santa Fe County.
Now you know the rest of the story.
WATER RIGHTS VALUES
Another topic not discussed was the effect of the settlement agreement on water-rights values. This is quite simple.
If water is leased from northern New Mexico and made available at cheap rates within the NPT for any purpose including car washes and Laundromats and outside water use, the value of the existing adjudicated water rights will vanish. As Mr. Sheridan explained, the reason for the high cost of water rights is that demand has exceeded supply. As long as this continues, water rights values will remain high. If cheap water is made available, the value of the water rights will collapse. Now, if water from the regional water system is not available for outside use water values will be maintained.
Because, we do not believe that the proposed settlement will be finalized for quite some time and it will be still further into the future when Rio Grande water becomes available, water rights prices should remain stable.
In conclusion, there is no practical threat to losing the ability to take water from a domestic well no matter when it was drilled. You should take every precaution to make sure you have done everything the court has required from filing Proofs-of-Well Completion, to Proofs-of-Beneficial Use to obtaining a license. Also, if you feel it necessary, you can move valid surface-water rights to your well for added protection. There are water rights for sale at present in the NPT area. We have 50 acre feet for sale. Unfortunately, they are quite expensive.
Mr. Sheridan has worked tirelessly and in good faith for nearly 20 years on this issue and much of it without compensation. If there is a failure to reach a settlement, the cause must be laid to the unconstitutional secretive policies of the U.S. Department of Justice, the Pueblo Indians, the settlement rules of the court and the complete disregard for the thousands of private non-Indians, the complete lack of communications, the complete violation of due process, and failure to fund attorneys to represent non-Indians.
If anyone has read any of the Grants by the King of Spain in the NPT area such as the granting document for the Juan Gabaldon Grant one might be interested to learn that the Pueblos gave up any and all rights to the lands and water granted. The procedure described in the Juan Gabaldon Grant describe that the representative of the district accompanied Juan Gabaldon and the representatives of the Pueblos as they traversed together the proposed grant boundary. Periodically, the Pueblo Indians were queried as to whether or not the boundary was on their lands. At each point the grantor bent over and picked up some dirt and threw it similar to the old English enfeoffment process by which one was placed in possession of land in merry old England.
This took place well before the rise of the Doctrine of Prior Appropriations and the Treaty of Guadeloupe Hidalgo. Old Spanish records reveal that when shortages occurred the Spanish administrators required Indians and non-Indians alike to negotiate sharing agreements and, in fact, this traditional method still exists among acequias in northern New Mexico.
Another observation is that the settlement agreement might be more acceptable if the Pueblos were restricted to use their water within the NPT area rather than marketing it to Santa Fe.
Another suggestion is that the 1,000 acre feet of non-Indian domestic well water rights be carved out and preserved from contest in inter se proceedings, though in my mind, a regional water system is a benefit to people. Of equal importance is a regional waste water system that can return water to the Rio Grande for a credit or that can provide grey water to the Pueblos for their golf courses.
If a settlement is agreed to, others must participate. This includes all private well owners in the Santa Fe area, and there are probably about 4,000 of them. It includes all private well owners in Agua Fria and La Cienega. All private water systems in the area from Eldorado at Santa Fe and Sunlit Hills to Vista del Valle (which has just been taken over by the County).
MARCH 11, 2004 UPDATE
I have mentioned here the settlement negotiations on the Pecos and that they will work in a similar manner in the present case. On February 13, 2004, the 5th Judicial District Court issued an Order to Show Cause to each party that had filed an Intention to File and Objection with the court. The Order to Show Cause commands each party to file a detailed statement of their objections and how the settlement will affect their water rights. The Objections must establish a prima facie case. You should review the Order to Show Cause to see the kind of almost insurmountable hurdle you will have to overcome because the settlement negotiations may not have represented your interests. In fact you are left trying to catch the caboose on a fast moving train. In my view only very serious and particular objections, properly raised by competent legal counsel, will prevail. If you think that you can go into federal court as an unorganized mass without proper documentation and legal argument you will not prevail. The cards are stacked against you.
Please note in the Pecos Case that the Replies to the Order to Show Cause must also be filed on only four attorneys. In the present case, it is my understanding that there are upwards of 35 attorney that might have to be served. Again, in my opinion this is a significantly onerous and costly burden to place on non-Indian Objectors without government financial assistance and it represents a practical and possibly illegal barrier set up by the court. Remember, all attorneys representing public entities have participated in these negotiations financed by taxpayer dollars. Not a great deal of equity there.
MARCH 12, 2004 UPDATE
Today, I learned that an appraisal of water rights was made as part of the determination of the cost to make the regional system a reality. Though I have not seen the report, I believe that valuation of the water rights may be error by a wide margin.
MARCH 31, 2004 UPDATE
It has been brought to my attention that the State Engineer may no longer be allowing the transfer of water rights into wells. This is the case, if the State Engineer feels that you are transferring water rights into a supplemental well to augment deficiencies in historical supply. For example, the transfer that we have done water from the Big Tesuque to a well in the Tesuque drainage. The Big Tesuque has a 100 percent supply of water. That is, there is enough surface water to irrigate the acreage all of the time. Therefore, no supplemental water from a well is needed and the water rights were transferable into the well.
If on the other hand, you are in the Nambe drainage where there is only an 80 percent historical supply, you cannot move the water to a well to provide a supply 100 percent of the time. What you can do is reduce your irrigated acreage so that an former 80 percent historical supply is now adequate to irrigate the reduced acreage 100 percent of the time. This means that you will be giving up some of your water rights that can be exercised only 80 percent of the time. The remaining water should be transferable to a well which is then not a supplemental well or not a supplemental supply.
APRIL 20, 2004 UPDATE
POJOAQUE, NM — A federal judge said the proposed settlement of a lengthy water rights lawsuit in New Mexico is the best deal that non-Indians are going to get, The Associated Press (AP) said in a story reported by KRQE-TV.
Everyone must remember the agenda of Judge Nelson. He is charged with driving a settlement and it is natural then that he would say that the settlement agreement is as good as it gets.
Realistically, neither the Indians, Santa Fe, Santa Fe County, Santa Fe Opera nor the acequia associations up north have the tenacity to stick with filing inter se proceedings individually against 2,800 non-Indians. Attorneys for the government will litigate and die before the cases are settled and new attorneys will spend their career trying to understand what went before. Judges will die before this is over just as did Judge Mecham (who had a distinguished career before he became a judge) This effort will so jam the court system that it would be another 100 years before they would be settled. It took three years, as I recall to settle the inter se proceedings in Williams Egg Ranch (Shidoni Foundry) case.
Within the past two weeks, the State Supreme Court issued their opinion in Martinez v. PNM et al in which the Court finally overturned the pueblo rights doctrine and affirmed that the doctrine of prior appropriations is the law of the land. Shortage sharing agreements and efforts such as set out in the settlement agreement are dead. The State Engineer must pursue priority administration. See the related article on our website.
We believe that the final date for the filing of objections will be about May 7, 2004.
Regarding values for water rights and funding requirements, if your water rights are to be condemned, WaterBank® will enter into a contract for water rights in the Santa Fe area next week at $19,000 per acre foot of consumptive use. We will also be closing a transaction for water rights in the Nambe Pojoaque - Tesuque area in the next two weeks for about $35, 000 per acre foot of consumptive use. This should give you some indication of the losses you will sustain unless Santa Fe and the Indians or the Bureau of Reclamation purchase your water rights. Or, in the alternative, if they condemn your water rights, this is the market value that they will pay.
APRIL 26, 2004 UPDATE
We have just learned this morning that on April 19, 2004, the State Engineer finally published the full text of the proposed settlement. The date of the proposed settlement was February 5, 2004 and the settlement allows only 90 days for the filing of objections. Mark Sheridan in early February told me that no one would have an official proposed settlement until the State Engineer published it on its website. By publishing it 72 days after it became available certainly does not allow the general public to have an official version until about 18 days before the objections are due.
MAY 19, 2004 UPDATE
The next procedural matter in the settlement litigation will be on May 27 at the U.S. Courthouse in Santa Fe.
Additional organizational efforts have been undertaken by a number of people such that additional meetings are being organized. The list of meetings advertised by the Pojoaque Basin Water Alliance are as follows:
May 20, 2004 7 PM Tesuque Elementary School
Though the Pojoaque Basin Water Alliance has been named there does not appear to be any legal structure to it. It is an unincorporated association of interested parties. Because it is an unincorporated entity, it has not qualified for federal funds to engage legal counsel. Unincorporated associations can retain legal counsel though but legal representation that will be required for the association must be paid for out of contributions or assessments on the members.
The federal judge will not let hordes of people speak on this issue despite representations that you may have heard at meetings.
YOU MUST FORM A LEGAL ENTITY AND YOU MUST HAVE LEGAL REPRESENTATION
There also seems to be a continuing misconception that you cannot move adjudicated water on to private wells. This is false. WaterBank closed a transaction of this type two weeks ago where we moved a surface water right from the Nambe to a well on the Rio Tesuque. The consumptive use rights were reduced by 20 percent to take into account the 80 percent historic supply of surface water on the Nambe and the 100 percent historic supply on the Tesuque.
MAY 28, 2004
On Thursday, May 27, 2004 the matter of the settlement and the secret negotiations were aired in Judge Martha Vasquez's courtroom in Federal Court in Santa Fe. Judge Vasquez did the right thing by extending the period of discussion on this matter to give non-Indian defendants an opportunity to obtain legal counsel and participate in the negotiations. She also expressed the veiled threat that if the matter goes to trial that the non-Indians might not like the outcome. Let us explore this a little.
Going to trial means that it is the inter se proceedings in the Aamodt suit that would go to trial. It is not the settlement agreement that is going to trial. The two have nothing to do with each other whatsoever except that it is a ploy to get the Congress to provide money to assuage the white man's guilt. Anything Indian gets money and Santa Fe needs the money and the Indian's want more water.This will be the Indians' claim to senior water rights. What is the big deal? Judge Mecham after years of litigation and testimony by soil scientists and agronomists and ethnologists and archaeologists and historians has determined the limit to their water rights. These will not be subject of the "Trial." These matters are already under appeal and neither the 10th Circuit nor the Supreme Court will alter Mecham's decision as to quantity unless the higher courts decide that the Winter's Doctrine applies and certainly that will be argued. The credentials of the experts who testified are impeccable and their results will not be overturned. It is only issues of law that may be argued to the higher courts. My expert testimony in the Jicarilla v. City of Albuquerque case was not challenged or disturbed by the higher courts.
Any inter se claims against non-Indians will be over the priority of their water rights both irrigation water rights and domestic water rights. Well, we already know the priority of all of these. What can be the outcome of this trial?
As I have mentioned above, no judge is going to take away your domestic water supply under the Aamodt suit. That is clearly unconstitutional and would violate the equal protection clause of the Constitution. It is clearly against providing for the public welfare to cut off your water. Also, the amount of water used by the 2,500 well owners is a drop in the bucket compared to the total available water supply. The Indian's will have a hard time proving impairment for a total withdrawal of say 700 acre feet spread over the entire Nambe-Pojoaque-Tesuque area.
So, Judge Vasquez may reiterate the doctrine of prior appropriations and your irrigation water may be subject to a priority call. This has happened before and hardly anyone remembers. It is only a temporary hardship. But, you keep your valuable water rights.
Or the Judge may seek to intertwine you through tortuous sesquipedalian tergiversation in a regional water plan just to further the desires of the Indians and Santa Fe though they have no legal claim other than under the doctrine of prior appropriations.
The Pojoaque Basin Water Alliance has filed papers of incorporation as a not-for-profit. As long as the PBA maintains an educational function donations to it will be treated as tax deductible to the donors. When the PBA hires lawyers and litigates for a position, donations will not be tax-deductible. In any event, it is the right thing to do because there may be federal or state dollars that can help with legal defense.
JUNE 9, 2004
The Santa Fe City Council Public Utilities Committee has approved a resolution that takes the first steps toward setting up a joint city-county regional water authority. This continues the discussion between the City and County over a regional water authority that would be required as part of the Settlement Agreement as it now stands. So, though Judge Vasquez has issued a stay and set another hearing date for next spring, Santa Fe City and County continue to forge ahead as though the end result will be the same.
On the other hand, there are prospects for providing Santa Fe City and County without the need for diverting water from San Idelfonso. We can not talk about these strategies at the moment but when they are put forward, we recommend your contact your elected representatives from the governor on down to have them support them. Two problems with the Settlement Agreement as it now stands are that it forces non-Indians to shut down private wells while giving the Indians untrammeled authority to drill anywhere. It also will result in the acquisition of 21,000 acre feet of water in Northern New Mexico which will suck dry any traditional agricultural life they now enjoy.
WHAT YOU CAN DO
You should attend as many of these meetings as possible. If you feel you want to voice your concern send a letter to Tom Waters at the Santa Fe New Mexican. The email address is firstname.lastname@example.org or email@example.com.
If you wish to join the Pojoaque Basin Water Alliance call Paul White at 505-989-9919 or email him at firstname.lastname@example.org Their address is:
Pojoaque Basin Water Alliance
November 21, 2004 - Of Negotiations and Strategies
Private well owners and acequia members have formed an association and regained Fred Walz as legal counsel. Fred is a Norteno who earned his spurs some years ago working for Northern New Mexico Legal Services. He has been in private practice for quite a while and has great experience and understanding of the actors in this unfolding drama and is a fine attorney and a wise choice.
So, given everything that has happened, you may well ask what strategy must be followed to preserve the rights of private well owners and parcientes alike. It is really quite simple.
First, one must understand that the issue is the supply of water to Santa Fe and that it is in no way involved with Indian inter se claims. As I have said the reason for including the Indian inter se claims is to crowbar money from the federal government to pay for the Santa Fe water system. The easiest way to do that is to through in a few Indian Pueblos. The claims of the pueblos, whatever they may be, are purely inter se claims under the Aamodt case.
In an adjudication, the first phase is for the court to adjudicate everyone's claims, Indian and non-Indian alike. The second phase is for the individual claimants to proceed against each other if they feel they have just claims. This is called the inter se phase.
The first phase of the adjudication was completed save for a few issues perhaps 20 years ago. As I recall the first inter se proceeding involved Bishop's Lodge against Charles Spencer. I was involved in that matter and it seems like it was in 1985 when that took place.
Under the law, people eventually have a right to the quiet and peaceable enjoyment of their property. If a claim is not timely filed, the common law will not support the claim under the theory that one must mitigate his damages. If the purported damages are not mitigated diligently the common-law principle of laches will operate to defeat a claim. This time period is 10 years I believe.
Therefore, if the Indians as possible inter se claimants have or had claims against any of the other defendants in the Aamodt suit and those claims were not diligently and timely brought before the court, laches will operate to defeat claims as being out of time. This does not mean that the Indians cannot still issue a priority call for water should they face a legitimate shortage. If, by making the call, junior water users terminate their water use and by-pass water to the Indians, and if, the water does not make it to the Indians because of dry conditions the call is called a futile call and the court will not enforce the call.
I have also mentioned above that there is not a court in the land that will force the termination of water production from domestic wells regardless of priority dates. It is simply contrary to public health and welfare and would be un-Constitutional.
Therefore, the primary strategy for defeating the negotiations is for well owners and parcientes to file a class action quiet title suit. The suit seeks to quiet the title in and to the water rights used by well owners for domestic purposes and parcientes for agricultural purposes. The grounds are simply to put an end to any future inter se claims by the Indians and to have the court affirm their ownership. It is my belief that the Indians by waiting almost 20 years to raise inter se claims are simply out of time to raise them. At the very least, the proceedings will take quite some time and should delay any negotiated settlement for years. If plaintiffs seek to continue the negotiations, the quiet title action will place plaintiffs in a position of strength in the negotiations.
Now to accomplish this requires a tough attorney and firm resolve of plaintiffs. It must be remembered that a courtroom is the modern day version of the lists of Old England where Knights or those enrolled as skilled with the lance represented plaintiffs and defendants in Wager of Trial by Battel. There was nothing genteel about that former practice. While blood and gore are not replaced by gentility, it must be remembered that attorneys are agents of the court and operate within limits of conduct else they are subject to sanctions.
A court room is a battleground in which strategy and tactics are employed to outflank, nettle, probe, and gain position over one's adversary. One can calculate to lose some skirmishes in order to gain a future overall advantage. Consequently, attorneys and plaintiffs should use the courts to gain advantage over an adversary. I recommend most highly the work of Claus von Clauswitz to attorneys and plaintiffs alike.
In conclusion, it is my belief that plaintiffs must strike first and initiate suit against the Indian pueblos for an order of the court that will quiet the title of their water rights and their wells and find that the Indians are out of time to make any inter se claims. Rubbing the hair of a cat in the wrong direction, sometimes has its advantages.
UPDATE OCTOBER 26, 2009
Since I began this blog on the Settlement of the Aamodt Suit, agreements have been reached and the matter was placed before the Congress this year and a settlement approved by Congress. More to follow.
WEDNESDAY, DECEMBER 1, AT 7:00 PM
If there are any mistakes, please email me at email@example.com.
Dr. Turner, created and was member of the Governors Blue Ribbon Task Force on Water under the Johnson Administration. He is the immediate past Natural Resources Trustee for New Mexico. He is a consulting hydrogeologist with more than 40 years experience in New Mexico and worldwide and the operator of the WaterBank.Com website, the largest marketplace for water rights and water assets in New Mexico and internationally.