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APRIL 20, 2004

NEW MEXICO STATE ENGINEER DEALT SETBACK IN EFFORT TO IGNORE AND DESTROY THE DOCTRINE OF PRIOR APPROPRIATIONS
 

INTRODUCTION

Long-time New Mexico State Engineer Steve Reynolds firmly established decisional New Mexico water law through years of litigation.  In 1966, he filed the Aamodt water-rights adjudication to quantify, prioritize and determine ownership of water rights in the Nambe - Pojoaque - Tesuque River drainage basins north of Santa Fe, New Mexico.  This suit is still under way 38 years later. 

The Reynolds approach to determine questions of law was to litigate.  With the passing of Steve Reynolds, State Engineer Eluid Martinez began the era of negotiation.  His view was that litigation led to long and costly litigation and that water rights and other issues needed to be resolved now.  He believed the doctrine of prior appropriations was impractical. 

Eluid was only in office a short time when Governor Johnson was elected in 1994.  Eluid went on to become the Commissioner of the U.S. Bureau of Reclamation and Tom Turney became State Engineer. 

Tom Turney found himself beset by issues all over the State of New Mexico and he found those issues amplified by the onset of the 21st Century Megadrought.  His major issues ranged from shortages of water on the San Juan River and possible underdeliveries to the Navajo Indian Irrigation Project, potential underdeliveries to the State of Texas on the Pecos River, water shortages in the Santa Fe area, and looming shortages on the Rio Grande caused by the determination that the Silvery Minnow is a new water user.  The developing issues on the Pecos also adumbrated underdeliveries to Texas on the Rio Grande.

Tom also faced by many years of underfunding and neglect by the New Mexico Legislature.  Underfunding and manpower shortages going back to the Reynolds era made it impossible for the him to carry out priority administration.  In fact, most of the waters of the state had never been adjudicated, as was required under the 1907 water code. 

Faced with poorly defined water rights and new realities, Tom followed Eluid's lead and negotiated settlements picked up momentum.  The process gained even more momentum when Tom hired John D'Antonio who had recently retired from the Corps of Engineers.  One of John's many talents is that he is an outstanding negotiator and he served as Tom's point man in these negotiations. 

Without saying so, the underlying strategem of the negotiated settlement process was to  resurrect the old Spanish practice of shortage-sharing and eliminate the doctrine of prior appropriations.

The doctrine of prior appropriations had its roots in ancient Roman Law after 1263 in Peninsular Spain and during the Spanish colonial period.  It only really took off following Mexican Independence in 1821.  In western water law it is a holdover from the law of the former sovereign which has gained solid footing throughout 150 years of legislation and litigation. 

The Turney era attempted to negotiate away the doctrine of prior appropriation where the State Engineer would be forced to issue practically unadministratable priority calls.

Under the Turney era and continuing into the D'Antonio era, the proposed settlement on the Pecos River was reached in the Fall of 2003.  The proposed settlement in the Aamodt suit was reached on February 5, 2004.  The 2002 shortage sharing agreement with the Navajo Nation on the San Juan was reached and efforts to extend it continue behind closed doors today. 

All of these negotiated settlements are characterized by negotiations between water managers and public officials and the complete disenfranchisement of the actual water-rights owners from the negotiation process.  In fact the Carlsbad Irrigation District and the U.S. Bureau of Reclamation were only willing to concede that farmers owned water rights provided they agreed to the settlement agreement otherwise the beneficial users of water had no vested property right and ownership of the water they had been using for 100 years.  Therefore, they had no right to participate in the negotiations. 

All of the just mentioned settlements are now under attack by the water-rights owners.  More detailed information on the Pecos and Aamodt proposed settlements is on this website.  Click here for information on the Pecos and the Aamodt proposed settlements.

LAS VEGAS

In 1958, the New Mexico State Supreme Court issued their decision in the Cartwright case (Cartwright v. Public Service Company of New Mexico, 66 N.M. 64, 343 P.2d 654)  In that case, The Court decided that the City of Las Vegas enjoyed water rights under the pueblo rights doctrine.  This entitled the City to continually appropriate more and more water as the City needed it. 

In 1994, Eluid Martinez filed suit (likely improvidently) and challenged the pueblo rights doctrine under the general adjudication of water rights on the Pecos River System.  He argued also, in the alternative,  that New Mexico should no longer recognize pueblos water rights in general.  It is important to understand that the pueblo rights doctrine "... elevat[ed] [the]public good over the claim of a private right." Cartwright, 66 N.M. at 80, 85, 343 P.2d 654, 659. 

On April 7, after 10 years of recent activity, the Supreme Court held "...the pueblo water right is a 'doctrinal anachronism'" and that the "... doctrine of prior appropriation..." is the law of New Mexico.  The shortage sharing concept and the concept that the public good is senior to a private claim, that derived from Roman and Spanish Peninsular law and that applied during the Spanish period, does not exist in New Mexico. 

The Martinez case decided on April 7, 2004 places municipalities in the same shoes as private parties with regard to the doctrine of prior appropriations. As the court has said in the Martinez case at Page 27 "... the State has continually placed considerable reliance on the doctrine of prior appropriation, both in the State Engineer's regulation of water and in the State's various obligations under interstate compacts."

The Court goes on to say "...numerous water users have expended considerable resources in reliance on the doctrine of prior appropriation by making beneficial use of what had appeared to be unappropriated water prior to our ruling in Cartwright.  See Yeo, 34 N.M. 15 618, 286 P. at 973 ("Persons contemplating investment in lands might well have considered that in the public policy of this state water is regarded as essential to existence and progress, and that, where waters were to be found in bodies sufficient to influence agricultural development, the right to their use would be worked out along lines consistent with former declared policy, the encouragement of use, and the discouragement of nonuse or waste.")

RESULT

We can conclude from this case that the Supreme Court has reaffirmed in spades that the doctrine of prior appropriations is the law of the land and that no court may ignore this bedrock principle of water rights in New Mexico despite the Herculean efforts of recent State Engineers to negotiate away private water rights and to have such negotiated deprivations of private property affirmed quickly by a court.

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