Unsettled Waters. Eric P. Perramond

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СКАЧАТЬ 2, with the state’s attorney general and state engineer filing the case. Second, adjudication can also be triggered by any water rights holder whose claims have been recorded by the OSE in the basin. Third, large water infrastructure projects can also prompt the state to quantify water rights if those water rights would be affected by the new dam, canal, or pipeline. In contrast to other western states, such as Colorado, in New Mexico it is usually the state that files the complaint starting the general stream adjudication process, with the OSE and the attorney general working in concert to file the necessary documents. This is the first adversarial aspect of adjudication in New Mexico. Each step, or phase, of the adjudication process can take years to decades to complete. Naturally, delays ensue if claimants in the basin sued by the state do not respond to offers of judgment in phase two of the process. In most cases, phase three of the inter se process, in which water rights claimants can contest each other’s water rights, is what takes decades. This is the second—and more problematic—adversarial aspect to adjudication, as it complicates social relationships between water users. But each phase can be fraught with complicated cultural and historical baggage.

      Nearly seventy-three thousand defendants are now enmeshed in basin lawsuits to ascertain their water rights, in twelve pending adjudications. By one recent estimate, half of all water rights holders are now in view by the state agency (OSE), even if only 20 percent of the state’s basins have been fully adjudicated.¹⁸ The disadvantage to New Mexico’s meticulous approach is that it takes so long for the state. The advantage is that the process is thorough enough that the state, when finished, will have a fairly accurate view and quantitative understanding of how much water is claimed, allocated, and used in any given year. This will, in theory, make it easier for the state engineer to conduct priority administration of waters and manage water allocation.

      The length of time to complete adjudication is not always tied to the size of the basin, the amount of water, or its complexity in a biophysical sense. Notably, since the early 1980s, most adjudications that have included Indian water rights have ended not in state adjudication courts but in what is known as settlement, a less court-driven but no less expensive and complex process. These agreements and water settlements are meant to make the process less adversarial, but they often come at a huge cost, as I discuss in chapters 2 through 4. One cannot write about water rights adjudications without discussing water settlements, especially in a culturally diverse state like New Mexico, which has so many sovereign indigenous nations.¹⁹ These agreements and settlements are ways in which local water users can renegotiate the state’s power. They find new ways to not be governed by the state, rather than have the terms set from court litigation.²⁰

      TIME, WATER RIGHTS, AND ADJUDICATION

      Water rights hinge on the provable date of first beneficial use. If all the rights under consideration in a basin are later than, say, the establishment of New Mexico as a state in 1912, the task is easier. The 1907 water code firmly established the use of prior appropriation law (first in time, first in right), common throughout the American West, which supplanted previous customary traditions. Influenced by Colorado and that state’s strict adherence to prior appropriation, politicians at the time agreed to this template of water law for the state of New Mexico.

      Under prior appropriation an individual with an earlier date, say, 1730, as a first-documented diversion and beneficial use of water can get a full allocation of water rights before those with more recent use dates. As long as those water rights are used continuously on appurtenant land or at least not discontinued for more than five years, those water rights “stay” with the adjoining land.

      Pre-1907 water rights, which preexisted the New Mexico water code, are recognized as senior water rights. These include both Pueblo (Indian) and Hispano water rights, which get further distinguished. If the entity is a sovereign nation, such as a Pueblo Indian land grant or a Navajo reservation to adjudicate, then US federal government agencies like the Bureau of Indian Affairs or the Department of the Interior, in their trust relationship with Native American nations, step in as a party to the suit. It gets more complicated. Some Indian water rights (typically, Pueblo) are awarded on a historical irrigation acreage basis, using archival and archaeological support, whereas others (like the Navajo or Apache) can be awarded based on what amount of land might be irrigable, referred to as practicably irrigated acreage.

      If Hispano post-1598 water rights are at stake, the adjudication also involves extensive archival research conducted by state engineer personnel or contract historians to prove first-use dates by various individuals along the ditch. Acequia members often insist on the communal notion of shared water-use traditions that are the norm on these ditches. They often argue for a single date for the entire ditch (acequia) instead of differential and individual water rights dates. Prior to adjudications, most senior water users ignored strict prior appropriation, especially on Indian lands and along acequias. In both cases, the basis for allocating water was based on the amount of land held, equitable water sharing, and demonstrated need. Water allocation, sharing, and disputes were already complicated enough before the 1907 water code was established.

      All of this makes for a byzantine water world. It is perhaps no wonder that scholars outside of law schools have ignored these state procedures.²¹ On the state’s end, one of the very reasons that adjudication is “so damn slow,” as one attorney put it, is because of defendants and their reluctance to engage with the state engineer. There is fear, anxiousness, and often resistance to responding to letters and paperwork. They do their best to ignore the OSE. As a long-time resident of the Embudo Valley put it: “People just like to ignore the state engineer … It’s part of a long history that we just don’t trust the bureaucrats and engineers making decisions about our water.”²² This is not just a refusal of state authority; it is a refusal to acknowledge the state itself.²³ Privately, some irrigators insisted the state has no right to fraction out water rights on their ditches, which is partly why they are reluctant to share information with the OSE. This tactic, however, is only effective at dragging out the time line of making offers to water rights claimants. If the OSE does not hear back on offers of judgment, adjudicating personnel move ahead, certify the right as complete, and assume that their own state historical research on that person’s individual water right was correct. These dating exercises over time, ditch, and priority play out to full effect later on when the OSE has to conduct priority administration in times of drought.

      Finally, federal water projects, such as dams, force the OSE to adjudicate water because of the affected water rights. To use a computer analogy, water law is the “software” that influences the structures (engineering) that need to be put into place. The “hardware” of engineering then shapes how water law works on a more practical level once placed on a landscape.²⁴ The water code of 1907 provided the software and legal basis for water priorities and allocation. To be clear, both federal and state dam projects require the start of adjudication to sort the stored waters by water rights holders.

      Think of the vast quantity of water held behind a dam: that water is used by those who hold “rights” to particular amounts. Different people may hold different water rights to different sets of water within the same reservoir, whether “native” to that basin or transferred from another basin.²⁵ Fortunately for New Mexico—and most states in the American West—the large reserves of stored water created by dams delayed the need to strictly enforce prior appropriation. This is important to note: things could have been a lot worse without dams, in terms of water scarcity and senior “calls on the river” demanding the state engineer enforce prior appropriation.

      Twentieth-century dams and reservoirs bought twenty-first-century water managers and state engineers some additional time and flexibility to adjust to new laws and water allocation technologies. The availability of reservoir water held behind engineered dams has largely allowed water users to avoid senior versus junior water conflicts and to not worry about the actual water law in the West—as tools for storing water, they seemed СКАЧАТЬ