Negotiated Settlements Effectiveness in Untying the Gordian Knot of - PDF document

New Mexico Water Resources Research Institute 63 rd Annual New Mexico Water Conference At the Tipping Point: Water Scarcity, Science, and Policy October 17-18, 2018 Las Cruces Convention Center, Las Cruces, New Mexico Negotiated Settlements’ Effectiveness in Untying the Gordian Knot of Basin Adjudications Matthew Reynolds, Chief Judge, Seventh Judicial District, State of New Mexico I thank the Institute for inviting me to speak with you today, and thank you all for attending. An annotated version of my presentation will be available, either through the Institute or my office. This talk is entitled, “Negotiated Settlements’ Effectiveness in Untying the Gordian Knot of Basin Adjudications.” A Gordian knot is an extremely complex problem with seemingly no solution. The term comes from an ancient story: Once there was a kingdom with no king. A prophet foretold that the next person to come through the city gates in an oxcart would be their new ruler. A peasant named Gordias rode through the gates just then sitting on his oxcart, and the rest is history mixed with legend. The city was named after Gordias, and his son, the famous King Midas of the Golden Touch, had his father’s oxcart tied to its yoke in such an intricate knot with no ends visible that nobody could untie it, despite the prophecy that whoever loosened the knot would rule the whole world. 1 I’ll tell you the rest of that story a little later. Here’s another story: In the time of our recent ancestors, the territory of New Mexico wanted to become a state and to be approved for big dam and reservoir projects. So in 1907 our legislators substantially adopted a comprehensive model water code to satisfy the federal government. The code included sections governing the determination of all the water use rights in New Mexico’s stream systems, called general stream adjudications, which a quarter century later included underground waters as well, 1

collectively referred to here as basin adjudications. When it was enacted at the beginning of the 20 th century, the code was hailed as forward-thinking and scientific in its approach to resolving water allocation issues. 2 Based upon the courts’ adjudications and his licenses, the State Engineer would supervise the waters throughout the state and no new uses would be allowed after the enactment of the code except upon his approval and the availability of water. The adjudications were a preliminary matter to be resolved by the courts to create a foundation of secure knowledge of everyone’s legitimate water usage for moving forward in effective management of the state’s waters. An early adjudication started here in Las Cruces for the lower Rio Grande, but it faded away upon the completion of the Elephant Butte Dam, supply and demand at work, for with more stable supplies of water, lawsuits were in less demand. 3 There were always more pressing needs when it came to water than pursuing and completing the complex tasks required to determine everyone’s water rights in a basin. The task became more complex in the 1950s through the federal McCarran Amendment allowing the rights of the United States and Native American tribes, pueblos and nations to be included in adjudications. 4 At the beginning of the 21 st century, about 20 percent of New Mexico’s adjudications were complete, with about 50 percent underway, 5 a total of a dozen or so split evenly between state and federal courts, 6 and 30 percent still to be undertaken, including the middle Rio Grande Basin providing water for more than half the state’s population. Eighteen years into the new century, about 20 percent of adjudications are complete, with about 50 percent underway, and 30 percent still to be undertaken, including the middle Rio Grande Basin. 7 2

But let’s back up a little, to 2002, when an exceptional drought gripped New Mexico. New Mexicans had already been meeting in sixteen water regions to implement long-range water plans, and in 2003 the legislature directed the State Engineer and the Interstate Stream Commission, headed by the State Engineer, to establish a comprehensive state water plan. 8 The legislature recognized that statewide completion of water rights adjudications is an essential element of an effective water management plan, and further recognized that completion of adjudications will require substantial time and resources until such time as the adjudications are complete. Therefore, the legislative act mandating the state water plan required that it include work plans and strategies for completion of water rights adjudications. 9 In December 2003, the State Engineer and the ISC published the State Water Plan. Part of that Plan mandated that “[a]djudication of water rights in all basins will be expedited.” 10 Completing water adjudications was one of eleven “fundamental statewide common priorities, goals, and objectives.” 11 Therefore, the Plan required the State to “accelerate the adjudication of water rights by prioritizing adjudications, setting out projected schedules and timelines for their completion, allocating the necessary State resources, and obtaining federal funding where possible.” 12 The active adjudications were given specific timelines for their progress with estimated completion dates for non-Indian water rights, in Appendix D to the Plan. All but two were to have been completed by December 2017, with the lower Rio Grande finishing up at the end of this year and the San Juan complete in 2020. Adjudications not yet underway were to have benchmarks for initiation and completion in an appendix that was to be forthcoming 13 but never forthcame. 3

The 2003 Water Plan was to be supplemented by five-year updates, 14 so in 2008 an eight-page review and update plan reported briefly on water adjudications that there were three Indian water rights settlements reached in 2005-2006, some Supreme Court rule changes for adjudications, the creation of water courts in every judicial district, and an Indian water rights settlement fund. The plan also noted that “report on progress in licensing or adjudication of water rights” was one of ten priority areas for an update, subject to funding availability. 15 In 2013, the State Engineer and the ISC submitted a water plan review, acknowledging that “[c]ompleting water rights adjudications is one of the eleven common priorities, goals, and objectives identified in the 2003 State Water Plan.” 16 The Review noted significant improvements to the adjudications for improved efficiency, including new procedural rules, a single adjudication judge, 17 computer-based technical tools to conduct hydrographic surveys, “use of field offices, individual field visits, and informal negotiations to address and resolve objections of water right owners before resorting to litigation; [a]n ombudsman program at the Utton Center at the University of New Mexico School of Law to help water right owners better understand and navigate the adjudication process;” enhanced use of electronic notices and court websites, and “[u]se of mediators to resolve disputes short of trial.” 18 The 2013 Review made no mention of the lapsed timelines of the pending adjudications outlined in Appendix D to the 2003 Plan. The 2013 Review also failed to propose timelines for uninitiated adjudications promised in the Plan. It did, however, describe the twelve active adjudications and their progress: 4

“Twelve adjudication suits . . . include the Pecos River stream system . . , initiated in 1956, seven adjudications on tributaries to the Rio Grande, filed between 1966 and 1983, the San Juan River stream system, filed in 1975, the Lower Rio Grande system, filed in 1986, and the Zuni River stream system, filed in 2001. These adjudications encompass the water right claims of an estimated 72,000 individual claimants, federal government agencies, irrigation districts, reclamation and conservancy projects, large municipalities, community ditches, and most of New Mexico’s Indian Pueblos, Tribes, and Nations.” 19 The progress for the decade since 2003 included “approximately 10,000 subfile orders determining the elements of water rights held by individuals,” numerous complex multi-party proceedings, and the three Indian water rights settlements from 2005 and 2006, namely, “the Navajo Nation Water Rights Settlement in the San Juan River adjudication; 20 the Settlement Agreement that resolves the water rights claims of the Pueblos of Nambe, Pojoaque, Tesuque, and San Ildefonso in the Aamodt adjudication; and the Taos Pueblo Settlement that settles the water rights claims of Taos Pueblo in the Rio Pueblo de Taos/Rio Hondo Abeyta adjudication.” 21 Earlier this year, the State Engineer and the ISC presented a draft of a new State Water Plan, incorporating the results of the sixteen regional water plans developed in 2016 and 2017. Six regions “noted the importance of completing adjudications so that water rights are defined,” 22 and recommendations regarding water rights, including adjudications, topped the list of recommendations for statewide implementation. 23 For instance, “[s]ome regions have significant ‘paper rights’ that have never been put to beneficial use which presents challenges for planning and managing the water resources.” 24 5