Unsettled Waters. Eric P. Perramond
Читать онлайн книгу.
the challenges and complexities faced by the adjudicated and the adjudicators since the 1960s. Each case exemplifies complexity for different reasons in different contexts. Aamodt reflects how cultural diversity and legal pluralism in water governance resist simplified state readings of water sovereignty. The Abeyta case in the Taos Valley illustrates how multiple groups of water users came to a negotiated agreement, or water settlement, to preserve local norms of water sovereignty and customary law in use in the valley. Both cases highlight why adjudication failed to “core through” culturally plural views and uses of water. “Litigation illuminates,” as one former judge has written, yet it also unsettles relationships between water sovereigns.47
2
Aamodt, Dammit!
Big Trouble in a Small Basin
Angela and I walked along the dirt road that parallels the often-dry Pojoaque River, a mere trickle moving under a sweltering July sun. As Angela told me:
I moved here twenty years ago. I moved back, really, after college, because I care about this valley. But my family had no idea about what would happen with this whole [Aamodt] adjudication thing until it was too late … By the time they started paying attention again, the deal was done, and it seemed we had already been denied any voice or good deal in that set of discussions. We felt screwed. We still do. We got handed a hornet’s nest agreed to by others … I’m realistic that the Indians get their water as part of this whole deal. But they can’t have everything, can they? And this new deal now forces us to reduce well water use because they [the pueblos] don’t like the groundwater pumps…. it just seems unfair.1
Aamodt, often jokingly referred to as “Aamodt, dammit!” by both former state employees and those who live in the Pojoaque Basin, was the most infamous state adjudication for decades (see map 4). Angela’s family had three generations of active defendants in the lawsuit, and she was sharing her latest experiences about the terms of the negotiated agreement. She felt the “non-Indians” in the valley like her had been poorly represented in the meetings that hammered out new water arrangements in the Pojoaque. She remained frustrated, a familiar feeling among her neighbors, too. The settlement had left many in the valley unsettled.
MAP 4. Map of the Aamodt adjudication area, the Pojoaque River Valley, showing the four major pueblos. Adapted from the New Mexico Office of the State Engineer and Utton Center (2013).
The original Aamodt case was filed by the New Mexico state engineer in 1966, suing almost 2,500 defendants. Centered on the Pojoaque Basin and its small tributaries and the Nambé and the Tesuque Rivers, the Aamodt adjudication suit resurfaced past conflicts and cultural tensions.2 By the time Aamodt was settled out of court in 2010, the number of defendants had risen to 5,284 and encompassed four Indian pueblos in the Nambé-Pojoaque-Tesuque valleys, as well as a separate irrigation district and some 2,724 acres. Aamodt highlights both the multigenerational complexity of adjudication and the state’s ultimate failure to read water across sovereign identity lines. In the end, the four pueblos, federal agencies, and local acequias negotiated their way out of adjudication into a different kind of agreement that was acceptable to the state of New Mexico. Before adjudication was taken out of the courts, however, Aamodt was its own special little hell of a court case.
In this rural commuter valley to the north of Santa Fe, it can seem there are more people and more small land parcels than the limited water can sustain. The Nambé, Tesuque, and Pojoaque are all modest streams for most of the year and often run dry by early July. When they have water, they eventually join the Rio Grande. Water disputes were nothing new in this area. The archives are replete with court records of conflict from the early Spanish Colonial days and through the modern period as residents grappled over the low surface flows.3 And those are just the cases preserved in official documentation.
With Aamodt opened as a new litigation opportunity, old conflicts over claims to water bubbled up again. Identity questions of Indian and non-Indian finally were confronted and addressed. Non-Indians sought better legal representation and positioning given the strong Indian water rights claims in the valley. Hispanos and Anglos jockeyed for better prior appropriation dates. Groundwater and wells were added late to this process, adding further stress for the valley’s residents.
The Aamodt suit produced decades of long, tedious courtroom procedures. Thus, no better case exists in New Mexico adjudications for illustrating the process and lessons from transforming water into a private-use-right property regime. Given the lengthiness of the case, I turned to the legal archives to examine the multiple phases of Aamodt. Some interviewees, like Angela in the opening dialogue, did not remember or know the particularities of the early days of the lawsuit. They often felt trapped by the jumbled legal process that had outlasted generations in their valley. To make sense of Aamodt and its lessons requires time travel and some jumping back and forth through a time line that was inherently messy. The suit was sparked by a project started far upstream.
It all started, I think … with the San Juan-Chama Project stuff, back in the 1960s. That’s when [State Engineer Steve] Reynolds started getting serious about adjudication. It was these projects that did it. He realized all this water is going to get connected so better know where people own and use that water, right? I guess we have learned the hard way that once you connect this [Colorado River] water with that [Rio Grande] water, it creates problems, and complications. Everything got more complicated with the connection between the two big rivers. The dams and pipes went in pretty quickly, but the state engineer is still trying to sort out the whole legal thing of what water goes where and who has rights to what part of the two rivers and the Chama River water itself. What a mess! (Tony Adel, Tesuque).4
As New Mexico’s adjudications accelerated in the mid- to late twentieth century, tied to dam and infrastructure developments, it became clear the process was going to encounter significant hurdles. The Aamodt and Abeyta suits were filed in the late 1960s by then state engineer Steve Reynolds, sparked by the state’s need to parse out the water rights involved in the San Juan-Chama Project (see map 5). The San Juan-Chama Project was designed and built to move New Mexico’s share of Colorado River water into the Rio Grande Basin. Through a transbasin diversion from the San Juan River in Colorado, a set of pipe transfers into Heron Dam shunts this water downstream to other reservoirs and eventually into the natural stream course of the Chama River. Aamodt was thus complicated in scale from the start.
MAP 5. Map of the San Juan-Chama Project. This project was the key infrastructure event triggering the northern adjudications (Aamodt, Abeyta) since the basins would be receiving a share of the San Juan-Chama Project water. Adapted from New Mexico Office of the State Engineer and city of Santa Fe Water Division maps.
Such was the reputation of Aamodt that at least two dozen times in other parts of New Mexico, people told me some variation on the following: “At least we’re not in the Aamodt case!” Aamodt was infamous and remains so. The most complicating factor wasn’t the basin size (it was small) or the limited water. It was legal pluralism. This was a legally complex valley in how residents used water, discussed water, or understood water. The legacy of legal pluralism is reflected in the mountains of legal archival files—so much paper, in fact, that legal scholars refer to the case as two discrete episodes: Aamodt 1 (1966–1984) and Aamodt 2 (1985–2000). Below, I briefly summarize aspects of these two distinct episodes that each lasted more than a generation.5 Cultural identity, Indian water rights, competing histories of use, inter- and intraethnic disputes over attorneys, acequias and customary water rights, thousands of defendants, ground and surface waters, federal agencies, consulting engineers, anthropologists, historians, and state engineer technicians and lawyers: they were all on display during Aamodt.
THE