Unsettled Waters. Eric P. Perramond
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had none of the legal identity binary fights present in the wider Aamodt case. They had long shared the water from the Rio en Medio. However, Aamodt brought up both old arrangements—and debates about phrasing and meaning—as well as new temptations to leap-frog individual priority dates. Residents of both villages were lured into claiming more “senior” dates to ensure first-in-time access to water but ultimately fell back to the 1897 arrangement. The story of Chupadero and Rio en Medio reflects the struggles of a communal water culture being forced into a system of individual water rights based on prior appropriation. In the end, adjudication did not change much, other than raising hackles between the two valleys and between ditches. Their resolution, to continue sharing the limited waters, highlights the potential solutions hidden in local, historic accords that preexisted the state’s interests in water rights.
In 2016, to add to the saga, I met a water user from Rio en Medio at the statewide meeting of the acequia ditches who raised the question about reclaiming some of that shared water. He wondered aloud, “if some of that winter water doesn’t legally belong back to our village (Rio en Medio) since no one is irrigating [in Chupadero].”27 He was hoping for water to fill his stream in the nonirrigating season, an aesthetic and water-for-the-river argument. No action has yet resulted from this, but his idea highlights that new valuations of water—amenity, aesthetic, or ecological in nature—may shift the arrangement again at some point. This short story about two villages that share much in common, not just water, also highlights that adjudication was not just about identity issues in the Pojoaque. Adjudication roiled the customary arrangements and water sharing, even as the larger Aamodt case was reaching settlement phase negotiations around the year 2000.
THE RELUCTANT SETTLING FOR VISIBLE AND INVISIBLE WATER
As Chupadero and Rio en Medio were inching toward reaffirming their standing agreement, so was the larger Aamodt case. A formal settlement process finally began in 2000 and was reached in 2006. By 2010, forty-four years after its initial filing and thirty years after the death of the state engineer (Reynolds) who filed it, the Aamodt settlement was finally and formally funded by the state and federal governments.28 By then, the case had outlived multiple judges and at least a dozen OSE and private attorneys. Lee Aamodt, the first listed defendant in the case and a scientist from Los Alamos, had become better known for this case than for his scientific contributions. The Aamodt case was its own live, legal reality show before such a thing existed. Settlement would be almost as exhausting as adjudication. But everyone was tired of formal litigation in the courtroom.
As one of the Aamodt settlement instigators told me back in 2010, “I’m honestly tired of it, Eric, and I won’t go back [to litigation] no matter how much they hate me.” We were discussing the recently funded settlement act. He continued:
Oddly enough, some of the group had tentatively approached the Pueblos back in 1983, asking for an informal meeting without the lawyers … to see if we could come to some discussion points or consensus on what everyone expected out of this. Most folks in the valley … maybe you know this already … are related, often genetically or through family, or as godparents through the Catholic Church … so it made sense to try and create an agreement even back then … [shakes head] amazing it took another twenty years for everyone to realize it was time to settle and take it largely out of the courts. Now, there are fewer judges and special masters but just as many attorneys wetting their beaks.29
As I write this in 2018, the final settlement has been accepted and stands as the final decree from the court, even if some non-Indian valley residents remain concerned or alarmed about the effects of the terms and the implications for their groundwater well rights. All the parties are still preoccupied with the consequences and costs of a new $261,000,000 regional water system that was one of the negotiation points to make the settlement happen.30 As I discuss in more detail in chapter 4, this new regional water system will serve the needs of the four pueblos, and the settlement terms encourage non-Indian well owners to cap their wells and hook up to the new regional water system. Groundwater may continue to complicate water rights in the Pojoaque Basin. With the Aamodt settlement, groundwater rights were spatially and historically parsed into new categories of water citizenship based on the dates of well water. The big deal in the Aamodt settlement is this: wells established after 1983 are subject to restrictions and a harsher cap on use.
Around 2300 wells exist in the NPT basin, and some 915 wells were established after 1982. Their active cap on withdrawal was set at 0.7 acre-feet per year (AFY) should well owners accept the terms of the Aamodt settlement. Instead of a standard domestic well award of acre-feet per year, if non-Indian well owners decide to keep their well, the limit to using that quantity is being lowered in the settlement language.31 This amount is less than the water rights awarded under the OSE groundwater permitting system. Some straws, in other words, were made smaller. Those who sign the settlement and agree to cap groundwater use or tap into the surface waters of the planned regional water system get better terms for continued use of groundwater wells and some degree of relief from future “calls on the basin” water from the nearby pueblos. Those who refuse to sign the settlement and do not hook up to the new regional water system are subject to a hard cap limit (0.3 AFY) for indoor and outdoor uses. The dates, terms, and well restrictions (especially) were so complicated that the simplified “frequently asked questions” document circulated in 2014, during public hearings on the settlement, was still twenty-six pages long. Groundwater remains a third rail of water politics in the valley today.
The finalized settlement still raises the ire of property owners with wells. I spoke with two people running a new nonprofit based in the Pojoaque Valley in July 2015 to learn their concerns about the settlement terms. “It’s just so big,” Tre Robinson said. “We feel like we’re butting heads against something that is too large for us to contest … yet they refuse to hear us out. They just want to be done with it and walk away, but we have to live here with the terms.”32 Her friend sighed heavily and picked up where she left off.
The depressing part is what this settlement has done to us as a community. We lived as neighbors, and even though the Pueblo people think of me as “Hispanic,” I’m more Native than Hispanic [by DNA testing, she claimed], so it has really ripped at the seams of our towns and communities in the village. The Pueblo want to be in charge of the rest of us, with no conditions set on how they will run the regional water authority, and we’re opposed to that. It’s just a handover of the whole valley to the pueblo [San Ildefonso], and we’re just really uncomfortable with that.”33
The implications of the settlement remain unclear to most people who live in the Pojoaque Valley and so is the future impact of yet another water intake (the planned regional water system) in the Rio Grande. Much of what was, is, and remains complicated about the Aamodt case has to do with the sticky, layered notions of cultural identity. Numerous agencies and water jurisdictions were at play here, as the federal government was brought in for the defense of Indian water rights. The four separate pueblo groups remain involved, along with Hispano and Anglo-American signatories to the settlement. The cultural complexity and the layered legal pluralism made for a longer and thornier legal case. Here, diversity complicated the pace, scale, and complexity of adjudication and settlement.
In interviews, it was clear that few well owners in the NPT valley understood the full terms (and historical geography) of the Aamodt case. One recent transplant to the Pojoaque Basin shook her head and said, “It’s like they dropped us in the middle of a labyrinth and pretended we all knew how to get out of it.” Her confusion is understandable. The settlement took nearly as long as adjudication, and parties who were informed twenty years ago as to what might be “in” the settlement may no longer be those worrying about water in the NPT basin. A whole new set of residents and landowners are trying to make sense of what a capped level of groundwater use will do to their property values. A stage analogy may be trite, but it is accurate: It is the same play, but the entire cast has changed in the last twenty years, and the current actors do not understand the point of the play. The script was handed to them by the previous generation. Those who were in the adjudication “production” twenty years ago are dead or no longer active in their water associations; they want out. It all has a Dickensian quality to it. Even in the latest public hearings in April 2017, Bureau of Reclamation officials tried