Unsettled Waters. Eric P. Perramond
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new regional system resulting from settlement would work for new residents just learning about the changes to groundwater and surface waters in the valley.
AAMODT AND THE SUM OF ALL FEARS
Aamodt, as both a former adjudication and a decreed settlement, illustrates three important facets. First, the legal process was slowed by the density of small parcels, the large number of defendants (more than there were acres in the valley), and cultural-legal pluralism. If any suit underscores the penny-wise, pound-foolish process of adjudication, it is certainly Aamodt. Given how little water exists in the Pojoaque Valley, the state, the federal government, and the private water rights owners have all spent an exorbitant amount of financial and human resources on it. Aamodt insiders involved in the legal work in the Pojoaque Basin often shared the following grim perspective: more money was spent adjudicating, and subsequently settling, the valley’s water rights than all the land in the basin was worth. This is so logically incomprehensible that it bears restating. More money, per acre, was spent on trying to understand, map, and formalize water in the courts than the land itself was worth. At the time the agreement was forged, signed, and then funded by the federal and state governments (2010), Aamodt was the longest-standing court case in US history, lasting nearly fifty years.
Second, sorting water by legal identity, the binary of Indian and non-Indian water rights, meant the involvement of both state and federal courts. Notions of historical indigenous water uses were at stake in Aamodt. Whether any, or all four, of the Indian pueblos were historically diverting water from their natural stream courses via permanent canals has always been one of the difficult aspects to prove for archaeologists, anthropologists, and historians of the region. No doubt, the Pueblo were diverting directly from flows using floodwater farming and dry-farming techniques. Whether their approach met the criteria for permanent water diversions using perennial or more permanent canals was barely raised, even though this is the basis for state water rights under the 1907 water code in New Mexico. The 1908 Winters decision was an early leverage card for the Pueblo to use to achieve some measure of water justice, but in the end they were treated like Mexican citizens in the transfer to the US system of water rights, getting only historical acreage.
Third, identity in the valley was made more complicated by non-Indian claims to indigeneity. Hispano residents have long claimed that they were allowed to settle in the area near the pueblos, where arable and irrigable land existed centuries ago. Adjudication and consulting historians clearly highlighted that Hispano rhetoric and claims about “sharing water” with the pueblos may have been about Hispano encroachment on Pueblo lands and waters before Spanish arrival.34 There is no getting around the double history of settler colonialism in this valley and so many others in New Mexico. Hispanos in New Mexico remain legally stuck in the liminal space between indigenous peoples and the Anglo-Americans that arrived after 1848.
The Aamodt case was one of the longest federal court cases in the history of this country. It was also one of the most divisive in New Mexico, pitting neighbor against neighbor and adding binary fuel to the fire of identity. It cleaved water in more defined, cultural ways, separating out Indian versus non-Indian residents. Adjudication in the end treated the Pueblo Indians once again like ex-Mexican citizens. The settlement stemming out of adjudication did not heal these cultural wounds or distinctions. The spark that lit the Aamodt adjudication, the San Juan-Chama Project, continues to have wide-ranging effects on New Mexico’s water landscapes, both legal and physical.
San Juan-Chama Project water now goes to various New Mexican cities, including Albuquerque and Santa Fe, for drinking water, as discussed in the following chapters. Building the infrastructure was easier and took less time than the legal adjudication of those same waters. The Navajo Nation got a portion of these project waters (in 2005), as did the Jicarilla Apache in an earlier settlement (1992). Smaller portions of project water were dedicated to Taos (initially the town), and a small allocation was granted to the Pojoaque Valley for the Aamodt settlement in its final form.
Pressure to find an agreement in the Pojoaque Basin between the parties came from another adjudication lawsuit taking place to the north in the Taos Valley. Aamodt was influenced by the Abeyta (Taos) regional adjudication case, and the tangible connection between the two started with, and still depends on water from, the San Juan-Chama Project. The Aamodt parties were influenced and later connected, socially and hydraulically, by what was happening just to the north of their small basin. Next, I turn to the Taos Valley adjudication procedure (Abeyta) to explain these connections.
3
Abeyta
Taos Struggles, Then Negotiates
Then these guys showed up with survey stuff, walked on the edges of all our fields, and kept talking about a state survey to figure out water use. They had a state vehicle, from the state engineer you know, so a lot of us just decided it was time to meet and start talking. We were doing business with a handshake; [it] was a neighborly way of doing business. But it was clear that had to change if they were going to start watching us carefully.
—ENRIQUE MONDRAGÓN1
The Taos Valley had its own long-standing adjudication lawsuit stuck in legal mire for decades. The Abeyta suit, filed in 1969, simmered in quiet but adversarial litigation mode as the parties “spent the next 20 years trying to gather and build evidence and find data, maps, and historical documents so that we could annihilate each other in court.”2 In the end, however, the parties did not annihilate each other. Abeyta is notable as the first lawsuit to avoid a “normal” full state adjudication and settle out of court. In its settlement process and terms, Abeyta later influenced the Aamodt suit negotiations to its south, providing a form of interbasin social peer pressure to move to settlement. The lessons of Abeyta have far-reaching implications for basins undergoing and awaiting adjudication.
The major streams in the Taos Valley have their headwaters on Taos Pueblo lands. The Pueblo, then, were in a good position to negotiate their ancestral claims with other parties: the nearby acequias, the town of Taos, and mutual domestic water associations. For the small town of Taos, nestled at seven thousand feet in elevation on the eastern plateau of the Rio Grande Gorge, the strong but unquantified claims to water by the Pueblo were terrifying. The Abeyta adjudication began just as the economy and landscape of Taos were shifting away from agriculture. Like the larger city of Santa Fe to its south, Taos was becoming an art-market mecca, and its economy was increasingly relying on water-thirsty tourism. New residential developments, including suburbs, exurbs, and second homes, also demanded more water. With its main water sources—surface stream waters and wells—on the legal table, Taos had a lot to lose in adjudication.
Compared to the Pojoaque Valley to the south, Taos had decent water supplies. Surface water represented nearly 80 percent of water used in the valley, according to a recent water-planning study.3 Irrigators and landowners relied on a large number of domestic wells, which became a key sticking point in the later adjudication. Water conflict, accommodation, and cooperation were nothing new in the Taos Valley. Long-standing disputes between towns such as Taos, Arroyo Hondo, and Arroyo Seco were par for the course from the eighteenth century onward.
Water sharing between the Taos Pueblo and the adjoining acequias was also tested intermittently yet endured into the late twentieth century. Irrigation in the Taos Valley depends on a set of mountain streams, along with other minor streams to the south (see map 6). These streams feed to one of the densest networks of acequia ditches in New Mexico, some seventy-one individual ditch associations. Approximately two thousand parciantes still depend on these acequias today.4
MAP 6. Map of the Taos Valley and its major streams and acequias. Adapted from Rodriguez (2006, plate 1).
Prior to filing the adjudication suit in the late 1960s, Office of the State Engineer (OSE) technicians had already been at work in the Taos Valley, preparing for water infrastructure.