Unsettled Waters. Eric P. Perramond
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the Center for the Southwest at the UNM main library, the small collections in the basement of the Office of the State Engineer’s Bataan building complex, and the Fray Angélico Chávez Historical Library were all carefully consulted. I benefited from being an ACM (Associated Colleges of the Midwest) Newberry Library Faculty fellow during the fall semesters of 2013 and 2017, in Chicago. At Newberry, Diane Dillon, Scott Stevens, Jim Akerman, and 2013–2014 Newberry fellows Tobias Higbie, Kathleen Washburn, Michael Vorenburg, Leon Fink, Elizabeth Shermer, Susan Sleeper-Smith, Patricia Marroquin Norby, and Michael Schermer were especially helpful in shaping an initial prospectus for this book. Diana and J. Stege allowed us time for writing in their idyllic adobe house in New Mexico, and they have my profound thanks.
The personal debts here run deep. I thank my close and extended family for letting me work and live like a hermit this past year. To Ann, my constant companion and compassionate, ruthless critic, I owe you most of all.
Introduction
The Cultures of Water Sovereignty in New Mexico
I walk with Hector along the irrigation canal, the village’s acequia, as the ditch is called in northern New Mexico. The only sounds are the pulsing, burbling water in the constrained channel and fluttering cottonwood leaves. Standing on the canal bank, we can feel the vibrations from the water through our feet. Hector, the mayordomo, a kind of ditch boss, turns and raises his eyebrows: “It’s pretty clean, isn’t it?”
“The water looks great,” I respond.
He frowns, shaking his head, and starts walking again as he mutters, “No, I mean the banks of the acequia.”
I stop. In one awkward moment, I missed the point completely. From Hector’s perspective, this is not about the water. His remark is about the collective work of villagers in nature. The acequia is not just a ditch; it is also an important institution in which people manage and allocate water.1 Water brings together the people on the ditch, through the act of sharing it, and it is the lifeblood of this valley. The ditch and the institution are their work, defining their water and their landscape. As a cultural and political institution, the acequia keeps neighbors from fighting over water. These ditch institutions have forged an agrarian cultural landscape with political clout and clear institutional rules. After this momentary misunderstanding, I forge on.
“So, Hector,” I ask, as he walks along his ditch, “are your water rights adjudicated and accounted for on this stream?”
He turns, cocking his head, a slight squint in one eye, coming to a dead stop. “Who wants to know?”
I am sure I blink a few times. After a beat, I respond. “I do.”
His head lobs farther toward his shoulder. The squint hardens. “And who are you, exactly? You’re not a lawyer are you, or some fancy engineer?”
I’m not wearing a suit, but my words suggest I have one hidden under my jeans and T-shirt. I rush to explain I am neither a lawyer nor an engineer. I’m a geographer from a liberal arts college trying to understand adjudication and its relationship to water users in New Mexico. A simple summer research project, I say. Hector snorts.
At that moment, the tension between us feels thicker than wet clay. For Hector, adjudication is a four-letter word, the A word. The state of New Mexico uses water adjudications to map and redefine water access as a private-use right, not bound to the village or valleys, parsed to individuals and not the communal institution of the acequia. My seemingly innocent question is perceived by Hector as an alien, unnatural framing of water in legalese. For hundreds of years, the acequias were largely left alone to allocate and manage water along their ditches. Hector’s acequia is one of the hundreds of these local water sovereigns, as I have come to think of them, that preexist the state of New Mexico.
Water sovereignty explains much of Hector’s reaction in this context. Redefining water in any cultural, political, and historical setting is contentious. Members of the ditch control water, which they think of almost as family. Thus, the intimate sovereignty over water is not perceived as only political. Sovereignty includes the lived practice of managing the water as an essential part of the cultural and sacred landscape, across hundreds of valleys in the state. Hector is concerned about losing control over decision-making, about local water governance, and about keeping water attached to the land.2 Losing the water would imperil the sense of community, as he told me:
Listen, Eric. No, we haven’t been touched by that process [adjudication] yet, and a lot of people are nervous about it up here. Once it starts, it touches everything. Everything … old family grudges, all the cultural stuff between Pueblos [Indians] and Hispanos gets dragged to the surface again … It exposes everything and everyone. In some ways I wish it had happened fifty or sixty years ago, you know? Back when there was more water use and agriculture on these ditches … now [shaking his head] … I don’t know what kind of water will stay in this [Embudo] Valley once the state engineer is done with us. There’s nothing simple about it … and [tapping on my chest with a finger], you’re gonna be sucked into this for more than a summer if you ask the right questions … just like we will be.
Over a century ago, the 1907 New Mexico water code created the Office of the State Engineer and charged it with a monumental task. The state engineer was to perform “general stream adjudications,” accounting for all existing uses of water in every watershed in the state. That task continues today. The state maps out diversion points, land parcels with water rights, the first date of beneficial use of water, and the crops that are grown and their water use in acre-feet per year. The details needed and captured are painstaking. For those undergoing adjudication, the stakes are high: irrigators, agencies, and cities are under pressure to make full and visible use of their water rights. Water users scramble to find old historical documents related to their first-use dates or deeds of property ownership. Adjudication sparks a scramble for time, priority dates, and evidentiary proof to get one’s full measure of water. Studying this process is also a monumental task. Hector was right. This research lasted much longer than that single summer, and I soon found myself, like Alice in Wonderland falling into the rabbit hole, swept into the dizzying maze of adjudication.
Part of me wishes the A word had remained distant and foreign to me because of its complexity and its reach into all aspects of water. Nevertheless, I found it too fascinating and revealing to ignore. These water adjudication lawsuits expose everything that is strange and contentious about western water law and water use: disagreements over use, local and expert knowledge contests, competing legal notions of water, the allocation of water rights by crop, arguments about water’s purpose, and interstate disputes over water.
Under the 1907 water code, water abruptly became a state-owned yet privately allocated resource. Adjudication was the process by which the state would translate water access to a private-use right. In some cases, adjudications went smoothly and quickly. These were typically in sparsely populated areas with little water to allocate. More typically, however, the legal process has been adversarial, costly, and lengthy. Multiple generations of families have been embroiled in the same adjudication lawsuit, and the most difficult and massive water cases have not even started yet. Water cultures in New Mexico, like the Hispano irrigators or Native sovereign nations who think in more collective, not individual, water terms, contested the state’s rereading of their water norms and customary understandings of the purpose of water.3
Allocating small and big water shares will be an increasing challenge in this drier, warmer, more contentious century. Hector knows this, and so does the state engineer, but they think about water in different ways and at different scales. Scholars have recognized the importance of adjudications. Earlier contributions in a 1990 special issue of the Journal of the Southwest highlighted the problematic social tensions of adjudication as a process.4 Those concerns remain thirty years later. Ten years ago, in an interview by Jack Loeffler, Frances Levine wrote, “No contemporary issue is as emblematic of the struggle between traditional and modern lifeways as the water rights adjudications currently under way in much of New Mexico.”5
In the field of critical legal studies, scholars have demonstrated that