Unsettled Waters. Eric P. Perramond
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of the early US congressional bills to receive consideration in 1849, just after Nuevo México became a territory of the United States, proposed that a commission be established to adjudicate all lands and gold claims in both New Mexico and California. Even Senator Benton from Missouri, a proponent of manifest destiny, had deep reservations about forcing New Mexicans to beg and plead in a commission setting for their rights. As he argued to the US Senate:
Two hundred and fifty years have elapsed since that country was granted to its conqueror, Don Juan de Oñate: almost ten generations have lived and died there. Yet they are all to be called upon now to show their land titles, and to prove them also, back to the time of the conquest. All titles are to be ripped up, and rooted up, back to the original grant, two hundred and fifty years ago. What would Virginia say if she had been conquered by a foreign Power, and should be served in the same manner?7
Benton was no champion of Mexicans (or New Mexicans), yet even he saw the lurking danger of this federal move to humble new citizens before a kind of quasi-administrative and legal court proceeding.8 Few Spanish and Mexican land grants were ever confirmed or honored. However, that does not mean their traces have disappeared. In rural communities, families with long roots vividly remember the fraud and shady legal procedures by which their lands were taken. Given this history of dispossession of communal land and resource access, suspicion about water adjudication is understandable. It is not just the state asserting its territoriality over water that is of concern. More central is the state’s insertion into local and regional water governance.9 New Mexicans worry about the delocalization of water and the potential loss of collective water sovereignty.
For Miguel and his neighbors, the concern is less with the awarding of a water right, per se, but rather with what individual rights might allow: a potential and future sale of those water rights away from their shared ditch. In the new system of water law established in 1907, a privately sold water right would no longer be used on the adjacent land. It would “leave” the ditch’s institutional control, leaving less water for the community to work with in the long term.
Adjudication also has institutional implications on the ditch. Adjudication certifies an individual’s water rights, not the community ditch water rights under Spanish and Mexican norms of water distribution. Acequia members fear that adjudication will endanger their closely controlled water commons, where participatory labor, citizenship, and water use are tightly conjoined. The results of adjudication create a patchwork of private water rights owners who are then less tied to the community that built the ditches. These private owners could also theoretically dispose of their individual water rights as they see fit—to their economic benefit but potentially harming the communal aspects of the ditch as a whole.
Adjudication quietly sorts a water-use right as a private-use right, abstractly moving water out of the realm of communal and acequia institutional control. In doing so, adjudication reveals much. I have come to think of this in geologic terms, which, given the pace of adjudication, seems apt. Geologists study stratigraphic layers to understand deep time and Earth’s formation. In adjudication, the state is seeking to extract a single “core” meaning to water, a fixed amount to be bestowed as a private-use right. To get to that layer, the state bores down through time, through the different cultural values given to water and the historical disputes between cultures. Looking over the state’s shoulder, peering down this conceptual borehole, studying adjudication and its results, illuminates those past layers of cultural water: the communal water in acequias, the shared indigenous waters of the Pueblo, and the individual water rights of later settlers and city utilities. To enrich political theorist James Scott’s thoughts on the “state visioning” of water users, adjudication has multidimensional side effects: it reveals old water conflicts and produces new adversarial relationships between water users.10 Adjudication litigation as a singular state coring of water activates the multiple (vertical) layered definitions of water, even as the state continues to insist on a singular horizontal, two-dimensional private-use right for water users.11
For community ditches across the state and for indigenous sovereign nations, there is fear that water is being translated as only a private good, as only a resource, so that others can locate and buy it as a “commodity.” These competing sovereign views of water, and cultural identity, not only reflect the multiple waves of colonialism in New Mexico. They also reflect how modern capitalism has rolled out in this state, severing ties between communities and the surrounding landscape, resource by resource, layer by layer. For so many people that live along traditional ditches, putting individual price tags on natural features of the landscape can seem like madness.
Forests, land, livestock, and now water are all subject to new commodity definitions. Like the peeling of an onion, the old land grants created initially to serve Hispano villages were separated into redefined layers of timber, real estate property, animals as commodities, and “water resources,” or “water rights,” that can be made profitable and mobile throughout the state.12 Fundamental cultural, political, and economic differences clash in the process: the perception of water as a communal shared good versus the new political economy of a private-use water rights system imposed by the state of New Mexico.
Adjudication seems perfectly harmless to the state and its employees. After all, they just want to seek out and certify New Mexicans’ water uses as private-use rights. To the prior water sovereigns, on the other hand, the process can seem ominous as the multiple understandings of water are “cored” by the state in a single and simplifying way. For people like Hector or Miguel, this state redefinition of communal water into individual water rights is a violent one, even if that violence is slow, gradual, and often invisible.
It is important to note that water rights can be sold prior to adjudication or even during an ongoing adjudication.13 Adjudication is the state recognition of individual usufruct property rights, not an automatic pathway to selling water. This means that landed property owners who have water-use rights can choose to sever their water rights from the land if, for example, they choose to stop farming and irrigating their lands. Then the water, priced per acre, is no longer just a private-use property right but has become monetized, a commodity that can be transferred. The amount of money paid per acre has everything to do with location. A nearby city interested in acquiring water rights might pay up to $50,000 per acre-foot. If the farm is in an isolated rural setting, the price will often be half or a third as much.
The legal process does make those water rights more visible to potential buyers. The state itself is not commoditizing water per se—it is simply mapping, accounting for, and creating an inventory for water rights across the state. The Office of the State Engineer (OSE) does individuate and locate that private water right in time and space, by crop duty for the amount of water per acre needed or used, allowing for future marketing of water. Attorneys, water bankers, willing buyers, and water-rights owners then mobilize that water market to price the water itself. From the state’s perspective, the 1907 water code was simply created to affirm and map individual property rights as a neutral process. State officials I spoke with were often frustrated by local perceptions of adjudication. Nevertheless, state technicians and attorneys should understand that these suspicions and attitudes are based on repeated experiences of past resource access losses.
Antonio from Truchas expressed a common concern regarding potential water transfers. “Losing our water from this ditch would leave a deep cultural wound that we’d never recover from,” he said. His fears may sound extreme, but they are not unjustified. Water moves across basins in the contemporary western United States. This suspicion about making waters nonlocal, held by multigenerational New Mexicans, is often unintentionally confirmed by engineers, attorneys, and state engineer officials. Attend any public meeting on water in New Mexico (and elsewhere in the United States) and you will hear water experts and housing developers calling for water to be put to its “highest economic use.” What they mean is for water to be moved from X function to Y function so as to generate greater economic value per acre-foot. When farmers or rural residents hear this, what they hear is “let’s get water away from farmers and ditches … and get it to the suburbs, the city, industries, or more suburbs.” This neoliberal and triumphalist free market rhetoric confirms the worst fears of farmers as just another way to put a price on water and move it