Unsettled Waters. Eric P. Perramond
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Hector, and most other irrigators understand that adjudicating water rights and potentially selling water rights are two different things, yet they see them as intricately and sequentially linked. Hector told me about a visit from a county tax assessor to stress his point. In Hector’s recounting, the assessor claimed, “I’m not here to raise your taxes. I’m just valuing what you have. Taxes are set by the county commissioners, not me.” Hector answered this assessor with, “Yeah, but if you don’t raise the assessment, then my taxes won’t go up, right?” Thus, in a similar vein, Hector sees adjudication as the flywheel for pricing, selling, and ultimately moving water across basins.
Every potential sale away from the acequia, from the village, would mean less water for local use. Selling water rights away from the community does not just move the water; it erodes the basis for a shared water community that has undergirded many small villages across New Mexico for generations. The push to formalize water rights at an individual level can have serious consequences for other kinds of property arrangements that are community based.15
THE PRODUCTION OF STATE WATER
Mandated in the 1907 water code, water rights adjudication in New Mexico was designed to map all perfected (in use) water rights. Water was declared state-owned and public, yet the individual-use rights to water would be privately held. New Mexico does not distinguish or rank the order of beneficial-use categories among agricultural, urban, and industrial and treats all water uses equally. Beneficial use of water is the basis for water rights, the measure for water rights (based on amount of use), and the limit (maximum award) for the awarding of water rights and is rooted in prior appropriation law. The presumption is that beneficial use has economic benefits, although this definition has become more expansive in the twentieth century and often includes recreation and instream flows. Prior appropriation also established a historical ordering of first-in-time, first-in-right for the use of water: the earlier the use, the better (or more senior) the water right.
In more than a century since 1907, only about a dozen basins or subbasins have reached the final decreed stage of adjudication and are considered “complete” (see map 3 for completed and pending adjudications as of 2017). Most early adjudications, between 1910 and 1950, were executed in basins with low populations and with few Hispano acequia claims or unquantified Indian water rights involved. What remains to be finished is daunting.
MAP 3. Locations of completed and pending stream adjudications in New Mexico as of 2017. Dark shading with cross-hatching, like the Jemez River Basin, designates areas where all non-Indian claims are filed but Indian water rights have yet to be determined. Adapted from New Mexico Office of the State Engineer map sources.
The state water code charged the OSE with conducting so-called general stream adjudications. General is a misnomer. Universal might be a better descriptor. The work is specific and meticulous and, by design, not particularly efficient.16 Given this massive task, it is understandable why adjudication took so long to begin and why it is still ongoing. Since its inception, the agency tasked with adjudication, the OSE, has struggled with low staffing, underfunding, and the scale of the process. Adding resources and personnel is difficult. New Mexico is one of the poorest states in the country, and as the former head of the legal division at OSE, D. L. Sanders, put it in 2006: “No Governor wants responsibility for making government larger.”17
New Mexico’s water adjudication process consists of seven general steps (shown in figure 2). These legal suits are prepared by the OSE and then triggered in concert with the state’s attorney general.
FIGURE 2. Simplified flowchart of the water rights adjudication process in New Mexico. Adapted from the New Mexico Office of the State Engineer and WaterMatters! (Utton Law School: University of New Mexico, 2013).
Each stream adjudication is more complicated than the diagram shown would suggest, and many of the steps in each phase are revisited multiple times. While every adjudication is unique, all include the three main phases shown in figure 2: the research and hydrographic work, the “subfile offers” to individuals, and the larger between-parties inter se process, whereby individuals get to question the rights claimed by other water rights users. While difficult, the technical and research stages of adjudication (in phase one) take far less time than the more contentious courtroom-based procedures on water rights between the parties.
WHAT TRIGGERS ADJUDICATION
Most general stream adjudications in New Mexico start in one of the following ways. First, adjudication can be done according to figure 2, with the state’s attorney general and state engineer filing the case. Second, adjudication can also be triggered by any water rights holder whose claims have been recorded by the OSE in the basin. Third, large water infrastructure projects can also prompt the state to quantify water rights if those water rights would be affected by the new dam, canal, or pipeline. In contrast to other western states, such as Colorado, in New Mexico it is usually the state that files the complaint starting the general stream adjudication process, with the OSE and the attorney general working in concert to file the necessary documents. This is the first adversarial aspect of adjudication in New Mexico. Each step, or phase, of the adjudication process can take years to decades to complete. Naturally, delays ensue if claimants in the basin sued by the state do not respond to offers of judgment in phase two of the process. In most cases, phase three of the inter se process, in which water rights claimants can contest each other’s water rights, is what takes decades. This is the second—and more problematic—adversarial aspect to adjudication, as it complicates social relationships between water users. But each phase can be fraught with complicated cultural and historical baggage.
Nearly seventy-three thousand defendants are now enmeshed in basin lawsuits to ascertain their water rights, in twelve pending adjudications. By one recent estimate, half of all water rights holders are now in view by the state agency (OSE), even if only 20 percent of the state’s basins have been fully adjudicated.18 The disadvantage to New Mexico’s meticulous approach is that it takes so long for the state. The advantage is that the process is thorough enough that the state, when finished, will have a fairly accurate view and quantitative understanding of how much water is claimed, allocated, and used in any given year. This will, in theory, make it easier for the state engineer to conduct priority administration of waters and manage water allocation.
The length of time to complete adjudication is not always tied to the size of the basin, the amount of water, or its complexity in a biophysical sense. Notably, since the early 1980s, most adjudications that have included Indian water rights have ended not in state adjudication courts but in what is known as settlement, a less court-driven but no less expensive and complex process. These agreements and water settlements are meant to make the process less adversarial, but they often come at a huge cost, as I discuss in chapters 2 through 4. One cannot write about water rights adjudications without discussing water settlements, especially in a culturally diverse state like New Mexico, which has so many sovereign indigenous nations.19 These agreements and settlements are ways in which local water users can renegotiate the state’s power. They find new ways to not be governed by the state, rather than have the terms set from court litigation.20
TIME, WATER RIGHTS, AND ADJUDICATION
Water rights hinge on the provable date of first beneficial use. If all the rights under consideration in a basin are later than, say, the establishment of New Mexico as a state in 1912, the task is easier. The 1907 water code firmly established the use of prior appropriation law (first in time, first in right), common throughout the American West, which supplanted