Unsettled Waters. Eric P. Perramond
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prior appropriation, politicians at the time agreed to this template of water law for the state of New Mexico.
Under prior appropriation an individual with an earlier date, say, 1730, as a first-documented diversion and beneficial use of water can get a full allocation of water rights before those with more recent use dates. As long as those water rights are used continuously on appurtenant land or at least not discontinued for more than five years, those water rights “stay” with the adjoining land.
Pre-1907 water rights, which preexisted the New Mexico water code, are recognized as senior water rights. These include both Pueblo (Indian) and Hispano water rights, which get further distinguished. If the entity is a sovereign nation, such as a Pueblo Indian land grant or a Navajo reservation to adjudicate, then US federal government agencies like the Bureau of Indian Affairs or the Department of the Interior, in their trust relationship with Native American nations, step in as a party to the suit. It gets more complicated. Some Indian water rights (typically, Pueblo) are awarded on a historical irrigation acreage basis, using archival and archaeological support, whereas others (like the Navajo or Apache) can be awarded based on what amount of land might be irrigable, referred to as practicably irrigated acreage.
If Hispano post-1598 water rights are at stake, the adjudication also involves extensive archival research conducted by state engineer personnel or contract historians to prove first-use dates by various individuals along the ditch. Acequia members often insist on the communal notion of shared water-use traditions that are the norm on these ditches. They often argue for a single date for the entire ditch (acequia) instead of differential and individual water rights dates. Prior to adjudications, most senior water users ignored strict prior appropriation, especially on Indian lands and along acequias. In both cases, the basis for allocating water was based on the amount of land held, equitable water sharing, and demonstrated need. Water allocation, sharing, and disputes were already complicated enough before the 1907 water code was established.
All of this makes for a byzantine water world. It is perhaps no wonder that scholars outside of law schools have ignored these state procedures.21 On the state’s end, one of the very reasons that adjudication is “so damn slow,” as one attorney put it, is because of defendants and their reluctance to engage with the state engineer. There is fear, anxiousness, and often resistance to responding to letters and paperwork. They do their best to ignore the OSE. As a long-time resident of the Embudo Valley put it: “People just like to ignore the state engineer … It’s part of a long history that we just don’t trust the bureaucrats and engineers making decisions about our water.”22 This is not just a refusal of state authority; it is a refusal to acknowledge the state itself.23 Privately, some irrigators insisted the state has no right to fraction out water rights on their ditches, which is partly why they are reluctant to share information with the OSE. This tactic, however, is only effective at dragging out the time line of making offers to water rights claimants. If the OSE does not hear back on offers of judgment, adjudicating personnel move ahead, certify the right as complete, and assume that their own state historical research on that person’s individual water right was correct. These dating exercises over time, ditch, and priority play out to full effect later on when the OSE has to conduct priority administration in times of drought.
Finally, federal water projects, such as dams, force the OSE to adjudicate water because of the affected water rights. To use a computer analogy, water law is the “software” that influences the structures (engineering) that need to be put into place. The “hardware” of engineering then shapes how water law works on a more practical level once placed on a landscape.24 The water code of 1907 provided the software and legal basis for water priorities and allocation. To be clear, both federal and state dam projects require the start of adjudication to sort the stored waters by water rights holders.
Think of the vast quantity of water held behind a dam: that water is used by those who hold “rights” to particular amounts. Different people may hold different water rights to different sets of water within the same reservoir, whether “native” to that basin or transferred from another basin.25 Fortunately for New Mexico—and most states in the American West—the large reserves of stored water created by dams delayed the need to strictly enforce prior appropriation. This is important to note: things could have been a lot worse without dams, in terms of water scarcity and senior “calls on the river” demanding the state engineer enforce prior appropriation.
Twentieth-century dams and reservoirs bought twenty-first-century water managers and state engineers some additional time and flexibility to adjust to new laws and water allocation technologies. The availability of reservoir water held behind engineered dams has largely allowed water users to avoid senior versus junior water conflicts and to not worry about the actual water law in the West—as tools for storing water, they seemed unmatched.26 Enforcing prior appropriation law is not an easy or desirable process for the state engineer. In fact, prior administration of waters is jokingly referred to in the OSE offices as “the nuclear option.” The slowing and vast storage of water changed both the timing of water releases and mitigated the need for prior administration of water by the state engineer. Massive infrastructure projects connected small farmers like Hector to state adjudicators, water managers, and urban residents across the state, as demonstrated in the next few chapters. Western states completely replumbed their rivers and streams. These new cultures of “expert water” and associated infrastructure were coproduced right alongside adjudication (see chapters 5 and 6).
LAWSUITS ILLUMINATE THE NEW MEXICAN LANDSCAPE
Adjudication as a process “was never meant to be personal,” as one senior adjudicator put it to me in 2009.27 Yet these lawsuits, filed by the state, call out defendants by name and thus feel deeply personal and adversarial. Some defendants’ names become infamous. Imagine that your name is Enrique Abeyta, for example. You come from a long line of Abeytas, a rather common family name in New Mexico, yet now your name has come to suggest something different: a lawsuit. The first alphabetically listed defendant (Abeyta, in this example, or Aamodt for another) in a water adjudication suit becomes the name by which the suit is colloquially known. As one adjudicated farmer joked ruefully, “No wonder they haven’t finished, all the adjudications start with the letter A, they never get to Z!”28 Each of these family names is shorthand for the basins under adjudication across the state of New Mexico.
Irrigators, municipal water employees, and even local politicians were all eager to talk to me about watersheds and water management. However, utter one of the A names associated with a case and their reactions changed. The dead stare, the aloofness, the skepticism on peoples’ faces were all clearly visible. Of course, it wasn’t about the defendants bearing the unlucky names. It was what those shorthand nicknames now meant—the cases themselves and the uncertainty they brought. Even adjudicators get tired of the process over time. “If we didn’t have to adjudicate, Eric, we wouldn’t,” a former adjudicator and OSE attorney told me, her voice and face betraying her weariness.
That said, adjudication was not always difficult, tiring, or perceived as problematic. In early test case basins with little cultural or legal diversity to contend with, the state engineer’s personnel were not regarded with suspicion. After all, the technicians were simply there to map, document, and title out property rights that individuals had long claimed and used. Such was the case along parts of the Mimbres River and the Canadian River, which were done and decreed efficiently. These were less controversial because of the lack of legal pluralism and the lack of indigenous and long-standing Hispano claims to water. Fewer cultures of water translated to fewer hiccups in thinking about water rights as property-use rights.
Technicians who worked on the Mimbres adjudication recalled it as simple and straightforward. “It was pretty easy in the long run … maybe part of it was that there were no Indian water rights claims there, for sure, but overall [shrugs shoulders], it was a cakewalk compared to some of the other cases up in northern New Mexico where everyone seemed ready to question every damn thing we were doing in the courts, in the fields, and everywhere in between.”29 These sentiments were echoed in other interviews from the more culturally diverse basins that remained stuck for decades.
It was the foreignness of prior appropriation