A community advocacy newspaper for northern New Mexico
Box 6 El Valle Route, Chamisal, NM 87521
Adjudication of Water Rights Involving Acequias By Fred Waltz, Water Rights Attorney
Editorial By Mark Schiller and Kay Matthews
Tejadores de Las Trampas opened the community center in Las Trampas for the High Road Art Tour in September to display their colorful rag rugs. A project of the Española Valley Fiber Arts Center, the group, comprised of approximately 13 women, is successfully marketing their rugs through art fairs and direct sales. They get together on Mondays and Tuesdays at the community center to weave the rugs made of cloth remnants on looms kept at the center. Several of the women have looms at home in the neighboring villages of Ojo Sarco and La Joya. To make an appointment to see the rugs or place an order you may call Jody Ford at 689-2315.
Weaver Jody Ford
Weaver Karen McClaren
Andrew and Lorrie Garcia are members of the large, extended Garcia family of Rio Lucio and are both retired from the Peñasco Independent Schools. They showed their exquisitely crafted traditional New Mexico furniture - Andrew - and retablos and bultos - Lorrie - at their home in Rio Lucio.
Andrew Garcia seated at his carved table and chairs
Lorrie Garcia bulto
The Valles Caldera Trust's board of directors has selected Ray Powell, former New Mexico State Land Commissioner from 1993 to 2002, to serve as the Executive Director of the Valles Caldera Preserve. The Valles Caldera Trust oversees the Valles Caldera National Preserve, formerly the privately owned 88,900 acre Baca Ranch, located in the Jemez Mountains in northern New Mexico. It was purchased by the federal government in 2000 under the Valles Caldera National Preservation Act. As State Land Commissioner, Powell was responsible for the effective management of 13 million acres of state trust land, roughly 12 percent of the state's land mass. "Ray Powell is well known in New Mexico as a public servant of the highest capability and integrity," said Bill deBuys, chairman of the Trust's board of trustees. "He is a proven leader and manager, and his experience as a steward of New Mexico's lands is a perfect match for the needs of the Valles Caldera National Preserve. The board is proud to name such an outstanding individual to lead our organization."
EcoVersity is offering a diversity of courses in October: Call 424-9797 for more information.
Garden Series "Harvest Time", Arina Pittman: Oct 23, 30, & Nov 13; 9am-4pm
Pueblo Pottery, Kathy Sanchez: Tues and Thurs., Oct 12-28, 6pm-8:30 pm; Sat, Oct 23 & Oct 28
Building an Adobe Dome Roof, Hassan Fathy-style, Simone Swan and Jesusita Jimenez: Fri-Sun, Oct 8-10, 9am to sundown
Cooperative Marketing Intensive, Sandy Vaillancourt: Sat, Oct 9, 10am-4pm
Vastu: Attuning to and Gaining the Support of Nature Through India's System of Design Architecture-Sacred Space, Sherri Silverman: Fri, Oct 15, 7pm-8:30pm; Sat, Oct 16, 9am-4pm
Growing Gourmet Mushrooms for Cooking and Health, Danny Rhodes: Sun, Oct 24, 9am-4pm
Hands-On Photovoltaic System Installation, Adi Pieper: Sat & Sun, Oct 30-31, 9am-3pm
At the end of August, the Forest Service Regional Office reviewing officer overturned the appeal of the Agua/Caballos timber sale in the Vallecitos Sustained Yield Unit. Forest Guardians, Wild Watershed, and Carson Forest Watch filed the appeal, for the second time (first filed in 2002), claiming the Forest Service had failed to analyze the effects on management indicator species. The reviewing officer's decision stated that the timber sale does not violate the Endangered Species Act or Clean Water Act and does not harm elk, trout, Merrian's turkey, plain titmouse, red and Abert squirrel, hairy woodpecker, or other management species. Unless appellants file a lawsuit, the sale will go forward.
Several months ago, due to huge public opposition to the proposed settlement agreement of the Aamodt adjudication, the Rio Pojoaque Acequia and Water Well Association formed a blended board with the Pojoaque Basin Water Alliance to better represent the non-Indian water users in the settlement area. The former group has had standing throughout the negotiations while the latter group was formed in opposition to the proposed settlement. Several members of the blended board were allowed to participate in subsequent settlement negotiations.
Recently, Federal Judge Martha Vasquez held a status hearing on the Aamodt adjudication settlement proposal. With emotions running high, Vasquez warned participants that if they did not show substantive progress in reaching an agreement she would open the case to litigation. Vasquez said that she was not going to divide the water like a piece of pie and that some of the folks present were going to be very upset with her decision.
La Jicarita News spoke at length with attorney Mark Sheridan, who represents non-Indian Pojoaque basin water users in the settlement hearings. Sheridan asserted that the proposed settlement represented an earnest effort to protect all existing non-Indian uses throughout the basin. He warned that litigating this suit could result in the federal court severely limiting those uses. Sheridan agreed, however, with many Aamodt defendants who claim that the court's strict application of the law of prior appropriation in this case is contrary to Spanish and Mexican law that the federal government vowed to uphold in the treaty of Guadalupe-Hidalgo. He told La Jicarita that he had argued in the 1980s that the "custom and tradition" of water sharing within the stream systems throughout the basin should be factored into the court's decision, but the court rejected that argument. While Sheridan conceded that the proposed settlement still had room for improvement, he maintained that under the circumstances it represented a reasonable compromise that protected both the acequia and domestic uses of non-Indians.
We asked water lawyer Fred Walz, who has worked on the Taos Valley (Abeyta) adjudication and has a long history of mediating and litigating water disputes to comment on the Aamodt adjudication and his interpretation of judicial requirements in deciding these cases. His article begins on page 4.
The Taos Regional Water Plan steering committee, comprised of representatives of major water user groups and water management agencies, has been meeting over the course of the year to help develop a county water plan by 2005. The task of the steering committee is to identify issues and concerns of local communities, review and discuss alternatives as they are developed, and be a conduit for information to their constituencies.
The August meeting was held at the Cerro Community Center. Committee members had been asked at previous meetings to submit issues that needed to be addressed in the Plan and these were discussed at the meeting: identifying current supply (surface and groundwater) versus use; water quality; conservation development; drought and affects on supply; agricultural return flows; off-road vehicle use; sediment loading; urban and non-urban sprawl; removal of non-native vegetation; loss of irrigated lands; preserving and protecting water rights; protection of watersheds; transfer of water rights; protection of Otowi Gauge and subsequent accounting related to the Rio Grande Compact; definition of highest and best use; and prohibition of "out of county" transfers.
The committee reviewed maps that contractor Louis Berger Group has been developing for the Plan, and John Shomaker & Associates presented the information the group has collected so far with regard to the water supply for the area. Committee members expressed concerns about how accurate a water supply assessment can be when there are approximately 7,400 wells in the county, many of them hand-dug and unrecorded.
Taos water attorney Fred Waltz gave an overview of the legal issues, constraints, and options for water planning. Taos Valley and Taos Pueblo water rights are being determined and quantified in the Abeyta adjudication. Waltz emphasized that these water rights are defined by the laws and customs of the local community and governments of the state of New Mexico, the United States, and the prior sovereigns of Spain and Mexico (see Waltz article, pages 4-6). Custom and tradition was based on the equitable principle of need, the common good, first use, and non-injury to other parties. As Taos County develops its water plan it must make sure to "provide justice to all groups of people" and that "no one group, Indian or non-Indian, be left without water for their survival." Waltz stressed that these principles need to be observed in meeting future water needs in the county and warned that they cannot be met by simply drying up irrigated agriculture, which would destroy the rural economy and culture of Taos. He suggested that growth needs be met with a combination of methods: transfers from domestic wells into mutual domestic associations; reuse of water by successive uses; water banking; limited transfers from agricultural land where houses have been built; and importing water.
The next meeting of the Taos County Regional Water Plan steering committee is scheduled for November in Peñasco. For more information regarding that meeting you can call Mary Mascareñas at 587-2775. For more information regarding the Regional Water Plan you can go to the website www.Taoscounty.org (planning link) or www.tcrwp.org.
By Fred Waltz, Water Rights Attorney
An acequia is both a physical irrigation ditch and a community of people or parciantes who own water rights distributed by the irrigation ditch and who operate the ditch for their common benefit and good. Acequias, also called community ditch associations, are political subdivisions of New Mexico. Acequias are also like corporations, with the power to sue or be sued as such. The Supreme Court of New Mexico has described acequias as "a hybrid between a corporation and a public body."
Acequias have existed for centuries. When Oñate brought the first Spanish settlers to New Mexico in 1598 they almost immediately dug an acequia from the Rio Grande near San Juan Pueblo. Virtually every early community had acequias to take water from rivers, streams, and springs and deliver it for irrigation, livestock watering, and domestic uses. Today about 1,000 acequias continue to operate throughout New Mexico. They make up the fabric of the rural community.
Most of New Mexico's acequias were established in the seventeenth, eighteenth, and nineteenth centuries during Spanish and Mexican administrations. While local courts resolved water rights disputes throughout that time, the concept and process of a general stream adjudication, complete with hydrographic surveys, is relatively modern, first appearing in the 1907 water code. By that time acequias had been well established with water rights defined by Spanish and Mexican legal principles. The challenge that acequias face today is for the adjudication courts to properly describe the water rights of their members and the relative rights of other non-acequia parties.
Adjudicating the basic elements of a person's water rights, such as the amount of irrigated acreage, is not generally problematic. The difficulty for acequias and their members often arises in persuading the court to adjudicate other elements that describe the nature and extent of water rights, such as long-standing water sharing customs among acequias or between acequias and other parties such as the Indian Pueblos.
A second problem that acequias face in adjudications is financial. Acequias operate on very limited budgets. The dues that members of acequias pay typically cover only the annual salary of the mayordomo, who distributes the water among the members, and the labor costs of ditch maintenance, including the annual ditch cleaning. It would be impossible for each acequia to raise the funds to pay for proper representation in an adjudication, including legal fees, costs of experts such as historians and hydrologists, and other litigation expenses. The New Mexico legislature has created the Acequia and Community Ditch Fund to provide financial assistance to acequias so that they may protect and define their water rights in the adjudication process.
New Mexico's laws do provide a legal framework to protect and properly describe the rights of acequias and their members. Section 72-4-19, N.M.S.A 1978 specifies how water rights are to be described in an adjudication decree:
" . . . Such decree shall in every case declare, as to the water right adjudged to each party, the priority, amount, purpose, periods and place of use, and as to water used for irrigation, except as otherwise provided in this article, the specific tracts of land to which it shall be appurtenant, together with such other conditions as may be necessary to define the right and its priority." (emphasis added)
Surely prior court decrees and long-standing customs of water allocations among acequias and between acequias and other parties constitute "conditions that define the right and its priority." In fact, the United States District Court for the District of New Mexico has, in the Red River Adjudication, included in the description and adjudication of water rights of Latir Creek the 1895 Territorial Court decision that allocated water among certain acequias, with different settlement histories and priority dates, based upon a specific time allotment for each acequia. Similarly, the U.S. District Court has in the Taos Adjudication included in the description and adjudication of water rights from the Rio Fernando a specific custom of water sharing among lower older acequias and relatively newer upstream private irrigation ditches.
José A. Rivera has written about the water sharing customs that exist in the tributaries of the Rio Pueblo de Taos. In his book, Acequia Culture, Water, Land and Community in the Southwest, Mr. Rivera includes the trial testimony of acequia members who describe the several different methods of water sharing that are specific to each community.
New Mexico water laws also recognize the validity of water sharing based on long-standing customs and prior court decisions. Section 72-9-1, N.M.S.A. 1978 provides in part that nothing in the 1907 water code shall be construed to impair vested water rights. Water sharing involving acequias, whether based on binding customs or prior court decrees, certainly defines or conditions the nature of the affected water rights. When New Mexico's 1907 water code was enacted, which adopted the prior appropriation doctrine, Section 72-9-1 provided protection to prior vested water rights, including their elements and attributes.
Acequia water sharing customs are specifically protected by Section 72-9-2, N.M.S.A. 1978, which recognizes the continued application of customs of water sharing. Section 73-2-47 orders that acequias that take water from a common source or stream meet annually and make an equitable apportionment of the water among themselves.
Most, if not every, acequia in New Mexico was established prior to 1848 during the times of Spanish and Mexican government colonization of the southwestern United States. Therefore, to properly adjudicate water rights associated with acequias, those rights must be consistent with Spanish and Mexican water law principles and the local history. The rights of the Spanish and Mexican settlers developed "according to the laws, customs and usages in force in the republic of Mexico." (Trambly v. Luterman, 6 N.M. 15, p. 23)
In addition to understanding the laws, customs and usages of the prior sovereigns, the adjudication court must be intimately knowledgeable about the local history of the community. There may have been prior water rights disputes that were resolved by local judges, the prior governments, or municipal councils (ayuntamientos). There may have been water rights decisions made by the United States Territorial Courts in New Mexico or water sharing agreements filed in cases before those courts (as in the case of the 1893 Rio Pueblo de Taos water sharing agreement later filed in a 1905 court case). Decisions that resolve water rights disputes can be found in probate court and justice of the peace court records during the nineteenth and early twentieth centuries.
Courts are charged with notice of the history of the local area in order to apply the law in reference to the open and notorious facts.
"Every judge is bound to know the history and leading traits which enter into the history of the country where he presides." (Conger v. Weaver, 6 Cal. 548)
Water has been shared in a particular manner by different acequias or different communities for hundreds of years. Whether by long practiced custom or prior judicial decision, the relative rights of different acequias and communities have become established.
Spanish, and later Mexican, officials allocated water among all users in New Mexico, both Indian and non-Indian, based upon well-established legal principles, which include need, non-injury to third parties, prior use, equity, and the common good (Michael C. Meyer, Water in the Hispanic Southwest: A Social and Legal History, 1550-1880). Dr. Meyer lists seven general principles, but the above are those most commonly reported. These water allocation principles were not prioritized. Depending upon the situation, different principles were examined and balanced by the judicial authorities to reach a just decision. Malcolm Ebright limits the basic water allocation factors to need/equity and prior use ("Sharing the Shortages: Water Litigation and Regulation in Hispanic New Mexico, 1600-1850", New Mexico Historical Review 76). Both of these historians and others report that "prior use" was but one factor and not a controlling one, which is different from the term "priority" as used in the prior appropriation doctrine. So long as established water allocations, whether based on long-standing customs or prior judicial decisions, are adjudicated as defining acequia related and other party's water rights, there is no conflict between the Spanish and Mexican legal term "prior use" and New Mexico's adoption of the prior appropriation doctrine.
By signing the treaty of Guadalupe Hidalgo the United States agreed to protect the rights recognized by the prior sovereigns of Spain and Mexico. Article VIII of the Treaty provides that:
"In the said territories [those previously belonging to Mexico and ceded to the United States], property of every kind, not belonging to Mexicans . . . shall be inviolably respected."
It is clear from the cases construing the Treaty of Guadalupe Hidalgo, from international law, from the treaty itself, and from other cases that the quoted language of Article VIII protects water rights established by customary law in New Mexico as of 1846.
Even if the Treaty of Guadalupe Hidalgo did not contain a specific provision protecting property rights, the rules of international law would imply such a provision. As stated by the Supreme Court in Strother v. Lucas, 37 U.S. 410:
" . . . the rights of property are protected, even in the case of a conquered country, and held sacred and inviolable, when it is ceded by treaty with or without any stipulations to such effect and the laws, whether in writing or evidenced by the usage and customs of the conquered or ceded country, continue in force till altered by the new sovereign."
Additionally, international law also provides that on the transfer of territory from one sovereign nation to another the rights and relations of the inhabitants are not affected.
Even before the treaty the United States military authorities of the New Mexico Territory promulgated the Kearny Code in 1846, which provided that "laws heretofore in force concerning water courses" were to be maintained. The Kearny Code specifically adopted Mexican laws that defined and protected the water rights of the inhabitants of New Mexico.
The equitable division of water among the acequias and between the acequias and other parties, such as the Pueblo Indians, was established under the laws and customs of Spain and Mexico prior to 1848. The Treaty of Guadalupe Hidalgo's protection of property rights obviously means those rights as established under the local customs and laws of Spain and Mexico. An early New Mexico territorial court case correctly stated this principle:
"The ditch or acequia in controversy was made in the year 1846, before the acquisition of the territory by the United States. The rights of the parties to the use of the waters therein then attached according to the laws, customs, and usages in force in the republic of Mexico." (Trambley v. Luterman, 6 N.M. 15, p.23)
Where water fights disputes associated with acequias have been resolved by judicial authorities decades or hundreds of years ago, the adjudication courts are bound to recognize those conditions and definitions of water rights. The concurring opinion of Justice Brennan in Nevada v. United States, (1983) 463 U.S. 110, is instructive:
"In the final analysis, our decision today is that thousands of small farmers in northwestern Nevada can rely on specific promises made to their forebears two and three generations ago, and solemnized by a judicial decree, despite strong claims on the part of the Pyramid Lake Paiutes. The availability of water determines the character of life and culture in this region . . ."
The character of life and culture in New Mexico is inextricably tied to the equitable sharing of water by prior judicial decisions and long-standing customs. The acequias are as much a part of that culture today as when they were established hundreds of years ago. The adjudication courts must accurately describe and protect those water rights associated with acequias.
Spanish and Mexican law and American law are not necessarily in conflict. As water adjudications have proceeded, scholars have more thoroughly investigated Spanish and Mexican laws and customs regarding land and water rights and have developed new ideas and theories. In order to provide equity and justice, courts have begun to accept these new approaches to resolving disputes. In a recent land grant case [involving the former Sangre de Cristo Land Grant and the Taylor Ranch, see La Jicarita News, July 2004] the Colorado Supreme Court was faced with the task of interpreting a 150 year-old Spanish language document. That court stated that it would be the "height of arrogance" to argue that it was unable to understand the relevance of that document and apply it to the facts of that case (available at www.cobar.org). The court utilized such documents to protect and recognize property rights of residents that were vested under Spanish and Mexican laws.
By Mark Schiller and Kay Matthews
"The people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in any country. " - Hermann Goering, convicted Nazi war criminal
"The reason for fighting, I never did get,
But I learned to accept it, accept it with pride,
'Cause you don't count the dead when God's on
your side." - Bob Dylan
Those of us who lived through the Vietnam War are all too familiar with the unscrupulous tactics our government used to "manufacture consent" for that immoral war that cost the lives of over 50,000 Americans, untold Vietnamese, and ruined the lives of millions. This calculated waste of lives and resources continues today at the expense of the American public and the entire world community. Once again we're engaged in a war that only benefits the corporate elite. While Halliburton, Bechtel, and oil interests reap billions of dollars, thousands of Iraqis have been senselessly murdered, maimed, or displaced and hundreds of Americans are coming home in body bags. While George W. Bush and Congress continue to channel billions of dollars to underwrite the occupation, they cut Medicaid benefits, threaten to cut social security, and allow millions of our own people to be grossly under-served. They suppress non-violent dissent with rubber bullets, mace, and truncheons and suspend freedoms guaranteed by the Constitution with legislation they ironically call the "Patriot Act."
Why then do so many Americans passively accept the lying, deception, and lack of accountability perpetrated by a federal bureaucracy and mainstream media who are both in the employ of the corporate dictatorship?
A recent New York Times editorial stated, "If facts mattered in American politics, the Bush-Cheney ticket would not be basing its re-election campaign on the fear-mongering contention that the surest defense against future terrorist attacks lies in the badly discredited doctrine of preventive war." Media pundits acknowledge that the current debate about who is going to better protect the country from "terrorists" - the tough guy who purportedly failed to fulfill his duty in the National Guard or the flip-flopper who won all those medals in the Vietnam War - is beside the point, but their papers and broadcast stations continue to push the propaganda that whoever is perceived as being tougher will get the vote.
Michael Moore posits in Bowling for Columbine and Fahrenheit 9/11 that Americans think they need to protect themselves from all those "predators" out there who are jealous of their so-called freedoms and consumer economy - what they worked hard for and what the media constantly tells them they don't have enough of. So they're going to vote for George Bush because they think he's going to protect their privilege. They're going to vote for George Bush because they fear that someone else might actually check consumption in order that the rest of the world might have access to life's basic necessities.
A 1960s survey found that only about 10% of the American voting public bases its votes on political ideology, progressive or conservative. The largest block, forty-two per cent, vote on the basis of "perceived self-interest: we're not our brother's keeper, we're the keeper of our checkbooks. The irony is, of course, that as the quality of life diminishes for so many people in our society, and as the social network that protects these people erodes, many of the folks so focused on protecting what is "theirs" will find they have less and less to defend. The ruling elite will not be the ones paying off the national debt or watching their loved ones come home in body bags.
Here in New Mexico, which is now officially the poorest state in the union, land grant communities, both Native American and Hispano, have struggled with the federal government for decades to get it to address the injustices inherent in the loss of their lands. Many land grant activists we've talked with have denounced the latest "study" of the issue by the General Accounting Office as just another attempt by the government to defuse the situation and wear out a new generation of activists by throwing a little money at the problem (most of which goes right into the pockets of federal bureaucrats). Their frustration is shared by the many community foresters, farmers, and ranchers who continue to be marginalized by a government that subsidizes corporate greed at the expense of local econ-omies. It is also shared by the many small businesses that can no longer afford to compete with corporate giants like Wal-Mart, which have grown obscenely rich by exploiting trade agreements such as NAFTA. Trade agreements, brokered by the federal government, simply export corporate exploitation to the third world rather than creating good jobs in this country as we were promised.
We must find a way to break through to those who are so materialistic, fearful, and trapped in their isolation. According to historian Hannah Arendt, it is these people, "so insistently and exclusively centered on the individual's success or failure in ruthless competition" that they see "a citizen's duties and responsibilities . . . a needless drain on [their] limited time and energy," who give rise to leaders who consolidate and abuse power. What we are seeing today, with the Patriot Act at home and the policy of preemptive war abroad, is the eroding of restraints on this "limitless pursuit of power." It's time to take that power back by going to the streets, to the corporate headquarters, to the state legislatures, and to the parliaments of power to demand regime change of the elite, who have ruled with impunity for far too long.
Copyright 1996-2002 La Jicarita Box 6 El Valle Route, Chamisal, New Mexico 87521.