NM may lose ownership of its water rights

 

Apr. 24—The New Mexico Supreme Court recently decided to let stand a Court of Appeals decision that the Engineer’s Office says would rob the state of its ability to regulate water rights in New Mexico.

Now, the state engineer is asking the Supreme Court to reconsider that ruling.

The legal path leading to the problem is complicated and centers on the state’s negotiated settlement with the Navajo Nation on allocation of water rights from the San Juan River.

That settlement, approved by Congress, was challenged by the San Juan Agricultural Water Users Association.

In upholding the settlement in 2018, the Court of Appeals reasoned that the state of New Mexico “lacks ownership claim” in water within its borders and that the settlement agreement “preempts” state law.

The opinion was written by retired U.S. District Judge Bruce Black, who was appointed by the state Supreme Court to hear the case. Prior to serving on the federal bench, Black was a state Court of Appeals judge.

“The opinion’s erroneous reasoning that congressional approval of the Settlement Agreement resulted in it becoming federal law that preempts state law would have dire consequences for future settlements of Indian water rights claims in New Mexico,” attorneys for the State Engineer’s Office said in a request for reconsideration.

The request for a rehearing said the Court of Appeals decision “eviscerates the primacy of the State over its water resources, in the face of 150 years of unwavering federal deference to State authority.”

The Supreme Court initially granted a writ filed by the state engineer to hear the case, but then decided not to proceed with hearing the appeal.

The latest court filings ask the court to reconsider and hear the case.

Attorneys for the State Engineers Office and others involved in the settlement with the Navajo Nation say the stakes are high.

The Court of Appeals reasoning, they argue, finds that the federal government, not the state, controls the public waters in New Mexico.

“If congressional approval of Indian water right settlements results in preemption of state law, the state will be forced to choose between losing control over its waters or foregoing the benefit to New Mexico’s economy of millions of dollars in federal funding provided for these settlements,” the Engineer’s Office said.

For example, attorneys said, the settlement agreement with the Navajo Nation brought more than $1.3 billion into the state for construction of the Navajo-Gallup Water Supply Project.

The Court of Appeals decision also puts into question the way the state has traditionally adjudicated water rights.

According to the court filing, the language in the Court of Appeals decision threatens the state’s current negotiations with nine Pueblos and tribes to settle water rights claims.

“If not corrected, the language will create confusion over State permitting authority, impede efforts by stakeholders to address important water management issues like surface land subsidence, groundwater depletion and drought management by shortage sharing,” the state argues in its request.

The Court of Appeals’ reasoning that the settlement agreements preempt state law was based, at least in part, on the need for congressional approval of the settlement agreement between the state and the Navajo Nation.

But the State Engineers Office said that congressional approval was needed because the agreement included waivers of the Navajo Nation’s water rights claims and the need for congressional approval of funding for various water projects.

The involvement of Congress in approving the settlement did not strip the power of the state to regulate the waters within its boundaries, the state said in court filings.

The Albuquerque-Bernalillo County Water Utility Authority and the city of Gallup have joined the State Engineers Office in requesting the rehearing.

The water utility authority serves 700,000 people in the Albuquerque metropolitan area and was part of the settlement because it receives water through the San Juan-Chama diversion project.

The city of Gallup plans to play a central role in using water from the San Juan River to supply not just city residents, but areas of the Navajo Nation that are now dependent on underground water supplies.