Case 6:68-cv BB Document 2720 Filed 03/01/2010 Page 1 of 24 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

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1 Case 6:68-cv BB Document 2720 Filed 03/01/2010 Page 1 of 24 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO STATE OF NEW MEXICO ex rel. ) 68cv07488-BB-ACE STATE ENGINEER, ) Rio Santa Cruz Adjudication ) Plaintiff, ) 70cv08650-BB-ACE ) Rio de Truchas Adjudication v. ) (Consolidated) ) JOHN ABBOTT, et al., ) Pueblo Claims Subproceeding 2 ) Defendants. ) ) MEMORANDUM IN SUPPORT OF CITY OF ESPANOLA S MOTION FOR SUMMARY JUDGMENT ON THE ADJUDICATION OF PUEBLO/UNITED STATES GROUNDWATER CLAIMS Introduction Groundwater issues in Subproceeding II are framed by claims for 38.0 acre-feet per year of groundwater by the United States for the Pueblo of Ohkay Owingeh ( Pueblo ) and the Pueblo /United States claim that there is a right to divert surface water rights from groundwater for any purpose as a matter of federal law. Subproceeding Complaint of Pueblo of San Juan at 5; United States Subproceeding Complaint at 4 ( 5 and 4 claims ). Unregulated exercise of the 5 and 4 claims threatens the City of Espanola s ( City ) rights from groundwater permitted under state law, as well as those of other groundwater users. The 5 and 4 claims do not comply with the requirements of the NMSA 1978, (1907), the Complaint of March 22, 1968, II and Wherefore Clause 2, 3, and the Pretrial Order of March 24, 1986, 7, and the Special Master s Supplement to the Pretrial Order of May 20, 1987, 2,3, and should be dismissed. The court should require that any future groundwater rights, including any change in purpose or place of use, or point of diversion of surface rights quantified to

2 Case 6:68-cv BB Document 2720 Filed 03/01/2010 Page 2 of 24 the Pueblo be undertaken pursuant to state law; i.e., upon application to the New Mexico State Engineer under procedures that enable Espanola and other groundwater users to participate and protect their water rights. City of Espanola Permitted Groundwater Rights The State Engineer declared the Rio Grande Underground Water Basin on November 29, In doing so, he sought to achieve the two-fold goal of recognizing the hydrologic connection between water stored in the aquifer and surface flows in the Rio Grande, and of regulating the orderly development of groundwater by providing for groundwater diverters to obtain and utilize offsets to compensate for the effects that groundwater pumpage has on surface flows of the river. See Albuquerque v. Reynolds, 71 N.M. 428, 379 P.2d 73 (1963). As a consequence of his declaration of the Rio Grande Underground Water Basin, existing beneficial uses of water were grandfathered as vested rights. Future appropriations and changes in point of diversion or purpose and place of use were to be undertaken through application to the State Engineer, noticed to the public, through administrative proceedings to allow the participation of affected parties. See, e.g., NMSA 1978, (2001); NMSA 1978, (1985). Espanola has the right to divert 2, acre-feet per annum of water from wells RG-3067 through RG-3067-S-15, and to offset the depletive effects on the Rio Grande when those diversions exceed the vested diversion amount of acre-feet of water per annum (consumptive use of acre-feet of water per annum). See Exhibit No. 1. Depletions to the Rio Grande and its tributaries may be offset by means of measured return flows of treated water effluent and/or with imported San Juan-Chama Project water that the City owns under Contract No WO190 dated February 16, 1978, between the United States Department of the Interior and the City of Espanola. 2

3 Case 6:68-cv BB Document 2720 Filed 03/01/2010 Page 3 of 24 San Juan Chama Project Rights Owned by Espanola The San Juan-Chama Project was created to provide for the development and application to beneficial consumptive use of the State of New Mexico s apportionment of Colorado River water in the Upper Colorado River Basin Compact, for municipal, industrial, domestic and agricultural purposes in the Middle Rio Grande Valley. See Navajo Indian Irrigation Project and San Juan- Chama Project, Initial Stage, Act of June 13, 1962, P.L , which amended the Colorado River Storage Project Act of April 11, 1956, P.L (43 U.S.C. 620 et seq.). See also Colorado River Compact, 45 Stat. 1057, 1064 (1928) and Upper Colorado River Basin Compact, 63 Stat. 159 (1949). The San Juan-Chama Project diverts water from the Navajo, Little Navajo, and Blanco Rivers, which are upper tributaries of the San Juan River, a tributary of the Colorado River, for importation and use in the Rio Grande Basin in New Mexico, where it is stored in Heron Reservoir on the Rio Chama. The City owns 1,000 acre-feet of San Juan Chama water under Contract No W0190 of February 16, See Public Law , Act of June 13, The original planning projections for the San Juan-Chama Project contemplated diversions of 235,000 acre-feet per year, with an initial phase development of 110,000 acre-feet diverted annually. The initial phase was all that was authorized and subsequently constructed. United States and Pueblo Claims for Groundwater The groundwater claims in Subproceeding II fall into two categories: existing uses and future uses. Existing Uses The United States claims that the Pueblo of San Juan has in the past used, or is at present using, for the indicated purposes, the wells identified in Table 2 of the United States Subproceeding 3

4 Case 6:68-cv BB Document 2720 Filed 03/01/2010 Page 4 of 24 Complaint entitled, Wells on San Juan Pueblo Within the Geographic Scope of New Mexico v. Abbott ( Table 2 ). The United States claims rights to divert 3.0 acre-feet per year with a depletion of 1.5 acre-feet per year from nine (9) wells for domestic purposes. Table 2. 1 An additional 11 acrefeet per year is claimed at the pumice block plant well (diversion and depletion amount) for a total claimed diversion right of 38.0 acre-feet per year (depletion right of 26.0 acre-feet per year of groundwater) 2. Future Uses The Subproceeding Complaint of Pueblo of San Juan states at 5: The Pueblo of San Juan has the right, under federal law, to exercise its water rights and to use such rights for any purpose, and to divert water, in exercise of those rights, from any water source on its lands, including groundwater. The United States Subproceeding Complaint sets forth a similar claim. It states at 4: Once the Pueblo of San Juan s water rights are quantified by judicial decree, the Pueblo has the right, under federal law, to use such rights for any purpose. These claims are for prospective, future uses of water that are as yet undetermined as to amount, place of use, purpose of use or point of diversion. All these claims assert aboriginal priorities. See Table 2. 1 The consumptive use claims made by the United States, and adopted by the Pueblo, for groundwater rights associated with existing wells do not correspond to the total claimed diversion rights. The United States claims a consumptive use right of 1.5 acre-feet per year from each domestic well and 11 acre feet per year from the Pumice Plant Well. This total claimed amount is only 24.5 acre-feet per year of consumptive use rather than the 26.0 acre-feet per year stated in the United States Subproceeding Complaint at 6. 2 Espanola believes that because the Duke City Lumber mill was built in 1968, the well identified as the Pumice Block Plant Well in Table No. 2 of the United States Complaint was originally drilled at that time. The lumber mill was sold to Rio Grande Forrest Products which shut down in The lumber mill site was then renovated by CR Minerals, Inc. which closed its operations in Santa Fe and moved its Pumice Block Plant to the Pueblo between 2005 and Clearly this well was never used for aboriginal purposes and appears to have been used for commercial and industrial purposes since its drilling. In addition, since the Rio Grande Underground Water Basin was declared in 1956, this well should be permitted under State law and have a priority date as of drilling. 4

5 Case 6:68-cv BB Document 2720 Filed 03/01/2010 Page 5 of 24 Summary of Argument The City of Espanola does not object to the adjudication of the domestic uses or of the right for the pumice plant, with the date of drilling as its priority date. The 5 and 4 claim do not comply with the requirements for identifying water rights to be adjudicated under the Complaint of March 22, 1968 at II and Wherefore Clause 2, 3, or the Pretrial Order of March 24, 1986, 7, and Special Master s Supplement to the Pretrial Order of May 20, 1987, 2,3, each of which incorporate the requirements of NMSA 1978, (1907) for the adjudication decree. Moreover, aboriginal water rights are a creation of the Aamodt series of cases and extend only to water in actual use from aboriginal times, not to future, prospective uses of groundwater. If a transfer of quantified water rights is sought, application must be made pursuant to state law. The source of this authority is two-fold. First, with the limited exception of reserved rights the United States is required to obtain water rights under state law. California v. United States, 438 U.S. 645 (1978); United States v. New Mexico, 438 U.S. 696 (1978). New Mexico has jurisdiction over groundwater over which it has declared to have reasonably ascertainable boundaries. NMSA 1978, et seq. (2003). Second, administrative jurisdiction over all water rights quantified to the United States was vested in state authority by the provisions of the McCarran Amendment, 43 U.S. 666 (1988), which waived federal sovereign immunity to joinder to suits for the adjudication of their water rights. UNDISPUTED MATERIAL FACTS 1. The City is a party to State of New Mexico ex rel. State Engineer v. John Abbott, et al., United States District Court, 68cv07488 and 70cv08650, consolidated, Rio Santa Cruz and Rio de Truchas Adjudication, Pueblo Claims Subproceeding 2. 5

6 Case 6:68-cv BB Document 2720 Filed 03/01/2010 Page 6 of The City has a permitted water right, by the Office of the State Engineer, to divert 2, acre-feet per annum of water from Wells RG-3067 through RG-3067-S-15. See Exhibit No The City owns 1,000 acre-feet of San Juan Chama water acquired pursuant to federal law. See Exhibit No Each party has been required to state its claims for water rights with particularity, i.e., by identifying: when said water right was initiated; if a water right for irrigation is claimed, the lands to which it is appurtenant, the amount of water necessary for the beneficial use for which it is appropriated, point of diversion. See Complaint of March 22, 1968 at II, Wherefore Clause 2,3; Pretrial Order of March 24, 1986, 7, and the Special Master s Supplement to the Pretrial Order of May 20, 1987, 2,3. 5. The United States and the Pueblo have claimed 38.0 acre-feet of existing groundwater uses. See Table 2 and 6 of the United States Subproceeding Complaint as follows: 27 acre-feet diversion (13.5 consumptive use) for domestic use; 11 acre-feet diversion for a pumice plant. 6. Under 4 and 5 of the Pueblo complaint and 3 and 4 of the United States complaint future groundwater rights are claimed for any purpose with a priority of time immemorial. See Subproceeding Complaint of Pueblo of San Juan at 4,5; Subproceeding Complaint of United States at 3,4. 7. Pursuant to NMSA 1978, (1907), the decree for Subproceeding II must 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 6

7 Case 6:68-cv BB Document 2720 Filed 03/01/2010 Page 7 of 24 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. 8. The State Engineer has jurisdiction over water in all underground basins which he has declared to have reasonably ascertainable boundaries. NMSA 1978, (2003). ARGUMENT POINT I SUMMARY JUDGMENT IS APPROPRIATE WITH RESPECT TO THE GROUNDWATER CLAIMS Summary judgment is appropriate where a court determines that there is no genuine dispute over material fact and the moving party is entitled to judgment as a matter of law. Thrasher v. B&B Chem. Co., 2 F.3d 995, 996 (10th Cir. 1993), Fed.R.Civ.P. 56(c). To carry its initial burden, the moving party need not negate the nonmoving party s claim. See Allen v. Muskogee, 119 F.3d 837, 840 (10th Cir. 1997). Instead, the movant only bears the initial burden of showing that there is an absence of evidence to support the nonmoving party s case. [T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, (1986) (emphasis in original). A plaintiff cannot rely upon conclusory allegations or contentions of counsel to defeat summary judgment but rather must produce some specific factual support of his claim. See Pueblo v. Neighborhood Health Centers, Inc., 847 F.2d 642, 649 (10th Cir. 1988). If there is no genuine issue of material fact in dispute, then a court must next determine whether the movant is entitled to judgment in its favor as a matter of law. See, e.g., Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996). 7

8 Case 6:68-cv BB Document 2720 Filed 03/01/2010 Page 8 of 24 The Subproceeding Complaints of Pueblo of San Juan and the United States jointly claim the right to divert rights quantified from surface sources from groundwater as a matter of federal law. However, these claims are not factually supported. The claims to groundwater do not include any of the statutory requirements allowing a water right to be adjudicated; priority, amount, purpose, periods and place of use. See NMSA 1978, (1907). Nor do they comply with the Complaint of March 12, 1968, at II, Wherefore Clause 2, 3, or the Pretrial Order of March 24, 1986, 7, and the Special Master s Supplement to the Pretrial Order of May 20, 1987, 2,3. The Pueblo and the United States make only the conclusory contentions that any surface water right can be diverted from an unidentified groundwater source. Since the contentions regarding groundwater fail to state with particularity the nature or extent of such claim, there is no issue of material fact to prevent this court from granting summary judgment on the issue of groundwater use by the Pueblo. POINT II THE PUEBLO AND THE UNITED STATES DID NOT SATISFY THE REQUIREMENTS FOR OBTAINING GROUNDWATER RIGHTS UNDER THE PLEADINGS IN THIS CASE The objective of a general stream system adjudication is set forth in NMSA 1978, (1907). That statute sets forth the requirements of a final decree. It states in relevant part that [u]pon the adjudication of the rights to the use of the waters of a stream system, a certified copy of the decree shall be prepared and filed in the office of the state engineer by the clerk of the court.... Such decree shall in every case declare, as to the water rights adjudicated 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. 8

9 Case 6:68-cv BB Document 2720 Filed 03/01/2010 Page 9 of 24 Subproceeding II is undertaken subject to the Subproceeding Complaints filed by the Pueblo and the United States on April 1, 2005, and April 25, 2005, respectively. 3 However, this action began in 1968 with a Complaint filed by the State of New Mexico. See Complaint of the State of New Mexico dated March 22, 1968, State of New Mexico ex rel. State Engineer v. John Abbott, et al., United States District Court, No The Complaint required all defendants to identify any claimed water right with particularity. The Complaint of March 22, 1968 was followed by a pretrial order and a supplement to the pretrial order by the Special Master also requiring that water rights be claimed with particularity. See Pretrial Order of March 24, 1986, 7, and Special Master s Supplement to the Pretrial Order of May 20, 1987, 2,3, State of New Mexico ex rel. State Engineer v. John Abbott, et al., United States District Court, Nos C and C, consolidated. Accordingly, the burden of proof is on the United States and the Pueblo to prove all aspects of their water rights claims. See Arizona v. California, 460 U.S. 605 (1983); In re General Adjudication of All Rights to Use Water in the Big Horn River System, 753 P.2d 76 (Wyo. 1988); Avondale Irrigation Dist. v. North Idaho Properties, Inc., 99 Idaho 30, 577 P.2d 9 (1978). Pursuant to the Complaint of March 22, 1968, the State moved the court to require that each defendant be required to appear before the Court and describe fully and in detail what rights, if any, they claim to the use of the water in the said Santa Cruz River Stream System and more specifically state: a. When said water right was initiated. b. If a water right for irrigation is claimed, the lands to which it is appurtenant. c. Source of water. d. Purpose for which it is used. 3 In 1976, the Tenth Circuit Court of Appeals reversed the New Mexico District Court and ruled that the Pueblos have the right to intervene in an adjudication of their water rights. See New Mexico v. Aamodt, 537 F.2d 1102 (10 th Cir. 1976)[Aamodt I], cert. denied, 429 U.S (1977). 9

10 Case 6:68-cv BB Document 2720 Filed 03/01/2010 Page 10 of 24 e. The amount of water necessary for the beneficial use for which it was appropriated. f. Such other matters as may be necessary to define a particular right and its priority. Complaint of the State of New Mexico, March 22, 1968, Wherefore Clause 2, emphasis added. The requirements of the complaint were expanded in the Pretrial Order and the supplement to the Pretrial Order to include the Point and means of diversion and also required the United States to idenify each of the elements of the water rights claimed on behalf of the Pueblo. See Pretrial Order of March 24, 1986, 7, and Special Master s Supplement to the Pretrial Order of May 20, 1987, 2,3, This was attempted for the 38.0 acre-feet per year of existing rights, but not for the future claims uses 5 and 4. The United States and the Pueblo do not respond to the Complaint of March 22, 1968, nor to the Pretrial Order of March 24, 1986 and Special Master s supplement of May 20, 1987, with any specific elements of the water rights claimed under 5 and 4. The United States and the Pueblo fail to state when these proposed groundwater rights were initiated; fail to state the source of the water (alluvium, deep aquifer, etc.); fail to state the purpose for which it is used, and instead claim it can be used for any purpose; fail the test for beneficial use as the water has yet to be diverted; and also fail to identify any single point of diversion or means of diversion for the claimed conjunctive groundwater. This failure is to the prejudice of the City of Espanola and other groundwater users. Because of the limited supply of water available for use by all the parties to this adjudication, it is necessary to eliminate any ambiguity in the right to use and the priority and amount of that right. The elimination of ambiguity in an adjudication is generally accomplished through recognition, quantification and prioritization of all water rights, however, the United States and Pueblo claims to unidentified groundwater rights contradict this goal. 10

11 Case 6:68-cv BB Document 2720 Filed 03/01/2010 Page 11 of 24 Moreover, the 5 and 4 claims do not include any means of the identifying elements of a water right for the adjudication decree. NMSA 1978, (1907), requires that a water right adjudicated to a party set forth 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. The United States and the Pueblo fail to set forth any of the elements required to adjudicate the claimed groundwater rights for the 5 and 4 claim. This adjudication is meant to integrate and clarify federal reserved rights, including Indian reserved rights, with state-based rights, but the Pueblo and United States claims to groundwater are contrary to these goals. The claim to unknown groundwater rights by the United States and the Pueblo does not integrate or clarify the water rights and will cause substantial difficulty for the OSE to manage the public waters. In sum, the Pueblo and the United States have failed to identify with particularity any of the elements of the claimed groundwater rights in their respective complaints, contrary to the 1968 Complaint of the State of New Mexico, and have thus failed to meet their burden in describing the Pueblo s water rights in detail sufficient to establish a water right in the adjudication decree as set forth in NMSA 1978, (1907). The 5 and 4 claims should be stricken. POINT III ABORIGINAL WATER RIGHTS DO NOT INCLUDE FUTURE GROUNDWATER USES The Pueblo claim in 5 of its Subproceeding Complaint that the Pueblo may exercise its water rights and... use such rights for any purpose, and... divert water, in exercise of those rights from any water source on its lands, including groundwater together with the United States claim in 11

12 Case 6:68-cv BB Document 2720 Filed 03/01/2010 Page 12 of 24 4 of its Subproceeding Complaint that [o]nce the Pueblo of San Juan s water rights are quantified by judicial decree, the Pueblo has the right, under federal law, to use such rights for any purpose cannot be the basis for a groundwater right under Pueblo law. Pueblo water rights, with a priority of time immemorial, adhere to Pueblo domestic and irrigation uses. State of New Mexico ex rel. Reynolds v. Aamodt, 618 F. Supp. 993, 1005, (D.N.M. 1985) (Aamodt II). Moreover, quantity was capped by the Pueblo Land Act of June 7, Id. at The Pueblo and United States claim that they have a right to divert from groundwater for any purpose does not comply with these criteria. Aboriginal Indian title was first recognized in Johnson v. McIntosh, 21 U.S. (8 Wheat) 543 (1823): After conquest by European power, Indians were permitted to occupy territory over which they had previously exercised sovereignty. This right is not an ownership right, but rather a right of occupancy granted by the conquering sovereign... aboriginal Indian title. United States ex. rel. Chunie v. Ringrose, 788 F.2d 638, 642 (9 th Cir. 1986); see also Johnson, supra; Yankton Sioux Tribe of Indians v. State of S.D., 796 F.2d 241 (8 th Cir. 1986). In the area of water law, such rights usually arise indirectly from aboriginal land use for hunting and fishing. In United States v. Adair, 723 F.2d 1394 (9 th Cir. 1983), for example, the Indians received an aboriginal or time immemorial priority for hunting and fishing purposes. It is important to distinguish aboriginal case law from reserved rights law. The two are not the same. Water reserved at the time of a reservation of land from the public domain takes a priority date as of the time of the reservation. See Cappaert v. United States, 426 U.S. 128 (1976); United States v. New Mexico, supra. The Montana Supreme Court stated the distinction this way: The date of priority of an Indian reserved water right depends upon the nature and purpose of the right. If the use for which water was reserved is a use that did not exist prior to creation of the Indian reservation, the priority date is the date the reservation was created. A 12

13 Case 6:68-cv BB Document 2720 Filed 03/01/2010 Page 13 of 24 different rule applies to tribal uses that existed before creation of the reservation. Where the existence of a preexisting tribal use is confirmed by treaty, the courts characterize the priority date as time in immemorial. State ex rel. Greely v. Confederated Salish and Kootenari Tribes of Flathead Reservation, 712 P.2d 754 (Mont. 1985). In all instances water under aboriginal title was quantified to uses which were perfected in aboriginal times. Pueblo aboriginal water rights in New Mexico stem from the federal Indian law doctrine of aboriginal title, applicable to ongoing uses from aboriginal times. New Mexico ex rel. Reynolds v. Aamodt, 618 F.Supp. 993, 1010 (D.N.M. 1985) (Aamodt II). When the United States accepted the surrender of Mexican sovereignty over most of New Mexico by the Treaty of Guadalupe Hidalgo in 1848, it agreed to recognize and preserve the liberties and property rights granted to inhabitants of the region by Mexico and Spain. Treaty of Guadalupe Hidalgo, February 2, 1848, United States-Mexico, 9 Stat. 922 (1848). In fulfillment of this obligation, Congress in 1858 confirmed the land claims of the Pueblos. 11 Stat. 374 (Ch. V). Thus, whatever aboriginal land and water rights the Pueblos held during Spanish and Mexican Rule, they retained under United States Sovereignty by virtue of the 1848 treaty and 1858 confirmation. In Aamodt II, the Pueblos were accorded the prior right to use the water of the stream system necessary for their domestic uses and to irrigate their lands. The acreage to which this priority applies is all acreage irrigated by the Pueblo between 1846 and The Pueblo Land Act, Act of June 7, 1924, which gave non-pueblos within the Pueblo four-square leagues their first legal water rights, also fixed the measure of Pueblo water rights to acreage irrigated as of that date. 618 F. Supp. At 1004, Pueblo water rights not used between 1846 and 1924 were extinguished by the 1924 Pueblo Lands Act. Id. Consequently, any award of water rights based on aboriginal title would be limited to the amount of surface water actually used as of The 13

14 Case 6:68-cv BB Document 2720 Filed 03/01/2010 Page 14 of 24 effect of this Congressional action was to fix Pueblo rights, that is, it terminated their right to develop further future water uses with aboriginal priority. Aamodt II, 618 F.Supp. at 1010 (emphasis added). A Pueblo s aboriginal water rights are quantified by historical, customary, and actual uses. Aamodt II. at 999. The quantity of water to which the Pueblo is entitled to under is past uses is based on uses to which the water was historically applied for domestic and irrigation purposes, identified as historically irrigated acreage. The Aamodt court concluded that as to aboriginal irrigation uses, the Pueblos had a prior right to all water necessary to irrigate their farmlands, but that the expanding nature of this right was cut off by the Pueblo Lands Act of These aboriginal water rights are measured by the amount of water necessary to irrigate all lands irrigated when the United States took sovereignty in 1846, plus any additional lands put into irrigation up to 1924 (Aamodt II, supra). Only that water actually applied to use in 1924 has an aboriginal priority. Id. This amount cannot be increased. In Aamodt II, Judge Mechem applied the Winters Doctrine of federally reserved water rights and their relation to groundwater, as set forth in Cappaert v. United States, to the aboriginal claims made by the Pueblos. See Aamodt II, 618 F. Supp at 1010 citing Cappaert v. U.S., 426 U.S. 128, 142, 96 S.Ct. 2062, 2071, (1976). However, Cappaert is only a federally reserved, surface water rights case, and Judge Mechem s application of it to a Pueblo s aboriginal rights is not supported by any case law on aboriginal water rights. Judge Mechem may have intended this passage to apply only to Pueblos with Winters rights. 14

15 Case 6:68-cv BB Document 2720 Filed 03/01/2010 Page 15 of 24 POINT IV THE UNITED STATES AND THE PUEBLO MUST ACQUIRE FUTURE GROUNDWATER RIGHTS PURSUANT TO STATE LAW Prior to 1866 rights to the use of water on the public domain were retained by the United States. However, in the absence of specific State or Federal legislation authorizing the appropriation of water, the customs established in the mining camps of recognizing rights to the use of water by appropriation first in time, first in right eventually became valid local law. 1 W.A. HUTCHINS, WATER RIGHTS IN THE NINETEEN WESTERN STATES at 166 (1971); S. C. WEIL, WATER RIGHTS IN THE WESTERN STATES at (1911); see Jennison v. Kirk, 98 U.S. 453 (1879). Between the appropriation doctrine was recognized in Arizona, California, Colorado, Montana, Nevada, New Mexico, and Wyoming. HUTCHINS at 170; California Oregon Power co. v. Beaver Portland Cement Co., 295 U.S. 142, 154 (1935); see HUTCHINS at (1971); see S.C. WEIL, WATER RIGHTS IN THE WESTERN STATES at (1911). As a result of the Public Land Acts of 1866, 1870, and the Desert Land Act of 1877, ownership of the United States in non-navigable waters were severed from the public domain and vested in the western states and territories. See 14 Stat. 153, 9 (1866); 16 Stat. 218 (1870); 19 Stat. 377 (1877); WEIL at See United States v. Rio Grande Dam & Irrig. Co., 174 U.S. 690, (1899). However, [t]he effect of these acts [was] not limited to rights acquired before They reach[ed] into the future as well, [to] approve and confirm the policy of appropriation for a beneficial use, as recognized by local rules and customs, and the legislation and judicial decisions of the arid-land states, as the test and measure of private rights in and to the non-navigable waters on the public domain. Id. at 155. To the extent that ambiguities remained, the desert land Act of 1877 confirmed: 15

16 Case 6:68-cv BB Document 2720 Filed 03/01/2010 Page 16 of 24 What we hold is that following the act of 1877, if not before, all nonnavigable waters then a part of the public domain became publici juris, subject to the plenary control of the designated states, including those since created out of the territories named, with the right in each to determine for itself to what extent the rule of appropriation or the common-law rule in respect of riparian rights should obtain. For since congress cannot enforce either rule upon any state, Kansas v. Colorado, 206 U.S. 46, 94, the full power of choice must remain with the state. The Desert Land Act does not bind or purport to bind the states to any policy. It simply recognizes and gives sanction, in so far as the United States and its future grantees are concerned, to the state and local doctrine of appropriation, and seeks to remove what otherwise might be an impediment to its full and successful operation. See Wyoming v. Colorado, 259 U.S. 419, 465. California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 412 (1935), emphasis added. New Mexico s groundwater code, representing the state s authority to regulate the acquisition of groundwater rights and the development of groundwater resources, was first enacted in It was declared unconstitutional but was successfully re-enacted in See Yeo v. Tweedy, 34 N.M. 611, 286 P. 970 (1929). Since the enactment of New Mexico s groundwater code in 1931, the State Engineer has had jurisdiction over water in all underground basins which he has declared to have reasonably ascertainable boundaries. NMSA 1978, (2003). The Groundwater Act of 1929 was held to be merely declaratory of already existing law in its classification of underground waters as public and subject to appropriation. See Pecos Valley Artesian Conservancy Dist. v. Peters, 50 N.M. 165, 173 P.2d 490 (1945), appeal after remand, 52 N.M. 148, 193 P.2d 418 (1948); see also Yeo v. Tweedy, 34 N.M. 611, 286 P. 970 (1929); Albuquerque v. Reynolds, 71 N.M. 428, 379 P.2d 73 (1963); Hydro Resources Corp. v. Gray, NMSC-061, 21, 143 N.M. 142, 175 P.3d 749. Moreover, although appropriators rights in surface and groundwater are secured under different administrative regimes, the substantive rights are 16

17 Case 6:68-cv BB Document 2720 Filed 03/01/2010 Page 17 of 24 identical. Similarly, the jurisdiction and duties of the State Engineer relating to surface and groundwater are the same. See City of Albuquerque v. Reynolds, 71 N.M. at 437; 379 P.2d at 79. The key principle, applicable to surface and groundwater, is that all water within the state, whether above or beneath the surface, belongs to the state, which authorizes its use, and which owns the resource in trust for the people. See Erickson v. McLean, 62 N.M. 264, 308 P.2d 983 (1957). Prior appropriation doctrine as applied in New Mexico applies to the water in artesian basins having been declared to have reasonably ascertainable boundaries. See City of Albuquerque v. Reynolds. Supra The Rio Grande Underground Water Basin was declared on November 29, State law contains a process that is expressly designed to ensure that any changes in purpose and place of use or point of diversion are made upon application to the State Engineer, followed by public notice, so that interested parties can appear in transfer proceedings to ensure that their water rights are not impaired by the proposed transfer. The application process is set forth at NMSA 1978, (1985), (1985) for transfers of surface water and (1985) for transfers affecting groundwater. Three criteria are evaluated: whether the proposed change impairs the existing water rights of others, whether it is contrary to the conservation of water in New Mexico, and whether it is detrimental to the public interest. In all cases, impairment is dependent upon the facts of the given application. See City of Roswell v. Berry, 80 N.M. 110, 452 P.2d 179 (1969). The State Engineer has the authority to condition permits to negate impairment. 80 N.M. at 114. The burden of proof rests upon the applicant to show that the proposed transfer will not impair the existing rights of others. See, e.g. In re City of Roswell, 86 N.M. 249, 522 P.2d 796 (1974); Heine v. Reynolds, 69 N.M. 398, 367 P.2d 709 (1962). In this case, the City of Espanola, which depends upon groundwater for its municipal water supply, as well as other water users, require the application 17

18 Case 6:68-cv BB Document 2720 Filed 03/01/2010 Page 18 of 24 and public notice provisions in order to participate fully in any proposed transfers of surface to groundwater to protect their existing rights. The United States deference to state water law as set forth in the companion cases of United States v. New Mexico, 438 U.S. 696 (1978) and California v. United States, 438 U.S. 645 (1978). In United States v. New Mexico, the court examined the contours of the federal reserved rights doctrine, or Winters doctrine, noting the history of Congressional intent in the field of federal-state jurisdiction with respect to allocation of water. 438 at The Court found that [w]here the Congress has expressly addressed the question of whether federal entities must abide by state water law, it has almost invariably deferred to the state law. Id. at 702, California v. United States, 438 U.S. at , The substance of the holding in United States v. New Mexico is that the reserved rights doctrine is narrowly limited to the primary purposes of a reservation. In other words, water may be impliedly reserved from the public domain only when necessary to fulfill the primary purpose of the reservation, no more. The New Mexico Court held that [w]here water is only valuable for a secondary use of the reservation, however, there arises the contrary inference that Congress intended, consistent with its other views, that the United States would acquire water in the same manner as any other public or private appropriator. Id. at 702. The Pueblo is not a reservation. However, as set forth above, Pueblo rights extend to domestic and irrigation uses. Additional or more expansive uses, i.e., water use for any purpose should follow the principle set forth in United States v. New Mexico, and be acquired pursuant to state law. 4 The New Mexico Court cited hearings on S before the Subcommitte on Irrigation and Reclamation of the Senate Committee on Interior and Insular Affairs, 88 Cong., 2nd Sess., (1964), listing thirty seven statutes in which Congress had expressly recognized the importance of deferring to state water law, from the Mining Act of 1866, 9, 14 Stat. 253, to the Act of August 23, 1958, 202, 72 Stat

19 Case 6:68-cv BB Document 2720 Filed 03/01/2010 Page 19 of 24 An expansive discussion of federal deference to state water law was provided in California v. United States, supra. In California v. United States, the court held that [t]he history of the relationship between the Federal Government and the States in the reclamation of the arid lands of the Western States is both long and involved, but through it runs the consistent thread of purposeful and continued deference to state water law by Congress. 438 U.S. at 653. The Court traced the development of the prior appropriation doctrine and federal deference to local law beginning with the Mining Act of 1866, ch. 262, 14 Stat Id. at The issue in this case is whether deference extends within Pueblo boundaries. Two principles indicate that it should. First, the McCarran Amendment, 43 U.S.C. 666 (1988), was enacted in 1952 to integrate federal water rights with state rights through the adjudication process and in subsequent administration under state law. The McCarran Amendment states: 666. Suits for adjudication of water rights (a) Joinder of United States as defendant; costs Consent is given to join the United States as a defendant in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit. The United States, when a party to any such suit, shall (1) be deemed to have waived any right to plead that the State laws are inapplicable or that the United States is not amenable thereto by reason of its sovereignty, and (2) shall be subject to the judgments, orders, and decrees of the court having jurisdiction, and may obtain review thereof, in the same manner and to the same extent as a private individual under like circumstances: Provided, that no judgment for costs shall be entered against the United States in any such suit. In S. Rep. No. 755, 82 nd Cong., 1 st Sess. 2 (1951), the Senate Judiciary Committee outlined the need for the waiver on the basis of the requirement for state jurisdiction over both federal rights and rights acquired under the prior appropriation doctrine. The Committee sought the waiver of 19

20 Case 6:68-cv BB Document 2720 Filed 03/01/2010 Page 20 of 24 federal sovereign immunity for joinder of the United States to state court and administrative proceedings: Since it is clear that the States have the control of the water within their boundaries, it is essential that each and every owner along a given water course, including the United States, must be amenable to the law of the State, if there is to be a proper administration of the water law as it has developed over the years. S. Rep. No. 755, 82 nd Cong., 1 st Sess. 6 (1951). Second, there has been consensus on the need for unified principles of administration. Espanola s permits are administered under state law. The Pueblo s claims are made under federal law. In United States v. Anderson, 736 F.2d 1358 (9 th Cir. 1984), the Ninth Circuit cautioned against the legal confusion that would arise if federal water law and state water law reigned side by side in the same locality. 736 F.2d at 1365, citing FPC v. Oregon, 349 U.S. 435, 448 (1955). Anderson reviewed the prior holding of the Ninth Circuit in Colville Confederated Tribes v. Walton, 647 F.2d 42 (9 th Cir. 1981), which had sought to develop criteria for determining whether state or tribal law would govern the administration of water rights held by non-tribal members within a federal reservation. In Walton, the Ninth Circuit had held that deference to state law was not applicable to water use on a federal reservation which had no impact off the reservation. The contrary result was reached in Anderson where the Ninth Circuit found that state regulation was obligated for the benefit of non-tribal water users who owned land within the reservation in fee. Id. at In this case Espanola seeks similar protection for its water rights. CONCLUSION The Pueblos were, and continue to be, entitled only to the aboriginal right to use surface water necessary for domestic purposes and to irrigate their lands based on water use established aboriginally. No right to divert groundwater to supplement aboriginal water rights exists under 20

21 Case 6:68-cv BB Document 2720 Filed 03/01/2010 Page 21 of 24 federal law. Moreover, the contention that the Pueblo may divert up to acre-feet per year from unspecified groundwater points of diversion constitutes a threat to present water users because the aboriginal rights may displace rights held under state prior appropriation law. While this approach benefits the Pueblos, it introduces a potentially significant element of uncertainty into New Mexico water use. In this state, with a short supply of water, certainty and stability in water rights are much prized. If the Pueblo may turn to groundwater at any time, then supplies available to non- Indian users are not as certain as if Pueblo rights encompassed a definite right to groundwater or had been approved through the State water rights application process. An ever-changing, unaccounted for, right to supplement surface water with groundwater, for the Pueblos, would make administration of water rights continuously litigious, if not impossible. STEIN & BROCKMANN, P.A. By Electronically signed Jay F. Stein Seth R. Fullerton P. O. Box 5250 Santa Fe, NM (505) Attorneys for the City of Espanola 21