June 17th, 2015
by Sig Silber
Editors note: Sig Silber was Rio Grande Chapter Sierra Club Water Issues Chair in 2010. This was published in the Rio Grande Sierran in 2010, but is temporarily unavailable on line. The article is being republished here to add to the information in the GEI News post by Abrahm Lustgarten from ProPublica: Misguided Water Laws: Use It or Lose It. The article that follows may provide some different overall impressions of Western water law than the Lustgarten article does. Included in the article below is information obtained in an interview by the author with Judge Jerald A. Valentine, the Chief Judge and Administrative Authority for the Third Judicial District Court New Mexico. At the time this was written Judge Valentine was the chief water judge for the state.
To answer the question of are we moving forward involves many different aspects which combined are far too complex to address in one article. Components of that question would include:
A. What is the status of our Legislative Statutes with respect to water?
B. Is the Administrative Process for managing our water resource effective and honest?
C. Is planning for the future taking place effectively and in an open and transparent manner? and finally
D. Are our courts operating efficiently and fairly.
This article is addressing the fourth topic but the other three will be addressed at a future time. A convenient way to address this topic was provided by Judge Jerald A. Valentine when he wrote a document on this topic in 2003 entitled: "A Water Court for New Mexico: Perspectives from the bench". This report is well worth reading.
Judge Jerald A. Valentine is the Chief Judge and Administrative Authority for the Third Judicial District Court and was most gracious to grant an extensive interview after his recent presentation on the progress of adjudications and in particular the Lower Rio Grande Adjudication (LRGA) to the Interim Water and Natural Resources Committee Meeting in Las Cruces on the second day of their two-day Meeting August 30-31, 2010.
New Mexico Court System
Let us start by reviewing the structure of the court system in New Mexico as it applies to water issues. There are basically three levels of courts of general jurisdiction which deal with water issues:
A. Thirteen District Courts which are trial courts of general jurisdiction.
B. Court of Appeals (10 Judges meeting in Panels of three Judges) These courts deal with appeals of district court decisions
C. New Mexico Supreme Court (5 Judges). The Supreme Court is the final arbiter of the law of New Mexico subject only to the U.S. Supreme Court and Federal Preemption. It may choose to hear an appeal from a decision of the New Mexico Court of Appeals.
New Mexico also has courts of lesser jurisdiction which include one Metropolitan Court as well as Magistrate Courts and Municipal Courts but their role in water issues is very limited.
Water issues requiring judicial action generally enter the system via a District Court. Decisions of a District Court can be appealed to the Court of Appeals.
The Supreme Court also has superintending control over all courts and ultimate administrative authority i.e. it plays a large role in administering the Court System in New Mexico, excluding municipal courts which are managed by the local jurisdictions. We tend to overlook the complexity of administering a judicial system. Assignment of appropriate resources to courts and judges has a bearing on the swiftness and validity of court decisions.
And of course there are Federal Courts. We will get to that in a bit.
Water disputes come in many different forms including civil disputes between parties, appeals of administrative decisions of the Office of the State Engineer (OSE), and stream adjudications. In New Mexico, there are many administrative actions taken by the OSE and these can be appealed to a District Court. How these administrative actions are taken by the OSE, which in some case involves a quasi-judicial process with hearing officers, could usefully be a separate article as there are issues that some have raised about how that process works. But that was not the topic of this interview.
To understand what a stream adjudication is, one needs to understand the process for the establishment of a water right. I will now attempt to describe the various approaches but the water code is complex and I am not an attorney let alone a water attorney, so I might not describe the process perfectly.
A. One might be granted a permit by the OSE for unappropriated water i.e. water that is not already allocated to others if all other required conditions for issuing the permit apply. New appropriations now happen rarely as in general New Mexico considers its surface waters to be fully appropriated even though that term is not defined or at least I have not been able to find a meaningful and measurable definition of "fully appropriated". Since most, but not all, groundwater is hydrologically connected to surface water, most underground water is also considered to be in effect fully appropriated.
B. One might be granted a domestic well permit although in one Judicial District, District 6, the Domestic Well Statute has been declared to be unconstitutional.
C. On the basis of having a record of beneficial use predating 1907 for surface water or for groundwater (usually but not consistently referred to as "underground" water in New Mexico Statutes) having a record of beneficial use prior to the time the particular underground water basin was "closed" to new appropriations by the OSE, claimant may file a verified declaration of their claimed water right. But these "declared" water rights are still subject to adjudication before they become fully adjudicated water rights.
Surface water permits after inspection by the OSE become a "License" which demonstrates that the applicant, at a certain point in time, has created the ability ("works") to apply the water to beneficial use. I was not able to find a description of the licensing process for groundwater in the New Mexico Water Statues (Water Code). But wells generally must be drilled by licensed drillers who are required to file a report with the OSE after drilling the well so perhaps that achieves some of the goals of the surface water licensing process. There is no doubt that the lack of symmetry between the provisions in the New Mexico Statues for surface water and groundwater wells is a cause of confusion: a good example being the recent Intel situation caused to some extent by the failure of the groundwater provisions in our New Mexico Statutes (water code) to have anticipated the potential for return flows from a well.
A license provides some of the same information that is used during an adjudication to create a sub-file for every water-right claimant. The elements of the information which is provided by the license is:
- Priority date i.e. when the water was first put to beneficial use for pre-1907 water rights and the date of the application for more modern potential water rights.
- Amount of water being put to beneficial use.
- Purpose for the water
- Periods of time that the water will be used
- Place of use which for agriculture would be the specific tracts where the water is being used.
Neither permits nor licenses nor declarations of pre-1907 surface-water rights and pre-closed groundwater basin declared groundwater rights are fully adjudicated water rights until they are declared to be fully adjudicated water rights as part of a judicial adjudication process which normally, but not always, is performed on a section of a stream and which is requested by the OSE sometimes acting on the request of some other body for example an irrigation district or the State of New Mexico. Prior to adjudication, the actions taken by the OSE under New Mexico Statutes are administrative actions with lesser or greater likelihood of being confirmed during the adjudication process. Of interest, the division of duties between the administrative entity and the judiciary with respect to water rights varies considerably in different Western States.
Two very important difference between administrative actions by the OSE and the judicial adjudication process is the extent of notice provided to potentially impacted parties and a process called inter se where all the participants to an adjudication have the opportunity to challenge the claimed water rights of any other claimant. Where administrative actions by the OSE require notice, such notice is provided by placing a sufficient number of postings in newspapers in the counties where those impacted are most likely to be reading newspapers. This is a haphazard process at best. In a judicial adjudication, all parties are legally served which is a process that is more effective at reaching most of the parties to an adjudication. The result of an adjudication is the court's decree for each party to the adjudication establishing:
"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. "
- NMSA 1978 Comp 72-4-19
These questions are some of the same questions that were addressed by the OSE when issuing a surface water license and are generally easily answered for recent permits but one must remember that New Mexico was settled many years ago and has gone thorough two very important transitions namely being part of Mexico to becoming a Territory of the United States in 1850 and in 1912 achieving Statehood. So there is a lot of history and attempting to document events that in many cases took place over a century ago is not always straightforward. And domestic well permits create an entire different set of problems especially now that one New Mexico District has declared the issuance of domestic well permits to be unconstitutional.
Back to the role of the Federal Government. Stream Adjudications can be handled within the New Mexico State Court System or the Federal Court System. In both cases, New Mexico State Law applies however there are also what are called Reserve Rights associated with Federally owned land and water held in reserve for the Sovereign Indian Tribes. Adjudications which deal with few Federally Reserved Water Rights are often handled by State Courts and Adjudications which deal with many Federal Reserved Water Rights, like the Aamodt Adjudication, are handed by Federal Courts. Also where Federal Funding might be desired to implement settlements arising out of an adjudication, such adjudications are often handled in a Federal Court. At the present time, there are five adjudications pending in Federal Courts and six in New Mexico State Courts.
In 1952, an amendment to an act of Congress called the McCarran Amendment clarified that under certain circumstances the Federal Government would waive its sovereign immunity and allow its claimed water rights to be adjudicated in State Courts. In some situations an adjudication might move back and forth between a State Court and a Federal Court which of course introduces delays in the process.
The focus of Judge Valentine's 2003 paper and our recent interview was to address the question of how to make the court system more efficient with one of the major goals being to be able to move forward with adjudications more expeditiously.
There is probably better information available but just looking at the map that was provided by the OSE at the recent Legislative Interim Water and Natural Resource Committee meeting, it looks like about 20% of the area of New Mexico has been adjudicated. Another 30 percent perhaps is currently being adjudicated and for those adjudications property owners of perhaps two thirds of the acres have agreements with the OSE. That does not mean that only a third of the work remains to be done on those adjudications, because in some cases there are "stream issues" (which impact all or many of the participants) to be resolved and there remains the inter se process where any participant can challenge the rights about to be confirmed for any other participant.
And then there is the other 50 percent of the land area of New Mexico which just happens to include the Middle Rio Grande. Estimates of the time remaining to complete the adjudication of all water rights in New Mexico range from thirty years on up.
How Far Have We Come Since Judge Valentine Wrote his Paper in 2003?
There is a fair amount of good news since Judge Valentine's report was written.
All water-related cases are now presided over by a sitting judge who has been trained in water law and currently there are no retired judges being utilized on a pro tem (temporary) basis but that could happen again depending on the actions of the New Mexico Supreme Court. Generally a pro tem judge does not have access to the same level of administrative support as a regular sitting judge. There is ongoing annual training in water law for the water judges. With respect to the very important category of adjudications, it appears that only three judges are involved: Judge Jerald Valentine in the Third Judicial District for the Lower Rio Grande Adjudication (LRGA), Judge J.C. Robinson in the Sixth Judicial District for the Animus Underground Basin Adjudication, and one Appeals Court Judge, James J. Wechsler, is presiding over four stream adjudications: San Juan, Pecos, Santa Fe and the Rio San Jose. (Editor's note: All appoinments were as of 2009 - any changes have not been noted.)
Aside from the issue of possible conflict of interest (presumably Judge Wechsler would have to recuse himself when matters related to an adjudication over which he presides is appealed to the Court of Appeals) there is the question of workload. In fact it seems that our Judges only devote a small amount of their time to adjudications. I believe that Judge Wechsler is currently devoting 20% of his time to four different adjudications and Judge Valentine I believe devotes about 39% of his time to the very complicated Lower Rio Grande Adjudication (LRGA).
Many adjudication matters are handled by Special Masters and Referees but the legal decisions can only be made by the judge. I know that I have had to devote a lot of time just keeping up with the many pages of briefs that have been filed in the LRGA and these briefs are not nearly in total agreement on the issues and the law, so it is clear to me that there is a lot of work for the Judge to do. We may be risking judge burnout by overloading Judge Valentine but in general it appears that the OSE is not moving quickly enough to justify having water judges that focus exclusively on stream adjudications. I did not address the situation of the five adjudications in Federal Courts but with respect to the six adjudications in the New Mexico Court System, it appears that the OSE is not moving quickly enough to keep the judges sufficiently engaged other than in the Lower Rio Grande Adjudication. In total, we are utilizing less than one full-time judge for water adjudications in New Mexico. That can hardly be considered an acceptable level of activity for New Mexico.
There may be a need to review the way the work of the OSE is performed and clearly there is a need for more resources to be applied. Otherwise the resources being applied may be substantially wasted as the information they collect may be out of date by the time these adjudications reach the inter se stage since land is bought and sold, crops change, methods of irrigation change etc., etc.
Additional good news is that we now have a way of tracking adjudicated water rights so these rights are easier to keep up to date. One change is that now a water right is assumed to transfer with agriculture land unless specifically indicated as remaining with the seller. For commercial land, the disposition of the water rights still needs to be specifically stated or else there can be confusion.
Changes in User Need
One outstanding issue that has not been resolved is what happens when a farmer changes what they grow and thus either uses more or less water? Does their water right change? Another issue that no one wants to really even think about is how does Warming impact water rights. One expects that the water used by crops increases with Warming and longer growing seasons and what happens to effective precipitation (which is subtracted from the total amount of water the crop requires to calculate the farmers water right)? And what about the losses on the way to the crop which are not part of a farmers water right but such losses do reduce the available water supply and are likely to increase with Warming.
The distinction between the amount of water required in the distribution system to provide the amount of water that will be consumed by the crop (referred to as the Project Diversion Requirement (PDR) and the Farm Delivery Requirement (FDR)) and the ownership of any possible reductions in losses in the distribution system versus reductions in the amount of water used by the crop is a source of much confusion especially if one is discussing the potential for agriculture conservation. The water used by the crop is the Consumptive Requirement (CR) less effective precipitation i.e. the precipitation that falls on the crop excluding that part of the precipitation that runs off before it is absorbed into the soil. This amount, the CR less the effective precipitation is called the Consumptive Irrigation Requirement (CIR) and it is the farmers water right and the amount of water the farmer is able to use, lease, or sell.
Opportunities to Reduce the Cost and Duration of Stream Adjudications
Ways to speed up stream adjudications were discussed at the Interim Committee Meeting and again during my interview and the Honorable Judge Valentine made some suggestions that may have merit.
One suggestion by Judge Valentine is to encourage participants (called defendants) in a water adjudication to play a more active role in the development of the evidence that will help define their water right. Currently, the procedure is for the State Engineer to make an offer to presumed water-rights holders based on what is called a hydrographic survey and negotiate that offer if the water-right holder believes they have information that is supportive of a larger right or earlier priority date. Encouraging defendants in an adjudication to provide their information to the OSE might help the OSE in the preparation of its offer to claimants if the OSE accepts as being valid the information provided by the claimant. This would reduce the number of offers which are disputed by the claimant. Sometimes differences of opinion spring from a lack of understanding of the definition of a water right and in such cases negotiation by the OSE and intervention by the Ombudsman Program at the Utton Center at the University of New Mexico frequently leads to an agreement satisfactory to both parties.
There are instances where the recipient of an offer from the OSE doesn't respond and accept or dispute the offer. Currently the OSE continues to attempt to contact such parties and induce them to negotiate. Why not simply in such cases submit the OSE offer in the earlier stage of the adjudication since the claimant will have another opportunity to challenge the water rights of others during the inter se process. If properly served, is it the responsibility of the OSE to assure that all defendants either accept the offer by the OSE or negotiate the offer or failing to arrive at common ground have the dispute resolved by the court or does the claimant have some level of responsibility to actively participate in the process? One general principle seems to be that there is a tradeoff between efficiency and fairness with the processes in New Mexico heavily weighted towards fairness and thus being relatively inefficient.
A second way to perhaps move things forward more quickly according to Judge Valentine is to have more water permits reviewed by the OSE and issued licenses as called for in New Mexico Statutes. That would greatly speed up adjudications since the work activity involved in issuing a license is somewhat similar to the work that needs to be done during an adjudication. And for some water rights owners, a License would meet much of their needs including the ability to transfer their water right (with still some risk being taken by the buyer) and thus reduce the pressure on having all of New Mexico fully adjudicated as soon as possible. I did not ask Judge Valentine about licenses for groundwater rights as I was not aware at the time of the interview that New Mexico Statutes do not provide for the issuance of licenses for groundwater permits.
Also, at the time of the interview, I did not have in my possession a memorandum issued by the Administrative Office of the Courts (AOC) to David Abbey who heads the staff that supports the Legislative Finance Committee. Apparently the AOC has reviewed the way some other Western States, which adjudicate water rights judicially like New Mexico and which have been reported to be generally satisfied with the way they do things, handle stream adjudications. These States are Idaho, Montana, and Colorado. Some of the recommendations in the AOC Memorandum were similar to those that Judge Valentine made during our interview. So I suspected that the efforts by the Committee that Judge Valentine led were reflected in this AOC Memorandum. Judge Valentine, however, in a subsequent discussion attributed the similarity in some recommendations to the process of two groups reviewing similar information and arriving at similar conclusions. This raises the question of why more of these recommendations have not yet been implemented if the recommendations are that which legal professionals will conclude have merit?
It was very reassuring to me that our Courts and Legislature are working together in some sense by exchanging information. But I am not sure that we have seen much of an impact so far. One of the issues that Judge Valentine had touched on was made more clear in the AOC Memorandum namely that in New Mexico, adjudications utilize procedural rules that apply to other law suits of a civil nature. Idaho, Montana, and Colorado on the other hand have established by Statute special procedures for handling Adjudications which are more efficient than pure civil court procedures. Thus again we see how there is perhaps a tradeoff between efficiency and fairness. But is a system that is heavy on fairness really fair if water rights holders have to wait a half century or longer to get their water rights adjudicated? On the other hand, attempts to simplify the adjudication process can result in the reformed process being challenged in court with its attendant costs and delays. This has been the case in Arizona.
Whatever the situation was in recent years, it is even more difficult now with the State Engineer projecting a 30% reduction in resources applied to adjudications in Fiscal Year 2011. Even if the funding is available to replace those positions in Fiscal 2012, which seems very unlikely, the learning curve and loss of institutional memory would make adjudications move more slowly. In the presentation by Laurie Knowles of the OSE to the August 31 Meeting of the Interim Water and Natural Resources Committee, a "Lessons Learned" report stressed the need to avoid starting new adjudications until the ones ongoing are completed. Adjudications are more like news than wine. They rarely get better with age but rather the information collected can become somewhat obsolete.
We only touched on it briefly but the concept of having a single judge for the adjudication of an entire stream/river was an idea that was not dismissed by Judge Valentine. His openness to considering that approach is interesting because there are some who believe that regional water planning should change from the awkward and somewhat artificial 16 regions to a more stream-oriented approach. There are arguments pro and con for the stream approach to planning mainly related to the obvious logic for planning by stream but the greater practicality of implementing plans by Regions which are related to jurisdictions that are responsible for providing water to their residents. With respect to adjudication, it may be difficult to find a strong argument against doing an adjudication for an entire stream other than the practicalities of actually doing that for one particular stream namely the Rio Grande. The size and duration of such an adjudication would be daunting.
In a follow up conversation with Judge Valentine, he indicated that a single judge per river is worth considering but a better approach to achieve consistency is to develop standing rules for the conduct of adjudications. At the time Judge Valentine wrote his 2003 paper, he had been appointed the Chair of a Committee that was to develop standing rules for the conduct of adjudications. Some work was accomplished and some but not all of the proposed rules were adopted by the New Mexico Supreme Court but the term of that committee was only about three years and it was not reaffirmed and perhaps it should should be.
There is a collegial interaction between the New Mexico Court System and the OSE with respect to adjudications and this shows up in in the annual meeting between the Court System and the OSE. This is covered by the rules for Civil Procedures.
Civil Procedures rules can be found by clicking on "Contents of Judicial Volumes" and proceeding to the Rules for District Courts and eventually to Rule 1.071.3 which reads in part:
"Thirty (30) days before the end of each fiscal year, the judges, special masters, the state and other parties in each stream adjudication court shall coordinate and set a working session for the purpose of discussing common issues among all pending stream adjudications and resource needs of each adjudication court. The judges presiding over state stream system adjudications shall invite judges and special masters presiding over federal stream system adjudications to participate."
This meeting of course must be careful not to violate the ex parte principle (private conversations not involving all parties to a legal dispute are not permissible) and this is recognized by the fact that it is in practice an annual event but approved by the State Supreme Court year by year. Obviously this meeting is intended mainly to address resource allocation matters not the specifics of the individual adjudications but one cannot help but wonder if everyone there is capable of maintaining that level of discipline. It also points out that those interested in water issues need to not only be conversant with the New Mexico Statutes related to water but also to the rules related to civil procedures and perhaps also the rules related to the specific judicial district where an action may be taken and of course the case law (prior decisions) related to the matter. It is essentially impossible for an ordinary citizen to be able to be sufficiently informed. It is easy to state the problem, but not easy to propose a solution.
There us also cooperation among the Western States in the form of a meeting every 18 months called the Dividing of the Waters which is a regional event mainly for judges and employees of the court who assist judges in water appropriations.
Finally, In his 2003 document Judge Valentine included quotes from U.S. Supreme Court Justice Sandra Day O'Connor and Richard A. Simms, a prominent attorney and legal expert with respect to Western States water law, which raised questions about the ongoing viability of the concept of Equitable Apportionment being achieved by the Prior Appropriation Doctrine. I asked Judge Valentine how he felt about the Doctrine of Prior Appropriation and he indicated that his belief that this is the foundation for Equitable Apportionment is even more solid than when he wrote his paper in 2003.
The reason for my question and the reservations expressed by Justice O'Conner and Simms is of course the transition from an agrarian economy to one with a higher percentage of water being used by urban water users. The urban users are prepared to pay a higher price for water but if they acquire water rights with more recent priority dates it becomes impractical to cut off their use of that water during times of shortage which is the basic principle of how priority administration works. So the question of the viability of the Priority Doctrine in my mind remains an open question especially since the acquisition by New Mexico taxpayers of water to meet our obligations to Texas on the Pecos River was employed rather than the priority calls specified in the Pecos Compact. Is a system that is not able to be employed when most needed, a viable system?
Sadly our time ran out just as we began to discuss the Dormant Commerce Clause in the U.S. Constitution and the acceptance of that part of our law within the water establishment of the State of New Mexico. Earlier I had asked the Judge about his views on how the term "fully appropriated" can be defined and verified but that part of the discussion didn't seem to blossom so I will leave that for another time and place. I am intrigued about how one can define "fully" appropriated when our water supply is so variable. No matter how many water rights are issued there will always be some years when everyone gets water and no matter how few water rights are issued, there will always be a drought that prevents some from getting water. So it seems that the criteria for determining when part or all of New Mexico is "fully" allocated would require a complex definition and without a definition for "fully" appropriated it is impossible to know if and when we are over-allocated.
In summary, it seems that the ability of our New Mexico court system to deal with water issues has significantly improved since 2003 but there is still a lot more to be done. If we are unwilling to provide the OSE and the Judicial System with adequate funding, we should anticipate both an extension of the time required to complete the adjudication of water rights in New Mexico and many other problems perhaps of an unforeseen nature but problems that work against the Public Welfare of New Mexico.