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Aamodt, Dammit!

Big Trouble in a Small Basin

Angela and I walked along the dirt road that parallels the often-dry Pojoaque River, a mere trickle moving under a sweltering July sun. As Angela told me:

I moved here twenty years ago. I moved back, really, after college, because I care about this valley. But my family had no idea about what would happen with this whole [Aamodt] adjudication thing until it was too late … By the time they started paying attention again, the deal was done, and it seemed we had already been denied any voice or good deal in that set of discussions. We felt screwed. We still do. We got handed a hornet’s nest agreed to by others … I’m realistic that the Indians get their water as part of this whole deal. But they can’t have everything, can they? And this new deal now forces us to reduce well water use because they [the pueblos] don’t like the groundwater pumps…. it just seems unfair.¹

Aamodt, often jokingly referred to as “Aamodt, dammit!” by both former state employees and those who live in the Pojoaque Basin, was the most infamous state adjudication for decades (see map 4). Angela’s family had three generations of active defendants in the lawsuit, and she was sharing her latest experiences about the terms of the negotiated agreement. She felt the “non-Indians” in the valley like her had been poorly represented in the meetings that hammered out new water arrangements in the Pojoaque. She remained frustrated, a familiar feeling among her neighbors, too. The settlement had left many in the valley unsettled.

MAP 4. Map of the Aamodt adjudication area, the Pojoaque River Valley, showing the four major pueblos. Adapted from the New Mexico Office of the State Engineer and Utton Center (2013).

The original Aamodt case was filed by the New Mexico state engineer in 1966, suing almost 2,500 defendants. Centered on the Pojoaque Basin and its small tributaries and the Nambé and the Tesuque Rivers, the Aamodt adjudication suit resurfaced past conflicts and cultural tensions.² By the time Aamodt was settled out of court in 2010, the number of defendants had risen to 5,284 and encompassed four Indian pueblos in the Nambé-Pojoaque-Tesuque valleys, as well as a separate irrigation district and some 2,724 acres. Aamodt highlights both the multigenerational complexity of adjudication and the state’s ultimate failure to read water across sovereign identity lines. In the end, the four pueblos, federal agencies, and local acequias negotiated their way out of adjudication into a different kind of agreement that was acceptable to the state of New Mexico. Before adjudication was taken out of the courts, however, Aamodt was its own special little hell of a court case.

In this rural commuter valley to the north of Santa Fe, it can seem there are more people and more small land parcels than the limited water can sustain. The Nambé, Tesuque, and Pojoaque are all modest streams for most of the year and often run dry by early July. When they have water, they eventually join the Rio Grande. Water disputes were nothing new in this area. The archives are replete with court records of conflict from the early Spanish Colonial days and through the modern period as residents grappled over the low surface flows.³ And those are just the cases preserved in official documentation.

With Aamodt opened as a new litigation opportunity, old conflicts over claims to water bubbled up again. Identity questions of Indian and non-Indian finally were confronted and addressed. Non-Indians sought better legal representation and positioning given the strong Indian water rights claims in the valley. Hispanos and Anglos jockeyed for better prior appropriation dates. Groundwater and wells were added late to this process, adding further stress for the valley’s residents.

The Aamodt suit produced decades of long, tedious courtroom procedures. Thus, no better case exists in New Mexico adjudications for illustrating the process and lessons from transforming water into a private-use-right property regime. Given the lengthiness of the case, I turned to the legal archives to examine the multiple phases of Aamodt. Some interviewees, like Angela in the opening dialogue, did not remember or know the particularities of the early days of the lawsuit. They often felt trapped by the jumbled legal process that had outlasted generations in their valley. To make sense of Aamodt and its lessons requires time travel and some jumping back and forth through a time line that was inherently messy. The suit was sparked by a project started far upstream.

It all started, I think … with the San Juan-Chama Project stuff, back in the 1960s. That’s when [State Engineer Steve] Reynolds started getting serious about adjudication. It was these projects that did it. He realized all this water is going to get connected so better know where people own and use that water, right? I guess we have learned the hard way that once you connect this [Colorado River] water with that [Rio Grande] water, it creates problems, and complications. Everything got more complicated with the connection between the two big rivers. The dams and pipes went in pretty quickly, but the state engineer is still trying to sort out the whole legal thing of what water goes where and who has rights to what part of the two rivers and the Chama River water itself. What a mess! (Tony Adel, Tesuque).⁴

As New Mexico’s adjudications accelerated in the mid- to late twentieth century, tied to dam and infrastructure developments, it became clear the process was going to encounter significant hurdles. The Aamodt and Abeyta suits were filed in the late 1960s by then state engineer Steve Reynolds, sparked by the state’s need to parse out the water rights involved in the San Juan-Chama Project (see map 5). The San Juan-Chama Project was designed and built to move New Mexico’s share of Colorado River water into the Rio Grande Basin. Through a transbasin diversion from the San Juan River in Colorado, a set of pipe transfers into Heron Dam shunts this water downstream to other reservoirs and eventually into the natural stream course of the Chama River. Aamodt was thus complicated in scale from the start.

MAP 5. Map of the San Juan-Chama Project. This project was the key infrastructure event triggering the northern adjudications (Aamodt, Abeyta) since the basins would be receiving a share of the San Juan-Chama Project water. Adapted from New Mexico Office of the State Engineer and city of Santa Fe Water Division maps.

Such was the reputation of Aamodt that at least two dozen times in other parts of New Mexico, people told me some variation on the following: “At least we’re not in the Aamodt case!” Aamodt was infamous and remains so. The most complicating factor wasn’t the basin size (it was small) or the limited water. It was legal pluralism. This was a legally complex valley in how residents used water, discussed water, or understood water. The legacy of legal pluralism is reflected in the mountains of legal archival files—so much paper, in fact, that legal scholars refer to the case as two discrete episodes: Aamodt 1 (1966–1984) and Aamodt 2 (1985–2000). Below, I briefly summarize aspects of these two distinct episodes that each lasted more than a generation.⁵ Cultural identity, Indian water rights, competing histories of use, inter- and intraethnic disputes over attorneys, acequias and customary water rights, thousands of defendants, ground and surface waters, federal agencies, consulting engineers, anthropologists, historians, and state engineer technicians and lawyers: they were all on display during Aamodt.

THE STRUGGLE TO DEFINE INDIAN AND NON-INDIAN WATERS

The various parties in the Aamodt case—Nambé, Pojoaque, Tesuque, and San Ildefonso Pueblos as well as nonpueblo water users—disputed and contested each other’s rights to the water—and not only the waters from the Nambé-Pojoaque-Tesuque (NPT) stream system. The most complicated factor was how Indian water rights would be historically defined and quantified. A long-ignored Supreme Court decision, the Winters case (1908) ruled that implicit water rights existed to support the reserved land base of Indian reservations. The courts never quantified how much water that might be. For federally recognized tribes, the implicit threat of claiming Winters water rights has been a useful tool in negotiating settlements during the last thirty years. The Aamodt case was seen as an opportunity for the Pueblo to address a historical injustice by finally quantifying their water rights. As a long-time attorney for one of the pueblos said, “The settlement process is a bit of a final recourse; since justice was long delayed in getting the Pueblo their proper water rights acknowledged … it’s simply long, long overdue.”⁶

Archaeology and Spanish Colonial archival accounts demonstrate that the Pueblo Indians had long practiced floodwater farming.⁷ More permanent canals, like those used by Hispano settlers in New Mexico, are also now common on nearly all Pueblo lands across the state. The pueblos also have real and unmet needs to supply freshwater to residences, casinos, and other economic and recreation facilities. Previous failures to recognize and quantify Indian water rights not only delayed justice but also complicated the state’s attempts to document and allocate waters, as I will discuss. Later Hispano settlers, now treated in the courts as non-Indians, were stuck in a strange neocolonial position well before adjudication. Aamodt simply excavated the complex history of their water arrangements.

Hispano querencia, or sense of place, was gradually formed in communities over centuries. Early Hispanos settlers were accompanied by Tlaxcalan Native peoples from Central Mexico, and multiple generations of Genízaros (Christianized and converted Plains Indians peoples) were also recruited or enslaved into what became Nuevo México. Families and bloodlines mingled. As a long-time resident of the valley put it, “We’re always treated like second-class citizens here even though basically we are genetically the same as the Indians … we just don’t necessarily claim to be Indian, and they do, so it’s complicated, and Aamodt just put a bright flashlight on all this blood politics you know, it’s always been awkward when the water issues come up.”⁸ Hispanos claimed a kind of settler indigeneity, as anthropologist James Blair has coined the concept in a separate colonial context, justified by their historical long-term occupancy in the valley.⁹ Yet Hispanos remain settlers and non-Indians, not indigenous, in the American juridical context. Parsing through Indian and non-Indian waters would be the first major task for the courts in Aamodt.

As mentioned earlier, the 1952 McCarran Act allowed states to enjoin federal reserve waters (including tribal rights) to specific state adjudication practices. With this federal legislation, western states could include the determination of Native water allocations in state adjudication court proceedings and basin research. The Pueblo did not view the McCarran legislation as a positive step. Tensions have long existed between individual states and Native sovereign nations, and the Pueblo were reluctant to acknowledge any power by New Mexico state courts or the New Mexico state engineer on Indian water rights issues. The sovereign tribes and the OSE still retain a degree of legal distance on water issues. To this day, for example, the Pueblo are not required to report their water uses to the OSE.

The legal delays to enjoin the pueblos in state court did not hold up the first technical phase of adjudication by the state. By the late 1950s, surveyors were already at work in the Pojoaque, and most of the mapping work for non-Indian water diversions and water uses was done in less than five years. Between 1966 and the late 1970s, the parties and defendants involved organized their files and strategies. By the mid-1970s, key court cases allowed western states to begin including the Native nations like the Pueblo into state adjudication processes. The courtroom drama of Aamodt then began in earnest, and the pueblos’ first legal volley was a massive one. The pueblos contended that not only were their indigenous claims “prior and paramount” in time but that they had senior rights to nearly all the available water in the basin. One can imagine the panic of other non-Indian residents, some of whom had family roots dating back centuries.

The active Aamodt 1 legal phase of the adjudication lasted between 1969 and 1985. During this time, the four pueblos appeared in court to establish their claims to water rights. They were primarily interested in having separate representation for each Pueblo group—four standing attorneys instead of singular Department of Justice representation. Aamodt 1 also determined that federal water protections for the Pueblo would be established. After determining which court would preside and have standing in the matter, things got interesting.

In 1985, the Aamodt II court struck a blow against Pueblo claims to the majority of the valley’s surface water, marking the start of the Aamodt II phase of adjudication. Using the so-called Mechem Doctrine, Pueblo rights were to be limited to historical beneficial use under the laws of Spain and Mexico. Furthermore, the Aamodt II decision restricted the basis for establishing acreage attached to Indian water rights in the Pojoaque. The court defined Pueblo priority rights based on the acreage irrigated between 1846 and 1924.¹⁰ Aamodt was the first case to use the historical irrigation acreage (HIA) standard as a basis for quantifying Indian water rights.

To explain this seemingly arbitrary range of dates, first recall the historical complexity with the case of the two brothers in the previous chapter. The Pueblo were transferred into the United States as Mexican citizens under the Treaty of Guadalupe Hidalgo in 1848. Following Mechem’s (the Aamodt 1 judge) principles, the court ruled that their resource claims would be tied to their date of transfer to the United States as Mexican citizens. Thus, the Pueblo could claim only their provable historical water use from the start of the Mexican War in 1846 (when the United States acquired the Southwest) until 1924, when they were redefined as “Indians,” and the Pueblo Lands Board was created to supposedly compensate the Pueblo for lost water.¹¹ In this way, both Pueblo water and identity were tied to Mexican citizenship transfer. Furthermore, their claims were limited to the original Pueblo land grants, as given by the Spanish and Mexican governments, and they could not claim more than the maximum historical planted area.

The Aamodt II court’s use of historical acreage for deciding Pueblo water rights was a decisive moment for limiting the Native claims to water in the Pojoaque. Peoples recognized by the United States as Indian (as opposed to Mexican) from their inception were due reservation water rights, falling under Winters Doctrine law. This was a striking paradox: in 1846 the Pueblo were considered “civilized enough,” more closely resembling Mexican citizens, until they were redefined as Indians in the 1920s. Because of a strange reassignment of treaty identity as Mexicans once again, the Pueblo did not qualify for a full Winters (Indian) water right treatment. The consequences for future Pueblo water rights cases, if the HIA standards are upheld in future adjudications or settlements, are staggering. The four pueblos, in the end, did not get all of the surface and groundwater in the Pojoaque.

That court decision was celebrated by non-Indians of the valley as a victory since it scaled down the pueblo’s previous claims to most of the water. When awarded, Winters Doctrine water rights are more generous than historically calculated figures, which only focus on the maximum extent of past agricultural acreage. Other tribes like the Jicarilla Apache clearly fell under the Winters decision, and the practicably irrigable acreage (PIA; the total land area that could be possibly irrigated) standard can hypothetically award more water to the tribes. The distinction may seem a fine one, but it can make a big difference when water quantities are owed to a tribal entity. Ironically, then, tribal sovereigns with little record of sedentary agriculture (such as the Jicarilla Apache) can hypothetically be awarded more water under PIA and Winters standards than the more sedentary Pueblo tribes who were clearly farming for centuries along the Rio Grande. As one past attorney for a Pueblo sovereign put it, rather morosely, “They [the four pueblos here] would have been better off if they had been more nomadic tribes.”¹²

Without the historical acreage standard imposed on the Pueblo as former Mexican citizens, the water outlook for non-Indians in the Pojoaque Valley would have been bleak. Paul, a past farmer (now retired) in a small irrigation district in the valley, indicated this to me over coffee one morning in November 2010. He touched his index finger to his thumb, waggling them in a “zero” symbol. “We’d have had nothing, absolutely nothing. I wouldn’t be here today if Winters rights had been fully awarded to the Pueblo in the valley … seriously, I’d have zero and would have to move.”¹³

Meanwhile, the situation for Pojoaque Pueblo was perhaps more complicated. It had been depopulated for a period in the early twentieth century and only reincorporated as a pueblo in the 1930s. Because of this, during Aamodt proceedings, there was some question as to whether the Pojoaque group had abandoned their land and water claims. “That kind of story gets dangerous, you know,” as Carlos, a member of Pojoaque Pueblo, told me in 2011. “I mean, that questioning of whether we are really ‘true Indians’ is just unfair, annoying … The [Pojoaque] Pueblo struggled because of disease and all these unfair [US Indian] policies that stripped us of who we were, what we owned; sent our kids off to boarding schools to become white American kids … ridiculous. And that kind of poisonous doubt continues now—they keep criticizing the casino and saying, ‘See, they don’t farm, they don’t need that water.’ As if we have to stay farmers or something to be real Indians. Drives me nuts.”¹⁴

Around the same time, the early 1980s, the OSE realized the need for adjudicating surface and groundwater simultaneously. One of the most contentious decisions by the court on groundwater was in 1982, when the ruling judge declared a moratorium on new appropriations from domestic wells, restricting new wells to indoor water use only. Wells dug after 1982 could not make full use of their originally awarded rights, especially for lawns or gardens outdoors. While this restrictive decision was later modified during settlement, allowing for some light outdoor use in the valley, what did endure was limiting further groundwater appropriations in the Pojoaque Basin. Since the state engineer is not able to restrict domestic well permits when applied for, the court had to do the unpopular work of capping groundwater well development. This decision was rife with controversy.

In the words of Pojoaque Valley Water Users Association (PVWUA) board member Bill Anderson, “In some ways, that was when people got charged up, this whole thing about the wells…. I mean, there’s no city pipe out there, so people had their own domestic wells, so of course it wasn’t about ag[riculture] or even gardens anymore. People in the valley just thought, ‘Shit, now the Pueblos are trying to completely kick everyone out of the valley with a well.’ So yeah, it got tense.”¹⁵

As tensions between groups continued, the state engineer was steadily determining priority dates for non-Indian water rights holders. By 1982 some twelve hundred non-Indian water users had been sent offers of judgment regarding their water rights, setting up the possibility of new conflicts, as neighbors could contest each other’s rights during the inter se process, and individuals could question the state’s dates and data.

The period between 1978 and 1987, between Aamodt 1 and 2, marked an active period of litigation, as well as one in which groups formed in an attempt to balance legal interests and representation in the court. In addition, the legal fees for non-Indian defendants were rising, with no way to affordably pay for them. Much of the written record captures the frustrations of non-Indian residents who complained that they could not afford attorneys and that the Indians were getting free government legal counsel from the federal agencies.¹⁶ Non-Pueblos in the valley felt excluded from discussions regarding the quantification of Indian water rights, thus an irrigation district in the Pojoaque Valley reinvented itself as the PVWUA. One of the group’s first concerns was the sheer scale of the Pueblo Indian water assertions. Their second concern and priority was to garner funding for legal representation of their interests.

Non-Indian irrigators and property owners lobbied Governor Tony Anaya and even sent letters to President Ronald Reagan to try to garner legal and financial support. They worked on their congressional representatives and senators as well. Congressional representatives from New Mexico coordinated a legal aid fund for non-Indian Aamodt adjudication legal support in the amount of $450,000. While this sum was viewed as small, compared to the federal resources expended for the four Indian pueblos, this appropriation, pushed through by Senator Pete Domenici, was quite a coup for the Pojoaque Valley residents. However, the fund turned out to be less far reaching than they had originally hoped. Much of this was due to internal and external conflicts within and between parties.

One of the defendants in the suit, Doug Martin, remembered that period well and how the early good news on funding turned sour when they realized how expensive representation was for the court procedures and legal proceedings. “It was truly a mess, Eric. I mean we thought we had it made, with the funds necessary to defend ourselves at the beginning. But the process was so long, so drawn out, we could see the funds disappearing before our eyes … I served as treasurer, and I could not believe the amount of money our lawyers were billing for each and every thing. We just underestimated how much it would cost, the time it would take. It created a lot of fights in the valley, too, because some of us wanted to stick with particular attorneys.”¹⁷

Doug and his neighbors grappled with the complexity of legal representation and how the federal funds were expended by their lawyers. Furthermore, while the pueblos and their attorneys could make bulk claims for tribal entities, non-Indians had to argue for themselves individually. “We could feel the divide-and-conquer tactics strategy, so we tried to organize differently into a water-user group,” Doug said, referring to a new legal strategy born in that period.

QUESTIONS OF LEGAL REPRESENTATION AND INTERESTS

While the fund was useful for court proceedings between 1982 and 1985, serious problems erupted between the non-Indian claimants and their legal counsel over that brief period. The expenses claimed by the legal team led by attorneys Peter Shoenfeld and Larry White were questioned by the PVWUA leadership.¹⁸ The leaders of this nonprofit water-users group were concerned that the legal fund was being spent out too quickly, given the numerous tasks remaining in the adjudication suit. In a series of tense memos and letters and later legal suits and affidavits from late 1984 through 1985, the board of the PVWUA decided to switch legal counsel representation. But the process was bumpy and hostility was barely veiled in the correspondence.

For example, in 1986, the PVWUA sent a letter to all defendants in the case suggesting they sign over legal representation choice to the board members, as they pushed for new legal counsel. Attorney Peter Shoenfeld responded within two weeks to the group’s notion to drop him as legal counsel for some of the five hundred defendants in the case. In his letter to his still-then clients, he opined that

contrary to the material enclosed with the July 25, 1985 letter, you need not do anything by way of response to the PVWUAI, unless you wish to join it. I recommend against joining it. If I do not hear directly from you, you will continue to be my client, and I will continue to represent you in the Aamodt case. My fees will be billed to the federal fund. The PVWUAI is asking you to give it the right to make decisions for you about your water rights. If you join it you will be giving away some of your legal rights. In some documents it asks you to “assign your legal rights” to the association. I suggest to you anyone who does so is inviting the loss of their water rights. The request is reminiscent of the notorious 1880s land grabs in which blank powers of attorney were signed by landowners who soon found out that the Tierra Amarilla land grant, for example, no longer belonged to them.

In this letter, Shoenfeld was opposing the “everyone with 1848 water rights” position (based on the date of the Treaty of Guadalupe Hidalgo) that attorney Marc Sheridan seemed to champion in 1985. Sheridan’s position was to get a single priority date awarded to all the ditches, arguing that non-Indians were protected in 1848 as Mexican citizens. This maneuver was meant to avoid later prior appropriation law by adopting a single date, 1848, for everyone who was non-Indian. In contrast, Shoenfeld advocated for individual water rights with differentiated dates. Arguing for a group date was pointless, he contended, as people could be giving up senior water rights (older, high-value dates): “If you detect a note of bitterness in the foregoing, you may be correct,” Shoenfeld wrote. He continued:

You will recall that during our darkest hours, when it appeared that no help was in the offing, Neil, Larry, and I carried much of the financial burden of this case ourselves, purely on trust. For a small group now to decide for you to switch law firms, and thereby to adopt a legal position adverse to the one we so carefully paved over the last five years, is a breach of the trust and mutual confidence we share. I believe the trust will prevail and see us successfully through this lawsuit. I will be honored to continue to represent you if that is your wish. Very truly yours, Peter B. Shoenfeld, signed/printed.¹⁹

The single letter provides a fascinating display of the high legal and financial stakes embedded in the Aamodt case, indeed in all adjudications. In the first instance, he rhetorically discounts the stand-in representation of individuals and their water rights by a user group (PVWUA). He then cites the historical wounds of lost land grants (such as the Tierra Amarilla land grant in northwestern New Mexico) as a way to reach people for whom this history lives on and remains painful, connecting past land adjudication with then-current water adjudications. Additionally, he challenged the legal merits of the Sheridan plan for representing all valley residents as “former Mexicans” with a single priority date of 1848 to share the water together as a community. Finally, Shoenfeld ends with a plea about his special role in representing the community when there was no legal fund. While this level of detailed correspondence may seem unusual, it is in no way exceptional to this case or others.

The case bumped forward as the attorneys jockeyed for position. In 1986 legal briefs on priority dates for non-Indian water rights holders were requested. The following year, the courts gave hope to the non-Indian irrigators, ruling that the four pueblos involved had historically irrigated 841.5 acres of tribal lands, excluding reservation and replacement lands scheduled to be decided by the courts in October. This final accounting was far lower than the 12,000 acres that the pueblos had claimed initially. For the pueblos, the ruling was seen as another injustice, in addition to questions being raised by their variable histories of land occupancy in the basin. Pojoaque and Tesuque were rather late in organizing as new pueblos, in contrast to Nambé and San Ildefonso, which both had continuous records of occupancy. It wasn’t until 1993 that the court ruled that the Nambé and San Ildefonso Pueblos had Aboriginal water rights on reservation lands based on actual, historic use. Even for these two groups, however, a distinction was made based on actual, historical use, and uses that came later in the twentieth century.

Through this archival inspection of legal correspondence, several aspects of the adjudication suit are visible. There was a growing impatience and revulsion about the process among all involved and the feeling that the only people profiting from adjudication were the attorneys. In one of the notes, for example, PVWUA board members suggested that their own lawyers were treating the appropriated court-controlled money as “a legal slush fund” for their own profit.²⁰ For valley residents, the congressionally funded account was vital, but the finances were drained too quickly.

As one of the former PVWUA board members recalling the 1980s and 1990s in a conversation with me in 2011 said, “It was pretty difficult, but we felt compelled to try and represent the best interests of people for the long haul, and that account was getting tapped pretty quickly by our attorney through his billable hours. We just estimated that we could save money and shorten the process … [laughs, drinks coffee] … guess that shows you how much we knew what … almost thirty years ago? And they [the Aamodt parties] are just now settling and funding this mess. What a charade.”²¹

In the back-and-forth correspondence between the PVWUA and legal counsel, it helps to remember that a palpable change was happening in non-Indian legal strategy. The new legal counsel, Sheridan, favored a valley-wide priority date instead of the strict individual prior appropriation plan his predecessor had advocated. This reflected a shift to cooperation between non-Indian parties instead of trying to line up in priority order during legal procedures. It also reflects what Hispano irrigators had been doing for centuries—largely, ignoring individualistic prior appropriation and simply sharing water in their respective valleys. This strategy of legal aggregation for single dates was risky, given that the state water code called for individual water dates, but was a logical tactic for questioning whether prior appropriation could work in this cultural water context.

Sharing the water, then, returned as a near-term legal strategy and goal for water users in the Pojoaque Valley, reflected in the push for a single priority date on numerous ditches. In most respects, this is not surprising—the PVWUA’s leadership board had offered to meet with representatives of the four pueblos back in 1982, without attorneys, to see if some discussion could occur. Sharing was long the norm in this region.²² These advances by the acequias toward the Pueblo to negotiate or just have a dialogue were rebuffed at the time, although whether that was because of the respective tribal councils or their attorneys is unclear. Sharing may have been seen as a distraction tool since new attention was being paid to the hundreds of domestic wells that exist in the Pojoaque Valley.

ADJUDICATION EXPOSES SOVEREIGN WATER TENSIONS

The consequences of the suit were painfully clear on the ground. A reporter in the early 1980s recorded the fears of couples who had intermarried between Hispano and Pueblo families: “Please don’t use my name,” a man begged the reporter. “We just rent this land and it belongs to the [Pojoaque] pueblo, and I’m afraid they’ll evict us. But I think that all people should have water rights. It’s a God-given thing. People here have shared the water for hundreds of years.” His wife nodded in the background. “I just don’t understand it,” she said. “The Indians have always gotten along well with the Spanish here.” The numerous additional accounts of inter- and intrafamily difficulties caused by the Aamodt case in the 1980s make for fascinating, if difficult, reading. Many at the time hoped they could settle “by law instead of by guns or fists,” as one young man married to a Pueblo woman told the same reporter. The reporter summed up the situation as such: “One thing that nearly everyone in the Pojoaque Valley agrees on is that the divisiveness caused by the water-rights suit has been a shame.”²³

Much of that early social disruption generated from the lawsuit remains as Murphy Inerque, a Pojoaque Pueblo resident and a “veteran of the case” (as he put it), shared with me one abnormally warm November day in 2010:

What it generated was a lot—I mean a lot—of resentment when the Pueblos tried to move on the entire basin to claim it was all their water. Sure, we live on areas of the valley where maybe they farmed in the past but to try and cheat all their current neighbors … Well, people took it badly. I lost a dozen or so friends because of that dispute, or the lawsuit … and people just don’t forget. Even if the thing [Aamodt] has been settled now, talk to anybody in the valley who is not an Indian and you’ll get some hard stares. That deal continues to cut in the valley, not in a good way.²⁴

The friction sparked in the late 1960s smoldered for decades, even as the case went through active and passive periods of court litigation, most of it unseen in briefs, claims, and delayed court hearings. A long-time resident named Orlando, when I brought up the tensions in the valley, told me:

I mean, we know that the Indians were here first. But we’ve also been here now for some three hundred years, so it was disappointing that we couldn’t just use the same water-sharing principles that we had always used together. A lot of us who mobilized into the Pojoaque Valley Water Users Association were just concerned that they would get all the water, all of it. So we understood the priority rules in the end…. just that now [2011] it’s going to be hard for people to reduce their groundwater use from the well, especially those folks who came after the mid-1980s. That’s where the pinch is, so it’s still first here, you win; you move here late, tough, you’ll have less water on hand.²⁵

The tension in the valley mounted with the inclusion of groundwater wells. This was no longer just a visible water conflict, based on surface streams. Changes to relationships in the valley were driven by the visible and the invisible waters being claimed. Given these challenges, it is understandable how and why Aamodt was the longest-standing adjudication suit. Its infamous reputation in New Mexico was well founded. The case was already forty years old when I started work on this project in 2006, older than I was at the time. How can a case last this long, I asked, still a few years into my research. “Ask the lawyers,” was the answer from Ernesto, a Pueblo irrigator from Ohkay Owingeh (ex-San Juan Pueblo). He lived outside the basin and had nothing at stake in Aamodt. He had approached me after a presentation at the University of New Mexico, where I had shared some of this work. He grinned. “You’ll never finish, man. It [adjudication] will chew you up and spit you out just like it does the rest of us.” He did get serious, losing his smile. “And they haven’t even bothered to talk to my pueblo yet—it’s going to take forever, I think.”²⁶ He was still shaking his head after I thanked him for his questions and remarks.

Ernesto knew that Aamodt had dragged on for more pertinent reasons than just the lawyers and their squabbles. However, his joke provides insight. In addition to bringing old cultural conflicts back to the surface, adjudication also sparked antagonism between professionals. Many attorneys have made a living from this single case. No wonder, then, that even claimants had problems switching attorneys; legal counsels knew a good thing when they saw it. The correspondence between the PVWUA, Shoenfeld, and Sheridan make it clear how tense and interested parties were to retain a role in the suit. The valley residents were not the only ones pitted against each other. Even the professionals were at odds, and the court files and transcripts have elements of a soap opera, just with more technical language. Beyond the definitions of Indian and non-Indian water rights, Aamodt (dammit) left its mark on valley residents and relationships.

The reverberations from the Aamodt adjudication rippled into villages, upstream and downstream, for decades. Even among the valley’s acequias, the question of whether to push for individual water rights by specific dates heightened tensions along the ditches, between ditches, and between communities. It unsettled long-standing notions of water sharing throughout the Pojoaque Basin. Proving historical “priority” created skirmishes between communities that had in the past shared waters either informally or through convenios (accord or agreement) that established the splitting of water in dry basins.

To illustrate that these struggles were not just along or across perceived ethnic lines (Indian, non-Indian), I turn to an example of a prior convenio and a small stream system in the upper watershed of the Aamodt adjudication area, the Rio en Medio (refer back to map 4). Two tiny villages have shared the perennial Rio en Medio stream for over a century. Aamodt resurfaced the fights over prior appropriation dates at first, but the villages eventually reaffirmed the spirit and the letter of their old accord.

CHUPADERO: WATER SHARING, DATING MADNESS, AND DITCH ACCORDS

The two villages of Rio en Medio and Chupadero, located just north of Santa Fe, have long shared water from a splitter box, a simple concrete device that parts waters on the Rio en Medio stream and diverts a bit more than half to the village of the same name. The lesser amount of flow goes into a connecting canal leading to the upper acequias of the Chupadero basin. Chupadero gets its name from the ephemeral nature of the stream, which is sucked (chupar) into its bed and disappears to the naked eye along sections. Looking at this small village, nestled in a verdant strip and surrounded by the bone-dry foothills, gives additional perspective on how adjudication and prior appropriation raise concerns in areas without cleaved identity questions.

Chupadero was first settled in the 1860s. Like most places in northern New Mexico, it was sparsely settled until the late 1800s, when New Mexico was still a US territory. It’s still sparsely settled, with only 362 residents counted by the 2010 census (Rio en Medio is even smaller, with 131 residents). The Rio Chupadero runs through the heart of its namesake village, usually as nothing more than a wetland trickle during irrigation season but providing a green ribbon of life in this dry, stark, and striking landscape. The valleys here are deeply dissected and can seem like worlds unto themselves. However, they were never completely disconnected or isolated.

By the late 1800s, it was clear that there was not enough water in the Rio Chupadero to provide for year-round cropping. In 1897, residents created a written convenio with their neighbors just to the north in the village of Rio en Medio to share the water that came from the river by the same name. That agreement details a water-sharing plan whereby “more than half” of the water at the splitter box is to go on its normal path to the village of Rio en Medio, with the right half of the box’s flow going on to the ephemerally dry Rio Chupadero channel. A connection canal was built after 1897, between the splitter box and the actual dry channel of the Rio Chupadero, to ensure flows reach the upper ditches and the village of Chupadero.

To this day, one can visit the 1897 splitter box on the Rio en Medio. The right-hand side diversion carries a portion of the flow down a transition canal, cut along the contour and gradient, and then releases it into the natural channel of the Rio Chupadero (see figure 3). This flow feeds into the acequias and several ditches, one of which goes down to the village of Chupadero. It is an intricate, elaborate, gravity-fed system like most of these hand-dug ditches. It is also an example of a transbasin diversion that predates most of the massive twentieth-century federal projects.

FIGURE 3. A mayordomo stands on the banks of the connecting canal that brings water from the Rio en Medio splitter box, agreed to in the 1897 convenio, to the upper ditches of the Chupadero Valley. Photo by the author, 2009.

The arrangement is an example of what was “normal” yet informal between acequia villages throughout New Mexico. The fact that the two villages were compelled to put their agreement in writing and file it with the Santa Fe County Clerk is evidence that New Mexicans were already aware of the new legal culture slowly remapping their state. Most agreements on water sharing were largely done with a handshake, or standing oral agreement, prior to the late nineteenth century. Forcing prior appropriation onto the acequia villages and stream systems created antagonism, even in tiny villages with a long history of sharing. With adjudication, water was no longer a shared, communal enterprise. It was state property yet with property-use rights determined by historical dates, and the state allocated water according to what people were using on their land.

This legal change started to rework the connections between people and water, relationships between water users, and even worldviews on the purpose of water. The convenio was a legal performance for the territorial courts prior to New Mexico becoming a state (1912), but it officially inscribed the two communities’ long-held beliefs about shared water. In legal language and in writing, the convenio formalized the informal to make it legible for the state. Here, too, infrastructure and customary law were tied together. Yet the convenio did not stop all challenges, the most notable of which were revived by the Aamodt adjudication case. Water rights are ranked by first beneficial use date. Under prior appropriation, water users strive to prove the earliest use date possible, hoping to secure senior rights.

Aamodt spurred a scramble for earliest use dates among residents of tiny Chupadero and Rio en Medio. In some cases they contested the dates found by the contract historian and dates in their own oral histories. The OSE contract historian at the time, John Q. Baxter, determined a first date of stream diversion and beneficial use of 1878 for Rio en Medio, which suited those in Rio en Medio just fine. Some upper-ditch users in the Chupadero Valley claimed and were awarded an earlier date of 1863 for the natural flow of the Chupadero River only. The bulk of the flow, however, for both valleys, is dependent on the original 1878 diversion from the Rio en Medio. Only the upper ditch of the Chupadero, then, can claim some natural Chupadero River flow as a prior date. But not much water flows in this stream system without the augmented Rio en Medio waters channeled from the canal (in figure 3).

Hence, a single date of 1878 generally governs the entire Chupadero stream system, save for that one upper ditch. After several decades of squabbling over what the exact priority dates would be in each valley and parcel, they were bound back to the agreement they had in place since 1897. They had to abide by the convenio (see figure 4) and the historical record accepted by the state.

FIGURE 4. The historic 1897 convenio document that allowed sharing of water from the Rio en Medio stream to a ditch that connects to the upper reaches of the Rio Chupadero, New Mexico. Photo by the author. From the Santa Fe County Clerk’s Office.

The two villages had none of the legal identity binary fights present in the wider Aamodt case. They had long shared the water from the Rio en Medio. However, Aamodt brought up both old arrangements—and debates about phrasing and meaning—as well as new temptations to leap-frog individual priority dates. Residents of both villages were lured into claiming more “senior” dates to ensure first-in-time access to water but ultimately fell back to the 1897 arrangement. The story of Chupadero and Rio en Medio reflects the struggles of a communal water culture being forced into a system of individual water rights based on prior appropriation. In the end, adjudication did not change much, other than raising hackles between the two valleys and between ditches. Their resolution, to continue sharing the limited waters, highlights the potential solutions hidden in local, historic accords that preexisted the state’s interests in water rights.

In 2016, to add to the saga, I met a water user from Rio en Medio at the statewide meeting of the acequia ditches who raised the question about reclaiming some of that shared water. He wondered aloud, “if some of that winter water doesn’t legally belong back to our village (Rio en Medio) since no one is irrigating [in Chupadero].”²⁷ He was hoping for water to fill his stream in the nonirrigating season, an aesthetic and water-for-the-river argument. No action has yet resulted from this, but his idea highlights that new valuations of water—amenity, aesthetic, or ecological in nature—may shift the arrangement again at some point. This short story about two villages that share much in common, not just water, also highlights that adjudication was not just about identity issues in the Pojoaque. Adjudication roiled the customary arrangements and water sharing, even as the larger Aamodt case was reaching settlement phase negotiations around the year 2000.

THE RELUCTANT SETTLING FOR VISIBLE AND INVISIBLE WATER

As Chupadero and Rio en Medio were inching toward reaffirming their standing agreement, so was the larger Aamodt case. A formal settlement process finally began in 2000 and was reached in 2006. By 2010, forty-four years after its initial filing and thirty years after the death of the state engineer (Reynolds) who filed it, the Aamodt settlement was finally and formally funded by the state and federal governments.²⁸ By then, the case had outlived multiple judges and at least a dozen OSE and private attorneys. Lee Aamodt, the first listed defendant in the case and a scientist from Los Alamos, had become better known for this case than for his scientific contributions. The Aamodt case was its own live, legal reality show before such a thing existed. Settlement would be almost as exhausting as adjudication. But everyone was tired of formal litigation in the courtroom.

As one of the Aamodt settlement instigators told me back in 2010, “I’m honestly tired of it, Eric, and I won’t go back [to litigation] no matter how much they hate me.” We were discussing the recently funded settlement act. He continued:

Oddly enough, some of the group had tentatively approached the Pueblos back in 1983, asking for an informal meeting without the lawyers … to see if we could come to some discussion points or consensus on what everyone expected out of this. Most folks in the valley … maybe you know this already … are related, often genetically or through family, or as godparents through the Catholic Church … so it made sense to try and create an agreement even back then … [shakes head] amazing it took another twenty years for everyone to realize it was time to settle and take it largely out of the courts. Now, there are fewer judges and special masters but just as many attorneys wetting their beaks.²⁹

As I write this in 2018, the final settlement has been accepted and stands as the final decree from the court, even if some non-Indian valley residents remain concerned or alarmed about the effects of the terms and the implications for their groundwater well rights. All the parties are still preoccupied with the consequences and costs of a new $261,000,000 regional water system that was one of the negotiation points to make the settlement happen.³⁰ As I discuss in more detail in chapter 4, this new regional water system will serve the needs of the four pueblos, and the settlement terms encourage non-Indian well owners to cap their wells and hook up to the new regional water system. Groundwater may continue to complicate water rights in the Pojoaque Basin. With the Aamodt settlement, groundwater rights were spatially and historically parsed into new categories of water citizenship based on the dates of well water. The big deal in the Aamodt settlement is this: wells established after 1983 are subject to restrictions and a harsher cap on use.

Around 2300 wells exist in the NPT basin, and some 915 wells were established after 1982. Their active cap on withdrawal was set at 0.7 acre-feet per year (AFY) should well owners accept the terms of the Aamodt settlement. Instead of a standard domestic well award of acre-feet per year, if non-Indian well owners decide to keep their well, the limit to using that quantity is being lowered in the settlement language.³¹ This amount is less than the water rights awarded under the OSE groundwater permitting system. Some straws, in other words, were made smaller. Those who sign the settlement and agree to cap groundwater use or tap into the surface waters of the planned regional water system get better terms for continued use of groundwater wells and some degree of relief from future “calls on the basin” water from the nearby pueblos. Those who refuse to sign the settlement and do not hook up to the new regional water system are subject to a hard cap limit (0.3 AFY) for indoor and outdoor uses. The dates, terms, and well restrictions (especially) were so complicated that the simplified “frequently asked questions” document circulated in 2014, during public hearings on the settlement, was still twenty-six pages long. Groundwater remains a third rail of water politics in the valley today.

The finalized settlement still raises the ire of property owners with wells. I spoke with two people running a new nonprofit based in the Pojoaque Valley in July 2015 to learn their concerns about the settlement terms. “It’s just so big,” Tre Robinson said. “We feel like we’re butting heads against something that is too large for us to contest … yet they refuse to hear us out. They just want to be done with it and walk away, but we have to live here with the terms.”³² Her friend sighed heavily and picked up where she left off.

The depressing part is what this settlement has done to us as a community. We lived as neighbors, and even though the Pueblo people think of me as “Hispanic,” I’m more Native than Hispanic [by DNA testing, she claimed], so it has really ripped at the seams of our towns and communities in the village. The Pueblo want to be in charge of the rest of us, with no conditions set on how they will run the regional water authority, and we’re opposed to that. It’s just a handover of the whole valley to the pueblo [San Ildefonso], and we’re just really uncomfortable with that.”³³

The implications of the settlement remain unclear to most people who live in the Pojoaque Valley and so is the future impact of yet another water intake (the planned regional water system) in the Rio Grande. Much of what was, is, and remains complicated about the Aamodt case has to do with the sticky, layered notions of cultural identity. Numerous agencies and water jurisdictions were at play here, as the federal government was brought in for the defense of Indian water rights. The four separate pueblo groups remain involved, along with Hispano and Anglo-American signatories to the settlement. The cultural complexity and the layered legal pluralism made for a longer and thornier legal case. Here, diversity complicated the pace, scale, and complexity of adjudication and settlement.

In interviews, it was clear that few well owners in the NPT valley understood the full terms (and historical geography) of the Aamodt case. One recent transplant to the Pojoaque Basin shook her head and said, “It’s like they dropped us in the middle of a labyrinth and pretended we all knew how to get out of it.” Her confusion is understandable. The settlement took nearly as long as adjudication, and parties who were informed twenty years ago as to what might be “in” the settlement may no longer be those worrying about water in the NPT basin. A whole new set of residents and landowners are trying to make sense of what a capped level of groundwater use will do to their property values. A stage analogy may be trite, but it is accurate: It is the same play, but the entire cast has changed in the last twenty years, and the current actors do not understand the point of the play. The script was handed to them by the previous generation. Those who were in the adjudication “production” twenty years ago are dead or no longer active in their water associations; they want out. It all has a Dickensian quality to it. Even in the latest public hearings in April 2017, Bureau of Reclamation officials tried to calmly explain how the new regional system resulting from settlement would work for new residents just learning about the changes to groundwater and surface waters in the valley.

AAMODT AND THE SUM OF ALL FEARS

Aamodt, as both a former adjudication and a decreed settlement, illustrates three important facets. First, the legal process was slowed by the density of small parcels, the large number of defendants (more than there were acres in the valley), and cultural-legal pluralism. If any suit underscores the penny-wise, pound-foolish process of adjudication, it is certainly Aamodt. Given how little water exists in the Pojoaque Valley, the state, the federal government, and the private water rights owners have all spent an exorbitant amount of financial and human resources on it. Aamodt insiders involved in the legal work in the Pojoaque Basin often shared the following grim perspective: more money was spent adjudicating, and subsequently settling, the valley’s water rights than all the land in the basin was worth. This is so logically incomprehensible that it bears restating. More money, per acre, was spent on trying to understand, map, and formalize water in the courts than the land itself was worth. At the time the agreement was forged, signed, and then funded by the federal and state governments (2010), Aamodt was the longest-standing court case in US history, lasting nearly fifty years.

Second, sorting water by legal identity, the binary of Indian and non-Indian water rights, meant the involvement of both state and federal courts. Notions of historical indigenous water uses were at stake in Aamodt. Whether any, or all four, of the Indian pueblos were historically diverting water from their natural stream courses via permanent canals has always been one of the difficult aspects to prove for archaeologists, anthropologists, and historians of the region. No doubt, the Pueblo were diverting directly from flows using floodwater farming and dry-farming techniques. Whether their approach met the criteria for permanent water diversions using perennial or more permanent canals was barely raised, even though this is the basis for state water rights under the 1907 water code in New Mexico. The 1908 Winters decision was an early leverage card for the Pueblo to use to achieve some measure of water justice, but in the end they were treated like Mexican citizens in the transfer to the US system of water rights, getting only historical acreage.

Third, identity in the valley was made more complicated by non-Indian claims to indigeneity. Hispano residents have long claimed that they were allowed to settle in the area near the pueblos, where arable and irrigable land existed centuries ago. Adjudication and consulting historians clearly highlighted that Hispano rhetoric and claims about “sharing water” with the pueblos may have been about Hispano encroachment on Pueblo lands and waters before Spanish arrival.³⁴ There is no getting around the double history of settler colonialism in this valley and so many others in New Mexico. Hispanos in New Mexico remain legally stuck in the liminal space between indigenous peoples and the Anglo-Americans that arrived after 1848.

The Aamodt case was one of the longest federal court cases in the history of this country. It was also one of the most divisive in New Mexico, pitting neighbor against neighbor and adding binary fuel to the fire of identity. It cleaved water in more defined, cultural ways, separating out Indian versus non-Indian residents. Adjudication in the end treated the Pueblo Indians once again like ex-Mexican citizens. The settlement stemming out of adjudication did not heal these cultural wounds or distinctions. The spark that lit the Aamodt adjudication, the San Juan-Chama Project, continues to have wide-ranging effects on New Mexico’s water landscapes, both legal and physical.

San Juan-Chama Project water now goes to various New Mexican cities, including Albuquerque and Santa Fe, for drinking water, as discussed in the following chapters. Building the infrastructure was easier and took less time than the legal adjudication of those same waters. The Navajo Nation got a portion of these project waters (in 2005), as did the Jicarilla Apache in an earlier settlement (1992). Smaller portions of project water were dedicated to Taos (initially the town), and a small allocation was granted to the Pojoaque Valley for the Aamodt settlement in its final form.

Pressure to find an agreement in the Pojoaque Basin between the parties came from another adjudication lawsuit taking place to the north in the Taos Valley. Aamodt was influenced by the Abeyta (Taos) regional adjudication case, and the tangible connection between the two started with, and still depends on water from, the San Juan-Chama Project. The Aamodt parties were influenced and later connected, socially and hydraulically, by what was happening just to the north of their small basin. Next, I turn to the Taos Valley adjudication procedure (Abeyta) to explain these connections.