Pueblo water battle nears its end
by Eric Mack
Atenacio Romero pulls a yellowed document from the books and papers piled on the table in his home in Cuyamungue, N.M. Dated April 1928, it is a declaration of water rights to Acequia de los Ortizes, the ditch that has brought water from the Rio Pojoaque to his family’s crops "for upwards of 200 years." Among the names in the declaration is José Aniseto Romero — Romero’s father, who bought this land in 1909.
"My dad made a living farming this land until he died in 1964," recalls the 84-year-old Romero. But these days, he wonders what the future holds for the acequia that has watered the land since Spanish colonial days.
Romero is one of more than 2,500 parties involved in the Aamodt water adjudication case. A simple lawsuit filed in 1966 to legally sort out the water rights in the Pojoaque Basin north of Santa Fe, it has entangled four Native American pueblos and hundreds of Hispanic and Anglo landowners. Aamodt — named alphabetically for the first party in the case — has dragged through the courts for 40 years, making it one of the oldest on the federal docket.
But the case may be nearing its end; the pueblos, the county and the state have signed on to a settlement that emerged this spring. It now awaits federal approval and funding. Some hail it as a precedent-setting compromise that ends a bitter battle and benefits Indian and non-Indian water users alike. But others, including Romero, see it as a threat that could destroy their way of life.
New Mexico’s water is ensnarled in law and history, a web of pueblo, Spanish, Mexican, territorial, federal and state rule. Adjudication cases like Aamodt, the Taos Pueblo’s Abeyta case, and others around the state are intended to untangle it.
The four pueblos in the Aamodt case — Pojoaque, Nambé, Tesuque and San Ildefonso — were settled in the 13th and 14th centuries. The waters of the nearby Rio Grande were too swift and variable to harness, so they irrigated their fields with water from the Rio Pojoaque, a stream originating in the Sangre de Cristo Mountains, and its tributaries. The Spanish came up the Rio Grande in 1598, but were driven out by the Pueblo Revolt in 1680. When they returned in 1693, apparently humbled by their earlier rout, the Spanish government granted each Pueblo 18,000 acres of land. Hispanic farmers began settling the basin north of Santa Fe in the early 1700s and built the acequia system to distribute the basin’s water to their fields. By the time the United States claimed the territory in 1848 as part of the Treaty of Guadalupe-Hidalgo, the pueblos were sharing — and probably fighting over — the scant waters of the streams with dozens of Hispanic families.
When the state first filed the Aamodt case in 1966, no one knew which water law applied to the pueblos. Typically, a specific tribe’s water rights are tied to the amount of irrigable land on its reservation. Under this law, known as the Winters Doctrine, the pueblos would have ended up with all the water in the basin, and even more. But in 1983, a federal district court ruled that the Winters Doctrine did not apply, because the pueblos’ lands are not reservations, but are land grants that predate the United States.
In 1985, federal Judge Edwin Mechem handed down the most important ruling in the case: Pueblos are entitled to aboriginal water rights based on how many acres each pueblo had historically irrigated. Although this gives them less water than under Winters, it gives them more than under state law. It also allows them first priority on most of the water in the basin. If the pueblos were to call in their water rights during a drought, every acequia in the region could run dry. "We were presented with a problem," says Ted Bagley, who represents the state in the case. "We were anxious to avoid a cataclysm."
No one is smiling
The settlement that finally emerged this spring satisfies the major parties: The pueblos collectively settle for less water than they are entitled to, and agree not to make a priority call on the basin’s acequias. In exchange, the federal government acquires rights to 2,500 acre-feet of Rio Grande water, and builds a pipeline to deliver it to the pueblos. The pipeline would be extended to the rest of the basin as a county-run water utility, and domestic well use would be curtailed.
"I think it really is a good deal for folks out there," says Bagley. "There’s limited water in the (Pojoaque) basin, and we’re making the pie bigger for a place that needs additional water."
Not everyone wants a bigger pie, though. Lynne Velasco and Paul White are vocal critics of the settlement and members of the Pojoaque Basin Water Alliance, which represents non-Indian landowners. They support giving the pueblos their water. But using the water utility to deliver imported water to an already over-appropriated basin will fuel more growth, they say. That could make selling out more tempting for the few farmers remaining. And if the water for the pueblos is transferred from rural areas to the north, it could dry up farms there.
Yet even without the water utility, the area has grown substantially: The greater Pojoaque Basin makes up the northern half of Santa Fe County, which has tripled in population over the past 40 years. Development is elbowing out the small farms. Pojoaque and Tesuque Pueblos have built casinos and hotels, and Pojoaque has a 36-hole golf course. In fact, says Peter Chestnut, who for 25 years has represented the Pueblo de San Ildefonso in the case, the settlement will protect the current residents’ water from growth because, among other things, it regulates domestic wells, which currently diminish the water available for the acequias.
The water system will also bring clean water to residents whose wells are contaminated by uranium and nitrates. That’s if they can afford it; many of the residents are poor, and may not be able to pay to hook up to the system, says White.
Still, the majority of the parties are ready to resolve the case. Peter Shoenfeld, who represents 80 water users, says most parties "would come out just as well signing the agreement as they would if they didn’t sign and had a complete victory in court."
"In all my years of legal experience, if everyone walks away smiling, it’s not a good settlement," explains Shoenfeld. "And no one is walking away from this smiling."
Chances are no one will smile even after the settlement is signed: All of the water guaranteed to the pueblos has yet to be secured, and money — at least $250 million by Bagley’s estimate — is needed to buy it and construct the pipeline. Given the current fiscal climate, obtaining that money may be almost as difficult as settling Aamodt has been, and the cost of water rights in New Mexico keeps climbing. The Abeyta case in Taos, and a case regarding Navajo claims on the San Juan River also need federal funds. Proponents are banking on Republican Sen. Pete Domenici, N.M., to push Congress to supply most of the money; the rest will probably have to come from the state.
Aamodt has set a number of precedents, especially regarding pueblo water rights in New Mexico. But Atenacio Romero only sees one precedent: centuries of water-use on his land. Now, after decades of meetings and legal battles, he says he’s tired of the whole thing. He doesn’t plan to sign the settlement, even though that could eventually land him in court. "This whole thing is just wasting our time," he says. "The developers are all in cahoots (with the major parties to the settlement) and they’re going to do whatever they want."
Romero’s frustration could be a harbinger of things to come. The Aamodt case applies only to a small stream and its even smaller tributaries. The big water cases lie ahead: Recently, the state engineer announced that adjudication of the middle Rio Grande will soon begin. New Mexico’s water drama, it seems, is just getting started.
Eric Mack is a writer and radio producer based in Taos, New Mexico. Jonathan Thompson contributed to this story. This story was funded by a grant from the McCune Charitable Foundation.© High Country News