A Historic Moment in Indian Water Rights in New Mexico: Entry of the Aamodt Final Decree
The United States District Court for the District of New Mexico entered its final decree in State of New Mexico, ex rel. State Engineer v. Aamodt, a state stream adjudication filed in 1966 (Aamodt) to determine the rights of water users in the Nambé-Pojoaque-Tesuque River Basin (Basin) in northern New Mexico.1 With entry of the final decree, the water rights of the Pueblos of Nambé, Pojoaque, San Ildefonso, and Tesuque (Pueblos),2 the United States, and thousands of individual water users in the Basin are established, and a critical step in the construction of a regional water system pursuant to a Congressionally-approved settlement agreement is met.
Background: The Aamodt litigation is a general stream adjudication determining the rights of users to ground and surface waters in the Basin, including the right of each user of the Basin’s water to a specific amount of water, which will be administered by the State Engineer under New Mexico’s system of priority adjudication. The water rights of individual non-Pueblo claimants have been determined based on state law pursuant to individual subfile orders. The water claims of the Pueblos, determined under federal law, were addressed by a 2006 settlement agreement among the State, the United States, the Pueblos, the County of Santa Fe and the City of Santa Fe (“settling parties”), which was approved by Congress in the Aamodt Litigation Settlement Act on December 8, 2010.3
The Final Decree: At a hearing on July 14, 2017, Judge William P. Johnson noted the historic significance of the entry of a final decree in one of the longest-lasting cases in the federal court system, acknowledged the work of the judges who had preceded him on the case, and allowed counsel for each party—none of whom were of record when the case was filed in 1966—to address the court. The final decree incorporates the water rights of the Pueblos, adjudicated in the Partial Final Judgment and Decree of the Water Rights of the Pueblos4 adopting the rights established by the settlement agreement as approved by the Settlement Act, and the court’s Memorandum Opinion and Order adjudicating the proprietary water rights of the United States.5 The final decree finally adjudicated the water rights of all individual non-Pueblo water users, rights which had been determined by separate subfile orders and are listed in an addendum to the final decree. The final decree denied any remaining objections to the entry of the final decree. The court previously had overruled more than 800 objections to the approval of the settlement agreement.6 The Tenth Circuit dismissed an appeal of that ruling for lack of jurisdiction.7
The Regional Water System: In addition to settling the Pueblos’ water rights, the settlement agreement, as approved by the Settlement Act, provides for the construction of a Regional Water System to serve the Basin’s water users, including the Pueblos. The settlement agreement provided individual water users the opportunity to become a party to the agreement and transfer their water rights to the County of Santa Fe and become users of the Regional Water System, provide for transfer of their water rights upon the sale of their property, or retain their water rights and continue to use their wells within the limits provided for in the settlement agreement. The Regional Water System is being designed and developed by the United States Bureau of Reclamation. The water that will be delivered through the Regional Water System, in addition to water rights transferred to the County, consists of water adjudicated to the Pueblo of Nambé as part of the settlement, San Juan-Chama Project water rights pursuant to a contract with the Secretary of the Department of the Interior, and water purchased by the County of Santa Fe from the Top of the World farm in Taos County. The New Mexico State Engineer issued a permit to the United States, the Pueblos, and Santa Fe County, permitting the transfer of the Top of the World water rights for use in the Regional Water System.8 Pursuant to the settlement agreement, the Regional Water System should be substantially complete by 2024.
The Water Master Rules: Another requirement of the settlement agreement, as approved by the Settlement Act, was the promulgation of rules to govern water use in the Basin. The State Engineer released proposed rules, entitled “Nambé-Pojoaque-Tesuque Water Master District: Active Water Resource Management,” on June 22, 2017.9 A public hearing on the rules will be held on August 16, 2017.
It’s Not Over Yet: The entry of the final decree, the issuance of the proposed water master rules, and the issuance of the Top of the World water rights permit are each significant achievements towards the ultimate settlement of water rights in the Basin. The Aamodt lawsuit and related administrative matters are not over yet, though. An appeal of the final decree is expected (the deadline for appeal is October 12, 2017), and an appeal from the Top of the World permit is possible. The regional water system must be to a point of substantial completion by June 30, 2024. The district court has “retain[ed] continuing jurisdiction to interpret and enforce the terms, provision, and conditions of the Settlement Agreement, the Interim Administrative Order, and the Final Decree.” While no party can hang up their Aamodt hat yet, the years of contentious litigation over water rights in the Basin appears to be at an end.
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2 The Pueblo of Pojoaque is represented by Modrall Sperling in the Aamodt litigation and related administrative proceedings.
3 Pub.L. No. 111-291, 124 Stat. 3064, 3134-3156.
4 Doc. 10547, March 23, 2016.
5 Doc. 2752, Jan. 24, 1986, as confirmed, Doc. 2781, June 18, 1986.
6 Doc. 10543, March 21, 2016.
7 N.M. ex rel. State Eng’r v. Aamodt, 171 F. Supp. 3d 1171 (D.N.M. 2016).
8 New Mexico State Engineer, Hearing No. 15-078, OSE File Nos. RG-1442-S through RG-1441-S-11 into SP-5081, July 18, 2017.
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