Aamodt water-rights case: The long road to a resolution After decades of protests and negotiations, lawsuit reaches a milestone — but new challenges lie ahead for region’s water users Staci Matlock | The New Mexican Posted: Sunday, January 09, 2011 -   On Oct. 4, 1983, a motley crowd of more than 800 people marched with shovels and hoes, posters and passion, to Santa Fe's old convention center on Marcy Street. It was the first day of a weeklong trial in a lawsuit that had started 17 years earlier to settle the water claims of four pueblos, non-pueblo irrigators and private well owners in the Nambé-Pojoaque-Tesuque stream basin north of Santa Fe near the Rio Grande. The case became known as Aamodt for R. Lee Aamodt, the first defendant in a list stretching hundreds of names long. The protesters that October day were farmers, scientists, teachers and artists, some with roots in the valley dating back generations, some recent arrivals, all worried about their water. Among the marchers were David Ortiz, the leader of a group of non-pueblo water users, and his colleague Orlando Romero, vice president of the group. Both were able to trace their families in the region back to the 1600s. Feelings were volatile, as they often are over water in this dry land. Still, no one resorted to violence. Instead, Ortiz said, they laid down their tools and entered the Sweeney Center to hear attorneys argue over their valley's lifeblood. It would take another 27 years of trials, endless meetings, more protests, millions of dollars in legal fees and strained relations before the Aamodt lawsuit finally reached a gigantic milestone Dec. 8, when President Barack Obama signed into law a bill recognizing and partially funding a settlement in the case. The action doesn't signal an end to Aamodt — just the next stage. New water challenges lie ahead for the diverse residents living side by side in the Nambé-Pojoaque-Tesuque river basin. Birth of a lawsuit New Mexico's water law is steeped in a kind of fairness few other states enjoy. The first person to use water beneficially had the first claim on it — the so-called priority doctrine. People with senior water rights receive first dibs on water over junior users. Applying the priority law has been a different matter. Unlike Colorado, where all of the water rights have been settled in court, New Mexico is still struggling to adjudicate water rights after a century. The task has become more challenging as the population increases in towns along the Rio Grande, and it has become increasingly apparent that there isn't enough water for everyone's needs. Construction of the massive San Juan-Chama Diversion Project to bring water from a Colorado River tributary to the Rio Grande brought a new water source, but it was up to the state engineer to decide who got the water. He couldn't do that until the court determined who owned the existing water in the Nambé-Pojoaque-Tesuque basin. So, in 1966, then-State Engineer Steve Reynolds filed the Aamodt case in District Court to determine the water rights in the stream basin north of Santa Fe. Earlier attempts (in 1924 and 1933) had failed to fully settle who owned the water. U.S. Sen. Jeff Bingaman was a young clerk in the New Mexico Attorney General's Office that summer, fresh off his first year at Stanford University Law School. "I knew then it was an ambitious effort to get final resolution to these water disputes," Bingaman said. "I didn't think it would take so long." Reynolds, an iconic figure in New Mexico's water history, had no idea he had just filed what would become an iconic water case, pitting neighbor against neighbor and testing federal versus state control over water and pueblos. Reynolds, who was New Mexico's state engineer for 35 years until he died in 1990, didn't live to see Aamodt settled. "I think they thought it was going to be quick and done with by the time Nambé Dam was finished (in 1976), so they could allocate the costs of construction to the users," said Peter Chestnut, longtime attorney for San Ildefonso Pueblo. Nambé Pueblo Gov. Ernest Mirabal, now serving the second year of his two-year elected term, was also the pueblo's governor when Aamodt was filed. The irony for him is that the pueblos already knew who, by historical rights, owned all the water in the basin. "We had to prove it to the court," said Mirabal, 83. The pueblos initially were irked because Reynolds didn't consult with them before filing the lawsuit, Mirabal said. "The state engineer came to the pueblos last. He understood what the law was, but he didn't think the tribes were entitled to so much." Fractured relations Before Aamodt, pueblos and non-pueblo people say that for generations they worked out their differences over water by sharing shortages. "The disagreements usually occurred during the times of water shortages and documents attest to the fact that agreements were not difficult to reach," according to a 1983 report by David Lopez Lujan for Northern New Mexico Legal Aid. After all, the old Spanish families and the pueblo families had lived side by side and intermarried for at least three centuries. "Even in the worst times of drought, everybody shared the water," Orlando Romero said. Mirabal agrees. "We got along real good with the non-pueblo irrigators before," he said. "In dry years, they would come ask the pueblo to share the water." But, as Lujan noted, times change. The pueblos wanted to develop their economies. More people were moving into the basin and sinking wells. Some people wanted to sell off their valuable water rights to the cities of Santa Fe and Albuquerque. Some wells became contaminated with nitrates, likely from nearby septic tanks. The wet years of the 1970s and 1980s gave way to more frequent dry spells in the late 1990s and early 21st century. David Ortiz, a bank auditor and farmer, said that throughout the first decade, people named in Aamodt would receive documents from the state engineer "and not know what they meant. We didn't understand what was going on." As Aamodt dragged on, relationships became more adversarial. When the case finally went to trial in the late 1970s, "there was a lot of anger. People really were worried their whole way of life was going away," Romero recalled. "It was terrible." The pueblos defended their position, reminding their neighbors they had not originally filed the lawsuit. In a half-page 1983 newspaper ad, the All Indian Pueblo Council noted: "Both Indians and non-Indians would benefit from a calm, rational approach to water development. "The Pueblo Tribes have had little input in the formulation of the current State and Federal laws that purport to define any and all property rights, including water," the council said. "But, they will do everything possible to insure that these laws are not used to divest them of a precious resource." Some blamed attorneys. "As the Aamodt suit has slowly progressed in the courts, our two peoples have become insulated from each other by lawyers," Ortiz wrote in 1983, shortly before the trial at the Sweeney Center, in a letter to then-Assistant Secretary of Indian Affairs Ken Smith. "We ... see the pueblos' private attorneys, who were hired and remain funded by the Interior Department, as being the obstacle to reasonableness and good will." Court battles It was a raucous party in 1984 at The Line Camp, a popular roadhouse in Pojoaque, to thank Republican Sen. Pete Domenici for securing $450,000 from Congress to help pay non-pueblo legal costs in the Aamodt case. Kaune's grocery store in Santa Fe donated 1,000 hot dogs, and the Mondragon family cooked up beans for 500 people. The band Eddy and the Hounddogs kept things lively. The funds put non-pueblo users, many of them land rich and cash poor, on more equal footing with the pueblos, whose attorneys were paid by the federal government. Resolving Aamodt water claims meant determining not only who got the water first in any given year, but how much they should get. Should the pueblos' amount be based on Spanish, Mexican or United States law, since all three had held jurisdiction? Should the amount be based on how much water the pueblos had used historically or how much they could "practically" irrigate? Should it cover only existing uses or future uses? At one point, the pueblos claimed an aboriginal right to irrigate 10,000 acres of land, which would have taken most of the available water. U.S. District Judge Edwin Mechem agreed the pueblos had the absolute first right to water, but he disagreed on the quantity of those rights. The Aamodt trials involved a litany of hydrologists, historians, anthropologists, economists and other experts. By the 1990s, Mechem had made several crucial decisions in Aamodt. In one, he ruled pueblos were entitled only to priority rights for the same amount of water they used in 1924. Under that ruling, the court determined Pojoaque Pueblo only had a historical right to irrigate 60 of its 13,000 acres. But in 1924, Pojoaque Pueblo was still largely abandoned and a decade away from its rebirth. The pueblo fought the decision. "We weren't going to survive on what the parties wanted to leave us with," said Pojoaque Pueblo Gov. George Rivera, who was 2 years old when Aamodt was filed. Mechem also placed a moratorium on using domestic wells dug after 1983 for outdoor landscaping, limiting the water to indoor use only. The 1,500 wells already pumping water in the basin were blamed for reducing the shallow aquifers and river flows. Today, there are twice as many wells. After two decades of watching events unfold, Ortiz and other irrigators worried their ability to keep farming was ultimately at risk from pueblo priority calls unless everyone could reach an agreement. Larry White, an attorney for the Rio de Tesuque Acequia Association, noted in 2009 that without the settlement, for example, "enforcement of Tesuque Pueblo's first-priority right on surface flows on the Río Tesuque would leave no water for the Tesuque acequias, ultimately resulting in their demise." Negotiating an agreement Romero and Ortiz had fought the early battles of Aamodt together on behalf of well owners and irrigators. But by the late 1990s, Ortiz believed a global settlement was the only recourse to prevent non-pueblo irrigators from potentially losing their ability to use water under the pueblos' priority claims. "Historically, there's been enough water in the Pojoaque Valley to irrigate about 3,000 acres," Ortiz said. "Under the court rulings, the pueblos could have taken it all. It was a losing proposition." In 2000, Mechem ordered all the parties into mediation. They agreed on Arizona judge Michael Nelson as mediator. "He commanded respect," San Ildefonso attorney Chestnut said of the St. John's judge, who had already managed one controversial water-rights decree and volunteered his time as mediator during the Aamodt negotiations. Romero quickly became unhappy with the way the negotiations were handled and has opposed both the process and parts of the agreement ever since. The U.S. Department of Justice required the negotiations to be confidential. Any water claimant or attorney involved with Aamodt could attend, but no one could discuss the case publicly. Romero and other non-pueblo residents decried what they called a "gag order." The settlement aimed to protect the pueblos' water rights while protecting irrigators from priority calls. It also aimed to protect the aquifers with the construction of a Rio Grande diversion project to provide water through a regional water-delivery system. A proposed settlement was reached in 2004 between the pueblos, the state, the city of Santa Fe and some non-pueblo water users. Santa Fe County had no water rights at stake in the case, but joined to help fund the regional water system on behalf of non-Indian residents. "We have been in support of the settlement since it was developed," said Ortiz, president of the Rio Pojoaque Acequia and Well Water Association. "We believe this will ensure the availability of both surface and groundwater for future generations. First, because it preserves present uses, and second, because it will provide a water supply so we can continue to live peacefully with our neighbors." But domestic-well owners found out the settlement would require them to hook into the water system and cap their wells. All hell broke loose. A group of well owners with the Pojoaque Basin Water Alliance protested. After two more years of negotiations, the revised settlement included options for well owners to sign the settlement without capping their wells. Romero, a member of the water alliance, takes a much dimmer view of the settlement than Ortiz. Like most non-pueblo defendants involved in the case, he supports the pueblos' first rights to water. But he and members of the Pojoaque Basin Water Alliance "are dead set against" the regional water system that remains a central piece of the settlement. Mirabal feels Nambé Pueblo gave up a lot of rights in the settlement. "But it needed to happen. Now everyone can say they're entitled to 'X' number of water rights. The whole valley is going to benefit from this. Had we gone to court on it and the judge ruled we had first priority over all the water, we could have cut off all non-pueblo water users." A controversial water system Many non-pueblo users say they won't hook into the regional water system once it is built and certainly don't want to have to pay for it. Supporters, including pueblo officials, Santa Fe County, Ortiz and others, say the system will help rest aquifers from well pumping and provide residents with reliable, treated water. "The water system is critical to the health of this valley," said Pojoaque's Rivera. Others, like Romero, say most wells in the basin are not polluted, and the regional water system should be built to serve only the pueblos. They believe it is an expensive project the non-pueblo people in the valley can ill afford. Narciso Quintana of Nambé said the water system has to be designed to serve both pueblos and non-pueblo lands, but he will never hook into it. He has two good wells and sees no reason to ever cap them. "The water is perfect," said Quintana, a longtime water referee as mayordomo of the 100-member Acequia de la Comunidad. Quintana believes the system will cost much more than the county and pueblos have estimated, and well owners who hook into it will be "hostage" to the monthly water bills. Originally, the system was proposed to serve 2,500 pueblo and non-pueblo households and businesses in a 15-square-mile area including Nambé, Pojoaque, Cuyamungue, Jacona, Jaconita, El Rancho and San Ildefonso. The settlement approved by Congress includes a provision added by Bingaman that gives the county some wiggle room, allowing any of the parties to "modify the extent, size and capacity" of the water system. Under the settlement, the pueblos have agreed to provide easements for water-distribution pipelines across their land for free. Non-pueblo users, however, are concerned about who will make the decisions on condemning and compensating non-pueblo landowners for easements needed for the water system's pipelines. They also wonder how cash-strapped Santa Fe County intends to raise its share of the construction costs and pay for maintenance if few non-pueblo residents hook into the water system. And they wonder if the facility's management will be transparent to the public. Under the settlement, the system will be managed by a board consisting of one representative from each pueblo and one from the non-Indian communities. "I think it should be four and four," said Paul White, a community organizer and vocal opponent of the regional water system. Overcoming a federal hurdle Despite opposition, the settlement reached Congress. Early on, the Department of the Interior balked at the agreement, in part because it didn't like the federal share of the costs. A U.S. Bureau of Reclamation report also found the costs of the proposed regional water system would be higher than estimated. More than once, Domenici and Bingaman tried to get the legislation through. Finally, in January, the U.S. House passed the version submitted by U.S. Rep. Ben Ray Luján. Then the Department of the Interior and federal Bureau of Reclamation Commissioner Michael Connor, a former Bingaman staffer, gave the settlement the thumbs up. Bingaman said the key to congressional approval was piggybacking the Aamodt settlement and two other bills involving Indian water rights in New Mexico onto the Cobell appropriations legislation. The Cobell bill settles long-standing claims by Indian tribes of mismanaged Bureau of Indian Affairs trust funds. Bingaman was presiding over the Senate floor in late October when his colleagues approved the massive bill, including the Aamodt settlement and $169 million for the water system. When Nambé's Mirabal learned the president was ready to sign the bill and make the Aamodt settlement law, he had tears in his eyes. "We wondered if we'd live to see it passed," he said recently. "Now the really hard work starts," he added. "Everyone is going to want to have a hand in what this looks like." Next dilemmas Challenges to the settlement are not over. Not long ago, one of the non-pueblo defendants filed a motion to dismiss the pueblos as plaintiffs in the case. The Aamodt parties now have to hammer out final details and then see how many of the thousands of defendants named in the case will agree to the settlement. Before a final court decree is issued, the parties have to finalize all the water rights for the regional water system. Quintana, like many others involved with the Aamodt saga for so long, is happy it finally has some kind of resolution. But he said many water users in the valley remain confused about what the settlement means for them. By the time the settlement reaches them later this year, they will have a limited amount of time to understand it before they decide whether or not to sign on the dotted line. And the relationships between people in the region? "Our relationships are going to be fine," Romero said. "They're our relatives. They baptize our kids, we baptize theirs. We are all going to survive this." Disclosure: New Mexican publisher Robin Martin is a party to the Aamodt litigation. Contact Staci Matlock at 986-3055 or smatlock@sfnewmexican.com.