A-1-CA-33535 | Omnilex

Gesamter Gesetzestext

Filed
Court of Appeals of New Mexico
4/3/2018 9:27 AM
Office of the Clerk
Mark Reynolds

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

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Filed

Court of Appeals of New Mexico
4/3/2018 9:27 AM

O pe of the Clerk
i
wd

Mark Reynolds

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: April 3, 2018
NO. A-1-CA-33535

STATE OF NEW MEXICO ex rel.
STATE ENGINEER,

Plaintiff-Appellee,
v.
UNITED STATES OF AMERICA,

Defendant-Appellee,
v.
NAVAJO NATION,

Defendant/Intervenor-Appellee,
v.
SAN JUAN AGRICULTURAL WATER USERS
ASSOCIATION, HAMMOND CONSERVANCY
DISTRICT, BLOOMFIELD IRRIGATION DISTRICT, and
VARIOUS DITCHES AND VARIOUS MEMBERS THEREOF,

Defendants-Appellants.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Honorable James J. Wechsler

A B YW _

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Arianne Singer, Special Assistant Attorney General
Santa Fe, NM

Utton & Kery, P.A.
John W. Utton, Special Assistant Attorney General
Santa Fe, NM

for Appellee State of New Mexico, New Mexico Office of the State Engineer

United States Department of Justice Appellate Section
Environment & Natural Resources Division

John C. Cruden, Assistant Attorney General

Andrew J. Guarino

Mark R. Haag

Washington, D.C.

for Appellee United States of America

Navajo Nation Department of Justice
Stanley M. Pollack

M. Kathryn Hoover

Window Rock, AZ

for Intervenor-Appellee Navajo Nation

Victor R. Marshall & Associates, P.C.
Victor R. Marshall
Albuquerque, NM

for Appellants San Juan Agricultural Water Users, Hammond Conservancy District,
Bloomfield Irrigation District, and Various Ditches and Various Members Thereof

MN WN Re

Oo aon nN

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Stein & Brockmann, P.A.
James C. Brockmann

Jay F. Stein

Santa Fe, NM

for Bernalillo County Water Utility Authority, City of Espafiola, and City of Gallup

Keleher & McLeod, P.A.
Cassandra R. Malone
Richard B. Cole
Albuquerque, NM

for Cities of Aztec and Bloomfield

Tully Law Firm, P.A.
Richard T. C. Tully
Farmington, NM

for B Square Ranch; Bolack Minerals Company, a/k/a Bolack Minerals Company
Limited Partnership; Estate of Tom Bolack; a/k/a Thomas Felix Bolack, Deceased;
Bolack Minerals Foundation; Tommy Bolack Revocable Trust; Estate of Juanita
Velasquez, Deceased; David A. Pierce; Maxine M. Pierce; David M. Drake; and
Shawna Drake

Modrall Sperling Roehl Harris & Sisk, P.A.
Maria O’Brien

Christina C. Sheehan

Zoé E. Lees

Albuquerque, NM

for BHP Billiton New Mexico Coal Inc. and Enterprise Field Services, LLC
Dumas Law Office, LLC
Jenny Dumas

Albuquerque, NM

for Jicarilla Apache Nation

RW NR

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Taylor & McCaleb, P.A.
Elizabeth Newlin Taylor
Jolene L. McCaleb
Corrales, NM

for San Juan Water Commission

Law Office of Priscilla A. Shannon
Priscilla A. Shannon
Farmington, NM

for McCarty Trust et al., Stephen Albert McCarty, Trustee; and Estate of Mary
McCarty, a/k/a Mary Louise McCarty, Deceased

Gary L. Horner
Farmington, NM

Pro Se

Public Service Company of New Mexico
Mikal M. Altomare, Corporate Counsel
Albuquerque, NM

for Tucson Electric Power Company and Public Service Company of New Mexico

Ute Mountain Ute Tribe
Office of General Counsel

Leland Begay, Associate General Counsel

Peter Ortego
Lee Bergen
Towaoc, CO

Samuel L. Winder
Albuquerque, NM

for Ute Mountain Ute Tribe

C. Brad Lane Cates
Fairacres, NM

for Amici Paul Bandy, Steve Neville, and Carl Trujillo

OPINION

BLACK, Judge.

Factual and Procedural Background

ga} dIn 1849, after years of intermittent warfare, the United States entered into a
peace treaty with the Navajo Tribe (Navajo Nation). See Treaty With the Navaho,
September 9, 1849, 9 Stat. 974 (Treaty of 1849). That treaty subjected the Navajo
Nation and its people to the sovereignty and rule of the United States and recognized
the existence and legitimacy of a territory to be dedicated to the Navajo Nation. At
the time, the federal government aspired to change the existing Navajo pastoral
culture into one of more traditional Eastern-style farming and moved the Navajo
Nation onto a reservation at Bosque Redondo, in what eventually became Eastern
New Mexico. Following the Civil War, the federal government realized its
agricultural goals for the Navajo Nation would involve a long and expensive process |
for which Bosque Redondo was ill-suited. A second treaty with the Navajo Nation in
1868 returned them to a portion of their ancestral territory as their “permanent home.”
See Treaty With the Navaho art. 13, June 1, 1868, 15 Stat. 667, 671 (Treaty of 1868).
923 The Colorado River drains the Colorado Plateau through the Grand Canyon.

The San Juan River is the tributary of the Colorado River upon which the Four

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Corners region’ relies for surface water and is the largest river in New Mexico. The
aboriginal lands of the Navajo Nation originally included the entire San Juan Basin.
Navajo Tribe of Indians v. United States of America, 23 Ind. Cl. Comm. 244, 251
(1970). The San Juan still runs through a considerable portion of the Navajo Nation
and is a water source much coveted in this arid portion of the country.

3} Inlight ofthe Navajo Nation’s potential claim for the majority of water in the
San Juan River Basin, the State of New Mexico initiated a general stream
adjudication to determine the water rights of the major claimants. The United States
asserted claims as trustee for the Navajo Nation, and the Navajo Nation intervened
on its own behalf. Following years of litigation, the State entered into settlement
negotiations with the Navajo Nation and the United States. The State proposed a
blueprint for a settlement and held public meetings in Farmington and Bloomfield
seeking input from the non-Indian water users. In response to substantial public input,
the State revised its settlement proposals.

{4} In 2005, following more than a decade of negotiation, the Navajo Nation, the
United States, and the State of New Mexico (collectively, Settling Parties) reached

an agreement (the Settlement Agreement) settling the Navajo Nation’s claims to water

'The “Four Corners” is the designation given to the point where Colorado,
Utah, Arizona, and New Mexico meet.

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in the San Juan River Basin (the Basin). Federal legislation to approve and implement
the Settlement Agreement was enacted by Congress in 2009 under the Omnibus
Public Land Management Act of 2009, Northwestern New Mexico Rural Water
Projects Act, Pub. L. No. 111-11, § 10301, 123 Stat. 991 (2009) (Settlement Act), and
signed by the President. The New Mexico Legislature then appropriated $50 million
to pay New Mexico’s cost of the Settlement Agreement and authorized the
New Mexico State Engineer to bring a lawsuit seeking judicial approval
regarding the State’s share of the water, pursuant to NMSA 1978, Section
72-1-12 (2005). See State of New Mexico, Office of the State Engineer,
2017 Indian Water Rights Settlement Fund Report, 3-4 (2017), available at
https://www.nmlegis.gov/handouts/IAC%20112717%20Item%206%200ffice%20
of%20the%20State%20Engineer%202017%20Indian%20Water%20Rights%20Se
ttlement’%20Fund™%20Report.pdf; see also United States Department of the Interior
Bureau of Reclamation, Navajo-Gallup Water Supply Project: Cost Share Agreement
Between the United States and the State of New Mexico, 11 (2011), available at
http://www.ose.state.nm.us/Legal/settlements/NNWRS/NavajoSettlement/NGWS
P-OriginalCostShareAgreement.pdf. In the subsequent suit the settling parties asked
the San Juan County District Court to approve the water rights previously allocated

in congressional legislation for the Navajo Indian Irrigation Project (NIIP),

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Fruitland-Cambridge Irrigation Project, Hogback-Cudei Irrigation Project, Navajo
Gallup Water Supply Project (NGWSP), Animas-La Plata Project (ALP), San Juan
River municipal and industrial uses, reserved groundwater, and rights based on stock,
irrigation, and recreational uses as of January 1, 2011. Others with an interest in the
Settlement Agreement were invited into this inter se proceeding through widely
distributed radio announcements, newspaper notices, and over 19,000 first-class
letters to those water rights holders who had title of record.

{5} At the initiation of the proceedings, the district court imposed an unusually
stringent evidentiary burden on the Settling Parties to prove the Settlement
Agreement was fair, adequate, reasonable, and in the public interest.” After giving all
other water rights claimants in the Basin notice and opportunity to participate and to
conduct discovery and file dispositive motions in accordance with Rule 1-071.2
NMRA, the district court entered its order granting the settlement motion for entry

of partial final decrees describing the water rights of the Navajo Nation. The court

*Normally in an inter se proceeding, the parties objecting to a settlement have
the burden to prove the settlement is not fair, adequate, or reasonable. See State ex
rel. State Eng’r v. Aamodt, 582 F. Supp. 2d 1313, 1317 (D.N.M. 2007); In re Crow
Water Compact, 2015 MT 353, J 28, 382 Mont. 46, 364 P.3d 584. In the present case
the district court shifted this burden to proponents of the Settlement Agreement.
Moreover, the district court did not require those challenging the Settlement
Agreement to make a showing that it would affect their rights, as is usually required.
See State ex rel. Office of the State Eng’r y. Lewis, 2007-NMCA-008, { 16, 141 N.M.
1, 150 P.3d 375.

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then entered the partial final judgment and decree of the water rights of the Navajo
Nation and the supplemental partial final judgment and decree of the water rights of
the Navajo Nation (Proposed Decrees). The non-settling parties objected to several
terms of the Settlement Agreement and to the inter se procedures adopted by the
district court. After full briefing and argument, the district court rejected the
objections and issued its order approving the Settlement Agreement and Proposed
Decrees (the Settlement Order).’ In the Settlement Order, the district court concluded
that the Settlement Agreement was fair, adequate, reasonable, and consistent with the
public interest as well as all applicable laws.

{6} Appellants herein, the San Juan Acequias, are non-settling parties to the
underlying proceedings that preceded the Settlement Agreement. Despite having
virtually all issues in common with other non-settling parties, each has consistently
refused to consolidate their appeals, failed to. comply with filing deadlines, and
neglected to follow rules of procedure or standard practice, Therefore, it will be
necessary to address their claims in separate opinions. The San Juan Acequias
challenge more than fifty aspects of the district court’s conclusions. However, since

this Court finds essentially all of these are based on faulty factual and/or legal

>For purposes of this opinion, when discussed jointly the Settlement Agreement
and Settlement Order are referred to as “the Settlement.”

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premises, we will dispose of them categorically rather than attempt to answer each
challenge separately.
Standard of Review
{7} “ ‘TItis the policy ofthe law and of the State of New Mexico to favor settlement
agreements.’ ” Am. Civil Liberties Union of N.M. v. Duran, 2016-NMCA-063, q 50,
392 P.3d 181 (quoting Navajo Tribe of Indians v. Hanosh Chevrolet-Buick, Inc.,
1988-NMSC-010, 9 3, 106 N.M. 705, 749 P.2d 90). New Mexico courts therefore
“hold such agreements in high regard and require a compelling basis to set them
aside.” Builders Contract Interiors, Inc. v. Hi-Lo Indus., 2006-NMCA-053, § 7, 139
N.M. 508, 134 P.3d 795. Appellate courts review a trial court’s decision to approve |
; settlement decree only to determine if there was an abuse of discretion. See, e.g.,
Platte v. First Colony Life Ins. Co., 2008-NMSC-058, § 7, 145 N.M. 77, 194 P.3d
108; In re Norwest Bank of N.M., N.A., 2003-NMCA-128, § 22, 134 N.M. 516, 80
P.3d 98: Johnson v. Lodge #93 of Fraternal Order of Police, 393 F.3d 1096, 1102
(10th Cir, 2004). |
I. New Mexico Statutes Refute Appellants’ Claim That the Settlement
Required the Express Approval of the New Mexico Legislature and Any
Such Claim Should Have Been Raised by Writ

{8} Appellants maintain that the Settlement is void under New Mexico law without

the express prior approval of the New Mexico Legislature. Initially it must be noted

Appellants’ brief in chief fails to include any indication of how this issue (and indeed
most others) was presented to the district court. This violation of Rule 12-318(A)(4)
NMRA makes this Court’s job much more difficult. See State v. Gomez, 1997-
NMSC-006, § 14, 122 N.M. 771, 932 P.2d 1 (stating that “an appellate court will
consider only such questions as were raised in the lower court” (internal quotation
marks and citation omitted)); State v. Lucero, 1993-NMSC-064, 7 11, 116 N.M. 450,
863 P.2d 1071 (noting that the appellate court should not have to guess what trial
issues were preserved for appeal).

{9} Appellants recite several iterations of the theme that the Settlement was
unauthorized or in violation of New Mexico law. For example, Appellants argue inter
alia that the Settlement violates the New Mexico Constitution’s separation of powers.
This is based on the premise that Governor Richardson lacked the power to sign the
Settlement without prior legislative approval. They further contend that through the
Settlement, Governor Richardson attempted to infringe the plenary jurisdiction of the
New Mexico Courts under Article VI of the New Mexico Constitution.

{10}. This contention, like Appellants’ entire appeal, is based on a failure to
understand the nature of the relationship between Indian nations and the United States

government as well as the structure of federalism. It is compounded by a

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misconception of New Mexico water law procedure and the role of the New Mexico
State Engineer. We explain.

411} First, water is a commodity that can move in interstate commerce, and does so:
as the San Juan River crosses several state boundaries. Thus, it is ultimately subject
to the control of the federal, not the state, government. See Oneida Indian Nation v. |
Cty. of Oneida, 414 U.S. 661, 667, 670 (1974); cf City of El Paso ex rel. Pub. Serv.
Bad. v. Reynolds, 597 F. Supp. 694, 704 (D.N.M. 1984) (stating that a state may not
impermissibly burden transfer of interstate water). Although the state has an interest
in regulating water within its boundaries, it lacks any ownership claim in such water.
Virginia v. Maryland, 540 U.S. 56, 74 n.9 (2003) (noting that federal common law
governs interstate bodies of water, ensuring that water is equitably apportioned
between states and that no state harms another’s interest).

{12} Second, the creation of an Indian reservation generally involves the reduction
and definition of a tribe’s traditional homelands in return for a guarantee of
permanent and protected territory. See Winters v. United States, 207 U.S. 564, 576
(1908). Indian tribes thus have a proprietary interest in waters recognized by federal
reservation treaties. See A. Dan Tarlock, Law of Water Rights & Resources § 9:38
(2016). It follows that the creation of an Indian reservation creates a strong

presumption that state law does not apply to the Indians or their property. See Bryan

11,

v. Itasca Cty., 426 U.S. 373, 376 n.2 (1976); see generally Moe v. Confederated
Salish & Kootenai Tribes of the Flathead Reservation, 425 U.S. 463, 474 n.13
(1976). It is therefore federal, not state, law that governs the validity and
interpretation of water settlements between states and tribes. Arizona v. San Carlos
Apache Tribe of Ariz., 463 U.S. 545, 571 (1983).

13} Third, intergovernmental agreements are particularly useful because they
provide benefits beyond what “ordinary state regulation” allows. New Mexico’s entry
into the congressionally sanctioned intergovernmental agreement as part of the
Settlement involved herein reinforces federal preemption of state control over the
Navajo Nation’s portion of the waters of the San Juan. The Settlement Agreement at
issue herein expressly states, “Congress approves, ratifies, and confirms the
Settlement.” Such a congressionally approved settlement preempts the law of the
participating states. Cf Texas v. New Mexico, 462 U.S. 554, 564 (1983) (discussing
the effect of congressional consent on a settlement entered into pursuant to the
Compact Clause); N.Y. Shipping Ass’n Inc. v. Waterfront Comm’n of N.Y. Harbor,
835 F.3d 344, 348 n.4 (3rd Cir. 2016) (same). Therefore a compact between interstate
authorities may not be impaired by the participating states once approved by

Congress. See Kansas v. Nebraska, _U.S.__,_ _, 135 S. Ct. 1042, 1053 (2015).

4} Against this backdrop, the Settlement Agreement interpreted by the district
court herein was approved by Congress well prior to Appellants’ state law challenges,
and thus, federal preemption disposes of many of their arguments, to wit: (1) the
Settlement is a nullity because it was not approved by the New Mexico Legislature;
(2) the Interstate Stream Commission violated NMSA 1978, Section 72-14-3 (1935),
in failing to submit the Settlement to the New Mexico Legislature; and (3) the
Settlement violates NMSA 1978, Section 72-1-11(C)(1) (2005) by not addressing all
of the Navajo Nation’s water needs. See W. Va. ex rel. Dyer v. Sims, 341 U.S. 22, 28
(1951) (stating that the United States Supreme Court has the final power to pass on
the meaning and validity of compacts): Corr v. Metro. Wash. Airports Auth., 800 F.
Supp. 2d 743, 758-59 (E.D. Va. 2011) (noting that once a compact has been adopted,
it is “transform[ed] into federal law at which time its interpretation and construction
presented federal, not state questions”). Moreover, this Court would note the New
Mexico Legislature has given the Attorney General the authority to prosecute and
settle civil litigation to which the State is a party pursuant to NMSA 1978, Section
36-1-22 (1875-76). Even more to the point, it is clear that the Legislature has
delegated to the Attorney General the explicit authority to initiate, conduct, dismiss,
and compromise litigation on behalf of the State. See NMSA 1978, § 8-5-2 (1975);

§ 36-1-22; NMSA 1978, § 72-4-15 (1907); Lyle v. Luna, 1959-NMSC-042, Jf 23-24,

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65 N.M. 429, 338 P.2d 1060. The State Engineer, who also approved the Settlement,
also acted with the expressly delegated authority of the Legislature.’ Were it
necessary to address this argument further, the Court notes—as did the district
court—that the New Mexico Legislature has provided express authority for the State
Engineer to specifically engage in this litigation and has appropriated over $50
million as the State’s share of the cost of the Settlement. See § 72-1-12. To argue that
the Legislature did not authorize the Governor and Attorney General to enter into this
Settlement, then, is at best illogical, and more to the point, incorrect.

{15} Even under New Mexico rather than federal law, then, Appellants are incorrect
in their premise that the Legislature was required to approve the Settlement.
However, assuming any of these state law arguments had merit, they should have
been tested before the United States Congress stamped its imprimatur on the
Settlement by adopting it into federal law. To the extent Appellants’ state law

arguments had merit, they should have been brought to the attention of the New

‘The Legislature has likewise delegated to the State Engineer authority to
supervise “the apportionment of water in this state according to the licenses issued
by him and his predecessors and the adjudications of the courts.” NMSA 1978, § 72-
2-9 (1907); see also NMSA 1978, § 72-2-1 (1982) (providing that the State Engineer
“has general supervision of waters of the state and of the measurement, appropriation,
[and] distribution thereof’); Tri-State Generation & Transmission Ass’n v.
D’Antonio, 2012-NMSC-039, § 34, 289 P.3d 1232 (“[T]he Legislature has delegated
the complicated and difficult task of managing New Mexico’s scarce water resources
to the State Engineer[.]”).

Mexico Supreme Court by a writ of mandamus and are no longer ripe for
adjudication. See State ex rel. Clark v. Johnson, 1995-NMSC-048, 19, 120 N.M.
562, 904 P.2d 11 (stating that in certain circumstances, mandamus “is an appropriate
means to prohibit unlawful or unconstitutional official action”).
II. State Law Limitations Do Not Control Navajo Water

A. Indian Tribes Are Not Required to Prove Immediate Beneficial Use to
Quantify Their Water Rights

{16} Appellants argue “[b]Jeneficial use is also an essential and explicit requirement
of state law, including Article XVI of the New Mexico Constitution, ratified by
Congress in 1911.” As noted earlier, New Mexico state law does not control Navajo
water allocations. We reiterate that to the extent Appellants are attempting to apply |.
New Mexico water limitations in this instance, federal law has expressly pre-empted
such state limitations. If Defendants are arguing the New Mexico Constitution
controls the Settlement since Congress approved the Constitution in 1911, this is also
incorrect. The Settlement Agreement was approved by Congress in 2009 and was
intended by Congress to allocate Navajo water and is thus much more specific than
the New Mexico Constitution, which makes no mention of the water allocated to the
Navajo Reservation in 1868. Specific and later-enacted statutes control over general,
earlier-enacted laws. See Morton v. Mancari, 417 U.S. 535, 550-51 (1974); Nguyen
v. United States, 556 F.3d 1244, 1252-53 (11th Cir. 2009).

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73 Apparently recognizing the invalidity of their state law arguments, Appellants
further maintain that “[b]eneficial use is an essential requirement of every federal law
governing the allocation of water in the arid West, including Winters and subsequent
cases.” Winter's, to which Appellants refer, is indeed an early polestar in recognizing
reservation water rights. However, as will become clear, it does not require immediate
“beneficial use” as the only measure of Indian water rights. Professor Tarlock
succinctly outlines the properly applicable legal principle for the allocation of
reservation water:

Indian water rights are proprietary rights. Reserved water rights ... have

a priority date, the date of the creation of the reservation, but they are

not dependent on the application of water to beneficial use.

Tarlock, supra, § 9:38.°

‘Courts and other legal scholars have repeatedly recognized this interpretation
of reservation water rights. See, e.g., Agua Caliente Band of Cahuilla Indians v.
Coachella Valley Water Dist., 849 F.3d 1262, 1272 (9th Cir. 2017); Colville
Confederated Tribes v. Walton, 752 F.2d 397, 405 (9th Cir. 1985); Navajo Nation v.
United States Dep’t of the Interior, 34 F. Supp. 3d 1019, 1022 (D. Ariz. 2014), aff'd
in part, rev’d in part, 876 F.3d 1144 (9th Cir. 2017); United States v. Orr Water
Ditch Co., 309 F. Supp. 2d 1245, 1248 (D. Nev. 2004); In re Gen. Adjudication of All
Rights to Use Water in Gila River Sys. & Source, (Gila V.) 35 P.3d 68, 71-72 (Ariz.
2001) (en banc); State of Wash. Dep’t of Ecology v. Yakima Reservation Irrigation
Dist., 850 P.2d 1306, 1330 (Wash. 1993) (en banc); State of Montana ex rel. Greely
v. Confederated Salish & Kootenai Tribes, 712 P.2d 754, 762 (Mont. 1985); United
States ex rel. Ray v. Hibner, 27 F.2d 909, 911-12 (D. Idaho 1928); Sally Fairfax,
Helen Ingram & Leigh Raymond, Historical Evolution & Future of Natural
Resources Law & Policy, The Evolution of Natural Resources Law & Policy 19
(Lawrence Macdonnell & Sarah F. Bates eds., 2010); Judith E. Jacobsen, The Navajo

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418} Appellants attempt to bolster their interpretation of “beneficial use” as
requiring immediate use by relying on inapplicable federal statutes such as the
Reclamation Act of 1902, 43 U.S.C. § 372 (2012). They are correct that if this were
indeed a Reclamation Act case, the Secretary of the Interior would be required to
follow the state law interpretation of “beneficial use.” However, they present no
evidence or sound legal argument that the Reclamation Act applies here. Arriving
more than forty years after the establishment of the Navajo Reservation, the 1902
Reclamation Act is clearly not the source of the federal government’s authority to
create the Navajo Reservation or reserve water rights to it and therefore does not
constrain the use of reservation water.® See Colville Confederated Tribes, 752 F.2d
at 405.

{19} Appellants are also off base in attempting to graft language from the New
Mexico Supreme Court regarding the Pueblo Water Rights doctrine onto the Winters
doctririe. The Pueblo Water Rights doctrine derives from Spanish and Mexican

property law—a unique source having no relationship to Winters. State ex rel.

Indian Irrigation Project & Quantification of Navajo Winters Rights, 32 Nat.
Resources J. 825, 826 (1992). Hence, Appellants’ assertion that “beneficial use is
required by all the cases and statutes—except for Gila V. and the lower court’s
decision in this case” is, at the very least, misleading.

‘The federal government has the power to reserve water under both the
Commerce and Property clauses of the Federal Constitution. Cappaert v. United
States, 426 U.S. 128, 138 (1976).

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Reynolds v. Aamodt, 618 F. Supp. 993, 1010 (D.N.M. 1985); Tarlock, supra, § 9:39;
William Goldfarb, Water Law 39 (2nd ed. 1988).
720} Appellants are closer to the way the “beneficial use” concept has occasionally
been referenced in the reservation context in their invocation of the Colorado River
Compact. That Compact specifically acknowledges that its purpose is “to establish
the relative importance of different beneficial uses of water.” Moreover, that Compact
expressly contemplated future uses beyond those existing in 1922. See NMSA 1978,
§ 72~15-5 (art. I) (1923).” Thus Compact water was not seen as frozen in time and can
clearly be used at various times for various uses. That indeed is exactly how the
district court properly employed the concept of “beneficial use” herein:
[b]eneficial use shall be the limit of the rights to use water adjudicated
to the Navajo Nation by this Decree. The Navajo Nation shall not be
entitled to receive, nor the United States or the State of New Mexico be
required to deliver, nor shall non-Navajo water users be required to
curtail water uses to provide to the Navajo Nation any water not then
necessary for beneficial use under the rights adjudicated herein or
acquired hereafter.
7213 Additionally, the Colorado Compact explicitly provides that nothing in the

Compact shall be construed as affecting the obligations of the United States of

America to Indian tribes. See § 72-15-5 (art. VII); NMSA 1978, § 72-15-26 (art. XIX)

’The Settlement Act specifically recognizes the Colorado River Compact and
adjusts water allocations to comply with it. Settlement Act § 10603(j).

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(1949). The Settlement herein, as a specific and later-enacted statute, should thus be
given precedence over a more general earlier statute. See Morton, 417 U.S. at 550.
{22} Appellants lastly dovetail their Colorado River Compact argument with
reliance on the Colorado River Storage Project, which recites one of its purposes as
“storing water .for beneficial consumptive use.” 43 U.S.C. § 620 (2012). But this
language makes further clear that the water to which that Compact applies is not
required to be put to immediate “beneficial consumptive use.” Rather than supporting
Appellants’ argument, these sources indicate Navajo Nation rights should not be
limited to the amount of water used on the reservation at the time of its dedication.
B. The District Court Properly Applied the Winters Doctrine and the
Practicably Irrigable Acreage (PIA) Standard to Measure the Water
Reserved to the Navajo Nation Under the Settlement Agreement
23} In Winters, the Gros Ventre Tribes in Montana, like the Navajos, had ceded the
vast majority of their ancestral land by treaty to the United States in return for a
permanent reservation. 207 U.S. at.567-68. When non-Indians on the Milk River
upstream from the Gros Ventre reservation diverted all the available water, the United
States sought an injunction to halt the upstream diversions. Jd. at 565. Although the
non-Indians had earlier water priority dates under Montana law, the district court held

the tribes’ rights under the treaty were superior. Jd. at 576. The United States

Supreme Court recognized it was inconceivable the tribes would have given up their

ancestral hunting grounds for land that had insufficient water to pursue the pastoral
life the federal government wished to encourage. Jd. It stated that since treaties must
be construed in favor of the Indians it was implausible that the tribes intended to
forfeit their water rights:

The Indians had command of the lands and the waters,—command ofall

their beneficial use, whether kept for hunting, and grazing roving herds

of stock, or turned to agriculture and the arts of civilization. Did they

give up all this? Did they reduce the area of their occupation and give

up the waters which made it valuable or adequate? And, even regarding

the allegation of the answer as true, that there are springs and streams on

the reservation flowing about 2,900 inches of water, the inquiries are

pertinent. If it were possible to believe affirmative answers, we might

also believe that the Indians were awed by the power of the government

or deceived by its negotiators. Neither view is possible.
Id, (internal quotation marks omitted).
4; While the Winters case established a legal foundation that stood for the
proposition that upriver use that deprived agricultural Indian reservations ofavailable
water was not consistent with treaties that established such reservations in the first
instance, lower courts have grappled with how to calculate the water necessary to
fulfill the needs and goals of other reservations. Compare Conrad Inv. Co. v. United
States, 161 F. 829, 832 (9th Cir. 1908), and United States v. Ahtanum Irrigation Dist.,
236 F.2d 321, 327 (9th Cir. 1956), with United States v. Walker River Irrigation Dist.,
104 F.2d 334, 335-36, 339-40 (9th Cir. 1939), and In re Yakima River Drainage
Basin, 296 P.3d 835, 839 (Wash. 2013) (en banc). In the Colorado River litigation,

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the Supreme Court calculated the amount of “practicable irrigable acreage” (PIA) on
reservations dedicated to agriculture and used that as a yardstick to allocate
reservation water. Arizona v. California, 460 U.S. 605, 613 (1983). Arizona
recognized that Winters made PIA the recognized baseline for measuring reservation
water rights when the intent of the reservation was agriculture. Jd. at 609-10. It did
not, however, as Appellants argue, hold “that practicably irrigable acreage (PIA) is
the only proper way to quantify federal reserved rights for Indian tribes.” Nor did the
Supreme Court adopt the appellants’ view that the failure to put allotted water to
immediate “beneficial use” results in a forfeiture of those water rights. Indeed, the
Court noted the Chemehuevi Tribe had not diverted any of its allotted water. See id.
at 653, n.8 (Brennan, J., concurring in part and dissenting in part).

25} Determining how to calculate PIA and what it means in less agricultural
situations has required judicial resourcefulness. See Walker River Irrigation Dist.,
104 F.2d at 340 (discussing water rights in relation to power generation); United
States v. Adair, 723 F.2d 1394, 1411 (9th Cir. 1983) (discussing water rights in
relation to hunting and fishing activities). In light of such difficulties, the judicial
trend appears to recognize reservation allocations should not be limited to only an
amount of water sufficient to support the pastoral life often contemplated in the

nineteenth century, but rather, calculated to provide the tribes with water in quantities

sufficient to promote survival and the success of the reservations. See Arizona v.

California, 439 U.S. 419, 422-23 (1979) (per curiam), amended, 466 U.S. 144 (1984);

Agua Caliente Band of Cahuilla Indians, 849 F.3d at 1270; Joint Bd. of Control of
Flathead, Mission & Jocko Irrigation Dists. v. United States, 832 F.2d 1127, 1131

(9th Cir. 1987); Ahtanum Irrigation Dist., 236 F.2d at 327; Adair, 703 F.2d at 1410;

Colville Confederated Tribes v. Walton, 647 F.2d 42, 47-48 (9th Cir. 1981); Tarlock, |
supra, § 9:41; Goldfarb, supra, at 51. But see In re Gen. Adjudication of All Rights
to Use Water in Big Horn River Sys., 753 P.2d 76, 94 (Wyo. 1988), aff'd sub nom,
Wyoming v. United States, 492 U.S. 406 (1989), abrogated on other grounds by
Vaughn v. State, 962 P.2d 149, 151 (Wyo. 1998).

{26 Current jurisprudence thus tends to recognize the goal of the federal
government in creating Indian reservations was not to produce more farmers or
shepherds but “to make the reservation livable” and “to further[] and advance[] the
civilization,” allowing the Indians to change to new ways of life. Arizona, 460 U.S.
at 616; see Martha C. Franks, The Uses of the Practicably Irrigable Acreage
Standard in the Quantification of Reserved Water Rights, 31 Nat. Resources J. 549,
553-54 (1991); Winters, 207 U.S. at 567, 577. The ultimate objective of Congress was
to see that “Indian treaty rights to a natural resource that once was thoroughly and

exclusively exploited by the Indians secures so much as, but no more than, is

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necessary to provide the Indians with a livelihood—that is to say, a moderate living.”
Washington v. Wash. State Commercial Passenger Fishing Vessel Ass ’n, 443 U.S.
658, 686 (1979).

27; In line with current judicial analysis, the district court herein recognized the
fundamental purpose of the Navajo Reservation was to create a sustainable homeland
for the tribe. Other than frequently repeating the PIA mantra, Appellants have offered
no evidence or supportive authority to contradict the district court’s finding. Indeed
the only evidence to which this Court was directed by Appellants is consistent with
that finding. See Treaty of 1868 art. XIII, 15 Stat. 667, 671 (stating that the Navajo
tribe agrees to make the reservation “their permanent home”) The district court's
decision regarding the proper measure of reservation water is therefore not an abuse
of discretion.

WI. The District Court Properly Applied the Fair, Adequate, and Reasonable
Standard to the Settlement of the Navajo Indian Irrigation Project (NIIP)

8} Appellants make several challenges to the district court’s award of water to the
NIIP. Once again these challenges fail to understand the origins and scope of the
Congressional direction for NIIP. See Navajo Indian Irrigation Project, Pub. L. No.
87-483, § 2, 76 Stat. 96 (1962) (the NIIP Act) (discussing the construction of the NIIP

Act and its intended use). This Congressional mandate makes Appellants’ discussion

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of state or historic reservation concepts of beneficial use and PIA inapplicable for the
same reasons previously outlined.

9} Congress specifically authorized the construction and operation of the NIIP Act
“for the principal purpose of furnishing irrigation water to [a service area of not more
than 110,630] acres of land[.]” NIIP Act § 2; see Settlement Act § 10402(a)
(amending Section 2 of the NIIP Act). In so doing, Congress necessarily determined
that up to 110,630 acres of NIIP lands are “irrigable and arable.” NIIP Act, 76 Stat.
at 96. Moreover, the Settlement Act amends the NIIP Act to significantly broaden the
potential uses of NIIP water while confirming the amounts of Navajo diversion
(508,000 acre-feet of water per year) and irrigated acreage (110,630) authorized for
the project. Settlement Act § 10402(a). “Once reserved rights for Indian reservations
have been quantified, they may be applied to any water uses chosen by the tribes.”
Goldfarb, supra, at 51.

30} In the 1940s several Colorado River Basin states negotiated the Upper

Colorado River Compact. Upper Colorado River Basin Compact, ch. 48, Pub. L. No.

8A ppellants’ arguments based on other federal laws are again unfounded. They
rely on various resolutions, compacts, and statutes from the first half of the 20th
century that include (at most) general references to the principle of beneficial use.
Even if any of these general resolutions or statutes were applicable in this situation,
which they are not, they would be superseded by the subsequent and more specific
NUP and Settlement statutes passed by Congress. See Morton, 417 U.S. at 550-51.

81-37, 31, 63 Stat. 31 (1949). Although it did not directly impact that Compact, at the
time it was estimated the Navajo Nation could require about 787,000 acre-feet of
water. Lloyd Burton, American Indian Water Rights & the Limits of the Law 30 (U.
Press Kan. 1991). The United States Bureau of Reclamation and the Bureau of Indian
Affairs then proposed a reclamation project of this approximate size for the Navajo
Tribe. In the face of opposition from states adjoining the Colorado River, Congress
refused to act. Jd. The Navajo Tribal Council thereafter agreed to a guaranteed
quantity of water—508,000 acre-feet annually—but to be shared with other San Juan
users in drought years. The Cotincil further agreed if such a project was completed,
the Navajo Nation would not assert its 1868 date of appropriation to such water. Id.
at 31. On this basis, the Navajo Nation along with the State of New Mexico then
presented Congress with a joint Navajo-State project for the agreed portion of the San |
Juan River. In June of 1962, Congress passed the Act authorizing the construction
and maintenance of NIIP and New Mexico’s San Juan-Chama diversion. See NIIP
Act, 76 Stat. at 96; 43 U.S.C. § 615ii (2000) (omitted from current version of the
U.S.C.) (for a more detailed discussion of the history of NIIP, see J acobsen, supra, | '
at 825-32). Appellants’ argument that Congress statutorily adopted the agreed amount
of 508,000 acre-feet, but secretly expected a state judge to compute the Navajo

Nation’s share based on a PIA calculation, flies in the face of this history.

con AN UN BR WW

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31} Inaddition to specifying the sources, amounts, distribution, and purposes ofthe |
NIIP Act, Congress unambiguously provided:
No person shall have or be entitled to have the use for any
purpose... of water stored in Navajo Reservoir or of any other waters
of the San Juan River and its tributaries originating above Navajo
Reservoir to the use of which the United States is entitled under these
projects except under contract satisfactory to the Secretary and
conforming to the provisions of this Act.
NIIP Act § 11.
32} Appellants argue that “Section 13(c) of the NIIP Act explicitly disclaims any
Congressional intention to create a water right[.]” That section provides, in part, that
“Injo right or claim of right to the use of the waters of the Colorado River system
shall be aided or prejudiced by” the Act. NIIP Act § 13(c). As the district court
explained however, by reasoning with which we agree, this argument takes Section
13(c) totally out of its relevant context. Nothing in Section 13 prohibits the creation

of individual water rights within the limitations of the Colorado River Compact.

IV. The District Court’s Procedure Complies With Statutory and
Constitutional Requirements

{33} Appellants advance several challenges to the procedure adopted by the district
court. These challenges exhibit a lack of comprehension of New Mexico statutory
procedures for the allocation of water and how constitutional norms apply to those

procedures.

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claims before he calculates the junior claims. To litigate Appellants

A. The District Court Did Not Err in Treating Appellants’ “Cross Claims”
as Objections to the Settlement

434 The New Mexico statutory inter se water procedure is specifically designed to
allow the State Engineer to fairly allocate water to all users of a particular stream. See
NMSA 1978, §§ 72-4-15 (1907), -17 (1965). As the district court explained, this
statutory procedure does not follow the typical civil pattern of permitting claims,
cross-claims, and counter-claims.? New Mexico statutes specifically allow the district
court flexibility to adjudicate the senior water rights first, and then address junior
claims. This procedure is efficient since it allows the district court to hear all claims
against the State Engineer so it can be determined how much water the state will have
to allocate. See State ex rel. Office of State Eng’r v. Lewis, 2007-NMCA-008, § 30,
141 N.M. 1, 150 P.3d375. That is exactly what the district court did here; Appellants’
“cross claims” were treated as objections to the Settlement, and now the State
Engineer knows how much water must be subtracted for the “senior” Navajo Nation

2 66

cross claims”

°On March 13, 1975, the State Engineer initiated the general stream
adjudication on the San Juan River stream system by filing the complaint
contemplated under Section 72-4-15 in district court. In accordance with the usual
procedure in water rights proceedings, no “answer” was required or filed. See State
ex rel. State Eng’r v. Comm’r of Pub. Lands, 2009-NMCA-004, { 8, 145 N.M. 433,
200 P.3d 86.

and determine their exact water rights in the initial proceeding would destroy the
purpose of an expedited inter se procedure. See Rule 1-071.2(B).

B. Notice of This Inter Se Proceeding Satisfied Constitutional Due Process
35} To assert a procedural due process claim, an appellant must establish both a |.

deprivation of a protected liberty or property interest and that he or she was not

afforded adequate procedural protections. Barreras v. N.M. Corr. Dep’t, 1992-

NMSC-059, 4 18, 114 N.M. 366, 838 P.2d 983. “[T]he threshold question in
evaluating a due process challenge is whether there is a deprivation of liberty or
property.” Bounds v. State ex rel. D’Antonio, 2013-NMSC-037, J 51, 306 P.3d 457
(internal quotation marks and citation omitted). As the district court found, “the total
amount of water [allocated to the Navajo Nation] in the Settlement Agreement is less
than the Navajo Nation’s currently, federally authorized rights to water pursuant to
the 1962 NIIP Act and the long-established Hogback-Cudei and Fruitland-Cambridge
irrigation projects” and thus there was a reasonable basis to conclude that the
Settlement provides for less than the potential claims that could be secured at trial.
Since these rights were secured by Congressional enactments and thus have
preemptive effect, Appellants could not have suffered any loss of property rights. Zn
re Gen. Adjudication of All Rights to Use Water In the Gila River Sys. & Source, 224

P.3d 178, 187 (Ariz. 2010) (en banc) (holding that no due process violation occurs

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if a tribe is given no more water than they could secure at trial and claimants are
given the right to advance claims to the remaining water).

36} If this Court could presume Appellants had a property loss, however, their
assertion that the parties to the Settlement Agreement intentionally violated due
process by failing “to use available data sources to identify and serve the defendants
in the Navajo inter se” is not legally viable. Initially it ignores the fact that the settling
parties were following the order of the district court and the requirements of Rule
1-071.2(C). Secondly it appears at least part of the problem arose from the failure of
Appellants’ counsel to supply the current names of all members of the various ditch
associations that were available to Appellants. Appellants cannot complain of
reversible error they invited and thereby caused. See United States v. Lopez-Medina,
596 F.3d 716, 732 (10th Cir. 2010); State v. Jim, 2014-NMCA-089, ¥ 22, 332 P.3d
870 (“It is well established that a party may not invite error and then proceed to
complain about it on appeal.”). The Settling Parties: (1) conducted five public
meetings; (2) published the notice information and filing requirements once a week
for four consecutive weeks in all local newspapers;’° (3) publicized five public

meetings where the Settlement was discussed by purchasing a quarter-page

The Gallup Independent, Navajo Times, Farmington Daily Times, Rio
Rancho Observer, Rio Grande Sun, and Albuquerque Journal.

advertisement or larger once a week for three consecutive weeks in the Gallup
Independent, the Farmington Daily Times, and the Navajo Times; (4) publicized the
five public meetings by purchasing thirty-second or longer local radio advertisements
at least three times a day on the day before and the day of each public meeting; and
(5) submitted a synopsis of each public meeting to the court for public inspection.
Additionally the State used first-class mail to deliver notice to the over 19,500
potential water users in the State Engineer’s records.

37} Due process requires only notice “reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and to afford
them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank &
Tr. Co., 339 U.S. 306, 314 (1950); see Bounds, 2013-NMSC-037, § 50.
Reasonableness is a function of practical alternatives. See Greene v. Lindsey, 456
U.S. 444, 454 (1982). As this case illustrates, inter se water cases can involve
thousands of potential claimants, and the limits of due process notice therefore
require flexibility in this context. See In re Rights to Use of Gila River, 830 P.2d 442,
449-50 (Ariz. 1992); Lu Ranching Co. v. United States, 67 P.3d 85, 88-89 (Idaho
2003). The measures taken by the State herein satisfy the requirements of due |
process. See In re Crow Water Compact, 2015 MT 353, (39, 382 Mont. 46, 364 P.3d

584; Jensen v. Morgan, 844 P.2d 287, 290-91 (Utah 1992).

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C. The District Court Did Not Abuse Its Discretion in Limiting the Time for
Discovery

38} The district court established an orderly and appropriate discovery process,
which included an electronic repository for access to discovery documents and
regional records repositories for inspection of the older archived government
records.'! Technical reports supporting the United States’ and Navajo Nation’s
Statement of Claims and supporting documents were filed on January 30, 2012. Initial
discovery began with the district court’s February 3, 2012 order lifting the stay of
discovery. Discovery was available to the non-settling parties beginning on April 2,
2012, when the settling parties made their initial disclosures. The parties were able
to review documents, make discovery requests, and. conduct depositions of the
Settling Parties’ witnesses at any time after February 3, 2012.

{39} Under the court’s scheduling order entered on August 7, 2012, discovery was
originally set to close on February 1, 2013. On November 6, 2012, at the request of
Appellants and others, the district court entered an order extending discovery. At the

request of Appellants and the other non-settling parties, the district court granted |_

"Appellants could then identify documents and repository staff would make
the copies. When Appellants’ counsel objected that documents must be made
available in San Juan County, counsel for the United States informed the court and
the non-settling parties that the non-privileged documents would be scanned onto a
disk.

another extension of time for discovery until March 31, 2013. Discovery was thus

available to Appellants for more than a year during which they sought no further

discovery extensions.

V. Appellants’ Assertions That the District Court Knowingly Admitted False
or Inadmissible Evidence, Allowed the Destruction of Evidence and Ex
Parte Contact, and Improperly Excluded Appellants’ Evidence Are
Unsupported and Subject to Sanctions

{40} Appellants argue the district court committed reversible error by intentionally

admitting inadmissible evidence. Again, virtually all these arguments are based on

Appellants’ inability to comprehend the proper goals and procedure for an inter se

water hearing. As we have reiterated, in such a proceeding, issues regarding

settlement of other claims and necessity of a pipeline were not required to be
addressed at the outset of litigation or alongside superior claims. Appellants’

“equitable” arguments regarding global warming, lack of adequate water, the

Engineer’s failure to fairly allocate, shrinking Navajo population, endangered species,

exclusion of other reserved federal water uses, and the failure to include Appellants

in the inter se negotiations between the three governments also all miscomprehend
the scope and legal effect of the congressional approvals in this case.

{41} Due to the intemperate nature of some of Appellants’ language however, this

Court cannot fail to address one of their arguments. Appellants claim that

SAO BW DY

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[t]he court abolished the requirement of a‘ hydrographic survey, which
is required by statute. [Sections] 72-4-13 through -17. The court
substituted a fake hydrographic survey prepared by the United States
and the Navajo Nation without any fieldwork. . . . This pseudo-
hydrographic survey was a compilation of unverified information
compiled by the adversarial claimants—the Navajo Nation and the
United States—from unidentified sources.”
(Emphasis added.)
{423 In fact the United States clearly created and produced the technical and
extremely expensive hydrological report, and the State Engineer followed the usual
procedure of adopting it. See NMSA 1978, § 72-4-16 (1919). The allegation that the
court fraudulently substituted a fake hydrographic survey alleges a felony in New
Mexico and is appropriately subject to judicial sanctions. See NMSA 1978, § 30-22-5
(2003); see also Martin v. Essrig, 277 P.3d 857, 860-61 (Colo. App. 2011); Peters
v. Pine Meadow Ranch Home Ass’n, 2007 UT 2, ¥ 23, 151 P.3d 962. Appellants’
claims alleging willful misconduct by the district court are rejected, and Appellants’

counsel is strongly admonished not to advance any such frivolous and unfounded

accusations in the future.

“Appellants speculate that “a real hydrographic survey . . . would have
identified many additional water owners who opposed the Navajo [Nation’s] claim.”
This speculation is again a violation of the New Mexico Rules of Appellate Procedure
and is not to be countenanced by this Court. See Rule 12-318(A).

{43} Likewise, Appellants’ allegations regarding ex parte contact are equally off
base. Appellants’ counsel states it appears violations of the prohibition against ex |
parte communication have “contributed to many instances in this and other cases
where the basic rights of water owners have been sacrificed to accommodate the
interests of the OSE.” Appellants’ counsel further posits the question, “Did the OSE
engage in ex parte contacts to convince the judge that it would be too expensive for
the three governments to search readily available public records?” Even more
outrageously, without establishing any basis for the accusation of ex parte contact,
Appellants’ counsel goes on to smear the district judge by stating, “[t]he judge never
made any disclosures, and never explained why not.”

{44} Truth is not a matter of convenience. “Lawyers are officers of the court and are
always under an obligation to be truthful” with the judicial forum. Jn re Stein, 2008-
NMSC-013, 735, 143 N.M. 462, 177 P.3d 513 (internal quotation marks and citation
omitted). Making such allegations without offering a shred of proof is unprofessional
and unethical. In re Venie, 2017-NMSC-018, 4 22, 395 P.3d 516. Appellant’s counsel
is cautioned that, in the future, such unsupported accusations and evidence-free
speculation will not be so politely addressed by this Court, but will instead result in

sanctions.

—

CONCLUSION

2|| 453 For the above stated reasons this Court affirms the order of the district court
3 || finding the Settlement was fair, adequate, reasonable, and consistent with the public
4\linterest as well as all applicable New Mexico and federal laws.

5446; IT ISSO ORDERED.

Pree DSA

7 BRUCE D. BLACK, Judge Pro Tem

fos

8] WE CONCUR:

| (Dre Teng >

10] LINDA M. V, » YANZI; Chief Judge

11 o Mu u~

12] J. MILES HANISEE, Judge

April 3, 2018- State of New Mexico ex rel. State Engineer v. San Juan Agricultural Water Users Association, No. A-1-CA-33535

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