USA For Jemez, Santa, et al v. Abousleman, et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA, on its
own behalf and on behalf of the
PUEBLOS OF JEMEZ, SANTA ANA, and ZIA,
and
STATE OF NEW MEXICO, ex rel.
State Engineer,
Plaintiffs, 	No. 6:83-cv-01041-KWR-JMR
JEMEZ RIVER ADJUDICATION
and
THE PUEBLOS OF JEMEZ, SANTA ANA, and ZIA,
Plaintiffs-in-Intervention,
v.
TOM ABOUSLEMAN, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER REGARDING ISSUE 3
Plaintiffs seek an adjudication of the rights to the use of waters of the Jemez River stream
system. See N.M. Stat. Ann. § 72-4-19 (upon adjudication of the water rights, a decree shall be
prepared which declares, “as to the water right adjudged to each party, the priority, amount,
purpose, periods and place of use, and as to water used for irrigation, except as otherwise
provided in this article, the specific tracts of land to which it shall be appurtenant, together with
such other conditions as may be necessary to define the right and its priority”).
PROCEDURAL BACKGROUND
The United States, the Pueblos of Jemez, Santa Ana and Zia, the State of New Mexico
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and the Jemez River Basin Water Users Coalition (“Coalition”) (collectively “the Parties”)
identified five threshold legal issues to be addressed before the Court determines the Pueblos'
water rights. See Doc. 4237 at 2-3, filed April 13, 2012; Doc. 4239 at 2-3, filed April 13, 2012.
The United States and the Pueblos later indicated they are not asserting that the Pueblos are
entitled to riparian rights which were the subject of Issue No. 5. See Mem. Op. and Order at 3,
Doc. 4293, filed December 20, 2012 (stating the Court will not determine whether the Pueblos
are entitled to riparian rights). The Parties then submitted briefs for Issues Nos. 1-4. See Doc’s
4361 et seq., filed August 19, 2014 (Issues Nos. 1 and 2); Doc’s 4280 et seq., filed November 13,
2012 (Issue No. 3); Doc’s 4267 et seq., filed September 25, 2012 (Issue No. 4).
On October 4, 2016, after considering the briefs of the Parties, witness testimony and
expert reports, United States Magistrate Judge William P. Lynch entered his Proposed Findings
and Recommended Disposition Regarding Issues 1 and 2 recommending that “the Court find that
Spain imposed a legal system to administer the use of public waters which extinguished the
Pueblos’ right to increase their use of public water without restriction, and that Spain’s exercise
of complete dominion over the use of public waters extinguished the Pueblos’ aboriginal water
rights.” 	Doc. 4383 at 14. 	On September 30, 2017, after considering objections, the Court
overruled the objections and adopted Judge Lynch’s Proposed Findings and Recommended
Disposition Regarding Issues 1 and 2. 	See Doc. 4397 (Vázquez, J.). 	The Court granted the
motions of the Pueblos and the United States and certified its Order ruling on Issues 1 and 2 for
interlocutory appeal. See Doc. 4421, filed September 11, 2018 (Vázquez, J.).
The 	United 	States 	Court 	of 	Appeal 	reversed 	the 	Court’s 	determination 	in 	its
September 30, 2017, Order and remanded the case for further proceedings. 	See Mandate,
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Doc. 4439, filed December 29, 2020; United States v. Abouselman, 976 F.3d 1146 (10th Cir.
2020). After allowing the Parties to file supplemental briefing on Issues 1 and 2 to address the
issues remaining due to the Tenth Circuit’s decision, the Court entered its Memorandum Opinion
and Order Regarding Issues 1 and 2. 	See Doc. 4506, filed September 28, 2023 (“2023 Order”)
(Riggs, J.).
The matter now before the Court is Issue No. 3. United States Magistrate Judge Jerry H.
Ritter ordered that additional briefing on Issue No. 3 begin after the Court rules on Issues Nos. 1
and 2, because the Court’s ruling on those issue could affect how Issue No. 3 is addressed. See
Doc. 4452, filed October 28, 2021. With the Court having ruled on Issues Nos. 1 and 2, United
States Magistrate Judge Jennifer M. Rozzoni ordered the Parties to file revised briefs regarding
Issue No. 3. See Doc. 4523, filed July 11, 2024.
The Parties completed their revised briefing on November 4, 2024. 	See Doc’s 4546-
4548. 	Prior to completion of the revised briefing, the Pueblos of Sandia, Cochiti, Isleta San
Felipe, Santa Clara and Santo Domino (“Amici Pueblos”), which are not parties to this case, filed
a motion for leave to file an amicus curiae brief in support to the briefs of the Pueblo of Santa
Ana and the United States on Issue No. 3. 	See Doc. 4542, filed October 18, 2024. 	The Court
granted the Amici Pueblos’ motion in part limiting the amicus brief “to addressing the legal issue
of whether the difficulty of proving the amount of water use prior to 1848 is a factor the Court
must consider in quantifying the Pueblo of Santa Ana’s water rights under Issue No. 3.”
Doc. 4554, filed March 7, 2025. Briefing on the amicus brief was completed on May 30, 2025.
See Reply of the Amici Pueblos and Pueblo of Santa Ana, Doc. 4560.
ISSUE NO. 3
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The Parties stated Issue No. 3 as follows:
Issue No. 3: 	If the Pueblos have aboriginal water rights or Winans reserved water
rights, what standards apply to quantify such rights?
Doc. 4237 at 2-3, filed April 13, 2012; Doc. 4239 at 2-3, filed April 13, 2012.
“Aboriginal title denotes an interest that an Indian tribe possesses in land based solely on
rights acquired by the Indians as original inhabitants of the land and not upon a statute, treaty, or
grant by the sovereign.” Uintah Ute Indians of Utah v. United States, 28 Fed. Cl. 768, 784 (Fed.
Cl. 1993) (citing Johnson & Graham’s Lessee v. M’Intosh, 21 U.S. 543, 574 (1823)). Aboriginal
title “is not a property right but amounts to a right of occupancy which the sovereign grants and
protects against intrusion by third parties but which right of occupancy may be terminated and
such lands fully disposed of by the sovereign itself without any legally enforceable obligation to
compensate the Indians.” Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279 (1955). In
addition to the right to occupancy of lands, aboriginal title includes the use of the waters and
natural resources on those lands where the Indians hold aboriginal title. See United States v.
Winans, 198 U.S. 371, 381 (1905) (treaty reserved to the Indians their pre-existing right to fish at
all usual and accustomed places); United States v. Adair, 723 F.2d 1394, 1413-1414 (9th Cir.
1983), cert. denied 467 U.S. 1252 (1984) (tribe’s aboriginal title included timber rights,
aboriginal hunting and fishing rights, and water right to support its hunting and fishing lifestyle);
Joint Bd. of Control of Flathead, Mission & Jocko Irrigation Dist. v. United States, 832 F.3d
1127, 1131 (9th Cir. 1987) (treaty preserved aboriginal fishing rights). The doctrine of aboriginal
title applies to the lands ceded to the United States by Mexico in the Treaty of Guadalupe
Hidalgo. See Pueblo of Jemez v. United States, 790 F.3d 1143, 1160-91 (10th Cir. 2015) (stating
that United States v. Santa Fe Pac. R. Co., 314 U.S. 339 (1941), “reaffirmed principles first
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established in Johnson v. M’Intosh, reaffirmed that aboriginal title is not determined by treaty,
and applied the doctrine of aboriginal title to the Mexican cession area”).
“Winans rights are essentially recognized aboriginal rights.” 	Abouselman, 976 F.3d
at 1152; 2 Waters and Water Rights § 37.02(a.01) (2025) (“Winans rights are in effect aboriginal
rights expressly recognized by the federal government, usually in treaties. In these treaties, the
Indians 	reserved 	(and 	the 	government 	recognized) 	preexisting 	uses 	of 	water, 	often 	for
subsistence purposes”).
However, 	[Winans 	rights] 	deviate 	from 	aboriginal 	rights 	in 	that 	they 	are
governmentally recognized; their abrogation therefore requires constitutional
compensation. But proof of their scope is essentially identical to that required to
prove the existence of an aboriginal claim. Thus, the scope of a Winans right is
dependent on actual use over an extended period of time, although it is not a
function of the extent of land title.
Winans rights preserve pre-existing uses, rather than establishing new uses. Their
priority dates are therefore not related to the establishment of a land reservation
but date from pre-white settlement, or “time immemorial.” The quantity of
Winans water rights reserved is not fixed on practicably irrigable acreage but is
instead a “needs-based” test. Winans rights are unusual in that they commonly are
nonconsumptive. A Winans right for hunting and fishing purpose “consists of the
right to prevent other appropriators from depleting the streams waters below a
protected level in any area where the non-consumptive right applies.” Winans
rights also include water to support gathering rights as well as hunting, fishing,
and trapping rights. This includes sufficient water to support “productive habitat.”
2 Waters and Water Rights § 37.02(a)(2) (2023) (footnotes omitted).
THE PARTIES’ POSITIONS REGARDING ISSUE NO. 3
The Pueblos of Jemez and Zia have executed a settlement of their water rights with the
State of New Mexico, the Coalition and the City of Rio Rancho and have not briefed Issue No. 3.
See United States’ Opening Brief at 15 n. 9, Doc. 4528, filed September 9, 2024 (stating the
settlement is not binding unless it is approved by Congress and other conditions precedent are
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met); Twenty-Sixth Joint Status Report on Congressional Approval Process of the Pueblos of
Jemez and Zia Water Rights Settlement Agreement, Doc. 4564, filed September 15, 2025
(stating the Rio Jemez Settlement Legislation is one of several Indian water rights settlement
waiting for Congress to act).
Pueblo of Santa Ana
The Pueblo of Santa Ana asserts that “Aboriginal water rights are a component of
aboriginal title to land, and thus must support the ‘habits and modes of life’ of the tribe” and
“should be sufficient for their needs, including, in the oft-cited words of Winters, for ‘agriculture
and the arts of civilization.’” 	Santa Ana’s Opening Brief at 3-5, Doc. 4530, filed September 9,
2024 (“Santa Ana’s Brief”). 	“Santa Ana’s counsel knows of no case that actually purports to
quantify aboriginal water rights by any standard. 	This Court must plow new ground here.”
Santa Ana’s Reply at 6, Doc. 4547, filed November 4, 2024 (emphasis in original).
Santa Ana also asserts that “The Treaty of Guadalupe Hidalgo reserved the Tribes’
aboriginal Rights to water as they existed under Spain and Mexico, not some fixed quantity of
water.” Santa Ana’s Brief at 5. Santa Ana states “Prior to the arrival of the Spanish, the Pueblos
were able to increase their use of public waters without restriction.” 	Santa Ana’s Brief at 6
(quoting Order Overruling Objections to Proposed Findings and Recommended Disposition
Regarding Issues 1 and 2, Doc. 4397, filed September 30, 2017) (Vázquez, J.) (emphasis in
Santa Ana’s Brief).
Santa Ana also quotes another Order of this Court in another case which states “Pueblos
are entitled to federal water rights based on past, present and future uses; and Spanish and
Mexican law recognized and preserved these [aboriginal] rights and their first priority.” 	Santa
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Ana’s Brief at 7 (quoting Order, Doc. 5642, filed January 31, 2001, in New Mexico v. Aamodt,
No. 6:66-cv-06639-WJ-WPL) (Mechem, S.J.) (“2001 Aamodt Order”) (emphasis in Santa Ana’s
Brief). 	The statement in the 2001 Aamodt Order that the Pueblos are entitled to federal water
rights based on future uses is based on an order entered in the Aamodt case in 1985. 	See New
Mexico v. Aamodt, 618 F.Supp. 993, 1010 (D.N.M. 1985) (“1985 Aamodt Order”) (stating “The
Pueblo aboriginal water right, as modified by Spanish and Mexican law, included the right to
irrigate new land in response to need”) (emphasis added). 1 	However, the Pueblos’ right to
irrigate new land in response to need was not unlimited. 	“There were two main principles
guiding Spain's control of water. First, public waters were held in common and shared by
everyone. 	Second, one could not use public waters to the detriment of other users.” 	United
States v. Abouselman, 976 F.3d 1146, 1155 (10th Cir. 2020).
The Pueblo of Santa Ana further asserts that “Pueblo aboriginal water rights serve
essentially the same purposes as federally reserved rights, and it would make sense that they be
quantified in the same manner.” Santa Ana states:
In Winters, the Supreme Court established the rule that when the United States
sets land aside for an Indian tribe (or for any other special purpose, as subsequent
cases 	have 	made 	clear), 	it 	impliedly 	reserves 	from 	unappropriated 	water
appurtenant to the land sufficient water to fulfill the purposes of the reservation.
Winters dealt with the question of whether the waters of the Milk River, which
forms the northern border of the Fort Belknap Reservation in Montana, which was
set aside as “a permanent home and abiding place of the Gros Ventre and
Assiniboing 	[sic: 	the 	correct 	spelling 	is 	“Assiniboine”] 	bands,” 	could 	be
appropriated by non-Indians who had settled upstream of the reservation and had
dammed the river and diverted its flow, long after the establishment of the
1 This Court is not bound by an order entered 40 years ago in another District of New Mexico
case which resulted in a settlement of other Pueblos’ water rights claims. 	See Partial Final
Judgment and Decree of the Water Rights of the Pueblos of Nambé, Pojoaque, San Ildefonso,
and Tesuque, Doc. 10547, filed March 23, 2016, in New Mexico v. Aamodt, No. 6:66-cv-06639-
WJ-WPL (approving the parties’ settlement agreement).
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reservation but before the tribes had begun to make much use of the water. Id. at
565-66. The Court noted that the Indians had been nomadic, and had occupied a
vast area, but that the government intended, and the tribes agreed, that they should
become “pastoral and civilized.” That required far less land, but an adequate
supply of water, without which the land would be “valueless.” Id. at 576. The
Court concluded that the United States had indeed reserved water for the needs of
the tribes, “and for a use that would be necessarily continued through the years.”
Id. at 577. The Court therefore affirmed the decree of the Ninth Circuit Court of
Appeals, that had declared that by its establishment of the reservation, the United
States had reserved sufficient water from the Milk River “to the extent reasonably
necessary to irrigate [the Indians’] lands.” Winters v. United States, 143 F. 740,
749 (9th Cir. 1906).
Santa Ana’s Brief at 8-9 (citing other cases following Winters for the proposition that water was
reserved for present and future uses). 	“Santa Ana believes it would make sense to quantify
aboriginal rights in the same manner as the Supreme Court found that reserved rights should be
quantified, by determining the water rights that would be required to irrigate all of the
practicably irrigable acres on the tribe’s lands [‘PIA standard’].” Santa Ana’s Brief at 10.
United States
The United States asserts that:
the standard to quantify each Pueblo’s aboriginal water rights is: the amount of
water used in the past and present by the Pueblos and water necessary in the
future to sustain the Pueblo’s homeland. The appropriate method to quantify the
Pueblos’ continued uses of water for irrigation is the practicably irrigable acreage
(“PIA”) 	standard. 	Pueblo 	uses 	for 	domestic, 	commercial, 	municipal, 	and
industrial water needs should be based on a calculation of water needed to
continue such purposes in the future, based on a projection of a Pueblo’s future
population.
United States’ Opening Brief at 1-2, Doc. 4528, filed September 9, 2024.
The United States:
does not construe the Court’s Order as intending to rule that the Treaty modified
the relative water rights priorities of existing Pueblo and non-Pueblo uses during
times of wager shortage. 	The Court makes no such assertion, and there is no
language in the Treaty that would support such a position. 	The United States
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recognizes, however, that the Court did not expressly rule on the relative priority
of the two groups of rights in times of shortage and therefore seeks clarification
on this issue.
United States’ Brief at 14-15, 19 (“the United States requests this Court to confirm that the
Treaty did not modify the relative water rights priorities of the Pueblos and non-Pueblo Mexican
during times of water shortage”). 	The Court declines to address the United States’ request for
clarification of the priority issue at this time. The scope of Issue No. 3 is limited to the standard
for quantifying the Pueblos’ rights. 	While the Court recognizes that in times of shortage the
amount of water available to a party is determined in part by priorities, the Court prefers to make
any rulings regarding priorities after briefing by the Parties. The United States may file a motion
requesting such a ruling.
New Mexico
New Mexico asserts that “the Pueblos’ aboriginal water rights must be quantified based
on actual use on or before February 2, 1814, the date of the Treaty of Guadalupe Hidalgo.” New
Mexico’s Opening Brief at 2, filed September 9, 2024. 	New Mexico quotes the Court’s 2023
Order which stated:
The 	Court 	concludes 	that 	the 	United 	States, 	through 	the 	1848 	Treaty 	of
Guadalupe Hidalgo in which it agreed to protect the rights of Pueblo and non-
Pueblo Mexican citizens, extinguished the Pueblos’ aboriginal water rights, if
any, to the water used by non-Pueblo Mexican citizens.
Only the sovereign may extinguish aboriginal title, whether “by
treaty, by the sword, by purchase, by the exercise of complete
dominion adverse to the right of occupancy, or otherwise.” Santa
Fe, 314 U.S. at 347, 62 S.Ct. 248. Extinguishment may also
result indirectly through “white settlement and use, authorized
by the federal government both statutorily and in fact.” Jemez
I, 790 F.3d at 1166 (citing Pueblo of San Ildefonso, 513 F.2d at
1393). But “[n]o matter the method used, the sovereign's intent to
extinguish must be clear and unambiguous.” United States v.
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Abouselman, 976 F.3d 1146, 1156 (10th Cir. 2020).
Pueblo of Jemez v. United States, 63 F.4th 881, 891 (10th Cir. 2023) (entered
after completion of briefing by the Parties) (emphasis added). Spain and Mexico
allowed non-Pueblos to use the water for approximately 250 years, from about
1598 until 1848, when, in the Treaty of Guadalupe Hidalgo, the United States
agreed to protect non-Pueblos’ rights recognized by Spain and Mexico. Although
the Treaty of Guadalupe Hidalgo did not explicitly state it was terminating the
Pueblos’ aboriginal rights to any of the water of the Jemez River that Spain and
Mexico allowed the non-Pueblos to use, the United States’ intent to extinguish the
Pueblos’ aboriginal rights to the fraction of the flow used by non-Pueblos, given
that the amount of the total flow of the Jemez River is finite, is clear and
unambiguous. 	See Abouselman, 976 F.3d at 1155 (noting that a main principle
guiding Spain’s control of water was that “one could not use public waters to the
detriment of other users” and that a repartimiento, similar in concept to a water
adjudication, occurred only when there was a conflict between users thus
indicating that Spain recognized the limited amount of water available in the
Jemez River). 	The non-Pueblos’ use of that water is inconsistent with the
Pueblos’ use of that water.
2023 Order at 11-12. 	New Mexico argues that “a claimed first priority right to an additional
quantity of water from the Jemez River would harm pre-Treaty non-Pueblo water rights because
there was no unused “fraction” of the flow in 1848.” New Mexico’s Opening Brief at 4-8. New
Mexico also argues that the Treaty of Guadalupe Hidalgo did not recognize inchoate water rights
and “to the extent that Spanish and Mexican law recognized a [colonization, not Indian] pueblo
water right, the nature of the right that allowed increased water usage in response to growing
needs of the pueblo would have been a matter of grace, not a matter of right . . . the expanding
quality of the pueblo right, being inchoate, was not guaranteed by the Treaty.” 	New Mexico’s
Opening Brief at 8-12 (quoting State ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009,
¶¶ 32, 32). Finally, New Mexico argues that “the doctrine of aboriginal title does not support an
aboriginal water right to expanding or future uses of water” which requires actual, exclusive and
continuous use and occupancy. 	New Mexico’s Opening Brief at 12-16 (stating “there are
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approximately 	1,000 	acres 	of 	pre-1848 	non-Pueblo 	water 	rights 	to 	the 	finite 	and 	fully
appropriated flows of the Jemez River”).
The Coalition
The Coalition asserts “the Court should not quantify a Pueblo aboriginal right in excess
of uses as of 1848” for the following reasons. Coalition’s Opening Brief at 27, Doc. 4527, filed
September 9, 2024. 	First, “no additional water is available from the Rio Jemez for a new first
priority right,” Spain and Mexico allowed non-Pueblos to use water for approximately 250 years,
and “although the Treaty of Guadalupe Hidalgo did not explicitly state it was terminating the
Pueblos’ aboriginal rights to any of the water of the Jemez River that Spain and Mexico allowed
the non-Pueblos to use, the United States’ intent to extinguish the Pueblos’ aboriginal rights to
the fraction of the flow used by non-Pueblos, given that the amount of the total flow of the Jemez
River is finite, is clear and unambiguous.” 	Coalition’s Opening Brief at 4-5 (quoting the 2023
Order). 	Second, the Treaty of Guadalupe Hidalgo “did not recognize inchoate water rights.”
Coalition’s Opening Brief at 7-8 (“the expanding quality of the Pueblo right [pertaining to the
‘pueblos’ as towns and not the Indian ‘Pueblos”], being inchoate, was not guaranteed by the
Treaty” and stating the pueblo right pertaining to towns “is exactly the same ‘right’ claimed by
the Pueblos in the instant case, i.e., a right ‘that allowed increased water usage in response to
growing needs of the pueblo.’” (quoting New Mexico ex rel. Martinez v. City of Las Vegas, 89
P.3d 47, 60 (N.M. 2004). 	Third, to demonstrate aboriginal title, “‘a tribe must prove it had
‘actual, exclusive and continuous use and occupancy for a long time,’” and “the additional water
[the United States and Pueblos] seek to quanti[f]y for irrigation and other purposes was never
actually 	used 	by 	them.” 	Coalition’s 	Opening 	Brief 	at 	11-14 	(quoting 	United 	States 	v.
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Abouselman, 976 F.3d 1146, 1156 (10th Cir. 2020).
Amici Pueblos
The Pueblo of Sandia, the Pueblo of Cochiti, the Pueblo of Isleta, the Pueblo of San
Felipe, the Pueblo of Santa Clara, and the Pueblo of Santo Domingo (“Amici Pueblos”) “possess
aboriginal water rights that have never been fully quantified.” 	Amici Pueblos’ Brief at 3,
Doc. 4556, filed April 4, 2025. The Amici Pueblos contend that the Court should reject the State
and Coalition’s argument that Pueblo aboriginal water rights should be “quantified based on the
amount of water actually used on or before February 2, 1818, the date of the Treaty of
Guadalupe Hidalgo “because it would be extraordinarily difficult to prove how much water the
Pueblos used on or before February 2, 1848, [and] [s]uch a standard would severely disadvantage
the most senior water users in New Mexico and unfairly diminish their water rights.” 	Amici
Pueblos’ Brief at 5. The Amici Pueblos state:
In the modern era, most water uses are extensively documented through surveys,
aerial photography, monitoring gauges, pumping records from groundwater wells,
and other means. But there is far less documentation of Pueblo water uses as of,
or before, 1848, and the limited records that do exist do not provide anything
close to a complete accounting of the amounts of water used by the Pueblos
during this period. Pueblos may try to supplement this limited historical record
with other types of evidence, such as archaeological or anthropological research,
but 	the 	passage 	of 	nearly 	two 	centuries 	creates 	formidable 	challenges 	to
marshalling evidence that meets the standard of proof required in an adjudication.
As a result of these evidentiary challenges, Pueblos may be unable to prove the
full scope of their pre-1848 water uses—and in some cases they may not be able
to prove those uses at all—making this standard both impractical and unfair as the
measure of the Pueblos’ water rights.
[discussing difficulties of determining amount of water use in this case]
The Supreme Court has made clear that courts must consider these types of
practical and equitable factors in determining the proper legal standards for
quantifying tribal water rights. In Arizona v. California, 373 U.S. 546 (1963)
(“Arizona I”), the Court adopted the PIA standard for quantifying the federally
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reserved water rights of Indian tribes on the Colorado River specifically because
the Court determined that it was “the only feasible and fair way” to measure the
tribes’ rights. Id. at 601 (emphasis added). The Court explained:
We … agree with the [Special] Master’s conclusion as to the
quantity of water intended to be reserved. He found that the water
was intended to satisfy the future as well as the present needs of
the Indian Reservations and ruled that enough water was reserved
to irrigate all the practicably irrigable acreage on the reservations.
Arizona, on the other hand, contends that the quantity of water
reserved 	should 	be 	measured 	by 	the 	Indians’ 	‘reasonably
foreseeable needs,’ which, in fact, means by the number of Indians.
How many Indians there will be and what their future needs will be
can only be guessed. We have concluded, as did the Master, that
the only feasible and fair way by which reserved water for the
reservations can be measured is irrigable acreage.
Id. at 600–01 (emphasis added). Not only did the Court explicitly rely on
considerations of feasibility and fairness in selecting the PIA standard, by
recognizing PIA as “the only feasible and fair” standard, the Court rejected
alternative standards—including the “reasonably foreseeable needs” standard
proposed by the State of Arizona—on the grounds that these alternatives were not
practical nor equitable to the tribes. Id. at 601 (emphasis added).
Amici Pueblos’ Brief at 5-7.
The Court denies the Amici Pueblos’ requests to reject the State and Coalition’s proposed
quantification standard based on pre-1848 water uses and to quantify aboriginal water rights
using the PIA standard. The Amici Pueblos’ requests are based on the difficulty in proving how
much water the Pueblos used on or before February 2, 1848. The Amici Pueblos do not explain
whether those difficulties also apply to non-Pueblo water uses on or before February 2, 1848.
Issue No. 3 is one of the
critically important threshold legal issues outstanding that, in the interests of
judicial economy and the parties’ economic resources, must be decided by the
Court before the parties can meaningfully prepare for trial and present relevant
evidence. . . As to the Pueblos’ historic and existing uses, the Special Master
conducted evidentiary hearings in 1988 and issued a Report on October 1, 1991
(Dkt. 2291). 	This Court, in its 2004 Memorandum Opinion and Order (“2004
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Opinion”)(Dkt. 4051), ruled that, “because the legal bases for the Pueblos’ water
rights have yet to be fully resolved, it is premature at this time to act on the
Special Master’s Report on Historical and Existing Use Claims.” Id. at 34.
Parties’ Letter to Judge Vázquez, Doc. 4234, filed March 15, 2012 (emphasis added). The Court
limited the Amici Pueblos to addressing the legal issue of whether the difficulty of proving the
amount of water use prior to 1848 is a factor the Court must consider in quantifying the Pueblo
of Santa Ana’s water rights under Issue No. 3. 	The Amici Pueblos’ assertion that it is
extraordinarily difficult to prove how much water the Pueblos used on or before February 2,
1848, is, at least in part, a factual issue. See Pueblo of Santa Ana’s Supplemental Response Brief
on Issue Number 3 at 6, Doc. 4540, filed October 4, 2024 (stating “it would take a complicated
factual inquiry to determine what current water uses on the Rio Jemez can plausibly be dated to
1848”). 	The Court is not persuaded, for the reasons stated below, that the PIA standard is the
appropriate standard to quantify the Pueblos’ aboriginal rights.
CONCLUSION
The Court will quantify Santa Ana’s aboriginal/Winans water rights based on Santa
Ana’s existing uses at the time of the Treaty of Guadalupe Hidalgo. There is no legal authority
clearly defining the standard for quantifying aboriginal water rights. To demonstrate aboriginal
title, a tribe must prove it had actual, exclusive and continuous use and occupancy for a long
time. 	While the Pueblos have had actual, exclusive and continuous use and occupancy of their
land and a portion of the flow of the Rio Jemez for a long time, they did not exclusively use the
entire flow of the Rio Jemez.
The Court is not persuaded that the PIA standard is appropriate for quantifying the
Pueblos’ aboriginal rights. Aboriginal and Winans rights preserve pre-existing uses based on
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actual, exclusive use over an extended period of time. The PIA standard applies when the United
States sets land aside for an Indian tribe and impliedly reserves from unappropriated water
sufficient water to fulfill the purposes of the reservation. 	The United States, in the Treaty of
Guadalupe Hidalgo, did not set aside land for the Pueblos and did not impliedly reserve water for
the Pueblos. “In the Treaty of Guadalupe Hidalgo, the United States agreed to protect rights [of
Pueblo and non-Pueblo Mexican citizens] recognized by prior sovereigns.” New Mexico v.
Aamodt, 537 F.2d 1102, 1108-1109 (10th Cir. 1976). Applying the PIA standard to the Pueblo
lands could adversely affect the water rights of non-Pueblos that the United States promised to
protect.
Issue No. 4
The Pueblos and the United States previously stated that “the resolution of Issue No. 4
[Do the Pueblos have Winters reserved rights appurtenant to their trust lands and, if so, how are
those rights to be measured?] could be affected by the Court’s rulings on Issues 2 and 3, and
[suggested] that the question whether further briefing on Issue No. 4 is warranted should await
the Court’s rulings on these issues.” Proposed Scheduling Order at 7, Doc. 4445, filed July 21,
2021. 	The Parties completed briefing on Issue No. 4 on October 22, 2012. 	See Doc’s 4273,
4274 and 4276. The Court orders the Parties to file revised briefs on Issue No. 4 that address any
relevant case law arising since the completion of the initial briefing of Issue No. 4. The Pueblo
of Santa Ana and the United States shall file a joint opening brief within 30 days of entry of this
Order. New Mexico and the Coalition shall file a joint response brief within 30 days of service
of the opening brief. The Pueblo of Santa Ana and the United States may file a Joint reply brief
within 30 days of service of the response brief. New Mexico and the Coalition may file a joint
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surreply within 30 days of entry of the reply brief.
IT IS SO ORDERED.
_______/S/__________________________
KEA W. RIGGS
UNITED STATES DISTRICT JUDGE
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