How the West was Won (by some), Las Vegas-style

I sat in on two court meetings, overseen by a Special Master for the Pecos River (adjudications) this morning, the first on the shortage-sharing agreements in the larger Las Vegas area, the second on the Pecos River adjudication itself. Sharing a "shortage" may seem like negative accounting to some, but it has a long and rich customary history in New Mexico. I will try not to be wordy, which is difficult when you have to explain concepts like "legal threshold" (great euphemism), but it was both a dull and interesting moment to observe. These proceedings can inherently be dull because it is a discussion, most of the time, about agreements already entered into, a kind of status check so that the Special Master can observe if on-going negotiations and settlements between parties (say, Las Vegas and the regional acequias) are having their desired effect, hopefully a long-term settlement.

Part A of the proceedings this morning was really about the now remanded Pueblo Water Rights Doctrine, first decided in 1958 that gave cities/municipalities wide powers to acquire and condemn water rights within and around city limits, but the Supreme Court (in 2004) overturned the preceding opinion and handed back to the district courts to solve (a "remand" in legalese). What this means is that Las Vegas took water, as much as deemed necessary, from the river at their leisure during this 50 year period of "pueblo" hegemony in assuming water rights to the Gallinas. So representatives from the City of Las Vegas, the State (Engineer's Office), and the RGAA (Rio Gallinas Acequia Association, Romero Ditch, etc..) and acequia lawyers were present for the first part. They shared a draft of the 2009 MOU (memorandum of understanding) between all the parties and the 2009 shortage-sharing schedule for water rotation.

Part B was about the on-going upper watershed of the Pecos River adjudications, now centered especially on the Rio Gallinas. When the proceedings for the Pecos started decades ago, the priority (for adjudication, not "prior appropriation") was getting a compact signed between the states (NM/TX) and so the lower basin got much of the attention and there's even a draft settlement for that portion of the Pecos. This morning's hearings were about default filings - meaning, filing with the court water rights claims that were never responded to by property owners. The OSE sends a packet, with a consent order, detailing the water rights of an owner or the complete lack of water rights. Most of today's filings, with land-owners absent, were about people without state-documented water rights. These would seem to be mostly straightforward matters, but OSE only mails owners. So land-owners absent from this morning's hearing were to be given a summary "default" judgment, having only 10 days to respond after they receive a decision of default. This means no water rights, for today's particular proceedings.

So, what did I learn? In the first case, it was fascinating to hear about a shortage-sharing agreement between an urban area and nearby acequias; like other towns in New Mexico, some ditches have been built over (Asylum Ditch, for example) in Las Vegas. But given the low levels of available surface water in the region, this new arrangement has been necessary. This is quite separate from the troubles of the federal Storrie Dam project, which is now also experiencing chronically low levels.* The Special Master (Synder) made it clear to all parties that a long-term settlement will be necessary, and not just an annual sharing schedule to be repeated ad nauseum into the future.

In the second, I couldn't help but feel this was a more legalistic but arguably fairer system than the outright stripping of land grants in the late 19th and early 20th centuries. Still, hearing the name of default owners (about 90% of them Hispanic), I could not shake the feeling that a strange form of injustice was proceeding. Then again, a few people who were present made it clear that they had little interest (now or in the past) in irrigating their property and didn't even know why they were mailed anything from the OSE. And that is what 50 years of assumed "pueblo water rights" does to land-use and land cover changes - Las Vegas diverted what they wanted during that time period, creating chronic shortages in the region for agricultural land-users.

Finally, one of the on-going frustrations for both acequia attorneys and the parciantes and mayordomos who attend these hearings is the question of standing: If individuals are cited, in sub-files, and not members of acequias, and are sent zero rights summary judgments even if they are on the physical ditch, what does that do for the long-term water needs of irrigators in the acequia (institution)? And if the attorneys who represent ditches (institutions) have no 'standing' in court when they do not represent non-acequia individuals, what can they do? All acequias have members and physical ditches, but not all physical ditches are entirely controlled by acequias. So the "gaps" in the watershed chain are exploitable both in court (legally) and out of court (water brokers). And if that doesn't trouble you, then I've done a poor job explaining it.
* updated 11.19.09 with corrections, thanks to WG.