Adjudication as "translating property"

I had a great lunch yesterday with two well-placed people inside the Office of the State Engineer. Their interests are in law, and let us call them "Dick" and "Jane" for anonymity. And what I came away with, at least, was that adjudication is, in Maria Montoya’s language, a work of property translation. It is the state’s way of seeing and knowing what exists by way of water resources within its own boundaries. And before New Mexico can “see like a state” it has to “know” what is “out in” the state by way of rights to water. It’s a necessary (by law) first step to do priority administration in the state of New Mexico, under the doctrine of prior appropriation, even if “active management” of water is now allowed under state statute.

We covered a number of aspects over the two hours of discussion: what the latest settlement agreements (passed in the U.S. House) may mean for tackling other, on-going adjudications; the limitations of staffing to actually field-map, then convert these hydrographic surveys to cartography and digital geospatial coverage, not to mention the small number of attorneys actually working within the OSE. One can only imagine the horror (“the horror” to be read in a Marlon Brando voice) of being this state’s first engineer, with a staff of you (1), and being told to start adjudication as a process. Even if you hire an assistant, how long would it take you to map out every irrigated area, locate every well, and then compile those in comprehensive hydrographic surveys, and then ask the Attorney General to file for adjudication? – If you’re cringing, that’s the proper reaction.

And while I have frequently written about “bureaucrats, engineers, and technocrats” in these blog posts, it’s not like I am trying to be unfair, dismissive, or judgmental. I am a kind of bureaucrat as well. After all, most of us work within a bureaucracy of some sort. My own college has its own, and much larger, pecking order of hierarchies that can create institutional obstacles for the pursuit of higher education. All this is to say that I can now appreciate some of the personal and personality dimensions to adjudication as a process: the fickleness of the occasional, indecisive judge; when well-meaning special masters for water rights cases have to file report after report; when judges, special masters, or attorneys pass on in the middle of a case. People are, arguably, easily substituted in such a process. But are knowledgeable people ready to step in when this happens? [Usually not] In many ways, the latter is equivalent or at least analogous to when old mayordomos pass on, and a bunch of less informed parciantes then try to figure out how to manage the system and justify the system that is to be used on a ditch. Local knowledge transmission is a challenge regardless of whether it is about formal, legal, process (and content), or the unwritten “usos y costumbres” that los ancianos used to make sure everyone got their field, their garden, or their tiempo’s worth of water. And translating custom to a "number" that can be ascertained, and used, for water resource management is really what this is all about, in the end. Hydrologists, in other words, don't use the "tiempo" as their management or measurement unit (for better or for worse).
So my initial view, coming to New Mexico many months ago, of adjudication largely stands: it makes “formal” what has long been “informal” in terms of water rights. This doesn't mean diminishing the importance of local knowledge; "informal" can be a great thing. But just one speaks differently than one writes, so too has the bridge between oral traditions of water management and those that require "written rules" been problematic to cross. In the case of this state, the job of finding these rights has been the task of the OSE. In Colorado, water rights claimants must present themselves, and then document their claims in courts. So while I understand why people fear to get an adjudication packet from the OSE, and what the implications might be, you have to be found and recognized by the state before the state can affirm (or question) the right you claim. You're not working without a net, as help is available. My thanks go to “Dick and Jane” from OSE on helping this geographer understand a few of the subtleties and the many complexities of adjudication.