Rio Grande Water Dispute at SCOTUS

By: Bill Whaley
9 January, 2018

Local Effects

Yesterday, according to a story in the Albuquerque Journal by Michael Coleman of the Journal’s Washington Bureau, the U.S. Supreme Court first’s case of the year featured Marcus J. Rael, Jr., the 2008 Outstanding Young Lawyer of the Year in New Mexico, arguing the NM-Texas water dispute case. The case involves delivery of Rio Grande water by New Mexico to Texas to fulfill the interstate compact and an international agreement between the U.S. and Mexico also for water delivery. Both Senator Tom Udall, former NM AG and AG Hector Balderas attended oral arguments at SCOTUS yesterday.

 

As the Journal says, “Texas claims that New Mexico farmers and pecan growers illegally pump groundwater from below Elephant Butte Dam. New Mexico claims that its water obligations to Texas are measured at the dam.” In other words when there isn’t enough water from the reservoir to irrigate, NM farmers pump ground water from below the dam, water that Texas says should be flowing into the Rio Grande to help fulfill the compact.
Though the water is currently measured upstream at Elephant Butte, the rights to the ground water involve, according to Attorney Rael, arcane interpretations whether the 1939 compact affecting federal interests, Texas, New Mexico, Colorado etc. or the Reclamation Act of 1902 should prevail.

Rael, a private attorney, has been contracted by NM to argue the case. Mr. Rael, a member of the Rael clan, grew up in Questa. His grandfather and grandmother on his mother’s side, Billie and Ed Fagerquist (RIP), once operated the Country Kitchen north of the Blinking Light and owned at one time, as I remember vacation cabins in the Red River Canyon not far from the entrance to the Moly Mine. Rael has served from time to time as an interim attorney at both the Town of Taos and briefly for Taos County.

Ramifications for Taos?

If the court rules against New Mexico ground-water pumping and orders a “call” for water on the Rio Grande to fulfill treaty and compact obligations, a domino effect could ensue. Middle Rio Grande farmers, downstream municipalities and compacts like the Aamodt in Pojoaque and Santa Fe County-Espanola area will look north to Taos County for water rights to fulfill their obligations. I am under the impression that both Taos Pueblo and El Prado Water and Sanitation District are already leasing some of their water rights to downstream users.

Just as whiskey is for drinking and water is for fighting, so water, as they say in the west, flows upstream (or downstream) toward money. So parciantes and MDWCA members deserve to be skeptical about the “secrecy” of the Abeyta-Taos Pueblo Water Settlement. Some critics suspect that increasing but unknown costs associated with storage and recovery wells or ground water pumping to fulfill the settlement will back acequias and mutual domestics into a corner.

The Spring Ditch

The Spring Ditch in Taos originally functioned due to a spring, now blocked by Cody West’s live-work project behind La Belle Cleaners. In addition underground aquifers flowed from the area of Town Well No. 5 adjacent to McDonald’s. Commercial development and the state highway as well as the original KFC (now La Belle) all contributed to the demise of the Spring Ditch. It also became a convenient storm drain for Plaza area refuse. You can smell the corn dogs and cotton candy residue during Fiesta.

In an effort to avoid litigation, most of the parciantes on the Spring Ditch or the injured parties, agreed to a settlement and buy-out by the Town of Taos, thanks to Councilor Fritz Hahn and Mayor Barrone’s efforts. However, while the two politicos were getting in their licks in on acequia cleaning, where Mr. Hahn believes life begins and ends in Taos, the “buy-out” stalled. Due to recalcitrance on the part of the Office of State Engineer and alleged objections by Abeyta signatories, specifically, one would think because of Taos Pueblo, nothing has happened.

Spring Ditch parciantes retain their “unusable” water rights though the water rights don’t disappear. The Spring Ditch parciantes opted out of the Abeyta agreement, reducing the number of TVAA acequias from 55 to 54 because TVAA would not support Spring Ditch claims.

Regardless, the Town’s purchase would do nothing in a material way of affecting the Abeyta settlement’s complex trade and barter of water. The water rights would remain inside Town limits. But the complexity and secrecy masking the Abeyta signatories’ motives, especially in the case of Taos Pueblo, remain as Churchill said of Russia, a “riddle wrapped in a mystery inside an enigma.”

Taos Pueblo

Taos Pueblo, due to the twin concepts of water law, seniority and priority, in the West remains in the driver’s seat for Abeyta. At the last Abeyta meeting, Taos Pueblo water masters, Nelson Cordova and Gilbert Suazo, backed up by the DOJ attorney, refused to discuss implementation of Abeyta in open session. After the meeting, a signatory from El Prado, John Painter called me and said “the gag order” has expired. Meetings in the future, he said, would be open to the public and the press. We shall see.

One can understand Taos Pueblo’s historic objections and distrust of the ponsigh and the descendants of the Spanish Conquest. Critics claim TVAA’s claims of “custom,” a novel legal and cultural argument, developed by Attorney Fred Waltz, does not “hold water” since the law tends to follow “seniority” and “priority” in the west.

The Hispanic acequia system, hundreds of years old, does not equal Taos Pueblo’s ancestral claims, whether at Taos Pueblo (1300 CE), prior to that at Taitona (Pot Creek, 1200 CE) or prior to that among the pit dwellers who began living in the valley around 950 CE more or less.

In 2006 it was announced that the agreement would generate about $150 million in benefits for the signatories from federal and state funds. Then there was an undesignated slush find of some $20 million set aside for Taos Pueblo. I’m sure that’s changed since the final draft of 2012. Though the characters haven’t changed, a Republican administration in Washington and Santa Fe has reduced influence for Taosenos.

I believe when Nelson Cordova last served in Tribal government (Governor I think), he and Edwin Concha, War Chief (“The man who killed the cow”), with help from the BIA and the Martinez Administration ran off the vendors from the east side of the Rio Grande Gorge Bridge for no good reason. Hence the hostile barricades.

Now that Gilbert Suazo is this year’s Taos Pueblo Governor, we can see how the two water masters have consolidated their grip on political power. As members of the Tribe will tell you, Gilbert did not serve as a “Kiva” boy but got some kind of waiver for a “two-day” apprenticeship. So he bypassed tradition.

As a master manipulator of Tribal politics behind the scenes, Gilbert is patient, cunning, and obviously a formidable advocate. Certainly Tribal members know little or nothing about the proposed Settlement and its implementation.

On This Side of the Cattle Guard

The Town of Taos, since the days of Father Fred and Slick Gus have ignored and neglected community interests in Abeyta. Painter (EPWSD) once told me he tried to get the Town to buy Top of the World Water Rights, the rights allegedly sold [by Tom Worrell, I think] to Santa Fe County. Indeed Slick Gus forbade Town Councilors to attend Abeyta meetings though Gene Sanchez went to a couple.

In fact Painter is the only source of information on Abeyta. Painter has done his best to protect and capitalize EPWSD. I cannot imagine how much per capita the District’s total investment is.

TVAA’s Palemon Martinez has been discredited in his community up in Seco-El Salto, and removed from acequia leadership, due to allegations of insider dealing re: storage and recovery wells, etc. He remains titular head of TVAA due to his position on a ditch in Valdez. But who at TVAA will succeed Palemon?

Longtime Hondo ditch activist and critic Alfred Trujillo has always said, in public and private that TVAA represents the interests of junior water rights holders in Valdez at the expense of Hondo’s senior rights. Alfred, who opposed Abeyta, and Eduardo Lavadie (RIP), started TVAA. Alfred, like Dave Rael of the Spring Ditch, remains knowledgeable and informed if frustrated. Jerome Lucero of the Spring Ditch put up money for legal expenses on behalf of Spring Ditch parciantes but doesn’t expect to ever see it. He’s a realist.

Elected officials at the Town remain largely ignorant and in absentia when it comes to Abeyta matters, relying on interim attorneys and a history of poorly informed engineers.

Conclusion

All that we taxpayers, parciantes, members of EPWSD or MDWCAs know is that we don’t know. Gilbert and Nelson have a goal that involves the greater survival of Taos Pueblo. The Town and EPWSD will survive one way or another due to the tax base. But TVAA and the MDWCAs, given a lack of resources and knowledge, are floating on paper water rights and legalistic agreements. Taos County’s lawsuit against Top of the World’s 1700 acre feet transfer of water from north of Questa to Aamodt comes about 18 years too late. While well intentioned the County’s quixotic protest seems fatally flawed.

Activists for years lobbied Taos County to protect parciantes against transfers that would hurt both watersheds and acequias but the Commissioners were intimidated by the local politics of Abeyta. Given the lack of moisture this year and arguments at the Supreme Court re: the Rio Grande, Abeyta “implementation” today remains a “riddle wrapped in a mystery inside an enigma.”

The pen is mightier than the shovel.

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