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(Posted 11-17-06) Landowners in Timberlake Ranch are beginning to receive certified mailings from the US Department of Justice, which contain documents related to the Zuni River Basin Litigation. The purpose of the mailings is to seek agreement to proposed consent orders which would, if signed and returned, provide some settlement to their right to use their well.

As you review the proposed order and related documents, you may notice references to “Sub-areas 1, 2, and 3 excluding Ramah”. The “Excluding Ramah” part is not relevant to your well, and you can ignore it as you make a decision as to how to respond to the mailing. The State and federal government are not including Ramah in the process at this time because they anticipate challenges to the irrigation practices in and around the town.

The somewhat controversial aspect of the consent order is that it allows you to use .7 acre feet/year of water, rather than 3 the acre feet provided by State Regulation.

When you receive the packet, you have three choices: Sign and return the consent agreement; complete and send in the Request for Consultation, which will allow you to meet with a state and federal representative to correct inaccuracies in the proposed consent order, or present your case for having a historic use of your well which exceeds .7 acre feet/year; or not respond at all.

We cannot advise you as to whether you should sign the consent agreement or not. On one hand, there will probably be litigation challenging the .7 acre feet/year number, and signing the consent agreement will not allow you to increase your allowance to a greater number if a court later determines that .7 is too low. On the other hand, .7 acre feet/year is a great deal of water for a domestic well; if you fail to either sign the consent decree or request a consultation, a default judgment may be issued against you; and signing the document binds the State and federal government to your right to up to .7 acre feet/year of water.

If after reviewing the documents in your packet and other information, you determine that the Consent Order is in any respect inaccurate or that .7 is less than your historic water use, we do recommend that you submit a Request for Consultation.

Included with the proposed consent order is a list of frequently asked questions and answers, drafted by the State and federal government. It is reproduced below.

FREQUENTLY ASKED QUESTIONS
ABOUT THE ZUNI RIVER BASIN ADJUDICATION

The following are frequently asked questions that have arisen during the course of the lawsuit known as the Zuni River Basin Adjudication, United States vs. A&R Productions, et. al., case number 01ev000272-BB/ACE, occurring in federal court in Albuquerque, New Mexico.
For even more specific information about the Zuni River Basin Adjudication, please visit the website at http://www.zunibasin.com, where you can view some of the legal documents that are referred to below.

1.Q. Am I being singled out?
A. You are not being singled out. Everybody in the stream system using and claiming to use waters of the stream system will ultimately be brought in to this adjudication. That includes not just you, but all other private individuals, the state land office, El Moro National Monument, the Zuni Tribe, the Navajo Nation, including lands of the Ramah Band of Navajos, and anyone else claiming a water right.

2.Q. Who is trying to get my water rights?
A. No one is trying to take your water rights. The purpose of an adjudication is solely to identify all the water rights in a particular area and who owns them. It is a lawsuit that is designed to identify what water you are already using and then confirm a water right to you; no water rights will be taken from you.

3.Q. Will I have to meter my well?
A. No. There is nothing in this lawsuit which would require you to meter your well. That being said, generally speaking, and throughout the State of New Mexico, metering is becoming more and more prevalent. In the Pojoaque Valley, in the Lower Rio Grande and elsewhere, systematic metering is already starting to occur. The possibility exists that at some point, in the distant future, most or all uses in this state will be metered, but that is not part of this lawsuit.

4.Q. What am I consenting to if I sign my Consent Order?
A. You are agreeing with the United States and the State of New Mexico that your Consent Order accurately defines your water right. That is the end of the lawsuit for you, at least as between you and the State and the U.S.; the Consent Order provides a basis for the Court ultimately to confirm a water right for you. You have not, however, settled with any other party to the lawsuit, and at a later time, your neighbors will be permitted, if they wish, to challenge your water right in a process known as inter se (pronounced “enter say”). You will also be permitted to challenge theirs.

5.Q. How is my water right measured?
A. Your water right is measured by the amount of water you have legally used in the past, your Historical Beneficial Use. It is important to note that if you have recently been unable to use water in the quantities you have in the past due to impossibility, as a result of drought conditions and lack of supply, for example, the quantity of your right is not reduced as a result. The amount you were using before the recent shortage is the amount you may claim.

6.Q. Are there other parts of the State where this kind of litigation is happening?
A. Yes. There are a number of stream systems in New Mexico where adjudications have been completed, and many more where they are still ongoing. Examples of places where adjudications have been undertaken and completed are the Cimmaron, the Jemez, Red River, and the Dry Canadian. Places where lawsuits like this are still ongoing are the Pojoaque Valley, Taos, the Lower Rio Grande, the Pecos, the Rio Chama, the Rio San Jose, the San Juan, Santa Cruz-Truchas and Santa Fe.

7.Q. What if I increase my use later?
A. An adjudication can only look at what you are using today. It is a snapshot in time of your water right. For that reason, future uses cannot be taken into account with regard to quantifying your water right. Any future uses will be addressed through application to the Office of the State Engineer.

8.Q. What are the benefits of having my water rights adjudicated?
A. Your water right will have received formal recognition by the Court, and as a result will have more certain status and will add value to your property.

9.Q. After my water rights claim is resolved, can I continue to develop my water right in the future?
A. Yes, pursuant to state procedures. After your water right claim is resolved in the adjudication, any future ability to develop a water right must be done by filing an application with the State Engineer. The State Engineer will evaluate the application and determine whether the application should be granted or denied.

10.Q. If I settle my water rights claim with the United States and the State Engineer, can they later take away my water right?
A. Once the Consent Order you sign with the United States and the State of New Mexico is approved and entered by the Court, they are bound by it. Other parties may challenge the rights described in the Consent Order during the inter se phase, but the United States and the State of New Mexico cannot oppose you in these proceedings.

11.Q. Once this adjudication is completed, can the State Engineer or the United States come in at some subsequent time and take away my water rights?
A. Once the adjudication is complete, you will have a court order that describes your water rights. It is a property right that can be taken away only in accordance with legal procedures, such as through forfeiture, abandonment, or condemnation.

12.Q. Once I get an adjudicated water right, can anyone stop me from using water?
A. Every water right has a priority date. During times of shortage, those with junior (more recent) priority dates may be required to stop using water for the duration of the shortage so that senior (older) rights can be exercised. Thus, for example, a rancher who has an an adjudicated right to use water from a well with a 1932 priority date may be able to stop a neighbor from using water from a well with a 2002 priority date.

13.Q. How did this lawsuit come about?
A. The action which brought about this particular adjudication lawsuit was the filing by the United States of a Complaint in early 2001 with the United States District Court. This was not the first time an attempt had been made to determine water rights in the Zuni River stream system. In 1982 a lawsuit was filed in federal court for similar purposes. It was dismissed in favor of a 1984 lawsuit filed by the City of Gallop. That action was dismissed in 1990. The 2001 lawsuit filed by the United States is the third attempt to undertake an adjudication of water rights in the Zuni River area. In a broader sense, however, these lawsuits are called for by New Mexico’s water code, which requires the adjudication of all the waters of the State through a process which involves lawsuits just like this one. It is a process which would occur here in any event at some point.

14. Q. Can I still get another domestic well for my property?
A. Yes. If you subdivide your property, construct another dwelling, or otherwise develop a need for another domestic well, you can still get a permit from the State Engineer for that purpose. The adjudication of water rights lawsuit has no affect on your future ability to get a permit.

15.Q. Why don’t I get three acre feet?
A. Because in most cases you are not using three acre feet. The water rights of private individuals are adjudicated on the quantity of your historical beneficial use. Stated another way, the Constitution of the State of New Mexico limits your water right to the amount you have used in the past. Three acre feet is equal to almost a million gallons a year. It is a rare household that is using that much water.
The plaintiff’s position on the amount of water rights that should be adjudicated for a domestic well is the subject of disagreement with some defendants in the case and will likely be litigated in this adjudication.

16.Q. Why am I being offered 0.7 acre feet from my domestic well?
A. As noted above, your water right is quantified based on your historical beneficial use. In arriving at an offer of beneficial use of up to 0.7 acre feet, and in the absence of meters to provide precise use data, the State has turned to the quantities of water it has seen consumed for domestic purposes elsewhere in New Mexico.
In the Pojoaque Valley, for example, the State has been receiving meter readings from hundreds of domestic well owners there which reflect average usage of between 0.29 and 0.3 acre feet. That includes water for both indoor and outdoor use. In some cases, more is being used, but in only a few cases do records reflect amounts of water for domestic use approaching 0.7 acre feet. Virtually never do they go over that amount. This is also consistent with state records and studies of domestic uses throughout New Mexico. It was felt by the State that an offer of 0.7 acre feet would be equal or greater than the amount actually used by claimants in the Zuni River stream system for their domestic uses.

17.Q. Can I get more than 0.7 acre feet?
A. Yes, if you are using more. When you receive your Consent Order, there will be a packet of documents and in that packet is a document called a Request for Consultation. With that, you may request to meet with the United States and the State of New Mexico at field offices held monthly out in the area. The United States and the State invite you to come in and describe how much water you are using and for what purpose, if you believe the quantity of your Historic Beneficial Use to be greater than 0.7 feet.

FEDERAL AND INDIAN WATER RIGHTS

18.Q. Are everyone’s water rights determined the same way?
A. No. All State based water rights are quantified based on the constitutional measure of beneficial use: your water right is equal to the amount you have legally used in the past. Federal and Indian water rights are adjudicated based on different rules established by federal law.

19.Q. Do the Indians get the water that is taken from me?
A. No water rights will be taken from you as a result of this lawsuit. You already either have a water right or you don’t: if you have a water right, it will be recognized and adjudicated in this lawsuit; if you are not using water, you do not have a water right and you will not be affected by this lawsuit. In any event, the Indians won’t get any more or less in the way of a water right because of what you do or do not receive. The quantity of water right you are adjudicated has nothing to do with how the Indian rights are calculated.

20.Q. How are Indian water rights quantified?
A. The U.S. Supreme Court has confirmed that Indian tribes are entitled to use all of the water necessary to create a permanent homeland on their reservations, and the federal courts have established standards for measuring the past, present, and future needs of Indian tribes. Those standards and methodologies will be used by the court here to quantify the tribal water rights.

21.Q. How do tribes fit in this adjudication process?
A. As parties to the adjudication, tribes are subject to the procedural and scheduling order for federal and Indian water rights claims issued by the Court in 2004. The procedural and scheduling order guides the course of the adjudication, and provides a framework for the quantification of the federal and Indian water rights, in addition to all other water rights in the basin.

22.Q. Are Indian lands being surveyed?
A. Yes. Indian lands are surveyed like all other lands. County ownership records, State Engineer water rights records, historical records, filed surveys, historical aerial photography, and current aerial photography may be used to conduct the survey of Indian lands. Information gathered about Indian lands will be used to legally describe a part of the tribe’s water right and will be recorded in a hydrographic survey report and associated maps will be filed with the Court.

23.Q. Why are tribes plaintiffs in this case?
A. This case was brought, among other things, to quantify the water rights on the federal lands within the Zuni River Basin. Those water rights include the rights of the tribes. The tribes intervened so that their interests can be fairly and fully protected just like the other parties to the adjudication.

24.Q Why is the federal government acting on behalf of the tribes in this case?
A. The United States has a unique legal relationship with federally recognized American Indian tribes based on the inherent powers of tribal sovereignty and self-government of tribes recognized by the U.S. Supreme Court two hundred years ago. This relationship creates certain federal duties related to tribes--also known as a trust relationship.
In its role as trustee, the United States is charged with the responsibility for administering trust property, including water resources, in order to ensure that tribes have the water resources necessary for their reservations to serve as permanent homelands. The federal government brought this suit in its capacity as trustee to protect tribal water rights, as well as water rights of other federal lands, including national forests and national monuments.

25.Q. If I sign a Consent Order, can I still object later to the amount of water offered in the Consent Order?
A. No, the signing of a Consent Order is a settlement of all your water rights claims as they are specified in the Consent Order. Therefore, it is very important that you carefully examine all details of the Consent Order and that you agree with everything before you sign.

BACKGROUND

On January 19, 2001, the U.S. Department of Justice filed a lawsuit, U.S. vs. A.R. Productions, et.al., in the U.S. District Court of Albuquerque. Defendants are some 1900 people and organizations in the Zuni River Basin in McKinley and Cibola Counties in New Mexico. All of Timberlake Ranch is included.

The suit seeks to define title to and seniority of water rights throughout the Zuni River Basin.

The area involved in the litigation is very large, and defendants include such organizations as the State of New Mexico, the City of Gallup, McKinley County, Cibola County, ATT & T, Thriftway, Ferrellgas, the Salt River Project, several churches, and two banks.

Lawsuits such as this to define water rights are not unusual in New Mexico--one known as the AAMODT case in the vicinity of the Tesuque Pueblo is the longest running lawsuit in the history of the United States. It has continued for over 40 years, and is still not resolved. A senior water attorney who has been involved in the AAMODT litigation since its inception remarked that in his opinion, his one-year-old grandson will be middle-aged before the lawsuit is resolved. The Zuni River Basin lawsuit will hopefully not take that long.

The Zuni River Basin Litigation is not an attempt to deny our right to use our domestic wells. It is an action to define the water resources and water rights throughout the area; and to establish the order of water rights superiority, especially those on tribal and federal lands. It will "prove up" our rights to our domestic wells, and provide us with some protection against big industrial and municipal groundwater users.

STATE STATUTORY PROCESS WILL BE FOLLOWED

New Mexico law requires the survey and adjudication of all water rights in the State. The process involves determination of the size and extent of the water resource and of existing and historical water uses, and formal decisions by a court (adjudication) defining the water rights. Because of resource limitations, it is carried out on an area-by-area basis (usually river and groundwater basins).

Water rights adjudication formally defines the extent and ownership of all water rights in a specific geographical area as of a particular point in time. It is somewhat analogous to a quiet title suit to establish ownership of land.

The water rights adjudication process has been going on since the enactment of the New Mexico surface water code in 1907. If it were not for this litigation the adjudication process would not have occured in our areafor decades, as under state law, priority is given to areas with significant irrigation.

The primary effect of this lawsuit is to move legally required adjudication of the water rights in our area to the top of the agenda of the State, and to provide federal money for the process to happen more quickly than it would if only State funds were involved.

HOW THE PROCESS WORKS

The Zuni River River Basin adjudication involves three phases:

1) a technical study in which a hydrographic survey is performed to identify, map and determine the water available and the ownership of water rights,

2) a process through which water rights are legally proposed,

3) a process in which any water rights holder can challenge the water rights of any other water rights holder. This is where Indian Tribes, the Federal Government, or any other water right holder in the basin might challenge the rights of other water users.

The technical survey process (phase one) begins with a review of water right records for the survey area and development of flight line maps for aerial photography. Cropping patterns and crop irrigation requirements are computed. Municipal, industrial, stock and domestic water uses are analyzed. Land ownership is investigated.

Following this work, the staff conducts a field check of water uses and draws maps depicting the water use areas, and those and other data are compiled into a report that lists all the known uses of water in the survey area. The complete report, available to the public upon request, is then sent to the federal and state legal staff, and the legal phase of the adjudication process begins.

Each water right owner is then sent an proposed consent order by the federal government, to which the U.S. and the State have already agreed. This document defines what New Mexico and the Department of Justice believe to be the:

Amount of the water right;
Priority date of the right;
Place and purpose of water use;
Point of water diversion;
Source of water; and
Ownership of the right.

The water right owner may either accept or reject the offer. Objections are usually resolved through investigations but if resolution doesn't occur informally, the water right owner has a right to seek resolution through the formal litigation process. If a water right owner fails to answer the offer during the time specified, the court may enter a default judgment adjudicating the water right described in the offer.

When the State, the Federal Government, and the defendant have all signed an offer, the court will issue an order confirming the agreement.

When all water rights have been settled, an individual defendant or group of defendants may challenge the water rights of others. This is known as an inter se objection.

Hearings on any challenges will be held, which could result in protracted litigation (this is the step in the process where the AAMODT adjudication discussed earlier is stuck). When all challenges are resolved, the court will issue a final decree that defines the rights of every water right holder within the area.

There are definite advantages to having an adjudicated water right. As a well owner, your rights to the well are declared and reinforced by a judge, which provides some legal protection and increases your property value. The state also benefits by gaining the knowledge needed to assess the amount of water that should remain available in the system for future appropriation, and to apportion the water according to the adjudicated priorities during times of shortage. Perhaps most importantly, the process provides a better basis for controlling or banning large groundwater users, who might deplete the groundwater resource under our wells.

CONCLUSION

The general conclusion of this author is that the Zuni River Basin adjudication process is a good thing. It will increase our property values by affirming our water rights, and it will improve the ability of the State to control large industrial or municipal groundwater users that would otherwise deplete the resource. It will not interfere with use of our individual domestic wells. At best, final resolution could occur as early as 2007, but if significant tribal challenges occur to other water rights holders, it could drag on for decades.

RESOURCES

State Contact for well information/registration:

Jalayne Spivey
Water Resources
State Engineer Office
121 Tijeras N.E.
Suite 2000
Albuquerque, New Mexico 87102
(505) 764-3888, extension 109

State Contact for information on the adjudication process:

Ted Bagley, Esq.
Office of the State Engineer
P.O. Box 25102
Santa Fe, New Mexico 87504-5102
(505) 827-6150 or (800) 928-3766

Website for copies of maps, studies and court documents: http://www.zunibasin.com