Navajo Water Rights Settlement
To: Water and Natural Resources Committee
From: Victor R. Marshall
Date: August 29, 2007
Re: Some personal observations about the San Juan River adjudication and water law in New Mexico
I. The San Juan River Adjudication
• The San Juan River contains 60% of all the surface water in MM (best
available estimate; OSE won’t say).
• The proposed Navajo settlement would give 56% of the San Juan water to the
Navajo Nation, to satisfy Winters claims of roughly 40,000 tribal members
who live on the reservation in New Mexico (2000 census).
• This settlement gives away 33.6% of all the surface water in NM.
• If New Mexico gives away one-third of all its surface water, this will create a
crisis for the other 1,900,000 citizens.
• Proposed settlement is opposed by the BIA, Interior, OMB, BOR, and
Arizona. Albuquerque/Bernco Water Authority has reservations.
• Proposed settlement does not settle other Navajo water claims in New
Mexico, or the Tribes’ claims in Arizona and Utah, or the San Juan litigation.
• Proposed settlement does not prevent Tribe from exporting water to Nevada,
Arizona, or California.
• Colorado River water supply is dropping due to global warming.
• Impact on San Juan - Chama water cannot be predicted.
• Proposed settlement would use New Mexico water to satisfy an obligation of
the federal government to tribes. The state has no legal obligation under
Winters doctrine to provide water to federal Indian reservations. Tribes have
equal rights to water by prior appropriation and beneficial use under the New
Mexico constitution.
• Settlement is conditioned upon pipeline to Gallup and Window Rock, which
is likely to cost far more than $800 million. Congress has not appropriated
any money, and funding is doubtful.
• Proposed Gallup pipeline will not supply water to houses on the reservation.
That requires local distribution systems. (No funding available).
• Not supported by a PIA study.
• Navajo Nation wastes water on NAPI, which loses money every year. NAPI
water could be used to supply Gallup.
II. A Novice’s Perspective on Water Law in New Mexico
I am a relative novice in water law, but the more I learn, the more frightened I become. As far as I can tell, the water law system in New Mexico is non-functional.
Major problems
• The OSE and the courts do not have adequate resources to conduct the
pending water adjudications. Not even close. So the OSE and the courts are
being forced to try shortcuts that hurt senior water users and pro se parties.
• It is extremely difficult to get reliable information from the OSE or ISC. A lot
of basic information doesn’t exist. Under Richardson, state employees are
reluctant to offer their best professional opinions. They must stick to the
script, or else.
• New Mexico is threatened by a series of piecemeal Indian water rights
settlements that are not based in reality. There is not enough water or money
for these make-believe settlements.
• Water law has become a narrow, specialized area dominated by a few expert
attorneys. This is an unhealthy situation for any branch of the law.
• The situation cannot be solved by giving more power to the State Engineer.
The attitude of the OSE is: “We will decide whatever we want, based on
whatever information we like.” This is contrary to the New Mexico
Constitution, which vests authority in the courts to decide water rights.
Judges are not perfect, but they are much better than the alternatives.
• The Legislature needs to fund the court system so that judges (and special
masters) can become experienced in water law. These should be regular
judges within the regular court system, so that water law is governed by the
same legal principles that apply in other areas of the law.
• As a first step, the Legislature needs to ask the question:
HOW MUCH WATER DOES NEW MEXICO HAVE, ANYWAY?
How much water can New Mexico reasonably expect to use from its streams
and rivers, taking into account natural flows, obligations to other states,
precipitation variations, global warming, and the need to leave some water in
the river. The OSE and the ISC say they do not know the answers to these
questions.
• Therefore, the Legislature should commission its own study by independent experts,
using the best currently available scientific data. The net result would be an
estimated range of water supplies for each of the major stream systems, and
the state as a whole.
