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State ex rel. State Engineer v. Aamodt

United States District Court, D. New Mexico

May 9, 2017

STATE OF NEW MEXICO ex rel. State Engineer, Plaintiff,
v.
R. LEE AAMODT et al., Defendants, and UNITED STATES OF AMERICA, PUEBLO DE NAMBÉ, PUEBLO DE POJOAQUE, PUEBLO DE SAN ILDEFONSO, and PUEBLO DE TESUQUE, Plaintiffs-in-Intervention.

          ORDER DENYING MOTION FOR CLARIFICATION

         THIS MATTER comes before the Court on the Rio de Tesuque Association, Inc.'s (“the Association”) Motion for Clarification on the Binding Effect of the Settlement Agreement on Rules and Regulations to be Promulgated by the State Engineer, Doc. 11208, filed December 23, 2016.

         On March 21, 2016, the Court approved the Settlement Agreement. See Doc. 10543.

         Section 5.3 of the Settlement Agreement provides, in relevant part:

In consultation with counsel for the other Settlement Parties, counsel for the State Engineer, the United States, and the Pueblos shall agree on a set of rules to be proposed for adoption by the State Engineer to govern his responsibilities in his various capacities set forth in Section 5.2 of this Agreement and the Interim Administrative Order.

Doc. 10547-1 at 38. Section 5.2 of the Settlement Agreement provides, in relevant part:

         Pursuant to his statutory authorities, the State Engineer shall administer the Non- Pueblo water rights adjudicated by the Decree Court as set forth in this Agreement and the Final Decree.

Doc. 10547-1 at 37. Section 5.2.1 of the Settlement Agreement provides, in relevant part:

5.2.1.1. The State Engineer has the authority, pursuant to state law, to curtail non-Pueblo surface and groundwater diversions and shall exercise his authority as necessary in order to ensure compliance with the terms of, and the delivery of water in accordance with, this Agreement, the Interim Administrative Order, and the Final Decree.
5.2.1.2 The Water Master shall have the authority to curtail Pueblo surface and groundwater diversion in order to ensure compliance with the terms of, and the delivery of water in accordance with, this Agreement, the Interim Administrative Order, and the Final Decree.

Doc. 10547-1 at 38.

         After the State Engineer circulated its proposed rules and regulations for comment from counsel for other parties, the City of Santa Fe, the County of Santa Fe, and the Pueblos “noted the need for provisions in the propose rules and regulations that in the event of conflicts between the Settlement Agreement and the rules and regulations, the Settlement Agreement would control.” Motion for Clarification at 3. The Association also “made it clear that in its view the Settlement Agreement controlled in the event of conflict between it and any rules and regulations promulgated by the State Engineer.” Motion for Clarification at 4. After telephone conferences and in-person meetings to discuss the proposed rules and regulations, “the State Engineer continues to refuse to acknowledge that in the event of conflict between the Settlement Agreement and the rules and regulations, the Settlement Agreement controls and to put such a provision in the rules and regulations.” Motion for Clarification at 5.

         The Association seeks clarification of the binding effect of the Settlement Agreement on the State Engineer and the State of New Mexico. Specifically, the Association asks for an order that:

in the event of conflict between the Settlement Agreement and any rules and regulations promulgated by the State Engineer to govern the administration of water rights within the Pojoaque Basin, whether such rules and regulations are promulgated pursuant to the Settlement Agreement or pursuant to the State Engineer's authority under state law, or both, the Settlement Agreement controls. Further, the Association moves this court for an order directing the State Engineer to include such a provision in the rules and regulations in order to minimize any further litigation on the issue.

         Motion for Clarification at 1, 6. The Association notes that Congress and this Court approved the Settlement Agreement and states that a “determination of this issue at this time is critical to the decision of non-pueblo water users in the Pojoaque Basin to accept the Settlement ...


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