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United States v. Abousleman

United States District Court, D. New Mexico

September 30, 2017

UNITED STATES OF AMERICA, on its own behalf and on behalf of the PUEBLOS OF JEMEZ, SANTA ANA, and ZIA, and STATE OF NEW MEXICO, ex rel State Engineer, Plaintiffs,
v.
TOM ABOUSLEMAN, et al., Defendants. and THE PUEBLOS OF JEMEZ, SANTA ANA, and ZIA, Plaintiffs-in-Intervention,

          MEMORANDUM OPINION AND ORDER OVERRULING OBJECTIONS TO PROPOSED FINDINGS AND RECOMMENDED DISPOSITION REGARDING ISSUES 1 AND 2

          MARTHA VÁZQUEZ UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on the Objections of Intervenors Pueblo of Santa Ana and Pueblo of Jemez to Proposed Findings and Recommended Disposition Regarding Issues 1 and 2, Doc. 4384, filed November 1, 2016 ("Pueblos' Objections"), and on the United States' Objections to Proposed Findings and Recommended Disposition Regarding Issues 1 and 2, Doc. 4385, filed November 1, 2016 ("United States' Objections).[1] For the reasons stated below, the Court will OVERRULE the Objections and ADOPT United States Magistrate Judge William P. Lynch's Proposed Findings and Recommended Disposition Regarding Issues 1 and 2, Doc. 4383 ("PFRD").

         The parties requested that the Court rule on the following legal issues before proceeding with the adjudication of the Pueblos' water rights claims:

Issue No. 1: Have the Pueblos ever possessed aboriginal water rights in connection with their grant or trust lands, and if so, have those aboriginal water rights been modified or extinguished in any way by any actions of Spain, Mexico or the United States?
Sub-issue: Did the Acts of 1866, 1870 and 1877 have any effect on the Pueblos' water rights and, if so, what effect?
Sub-issue: Did the Pueblo Lands Acts of 1924 and 1933 have any effect on the Pueblos' water rights and, if so, what effect?
Sub-issue: Did the Indian Claims Commission Act have any effect on the Pueblos' water rights and, if so, what effect?
Issue No. 2: Does the Winans doctrine apply to any of the Pueblos' grant or trust lands?

Doc. 4363 at 2. "Aboriginal title denotes an interest that an Indian tribe possesses in land . . .[and] is not a property right but amounts to a right of occupancy which the sovereign grants and protects against by intrusion by third parties . . .[and] includes the use of the waters and natural resources on those lands where the Indians hold aboriginal title." PFRD at 2-3 (citations omitted). "Winans rights essentially are recognized aboriginal rights." PFRD at 13 (citation omitted).

         In addressing Issue No. 1, its sub-issues and Issue No. 2, United States Magistrate Judge William P. Lynch considered the briefs of the parties, the testimony and expert reports of the expert witness for the United States and Pueblos, Charles R. Cutter, Ph.D., and the expert witness for the State, Professor G. Emlen Hall, and relevant law. See PFRD at 2. Judge Lynch concluded:

I recommend that the Court find that the Pueblos of Jemez, Santa Ana, and Zia actually and exclusively used water continuously for a long time before the Spanish occupation of New Mexico, and thus conclude that the Pueblos possessed aboriginal water rights in connection with their grant or trust lands prior to the arrival of the Spanish. Further, I recommend that the Court find that Spain imposed a legal system to administer the use of public waters which extinguished the Pueblos' right to increase their use of public water without restriction, and that Spain's exercise of complete dominion over the use of public waters extinguished the Pueblos' aboriginal water rights. Finally, I recommend that the Court conclude that the Winans doctrine does not apply to any of the Pueblos' grant or trust lands.

PFRD at 14.

         The United States and the Pueblos object to Judge Lynch's findings and conclusion that Spain extinguished the Pueblos' aboriginal water rights. See Pueblos' ...


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