STATE OF NEW MEXICO ex rel. STATE ENGINEER, Plaintiff-Appellee,
UNITED STATES OF AMERICA, Defendant-Appellee,
NAVAJO NATION, Defendant/Intervenor-Appellee,
SAN JUAN AGRICULTURAL WATER USERS ASSOCIATION, HAMMOND CONSERVANCY DISTRICT, BLOOMFIELD IRRIGATION DISTRICT, and VARIOUS DITCHES AND VARIOUS MEMBERS THEREOF, Defendants-Appellants.
FROM THE DISTRICT COURT OF SAN JUAN COUNTY Honorable James J.
Arianne Singer, Special Assistant Attorney General Santa Fe,
NM Utton & Kery, P.A. John W. Utton, Special Assistant
Attorney General Santa Fe, NM for Appellee State of New
Mexico, New Mexico Office of the State Engineer.
States Department of Justice Appellate Section Environment
& Natural Resources Division John C. Cruden, Assistant
Attorney General Andrew J. Guarino Mark R. Haag Washington,
D.C. for Appellee United States of America
Nation Department of Justice Stanley M. Pollack M. Kathryn
Hoover Window Rock, AZ for Intervenor-Appellee Navajo Nation.
R. Marshall & Associates, P.C. Victor R. Marshall
Albuquerque, NM for Appellants San Juan Agricultural Water
Users, Hammond Conservancy District, Bloomfield Irrigation
District, and Various Ditches and Various Members Thereof.
& Brockmann, P.A. James C. Brockmann Jay F. Stein Santa
Fe, NM for Bernalillo County Water Utility Authority, City of
Espanola, and City of Gallup.
Keleher & McLeod, P.A. Cassandra R. Malone Richard B.Cole
Albuquerque, NM for Cities of Aztec and Bloomfield.
Law Firm, P.A. Richard T. C. Tully Farmington, NM for B
Square Ranch; Bolack Minerals Company, a/k/a Bolack Minerals
Company Limited Partnership; Estate of Tom Bolack; a/k/a
Thomas Felix Bolack, Deceased; Bolack Minerals Foundation;
Tommy Bolack Revocable Trust; Estate of Juanita Velasquez,
Deceased; David A. Pierce; Maxine M. Pierce; David M. Drake;
and Shawna Drake
Modrall Sperling Roehl Harris & Sisk, P.A. Maria
O'Brien Christina C. Sheehan Zoe E. Lees Albuquerque, NM
for BHP Billiton New Mexico Coal Inc. and Enterprise Field
Law Office, LLC Jenny Dumas Albuquerque, NM for Jicarilla
& McCaleb, P.A. Elizabeth Newlin Taylor Jolene L. McCaleb
Corrales, NM for San Juan Water Commission.
Office of Priscilla A. Shannon Priscilla A. Shannon
Farmington, NM for McCarty Trust et al., Stephen Albert
McCarty, Trustee; and Estate of Mary McCarty, a/k/a Mary
Louise McCarty, Deceased.
L. Horner Farmington, NM ProSe.
Service Company of New Mexico Mikal M. Altomare, Corporate
Counsel Albuquerque, NM for Tucson Electric Power Company and
Public Service Company of New Mexico.
Mountain Ute Tribe Office of General Counsel Leland Begay,
Associate General Counsel Peter Ortego Lee Bergen Towaoc, CO
Samuel L. Winder Albuquerque, NM for Ute Mountain Ute Tribe.
Brad Lane Cates Fairacres, NM for Amici Paul Bandy, Steve
Neville, and Carl Trujillo.
D. BLACK, JUDGE PRO TERN.
and Procedural Background
In 1849, after years of intermittent warfare, the United
States entered into a peace treaty with the Navajo Tribe
(Navajo Nation). See Treaty With the Navaho,
September 9, 1849, 9 Stat. 974 (Treaty of 1849). That treaty
subjected the Navajo Nation and its people to the sovereignty
and rule of the United States and recognized the existence
and legitimacy of a territory to be dedicated to the Navajo
Nation. At the time, the federal government aspired to change
the existing Navajo pastoral culture into one of more
traditional Eastern-style farming and moved the Navajo Nation
onto a reservation at Bosque Redondo, in what eventually
became Eastern New Mexico. Following the Civil War, the
federal government realized its agricultural goals for the
Navajo Nation would involve a long and expensive process for
which Bosque Redondo was ill-suited. A second treaty with the
Navajo Nation in 1868 returned them to a portion of their
ancestral territory as their "permanent home."
See Treaty With the Navaho art. 13, June 1, 1868, 15
Stat. 667, 671 (Treaty of 1868).
The Colorado River drains the Colorado Plateau through the
Grand Canyon. The San Juan River is the tributary of the
Colorado River upon which the Four Corners
region relies for surface water and is the
largest river in New Mexico. The aboriginal lands of the
Navajo Nation originally included the entire San Juan Basin.
Navajo Tribe of Indians v. United States of America,
23 Ind. CI. Comm. 244, 251 (1970). The San Juan still runs
through a considerable portion of the Navajo Nation and is a
water source much coveted in this arid portion of the
In light of the Navajo Nation's potential claim for the
majority of water in the San Juan River Basin, the State of
New Mexico initiated a general stream adjudication to
determine the water rights of the major claimants. The United
States asserted claims as trustee for the Navajo Nation, and
the Navajo Nation intervened on its own behalf Following
years of litigation, the State entered into settlement
negotiations with the Navajo Nation and the United States.
The State proposed a blueprint for a settlement and held
public meetings in Farmington and Bloomfield seeking input
from the non-Indian water users. In response to substantial
public input, the State revised its settlement proposals.
In 2005, following more than a decade of negotiation, the
Navajo Nation, the United States, and the State of New Mexico
(collectively, Settling Parties) reached an agreement (the
Settlement Agreement) settling the Navajo Nation's claims
to water in the San Juan River Basin (the Basin). Federal
legislation to approve and implement the Settlement Agreement
was enacted by Congress in 2009 under the Omnibus Public Land
Management Act of 2009, Northwestern New Mexico Rural Water
Projects Act, Pub. L. No. 111-11, § 10301, 123 Stat. 991
(2009) (Settlement Act), and signed by the President. The New
Mexico Legislature then appropriated $50 million to pay New
Mexico's cost of the Settlement Agreement and authorized
the New Mexico State Engineer to bring a lawsuit seeking
judicial approval regarding the State's share of the
water, pursuant to NMSA 1978, Section 72-1-12 (2005).
See State of New Mexico, Office of the State
Engineer, 2017 Indian Water Rights Settlement Fund Report,
3-4 (2017), available at
ttlement%20Fund%20Report.pdf; see also United States
Department of the Interior Bureau of Reclamation, Navaj
o-Gallup Water Supply Proj ect: Cost Share Agreement Between
the United States and the State of New Mexico, 11 (2011),
P-OriginalCostShareAgreement.pdf. In the subsequent suit the
settling parties asked the San Juan County District Court to
approve the water rights previously allocated in
congressional legislation for the Navajo Indian Irrigation
Project (NIIP), Fruitland-Cambridge Irrigation Project,
Hogback-Cudei Irrigation Project, Navajo Gallup Water Supply
Project (NGWSP), Animas-La Plata Project (ALP), San Juan
River municipal and industrial uses, reserved groundwater,
and rights based on stock, irrigation, and recreational uses
as of January 1, 2011. Others with an interest in the
Settlement Agreement were invited into this inter se
proceeding through widely distributed radio announcements,
newspaper notices, and. over 19, 000 first-class letters to
those water rights holders who had title of record.
At the initiation of the proceedings, the district court
imposed an unusually stringent evidentiary burden on the
Settling Parties to prove the Settlement Agreement was fair,
adequate, reasonable, and in the public
interest. After giving all other water rights
claimants in the Basin notice and opportunity to participate
and to conduct discovery and file dispositive motions in
accordance with Rule 1-071.2 NMRA, the district court entered
its order granting the settlement motion for entry of partial
final decrees describing the water rights of the Navajo
Nation. The court then entered the partial final judgment and
decree of the water rights of the Navajo Nation and the
supplemental partial final judgment and decree of the water
rights of the Navajo Nation (Proposed Decrees). The
non-settling parties objected to several terms of the
Settlement Agreement and to the inter se procedures adopted
by the district court. After full briefing and argument, the
district court rejected the objections and issued its order
approving the Settlement Agreement and Proposed Decrees (the
Settlement Order). In the Settlement Order, the district
court concluded that the Settlement Agreement was fair,
adequate, reasonable, and consistent with the public interest
as well as all applicable laws.
Appellants herein, the San Juan Acequias, are non-settling
parties to the underlying proceedings that preceded the
Settlement Agreement. Despite having virtually all issues in
common with other non-settling parties, each has consistently
refused to consolidate their appeals, failed to. comply with
filing deadlines, and neglected to follow rules of procedure
or standard practice. Therefore, it will be necessary to
address their claims in separate opinions. The San Juan
Acequias challenge more than fifty aspects of the district
court's conclusions. However, since this Court finds
essentially all of these are based on faulty factual and/or
legal premises, we will dispose of them categorically rather
than attempt to answer each challenge separately.
" 'It is the policy of the law and of the State of
New Mexico to favor settlement agreements.' "
Am. Civil Liberties Union of KM. v. Duron,
2016-NMCA-063, ¶ 50, 392 P.3d 181 (quoting Navajo
Tribe of Indians v. Hanosh Chevrolet-Buick, Inc.,
1988-NMSC-010, ¶ 3, 106 N.M. 705, 749 P.2d 90). New
Mexico courts therefore "hold such agreements in high
regard and require a compelling basis to set them
aside." Builders Contract Interiors, Inc. v. Hi-Lo
Indus., 2006-NMCA-053, ¶ 7, 139 N.M. 508, 134 P.3d
795. Appellate courts review a trial court's decision to
approve a settlement decree only to determine if there was an
abuse of discretion. See, e.g., Platte v. First
Colony Life Ins. Co., 2008-NMSC-058, ¶ 7, 145 N.M.
77, 194 P.3d 108; In re Norwest Bank of N.M., N.A.,
2003-NMCA-128, ¶ 22, 134 N.M. 516, 80 P.3d 98;
Johnson v. Lodge #93 of Fraternal Order of Police,
393 F.3d 1096, 1102 (10th Cir. 2004).
New Mexico Statutes Refute Appellants' Claim That the
Settlement Required the Express Approval of the New Mexico
Legislature and Any Such Claim Should Have Been Raised by
Appellants maintain that the Settlement is void under New
Mexico law without the express prior approval of the New
Mexico Legislature. Initially it must be noted
Appellants' brief in chief fails to include any
indication of how this issue (and indeed most others) was
presented to the district court. This violation of Rule
12-318(A)(4) NMRA makes this Court's job much more
difficult. See State v. Gomez, 1997-NMSC-006, ¶
14, 122 N.M. 777, 932 P.2d 1 (stating that "an appellate
court will consider only such questions as were raised in the
lower court" (internal quotation marks and citation
omitted)); State v. Lucero, 1993-NMSC-064, ¶
11, 116 N.M. 450, 863 P.2d 1071 (noting that the appellate
court should not have to guess what trial issues were
preserved for appeal).
Appellants recite several iterations of the theme that the
Settlement was unauthorized or in violation of New Mexico
law. For example, Appellants argue inter alia that the
Settlement violates the New Mexico Constitution's
separation of powers. This is based on the premise that
Governor Richardson lacked the power to sign the Settlement
without prior legislative approval. They further contend that
through the Settlement, Governor Richardson attempted to
infringe the plenary jurisdiction of the New Mexico Courts
under Article VI of the New Mexico Constitution.
This contention, like Appellants' entire appeal, is based
on a failure to understand the nature of the relationship
between Indian nations and the United States government as
well as the structure of federalism. It is compounded by a
misconception of New ...