By RLINK”https://www.abqjournal.com/author/moswald”Mark Oswald / Journal Staff Writer
Monday, March 26th, 2018 at 9:00pm
SANTA FE – All sides aren’t holding back on tough talk in a legal fight over whether retired New Mexico Court of Appeals Judge James Wechsler should have recused himself from deciding a major case on Navajo Nation water rights five years ago.
The Navajo Nation and New Mexico state government, in recent court filings, call for sanctions against Albuquerque attorney Victor Marshall for making “reckless” and “defamatory” statements about Wechsler in a February court filing seeking to overturn the decision.
Wechsler worked for a non-profit legal services organization on the Navajo reservation in the 1970s. As a New Mexico state court judge in 2013, he approved a water rights settlement between the Navajo Nation and New Mexico state government.
Marshall is standing by his contention that Wechsler should have disclosed a conflict of interest in the water case. He wrote in a Monday filing that “there is no way Judge Wechsler can construct a screen on his brain to block out his knowledge about the Navajo reservation, or his sentiments for the Navajo people.”
Marshall represents acequia and community ditch groups seeking to overturn Wechsler’s 2013 ruling that recognized the Navajo Nation’s right to divert 635,729 acre-feet of water per year. A Journal analysis in 2013 found that the agreement would increase the Navajo share of New Mexico water from 6 percent to 10 percent.
The ruling by Wechsler, who was sitting as a presiding judge in state District Court for purposes of the water rights case, continues to be contested by other water users and is pending at the Court of Appeals. Wechsler retired last year after more than 22 years on the appeals court.
In his February filing, Marshall maintained that DNA Legal Services, where Wechsler worked while living in Crownpoint in 1970s, is a “an agency and instrumentality of the Navajo Nation” and therefore Weschler had worked for the Navajo Nation government. Wechsler should have disclosed the relationship in the water rights case where the Navajo Nation was a party, Marshall maintained.
In a recent filing, the Navajo Nation characterized as “absurd” Marshall’s description of DNA Legal Services, which often files suit against the Navajo Nation over issues like prison conditions, waste disposal and livestock seizure, is an agency of tribal government.
The filing says that DNA did get federal funds through the Navajo government when it was created in 1967 but has been independently funded under its own board of directors since 1969.
“As a DNA attorney, Judge Wechsler would have advocated on behalf of indigent individuals, not necessarily members of the Navajo Nation, or any other tribe,” wrote Navajo Nation attorney Stanley Pollack. The New Mexico Office of the State Engineer joined in the call for sanctions against Marshall for claiming that Weschler had worked for the Navajo Nation.
In a separate filing, an attorney for the U.S. Department of Justice wrote that even if it were true that Wechsler had worked for the tribal government, Marshall was going too far, adding that at the federal level “seven current members of the United States Supreme Court would be recused from all cases involving the United States due to their prior employment as federal government attorneys.”
In his response Monday, Marshall wrote, “Mr. Wechsler carried out his mission for the Navajo tribe with zeal and devotion during the 1970s, and he should be very proud of what he accomplished. The problem is that Judge Wechsler carried out the very same mission 40 years later, when he awarded 635,000 acre-feet of water to contribute to the revitalization of the Navajo people…”
Marshall also contended that Wechsler used “extrajudicial knowledge” from living and working on the Navajo reservation when he ruled on the water rights case. The Navajo Nation’s court filing said that by that logic, Wechsler’s decades living off the rez should have made him biased against the Navajo in the water case.