On January 8 the San Juan Agricultural Water Users filed their briefs in the New Mexico Court of Appeals against the Richardson-Navajo settlement. Two briefs were filed, one by the community ditches on the San Juan main stem, and another by the acequias on the Animas River. Each group joined in the arguments by the other.
The briefs present strong arguments based on Western water law and the specific facts about the Navajo water claim. You can read the briefs (best in this order) Brief in Chief by San Juan Ditches and Brief in Chief by Animas River Acequias. The other side is supposed to file their answer briefs in 45 days; after that we will file reply briefs. No date has been set for oral argument.
Here is a selection of some of the key points in the briefs.
BRIEF IN CHIEF BY SAN JUAN COMMUNITY DITCHES
Introduction and Summary
Without conducting a trial, the district court awarded more than 635,000 acre-feet of water from the San Juan River to the Navajo Nation. The lower court granted summary judgment approving an agreement between Bill Richardson and the Navajo tribe that gives the Navajo tribe 635,729 acre-feet per year from the San Juan River. 635,000 acre-feet is more than 6 times the amount of water diverted by the Albuquerque metropolitan area.
NIIP is not PIA. The Navajo Nation, U.S. and OSE admitted this fact during the summary judgment process. Therefore an award of water rights for this irrigation project is contrary to the Winters cases and all applicable federal and state statutes.
The Richardson-Navajo agreement is a nullity because it has not been enacted as a statute by the New Mexico Legislature, as required by State ex rel. Clark v. Johnson and Pueblo of Santa Ana.
The Richardson-Navajo settlement violates § 72-1-11(C)(1), which requires a tribal water rights settlement to resolve all of the tribe’s water rights claims.
BRIEF IN CHIEF BY ANIMAS RIVER ACEQUIAS
A. By signing the Navajo agreement, Governor Richardson attempted to limit the jurisdiction of the New Mexico courts; the authority of the state engineer; and a water owner’s constitutional right to de novo judicial review. The Navajo agreement subjects San Juan water owners to a Navajo administrative tribunal, even when the water owners are not Navajo and do not live on the reservation.
B. The U.S., Navajo Nation, and the OSE violated due process by deliberately using defective lists for mailing notice of the inter se, even after the acequias offered to provide better membership lists at no cost to the government.
C. The lower court prevented more than 9,000 water owners from having an attorney in the Navajo inter se. The court required every individual water owner to sign an attorney contract in ink, contrary to George v. Caton
F. There are no permits for the water rights claimed by the Navajo Nation and the United States.
J. The court ruled on summary judgment that water for endangered species is irrelevant.
M. If the Richardson-Navajo agreement ever becomes final, in most years there will be large water deficits on the San Juan River system. These water shortages will cut off or cut back the water supply to the Rio Grande through the San Juan-Chama Project, impairing the water supply for Albuquerque, Santa Fe, and the Middle Rio Grande Conservancy District.
CC. The Richardson-Navajo agreement is unfair to the other tribes and pueblos in New Mexico. Awarding 635,000 acre-feet to the Navajo Nation will eliminate or reduce the amount of water available for the Aamodt and Taos settlements.