WATER LITIGATION UPDATE

Recently there have been several major developments in the litigation about Navajo water claims.

1.    Intermediate appellate court upholds judgment; water users and the State Engineer and Albuquerque Bernalillo County Water Authority object to the ruling.

In April, the New Mexico Court of Appeals issued a decision upholding the summary judgment issued by Judge James Wechsler in favor of the Navajo Nation.  The decision holds that the federal government controls the water in New Mexico’s rivers.  The opinion also holds that water owners have no property rights and no right to due process of law.

The Court of Appeals decision is so radical that several parties have objected, including the San Juan community ditches, the New Mexico State Engineer, the Albuquerque Bernalillo County Water Authority, and the City of Gallup.  All of them have filed petitions asking the New Mexico Supreme Court to reverse and change parts of the decision.

This is the first time that these government agencies have agreed with the San Juan water users on key issues.

2.    10 state legislators file suit that the Richardson-Navajo agreement must be approved by the  Legislature.

In June, 10 current state legislators filed a lawsuit asking the New Mexico Supreme Court to rule that the water compact signed by Bill Richardson and the Navajo Nation has no legal effect unless it is enacted into law by the New Mexico Legislature.  The lawsuit is based on a 1995 Supreme Court ruling that Governor Gary Johnson had no legal authority to bind the State to gambling compacts with Indian tribes unless the Legislature enacted authorizing legislation.  The lawsuit says that the same rule applies to Governor Richardson’s deal with the Navajo tribe.  The lawsuit also points out that the Richardson-Navajo agreement illegally gives away more than half of New Mexico’s water under the Colorado River Compacts.

The 10 legislators are Paul Bandy, Steve Neville, Ron Griggs, Zach Cook, Jimmie Hall, Larry Larranaga, Rod Montoya, William Sharer, James Strickler, and Pat Woods.  They are represented by Brad Cates of Las Cruces, a former state representative.

3.    Judge Wechsler worked as a lawyer for DNA – “attorneys who contribute to the economic revitalization of the [Navajo] people.”

Early this year it was discovered that Judge Wechsler worked as a lawyer for DNA Legal Services in the 1970s.  DNA translates as “attorneys who contribute to the economic revitalization of the [Navajo] people [Dine].  Judge Wechsler did not disclose these facts on the record to the parties in this case.

The San Juan acequias asked the Court of Appeals to order Judge Wechsler to make full disclosures, and to disqualify him from this case.  The Court of Appeals refused to investigate.  Instead, it referred the acequias’ counsel to the lawyer disciplinary board for possible action.

All of these cases are currently pending, so we will give you updates as they occur.

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