New Mexico Acequia Association

October 27, 2008

Water and Natural Resources Legislative Interim Committee

Subcommittee on Adjudication Reform

Legislative Counsel Service

411 State Capitol Santa Fe, NM 87505

RE: Comments on Adjudication Reform, Mandatory Declarations, and Water Right Licensing

Dear Committee Members:

I am writing on behalf of the New Mexico Acequia Association to provide you with our position on the policy proposals for adjudication reform discussed in recent meetings of the Water and Natural Resources Legislative Interim Committee. We appreciate the efforts of the Subcommittee on Adjudication Reform to address the need to streamline water right adjudications and we appreciate the opportunity to provide comments for your consideration. The primary concern of the NMAA is to ensure fairness in the adjudication process. We want to ensure that legislative proposals do not change the nature of vested property rights or expedite adjudication at the expense of due process.

The state has recognized in its laws that pre-1907 water rights are vested property rights. With regard to these rights, the purpose of the adjudication process as written in statute is to determine the truth as to the nature and extent of already-existing water rights, and not to jeopardize or invalidate such rights on either procedural or substantive technicalities. This must remain the purpose of water right adjudication. In general, the NMAA agrees that the adjudication process can be improved to make the process less adversarial and to complete certain phases of the adjudication process in a more timely manner. However, it is our position that many of these changes can be made in the methods in which the State Engineer administers the adjudication process. Changes to state statutes should only be considered with thorough analysis and input from affected stakeholders. Most importantly, the adjudication process should retain existing due process protections for claimants. The NMAA seeks to be a valuable contributor to the ongoing dialogue with these comments forming our initial assessment of general concepts discussed in recent meetings. As more specific written proposals become available, we will revise or statements as appropriate.

General Comments on Adjudication Reform

The current adjudication process provides that the state bear the cost of conducting a hydrographic survey and conducting the needed research to estimate certain elements of a water right such as duty of water and priority date. This provides uniformity in the adjudication process. In recent years, with newer mapping technologies, the hydrographic survey process has greatly improved. Moreover, the State Engineer has taken very positive steps to engage claimants in the mapping stage to correct mapping errors “up front” in the adjudication process in a manner that can serve to reduce the possibility of litigation in later stages of the adjudication. Under the current system, the state, or plaintiff, has to make a case as to the elements of a water right. The acequia parciante, or defendant, only has to respond if he or she disagrees with the state.

In contrast, some of the concepts for adjudication reform advanced recently may adversely affect the uniformity provided in the hydrographic survey process. Rather than having a systematic mapping process, hundreds or thousands of claimants would submit claims in a manner that lacks uniformity. Many of these claimants, particularly those without resources to hire counsel or hydrological experts, would likely understate or erroneously describe their water rights. With all these claimants stating their priority dates, duty of water, points of diversion, and sources of water, there will be less uniformity and far more conflicting claims. In the end, it could lead to more litigation. If a claims-based approach to adjudication is under consideration, the committee should seriously evaluate whether such a system would disenfranchise the claimants whose water rights the adjudication process is intended to affirm. A claims-based approach that imposes deadlines and penalties for missing deadlines could lead to more defaults and likely loss of water rights. This outcome would benefit neither the claimants nor the state of New Mexico.

Mandatory Declarations: Unintended Consequences

With regard to acequias, there is a tremendous gap between the historical/traditional understanding of a water right and the technical/legal definition of a water right. Acequias traditionally distribute water in a context of highly variable water supplies and local customs. As such, the historic methods of measuring water use units of time and are dependent on the availability of water in a given growing season. Usually described in terms of tiempos, acequias for centuries have managed water rights by sharing water not as an entitlement of a certain volume of water but as a fraction of the whole measured in time. It is usually not until exposure to the adjudication process, that acequia parciantes are introduced to the concept of measurement of water as a volume, measured in acre-feet. The translation from traditional to the technical definition of a water right is not easily overcome.

For a water right owner to file a reasonably accurate declaration, including a description of the various elements of a water right, would require legal advice, a survey, historical research, and hydrological studies. This would take time and resources. Water right owners who have limited resources to hire technical experts would be at a disadvantage in filing declarations by a certain deadline. In their licensing proposal, the OSE suggests that declarations should be binding. This is a serious departure from the current system in which there is flexibility to make corrections to declarations already filed. Making a declaration binding would have the effect of penalizing a claimant for not having the resources needed to make a reasonably accurate declaration of his or her water right. Even if mandatory declarations require only the most minimal information, such as a name and general description of a water right, many legitimate water right owners may unintentionally be excluded in the process.

At best, implementing a system of mandatory declarations will still result in an incomplete or erroneous list of claimants that will require time and resources on the part of the State Engineer to process. A comprehensive hydrographic survey system, using digital mapping technologies and land and water right ownership records, would likely yield a more complete and likely more accurate list of claimants. OSE

License Proposal: Not a Panacea

The concept of licensing is not directly related to adjudication and the two should not be mixed together. In terms of jurisprudence, a license is a significantly lesser right – and a lesser protected right – than a vested property right. Under New Mexico’s water laws, licenses do not apply to the normal and historical exercise of valid, pre-1907 water rights, which are vested property rights. A permit or a license is inappropriate where there is a vested property right and should not apply to pre-1907 water rights. The OSE seeks through their proposal to convert a vested property right to one of a license or permit. Pre-1907 water right holders have never needed permission of the state to exercise their valid water rights. If the State has an interest in verifying or quieting title to those rights, it should be done through an adjudicatory process. However, it would be inappropriate for the state to change the title by converting a vested property right to one of a license or permit.

The OSE license proposal shifts the determination of water rights away from the judicial branch to the State Engineer. In the adjudication, the court acts as a neutral arbiter in considering the various elements of a water right. Under the OSE license proposal, the elements of a water right will be solely determined by the OSE and the water right owner will be bound by that unless requesting an OSE hearing and then appealing to District Court. In the likely scenario that many claimants disagree with the OSE determination of the water right, this proposal could unleash more litigation. The litigation over disagreements on licensing would distract attention and resources away from a standard, comprehensive adjudication.

A significant unintended consequence of the OSE license proposal may be that those least in a position to litigate in their own interest, such as underrepresented claimants without the resources for legal counsel and technical experts, would be placed at a significant disadvantage under the OSE proposal. The proposed language in the OSE license proposal states that “the owner of a water right license may not seek to change any element or condition of the licensed water right in a water rights adjudication suit,” and that “the owners of other water rights in an adjudication suit may not bring inter se objections to any issue decided in any permit proceeding underlying a water right license issued by the state engineer.” Both of these concepts infringe on the role of the courts in making judicial determinations of a water right where claimants and inter se objectors are afforded due process.

Overall, the OSE license proposal, in particular how it relates to pre-1907 water rights, raises many issues with regard to due process, fairness for underrepresented claimants, and separation of powers. It could also divert much needed resources away from a comprehensive adjudication process. Furthermore, by entitling the documents acquired from licensing as “certificates of marketability,” the State Engineer displays a predisposition to approving applications to change the point of diversion, place of use, or purpose of use prior to such applications even being filed.

In summary, the NMAA is encouraged that the Subcommittee on Adjudication Reform is taking the time to thoroughly study options with regard to streamlining adjudications. We support efforts to provide the OSE the tools needed to implement priority administration. However, the various proposals set forth by the Office of the State Engineer, the Administrative Office of the Courts, and Judge Valentine are essentially first drafts or general concepts in a process that requires much more analysis and public input. While each of the various ideas may be aimed expediting adjudications, it is not clear whether they would have the intended effect or whether they may have unintended consequences for claimants with vested, pre-1907 water rights. We remain very interested in providing further input as we learn more about specific legislative proposals.

In short, there are no shortcuts or silver bullets for determining quantity and ownership of water rights in a manner that is fair, accurate, and in accordance with state law. Finally, the NMAA appreciates the opportunity to provide you with input and looks forward to more opportunities for involvement in the legislative process. For your background information, attached is a resolution passed by the Congreso de las Acequias, the statewide governing body of the NMAA, in December 2007 with regard to adjudication reform.

For more information, please contact me at 505-995-9644. Thank you for your consideration.

Sincerely,

Paula Garcia Executive Director

Cc: Governor Bill Richardson

Lt. Governor Diane Denish

Speaker of the House Ben Lujan Representative Andy Nunez, Chair, Water and Natural Resources Legislative Interim Committee

Senator Phil Griego, Chair, Senate Conservation Committee

Attachment: Statement on Adjudication Reform, NMAA Resolution 2007-003, December 2007