That cruel joke called water law

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7/19/2008 - 7/20/08

In weeks to come, the New Mexico Court of Appeals will hear arguments in a water-rights case.

We're sure the judges have had at least some exposure to that field of law so crucial to this state — but we're equally sure they'll learn a lot more from a friend-of-the-court brief on behalf of the San Juan Agricultural Water Users Assn. — 15,000 or so senior water-rights holders along that river above Farmington.

Water law in New Mexico, it says, simply doesn't work. Will that come as a shock to our state's "leading authorities" on water law — or is it merely a matter of someone finally discussing the emperor's apparel?

Four other amicus curiae briefs address failings in the non-system under which our desert state ladles out what little water's on hand, while we refuse to find out even how much there is in our streams and aquifers.

In spite of statutory and state-constitutional rights granted to people with longstanding titles and long years of irrigating their land, those rights have been high-handedly denied by one state engineer after another, whose office has usurped our courts' constitutional power.

How? By, among other things, turning the engineer-office's administrative process into a nightmare of grinding delays — 18 years, maybe longer. Hearing officers, notes the brief, are beholden to their boss, the State Engineer, and his boss, the governor.

Those políticos, especially in the company of the growth-and-development lobby, appear dedicated to reducing senior water rights — among them the rights held by the state's traditional acequias and farmers and ranchers along the state's main streams. But they, and their predecessors, are doing it by fiat; by decrees they don't have the legal power to carry out.

As for the courts, which do have that power, they don't have the money: Only a few hundred thousand dollars a year are set aside for water adjudications — processes taking decades to get nowhere. Justice delayed, justice denied? That's putting it mildly. Our courts, and the water office, need vastly bigger budgets to move the decision-making process along.

To adjudicate all the rivers and streams in our state, some experts guess, would cost $300 million. The State Engineer's yearly budget for water-rights determination is about $7 million.

Judges, meanwhile, are appointed to "water courts" without so much as money to hire a clerk. Yet many of the parties who appear before those judges are richer than Croesus. By hook or crook, they've gained control of headgates, even entire dams — to the detriment of those holding older rights.

So the judicial system tosses up its collective hands — and the state water bureaucracy tries filling the vacuum, deciding arbitrarily who gets heard, for how long and with what seriousness.
In the case on appeal, Tri-State Generation and Transmission Association v. D'Antonio, District Judge Matthew Reynolds down in Socorro found the State Engineer infringing on statutory and constitutional rights as a result of its water-resource management policies.

That's twice in a short period of time that New Mexicans are seeing trial judges up on their hind legs: Earlier this month, another downriver district court ruled against latecoming drillers of domestic wells and their threat to a nearby farm. In effect, that judge was saying the State Engineer, John D'Antonio, has been following bad law in handing out well permits as if he were forced to.

D'Antonio has warned the New Mexico Legislature that it's overdue for water-law reform. The Court of Appeals, too, should recognize that need. And so, probably, should the state Supreme Court, whose members might yet get a look at this case.

As for the San Juan brief, it should, in some form or another, be laid before the Legislature. Long negligent, even when Gov. Richardson declared a recent "Year of Water," our senators and representatives can ignore water rights — and the cost of fairly deciding them — no longer.