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Compromise is progress

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Water settlements bode well for long-standing disputes

By Sherry Robinson

In 2010, a year that was bottom-heavy with bad news, we saw major progress in the stormy world of water.
Three landmark cases that defied resolution and guaranteed lawyers’ job security were settled, and our congressional delegation, led by Sen. Jeff Bingaman, managed to wring funding from Congress.
We also marked progress on the Rio Grande and in Ruidoso.
It doesn’t mean all parties to the major settlements are happy, but it does represent an acceptance of certain legal realities – namely, under western water law, tribes do have senior rights.
After all these decades, it really is time to move on.
The storied Aamodt lawsuit was filed in 1966 by water czar Steve Reynolds, who assumed the courts could sort out ownership of water rights in the Pojoaque Valley in five years, tops.
But the lawsuit’s namesake, R. Lee Aamodt, the first in an alphabetical list of defendants, died long before resolution appeared on the horizon. (Reynolds once carped, “Aamodt, as in dammit.”)
The case, which became a standoff between pueblos and non-Indians, didn’t lumber into mediation until 2000.
Many participants saw their hair turn silver over the course of the longest running lawsuit in the federal courts.
“Where are you going to end up at the end of 40 more years of litigation? With these same numbers,” Judge Michael Nelson of Arizona told stubborn non-Indians in 2004.
“And the pueblos are going to be able to dry you up and there won’t be anybody to make a pipeline to make it better.”
It took another two years before residents accepted that this was the best deal they would get.
Nelson’s warning applies to two other long-running cases – the Navajo Water Rights Settlement and the Abeyta case in Taos.
Running water had been a dream for thousands of Navajos since 1975.
The tribe has recognized rights to the San Juan River but no way to convey its water.
A 2005 settlement preserved those rights, but Navajos agreed to limit water use in return for construction of the Navajo-Gallup pipeline, which will serve about 250,000 people on the eastern Navajo Reservation, the southwestern Jicarilla Apache Nation, the Window Rock area and the city of Gallup.
The settlement protected existing non-Indian agricultural and municipal uses.
The alternative would have been another marathon lawsuit with no hope for a better outcome.
The Taos Pueblo lawsuit, also called the Abeyta case and nearly as old as Aamodt, concerned the pueblo’s claims on a Rio Grande tributary.
In 2006, parties agreed to a settlement much like that of the Navajos, protecting local acequias, the Town of Taos and domestic water users while acknowledging the pueblo’s rights.
Last month, President Obama signed legislation to settle the three cases and provide $478 million in systems and pipelines to implement agreements.
It’s not the end of the story. Now it’s the legislature’s turn to step up during what promises to be a difficult session.
On a smaller scale we saw two other positive developments. Silvery minnow fans (and maybe Rio Grande users) cheered the first release of 5,500 protected fishies from the Los Lunas refugium. Pleased federal biologists pronounced them healthy.
And after struggling for years with numerous complicated water rights that at times caused friction with the State Engineer’s Office, former Ruidoso Mayor Ray Nunley took the bull by the horns. He asked the State Engineer for a comprehensive review; there followed a year of negotiation that by 2010 resolved problems and streamlined administration.
The new governor probably won’t appreciate the parting shot from the state Water Quality Control Commission. Last month it required the state to protect Outstanding National Resource Waters, some 700 miles of headwater streams in federal wilderness areas.
Taken together, the kind of compromise and tenacity that resolved long-standing disputes is heartening.
          
Sherry Robinson
NM News Services