Three legislators challenge Navajo Water Rights Settlement, ask state Supreme Court to send it before Legislature

Lawsuit asks state Supreme Court to send settlement before Legislature
By Dan Schwartz The Daily Times
UPDATED: 05/14/2014 07:56:14 PM MDT

The San Juan River is seen on Wednesday from the Among the Water Trail off of the Bisti Highway in Farmington. (Megan Farmer — The Daily Times)

Rep. Paul C. Bandy, R-Aztec (Courtesy of New Mexico Legislature)

FARMINGTON — Three legislators and an official with an agency that represents San Juan River irrigation ditches are asking New Mexico's highest court to cancel the Navajo Water Rights Settlement because they say its approval violated the state constitution.

"There was no Legislature involvement," said Rep. Paul Bandy, R-Aztec.

The lawsuit filed Wednesday morning states the water rights settlement is void because former Gov. Bill Richardson in December 2010, just before leaving office, signed the compact with the Navajo Nation and federal government without submitting it first to the New Mexico Legislature, as is required in the state's constitution.

An above ground wheel-line sprinkler system waters grass on Wednesday at a farm near the San Juan River on South Butler Avenue in Farmington. (Megan Farmer — The Daily Times)

"It makes no difference that the United States Congress has authorized the Navajo water compact," the lawsuit states, "because the New Mexico Legislature has not."

The settlement that was approved on Aug. 19 in Aztec District Court allows the Navajo Nation to pull more than 600,000 acre-feet of water from the San Juan River. According to the lawsuit, that quantity is more than six times what Albuquerque's metro area diverts from the river, and 2010 U.S. Census findings predict it would serve the 42,127 Native Americans who live on the Navajo Nation in New Mexico.

Tribe officials have praised the settlement, but critics say it will dry the region and allow the tribe's government to sell its water to downstream cities, such as Santa Fe or Albuquerque.

The lawsuit's plaintiffs are Bandy; Sen. Steve Neville, R-Aztec; Rep. Carl Trujillo, D-Santa Fe; and Jim Rogers, the San Juan Agricultural Water Users Association's secretary-treasurer. Albuquerque-based attorney Victor Marshall represented parties opposed to the settlement before it was approved, and he is representing the plaintiffs in this case.

State Engineer Scott Verhines, his office and the Interstate Stream Commission are named as defendants.

Sen. Steven P. Neville, R-Aztec (Courtesy of New Mexico Legislature)

The lawsuit asks the New Mexico Supreme Court to nullify the settlement, order the defendants to present it to the Legislature and prohibit them from enforcing or implementing the agreement until after the state lawmakers' review.

Officials in the state engineers office did not respond for a request for comment by the end of the day.

The tribe's water rights attorney, Stanley Pollack, said in an emailed statement that the tribe will "vigorously oppose any challenge to the validity of the settlement or the water rights decreed to the Nation by the District Court."

The three legislators said they don't disagree with the settlement, but it needs approval from the full Legislature.

Rep. Carl Trujillo, D-Santa Fe (Courtesy of New Mexico Legislature)

"My concern is that this settlement comes in front of the Legislature so that we can make sure that all of our obligations are met, throughout the whole state," Trujillo said.

As the state-wide drought continues, it is uncertain how much water is actually available, he said. And without expert and citizen testimony, the Legislature cannot ensure the settlement is fair, he said.

Neville said he has many questions. He wonders how the settlement will affect San Juan County, what pitfalls exist and how well the state engineer's office will enforce priority dates.

Priority dates determine a water user's right to draw from bodies of water. A city that has been pulling river water since 1890, for example, assumes a higher priority than a city that began drawing the water in 1910. In times of shortage, junior water rights are cut first.

"What happens if we have a severe drought — where does the water go?" Neville said.

Marshall said that is a good question. New Mexico water claims have yet to be sorted out, he said.

"It's all totally murky," he said.

Dan Schwartz covers government for The Daily Times. He can be reached at 505-564-4606 and Follow him @dtdschwartz on Twitter.