Pre-Adjudication Strategies

Written by Enrique Romero, NMAA Staff Attorney

Water rights adjudications can take many forms.  An adjudication court (state or federal) can determine groundwater rights only, or both surface and groundwater, either at the same time or at a different time during an adjudication.  Adjudications may involve a single stream system and its tributaries, or just a tributary of a larger stream.  A large river, like the Rio Grande or the Rio Chama, may be broken into segments, and each segment may be adjudicated separately.  Like any lawsuit, adjudications can result in settlements between parties.  Despite the differences, water rights adjudications in New Mexico have several things in common.  The purpose of this article is to describe some of the common characteristics associated with water rights adjudications and ways parciantes and acequias can best prepare for adjudication.

A water rights adjudication is a civil lawsuit that involves the State of New Mexico, via the Office of the State Engineer (OSE), and water right claimants.  A claimant is anyone that may claim to be the owner of a water right in the adjudication.  The State brings the lawsuit, and is therefore the plaintiff, and the claimants are the defendants, and therefore defend against inaccurate claims made by the State pertaining to the use of water.  The bottom-line on this point is that lawsuits are time-intensive and require resources.  Anytime someone defends a legal right in court, there is a lot at stake.  While courts in most cases allow a party to proceed pro se – without an attorney – a water right claimant and an acequia will likely need to retain an attorney at some point during an adjudication.  Because water rights are a type of property right – and in the arid southwest a property right of high economic, cultural and historical value – water right owners should assume that those rights will be challenged during adjudication.  Do not wait for an adjudication to begin to understand the implications of losing your water rights.  The better informed you are about the process and the full extent of your rights, the better prepared you will be to present your own defense initially and if you have to retain a lawyer, you’ll be ready to evaluate his or her advice.

Because a water rights adjudication is a type of lawsuit, proper notice and service is required for a decision of the court to be binding on the water right claimant.  The Office of the State Engineer is required to review legal records, including its own records (change of ownership forms), records of acequias, and county clerk records to determine who potential water right claimants are and should therefore be included as defendants in the adjudication. Parciantes do themselves a disservice by not being included as early as possible in adjudication.  For example, water right owners of record will have a certain amount of time to respond to offers from the State or to orders from the court.  It is better to have enough time to thoughtfully respond to the State or the court than argue later that you had no notice of a particular deadline.  Keep ownership information current with your acequia.  If you subdivide irrigable land and deed the land to your children, for example, inform the acequia immediately and encourage your children to record their deeds with the county clerk and file change of water right ownership forms with the OSE.

Another source of information the OSE will use when compiling information for adjudications are declarations.  Individual parciantes, and sometimes acequias, file water right declarations with the district office of the State Engineer that indicate the extent of the pre-1907 water right claimed in the declaration.  Statute provides that the contents of the declaration are “prima facie evidence of the truth of [the declaration’s] contents.”  This provision sets up a presumption that the information declared is the extent of the water right and the State has the burden of overcoming that presumption by presenting contrary evidence.  So, the declaration serves two purposes.  First, in conjunction with a change of ownership form, the individual parciante named in the declaration may be notified when an adjudication is underway.  Second, the parciante, not the State, has established the basis of the water right that any party challenging the water right must come to terms with.

Every adjudication initiated by the State begins with a hydrographic survey in which the OSE maps out current water use and, in the case of surface water, assigns a tract number to the irrigated parcel.  The hydrographic survey serves as the basis for an offer from the State for a water right.  If the OSE’s staff that prepared the survey determined that no irrigation was taking place at the time of a site visit of a parcel, the owner of that parcel can expect to receive a no right offer or an incomplete offer that may only recognize the amount of land actually irrigated at the time of the visit.  Occasionally, the OSE completely leaves out tracts that are irrigated or have a history of irrigation.  In those cases, it is possible that no offer will be made and it may be up to the claimant to file an omitted claim (“omitted” because it was not part of the hydrographic survey) during the adjudication.  The best way for a parciante to have water rights recognized in a hydrographic survey is to irrigate.  It is unlikely that a water right owner will receive advance notice that OSE staff is compiling information on each parcel served by an acequia.  Therefore, parciantes should be vigilant in irrigating every few years so that they are not put in the position of having to contest a no right offer.  After all, the New Mexico constitution provides that beneficial use is the basis, the measure, and the limit of the right to use water.

Finally, the importance of pre-adjudication organizing cannot be overstressed.  Regional associations of acequias – before, during, and after adjudication – have proven to be a source of unity and strength in contesting claims of non-use or negotiating the best possible outcome for acequias within a stream system.  Public money is available through the Acequia and Community Ditch Fund to help acequias during adjudications pay for legal and technical defense costs.  While individual acequias have a key role in preparing parciantes for adjudications – especially by keeping membership lists current, having regular meetings and elections, and updating bylaws – regionals associations can take a more expansive view and support and reinforce their member acequias’ efforts.