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Settlement of 51-year-old water rights case in jeopardy

LAS VEGAS, N.M. – The Legislature’s Water and Natural Resources Committee met at Highlands University here Wednesday to discuss the Aamodt water rights settlement and road easement issues that are now tied to the case, and which residents say are clouding ownership titles and sparking tension between Indian and non-Indian people in northern Santa Fe County.

But absent were representatives from two of the four pueblos involved in the historic settlement agreement, including San Ildefonso Pueblo, which some accuse of imperiling the years-in-the-making agreement by claiming several county roads that cross its land are theirs.

The Santa Fe County Commission last year passed a resolution that states the county won’t appropriate its share of funds to the $261 million regional water system that’s crucial to the Aamodt settlement “until the legal status of County Roads running through the Settling Pueblos has been resolved.”

That leaves settlement of the 51-year-old Aamodt case – intended to sort out Indian and non-Indian water rights – in jeopardy.

Several legislators expressed disappointment that both San Ildefonso and Tesuque pueblos – who along with Nambé and Pojoaque pueblos are part of the settlement – had no one present.

“There needs to be conversation, and it’s difficult to have that conversation when all of the parties aren’t here,” said state Rep. Matthew McQueen (D-Galisteo).

The committee’s chairman, Sen. Joseph Cervantes (D-Las Cruces), announced that he received a text message the day before from a lobbyist representing San Ildefonso informing him that San Ildefonso Gov. James Mountain would not attend. “So it’s not like we were entirely ignored,” he said.

Reached by phone on Thursday, Mountain said he chose not to attend or send a representative after he learned that the “road easement issues” had been added to Wednesday’s agenda.

“I felt it was in the pueblo’s best interest not to attend when there were other items pertaining to San Ildefonso that we were not prepared to discuss in a public forum,” he said. “Having a public debate can turn into a back and forth, and it’s not the pueblo’s position or will at this time to do that.”

County officials, along with representatives of the U.S. Department of Interior, met with leaders of the northern Santa Fe County pueblos to discuss the road dispute behind closed doors at the Roundhouse about two weeks ago.

A message left for Tesuque Gov. Mark Mitchell was not immediately returned Thursday.

Representing Pojoaque Pueblo, Gabriel Montoya did not address the road easement issue in his comments to the committee on Wednesday. He talked about concerns over water quality, and said he appreciated the efforts by the state and Santa Fe County to test water.

Nambé Pueblo Gov. Phillip Perez was asked about road access and said he disagreed with Santa Fe County withholding contributions for the Aamodt settlement until the road easement issues were resolved.

“Those issues are separate,” he said. “They should not be linked.”

Settlement in peril

The Aamodt case is more than 50 years old and some declared it over when a judge issued a final decree last month. The agreement is intended to settle water rights issues in the Pojoaque basin north of Santa Fe, quantifying water rights for the four pueblos and setting out rules for non-Indian well owners to either tie onto the planned new water system or continue to use their wells.

“We’re not done yet,” said Sandra Ely, a project manager for Santa Fe County’s utilities department. “Some things still need to happen.”

One thing is that $162 million of the funding to build the water system still needs to be appropriated. Most of it, about $93.4 million, would come from the federal government. The state is slated to pay another $57 million, while Santa Fe County is on the hook for $11.7 million, not including another $9 million it would pay for connection costs.

Arianne Singer, deputy general counsel of the Office of the State Engineer, reported that all funding was on track, except for $9 million from the state scheduled for appropriation this year. She said that due to the state’s shaky financial situation, capital improvement funds weren’t distributed during this year’s legislative session. But she said an $18 million request should be made next year to make up for it.

Another thing that needs to happen in order for the Aamodt case to really be over is the regional water system must be deemed substantially complete by 2024. If that doesn’t happen, Ely said, the settlement will no longer be in effect and remaining federal funds needed to complete the project will be lost.

Potentially, the county and four pueblos to be served by the water system would be left with an incomplete project and no way to pay for it. And while cost overruns are anticipated, Singer said that according to the settlement agreement, the state would not be responsible for paying for anything over what’s been budgeted.

To assure the project will meet its completion deadline, several other things need to happen. One, construction needs to begin within the next year. “The only way to get there is to start by spring of next year,” said Josh Mann, an attorney for the Department of Interior. The department includes the federal Bureau of Reclamation, which would build the water system.

Citing the county’s resolution over the road dispute, Mann said that disagreement must be dealt with and that the Interior department was committed to helping resolve that matter. He told a reporter after the Wednesday meeting that he was not authorized to answer questions.

But he provided a statement from the department the next day that said in part: “Because the Settlement Act prohibits Reclamation from starting construction until the agreement is executed, and the system must be substantially completed by 2024, if Reclamation cannot begin construction in time to achieve substantial completion, the Settlement will fail. This means none of the benefits will be realized, the Federal funds will be lost to New Mexico, the final decree and the waivers will have no force and effect, and the parties will be thrown back into litigation.”

The Department of Interior has scheduled an informational meeting on the issues affecting the settlement for Aug. 16. The meeting will be held from 6 to 8 p.m. at Pojoaque Middle School.

According to a handout distributed by Singer, the Aamodt case is already the fifth most expensive litigated case having to do with water rights at about $180 million.

Rights of way ruckus

Two years ago, a group calling itself New Mexicans Protecting Land, Water and Rights filed a lawsuit in federal court against the Department of Interior, the Bureau of Indian Affairs and the Northern Pueblo Agency over San Ildefonso Pueblo seeking payments for rights of way on roads that run across the pueblo’s “external boundaries” – a legal term for lands that were once the pueblo’s, but later passed into private hands.

Among the roads affected are County Road 84 and several others that branch off it that run through the community of El Rancho, a village of about 800 residents. The lawsuit contends that because of the pueblo’s claim to the roads and its seeking of payments for rights of way, their property values have diminished substantially, title companies are refusing to provide title insurance and property owners are having trouble securing financing to buy, sell or refinance their homes.

The lawsuit stems from a December 2013 letter from the federal Bureau of Indian Affair’s Northern Pueblo Agency President Raymond Fry to Santa Fe County alleging the county was in trespass on the roads.

The county responded sharply with a letter of its own, claiming that Fry’s letter was “overreach” and the BIA had made numerous errors in determining the county was trespassing on pueblo land. It argued that the county had maintained the roads for more than 100 years and pointed to a 1989 agreement between the county and San Ildefonso that the county says explicitly grants the county right of way on all the roads in question.

At the time the lawsuit was filed, County Assessor Gus Martinez told the Journal his office had received about 160 appeals of property valuation assessments from the El Rancho area as a result of the road dispute.

John Fox, president of Southwest Title Company, offered testimony Wednesday tracing the problems companies like his were having because of Fry’s letter.

“Due to the notice of trespass, we as agents couldn’t issue title insurance commitments or policies without assurances of access,” he said. “The immediate effect of that was any person within San Ildefonso (exterior) boundaries was unable to get financing or sell their property at market value,” he said.

He said the only solution he sees is intervention at the federal level or an agreement between the county and pueblos.

Fox said the issue seems to be spreading beyond San Ildefonso Pueblo and that there has been similar issues for non-Indians living around Santa Clara Pueblo

So far, at least, no other pueblo has taken the same public stance San Ildefonso has regarding road trespass.

‘The feds need to solve it’

Beverley Duran-Cash, who heads up New Mexicans Protecting Land, Water and Rights, and another member of the group, Dave Neal, spoke passionately about the issue during Wednesday’s meeting.

For Duran-Cash, the dispute has hit particularly close to home. Her mother, who lives a few houses down from her on one of the roads off C.R. 84, was diagnosed with cancer in February. Now, her family is weighing options for how they might pay for her treatment.

She asked the committee members to consider what they’d do if they were in her situation.

“Would you sell your home or let them die and go to Hospice?” she asked. “My mother deserves better.”

In an interview after the meeting, Duran-Cash said selling her home is not an option because she can’t get title insurance. She said many other people are similarly situated, though the circumstances may be different. She knows of one elderly man living alone who would like to move to an assisted care facility, but he can’t sell his home.

Neal told of a veteran he knows who he said would be charged more than $500 a month for the “right” to access his home. He referred to Fry’s letter, the trouble it has caused, and blamed the federal government.

“The feds created this problem and the feds need to solve it, not the county,” he said.

Both Neal and Duran-Cash, who said DNA tests show her to have more Native American than Spanish blood, said the dispute over the roads is causing racial tension between Native and non-Native people. Like her, many of them have mixed blood.

“It’s pitting families against each other,” she said.

Duran-Cash said after years of trying, members of her group have not received relief from New Mexico’s congressional delegation. She said about the only politician who has offered help is state Rep. Carl Trujillo (D-Santa Fe).

Trujillo, a member of the Water and Natural Resources Committee, has been trying to get answers, but has been frustrated himself, he said. He was recently denied entry into the meeting of leaders from Santa Fe County, the pueblos and the Department of Interior over the roads issue and Aamodt settlement.

“I don’t know what the solution is here, but I do know there’s a lot of animosity,” he told the committee. “Let’s get everyone back living in peace.”

There are a series of meetings coming up related to the issue:

n Rep. Trujillo will host a town hall meeting from 6 to 8 p.m. on Aug. 8 at Pojoaque Middle School.

n On Aug. 9, the Office of the State Engineer will hold an informational meeting on proposed rules for management of water in the basin, also from 6 to 9 p.m. at Pojoaque Middle School.

n The state Engineer’s Office will then host a hearing on those proposed rules beginning at 2 p.m. on Aug. 16 in the old Senate chambers at the Bataan Building, 400 Don Gaspar Ave. in Santa Fe.

n Later on Aug. 16, an informational meeting on the rights-of-way issues pertaining to roads in the El Rancho, Nambé, Pojoaque areas from 6 to 8 p.m. at Pojoaque Middle School.

Rep. Trujillo and Alan Mikkelsen, acting commissioner of Reclamation and chairman of the Indian water rights working group will be on hand to listen to concerns and field questions.

At the conclusion of the meeting, Sen. Cervantes said declarations that the Aamodt case was finally over seem to be premature.

“What I’m hearing today, it’s still pretty fragile,” he said, adding that questions about funding and the road easement issue leave doubt.