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Motion seeks to overturn Navajo Nation water rights ruling

Copyright © 2018 Albuquerque Journal

SANTA FE – More than 20 acequia and community ditch groups have filed a motion seeking to overturn a major ruling by retired New Mexico Court of Appeals Judge James Wechsler on Navajo Nation water rights. The motion says that Wechsler failed to disclose that he had worked years ago as an attorney for what the motion contends is a tribal entity.

An attorney for the Navajo Nation called the motion ridiculous. Wechsler worked for a nonprofit legal services agency that serves individuals and often sues the Navajo government on their behalf, not the government itself, said attorney Stanley Pollack.

The motion filed Monday at the Court of Appeals seeks to overturn Wechsler’s decision in 2013 approving an agreement between the Navajo Nation and New Mexico state government settling Navajo water rights claims on the San Juan River in northwest New Mexico.

The ruling by Wechsler, who was sitting as a special presiding judge in state District Court for the water rights case, which dates to 1975, continues to be contested by other water users and is still pending at the appeals court. Wechsler retired last year after more than 22 years on the court.

Wechsler’s 2013 ruling recognized the Navajo Nation’s right to divert 635,729 acre-feet of water per year, which translates to consumption of 325,756 acre-feet annually. Consumption is defined under state law as the total amount of water diverted, minus the amount returned for use by others downstream.

A Journal analysis in 2013 found that the agreement Wechsler approved would increase the Navajo Nation’s share of the state’s water from 6 percent to 10 percent.

Past legal work

The new motion filed for other area water users by Albuquerque lawyer Victor Marshall says Wechsler lived on the Navajo reservation at Crownpoint from 1970 to 1976 and worked as a lawyer on several important cases while working for DNA Legal Services, which describes itself online as providing “free civil legal services to low-income people who otherwise could not afford to hire an attorney.”

Marshall’s filing maintains that the nonprofit DNA is “an agency and instrumentality of the Navajo Nation.”

Wechsler and the Navajo Nation did not disclose a prior relationship, as required by the Code of Judicial Conduct, the motion argues. The cited section of the code says a judge should step down when the judge has a personal bias or personal knowledge of facts in dispute or has served as a government employee, public official or lawyer in the matter at issue.

“There can be no doubt that Mr. Wechsler acted as a zealous, effective, loyal, and dedicated advocate for his clients” at DNA Legal Services, Marshall’s motion says.

“But that is exactly why Judge Wechsler cannot sit on this case. As a lawyer for the Navajo Nation, he had a duty to act with zeal and undivided loyalty as a champion for the interests of the Navajo Nation. That is the polar opposite of the duty of impartiality which is imposed on every judge in every case.”

Motion disputed

But Pollack, who is representing the Navajo Nation in this case, said Marshall’s motion wrongly equates Wechsler’s work for the nonprofit firm with working for the Navajo government.

“He’s conflating working on or in the Navajo Nation with working for the Navajo Nation,” Pollack said. “He’s conflating working for individual members of the Navajo Nation, which is what DNA does, to working for the Navajo Nation, a governmental agency.

“If a judge had represented individuals in the state of New Mexico before becoming a judge, would he (Marshall) move to disqualify the judge because working for individuals is equated with working for state government?”

“The whole thing is ridiculous,” Pollack said.

He said DNA regularly sues the Navajo government over issues including evictions from public housing, jail conditions and solid waste facilities.

When DNA announced closure of three offices last year, it said its funding sources include the U.S. Department of Justice, the Indian Land Tenure Foundation and the Native American Rights Fund, but the majority comes from the Legal Services Corporation, a federal agency. No comment was available from DNA Tuesday.

Santa Fe City Councilor Peter Ives, an attorney and DNA board member, said he would call it a “stretch” to refer to the organization as an instrumentality of the Navajo Nation. He said board members have included employees of the Navajo government, but to his knowledge, the nonprofit does not receive any funding from the nation. “It is a nonprofit Arizona corporation that provides indigenous services for a number of nations, including Navajo,” Ives said.

A brief by Marshall in support of his motion cites major cases that were among many that Wechsler worked on while at DNA. In one, a federal court ruled that Gallup schools were discriminating against Navajo children and diverting federal dollars that were supposed to benefit them. Another was a tax ruling described as a landmark case in favor of Indian sovereignty, and another favored preference for Native American hires at the Bureau of Indian Affairs.

The new motion says that under the settlement approved by Wechsler, the Navajo Nation can use more than six times as much water as the city of Albuquerque. The agreement’s defenders call that an apples-to-oranges comparison, because all of New Mexico’s agricultural water agencies use substantially more water for irrigation than is used by cities.

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