Copyright © 2018 Albuquerque Journal
SANTA FE – A panel of the New Mexico Court of Appeals on Tuesday affirmed a 5-year-old ruling that approved an agreement between the Navajo Nation and state government settling Navajo water rights claims in the San Juan River basin in northwestern New Mexico.
The Court of Appeals decision, in sometimes scathing terms, rejected numerous arguments against the historic water settlement in a case that dates back to 1975.
The opinion written by Judge Bruce D. Black says that the entire appeal made by non-Indian water users, including acequia and ditch associations, was “based on a failure to understand the nature of the relationship between Indian nations and the United States.”
The approved settlement, set to become a major piece of the New Mexico water picture, increases the Navajo Nation’s share of the state’s water from 6 percent to 10 percent, according to a 2013 Journal analysis.
Opponents, who apparently could appeal further to the state Supreme Court, emphasize that the deal allows the Navajo Nation to 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.
In affirming the 2013 decision in favor of the tribal-state settlement by former appeals court Judge James Wechsler, the court panel rejected a recent motion by Victor Marshall of Albuquerque, the non-Indian water users’ attorney, seeking to overturn Wechsler’s ruling on conflict of interest grounds.
Marshall maintained that Wechsler improperly had failed to disclose that he had worked in the 1970s on the Navajo reservation as an attorney for a non-profit legal aid group that Marshall contended was “an agency and instrumentality of the Navajo Nation,” a party in the water rights case.
Lawyers for the Navajo Nation and state government have called Marshall’s argument “reckless” and “defamatory” because DNA Legal Services is independent from tribal government and often sues the Navajo Nation on issues such as prison conditions and housing evictions.
In a separate order written by Judge Linda Vanzi, the appeals court panel on Tuesday called Marshall’s motion against Wechsler “frivolous” and said that “basic inquiry and simple investigation” would have shown that the motion “was without factual foundation.”
The appeals court order said Marshall is “hereby sanctioned” and must pay costs and attorneys’ fees that the other parties in the suit incurred responding to his conflict-of-interest motion.
The panel likewise went after Marshall near the end of the 32-page opinion by Black upholding Wechsler’s 2015 decision. The opinion says the appellants represented by Marshall accused Wechsler of “substituting a fake hydrological survey” prepared by the federal government and the Navajo Nation.
Black wrote, “The allegation that the court fraudulently substituted a fake hydrological survey alleges a felony … .”
“Appellants’ counsel” – Marshall – “is strongly admonished not to advance any such frivolous and unfounded accusation in the future,” the opinion said.
Black added that Marshall also made allegation of ex parte, or outside of court, communications among the judge and other parties. “Appellants counsel is cautioned that, in the future, such unsupported accusations and evidence-free speculation will not be so politely addressed by this court, but will instead result in sanctions,” wrote Black.
Marshall couldn’t be reached for comment Tuesday. In a recent court filing, he wrote, “Mr. Wechsler carried out his mission for the Navajo tribe with zeal and devotion during the 1970s, and he should be very proud of what he accomplished. The problem is that Judge Wechsler carried out the very same mission 40 years later, when he awarded 635,000 acre-feet of water to contribute to the revitalization of the Navajo people … .”
Wechsler, who was sitting as presiding judge in state District Court for the water rights case, retired last year after 22 years on the Court of Appeals.
His 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.
Supporters of the settlement said it removes major uncertainties over water availability for non-Indians in the San Juan basin, because of the risk that the Navajo Nation might have gone to court and won a substantially larger amount of water.
The Navajo Nation agreed to forgo larger water claims in return for federal support for construction of a water pipeline to water-scarce Navajo country in the deserts of northwest New Mexico.
The appeals court on Tuesday rejected the non-Indian water users’ argument that the settlement should have gone to the Legislature for approval. Congress approved the settlement, preempting any state considerations, the opinion says. But the Legislature did approve $50 million as the state’s share of the cost of the settlement, Black’s opinion notes.
No comment was available Tuesday from the Navajo Nation or the New Mexico Office of the State Engineer, which supported the settlement.