The water rights settlement was negotiated during the administration of Democratic Gov. Bill Richardson, and was signed off on by Attorney General Gary King. The administration of his successor, Republican Gov. Susana Martinez, has carried out its implementation. In a brief filed with the New Mexico Supreme Court Wednesday, the three legislators say that is insufficient, and that the deal should have gone before the Legislature.
Victor Marshall, the attorney who filed the suit, argues that the agreement gives a portion of New Mexico’s share of the San Juan River to the Navajo Nation, an action that requires legislative approval.
Amy Haas, chief counsel for the New Mexico Interstate Stream Commission, disputed that interpretation, saying the water was not being given to non-New Mexicans. The whole purpose of the agreement, she said, is to sort out the question of which New Mexicans, Indian and non-Indian, are entitled to how much water. “This water is the Navajo’s water,” Haas said in an interview Wednesday. “They are New Mexicans.”
The agreement would allow New Mexicans who are members of the Navajo Nation legal rights to an additional 130,000 acre-feet of water for farming above and beyond the 195,400 acre-feet already used by Navajo residents of the state. The 130,000 acre-feet is enough to irrigate about 40,000 acres of farmland.
The agreement is based on a 1948 compact among New Mexico, Colorado, Utah and Wyoming that allocated New Mexico an unusually large share of San Juan River water based on the argument that the water was needed to meet the needs of members of the Navajo Nation living in New Mexico. Despite that deal, the Navajos have never gotten the water set aside for them in 1948. A judge in New Mexico’s 11th Judicial District Court in San Juan County approved the deal last August, but Marshall has appealed that ruling.
Legislators have been asked to provide funding to implement the agreement without ever having been given the right to pass judgment on the deal itself, said Sen. Steve Neville (R- Farmington). The result, Neville said in a phone interview Wednesday, is the disenfranchisement of non-Indian farmers, who he said had no other voice in the decision-making process.
Neville is joined in the suit by Rep. Paul Bandy, (R- Aztec), Rep. Carl Trujillo (D- Santa Fe) and San Juan County farmer Jim Rogers.
Marshall said the Navajo water settlement is similar to Indian gaming compacts, which the New Mexico Supreme Court has said require legislative approval. Haas disagreed, saying the deal is not a compact but a settlement of water rights litigation, which the attorney general — in this case King — is legally authorized under state statute to approve.
Navajo Nation attorney Stanley Pollack said he had not seen Marshall’s lawsuit and declined comment beyond saying, “The Nation will vigorously oppose any challenge to the validity of the settlement.”