U.S. Water News Online
LAS CRUCES, N.M. -- The state of New Mexico has failed to show it would suffer irreparable damage unless Pojoaque Pueblo's water use is limited, a federal judge has determined.
U.S. Magistrate Leslie Smith filed a suggested ruling saying the state's request for a federal court order cutting the amount of water the pueblo uses should be denied.
The state contends the pueblo is using nearly twice the water it is entitled to and will take three times its share if it opens a second 18-hole golf course and a planned resort hotel.
Lawyers for both sides now have a chance to comment before U.S. Judge Martha Vazquez, who inherited the case when U.S. District Judge Edwin Mechem died last year. Vazquez will make the final ruling on the state's request.
New Mexico State Engineer John D'Antonio said he expects the state to file objections to Smith's decision within the next two weeks.
``Obviously, we don't agree,'' D'Antonio said. By irrigating its golf courses and proceeding to develop a resort hotel, Pojoaque Pueblo is taking more water than the courts have ruled it is entitled to, he said.
``It's extremely important and even more so now than ever,'' D'Antonio said of the state's efforts to force the pueblo to cut its water use. ``We just came out of the driest January on record.''
Pojoaque Lt. Gov. George Rivera said the pueblo welcomes Smith's suggested ruling.
``We believe that it should have gone our way,'' Rivera said. ``We know that what the New Mexico attorney general was doing was bringing a frivolous lawsuit to court because there was no proof of any damage and no proof of future damage.''
Rivera charged that Attorney General Patricia Madrid brought the court action against Pojoaque Pueblo to drum up publicity during her successful re-election campaign. Madrid and the State Engineer's Office filed a request to cut Pojoaque's water usage late last year.
The state filed its request against Pojoaque Pueblo in the federal Aamodt Water-rights-adjudication lawsuit, which it had initiated in the mid-1960s to determine water rights on the Rio Pojoaque, Rio Nambe and Rio Tesuque.
Vazquez of Santa Fe presides over the Aamodt case.
In rulings entered in the lawsuit so far, Mechem determined Pojoaque Pueblo was entitled to about 200 acre-feet of water a year but didn't rule on all aspects of the pueblo's rights.
``The Pueblo, in essence, argues that it may put water to use without limit until this case has returned from the final appeal since its rights will not be finally determined until then. This argument is absurd,'' Smith states in his ruling.
``Some development, within reasonable expectations of water rights under the law as it stands today, is permissible. However, to allow the Pueblo to develop water uses without check can only harm the greater community, including other pueblos, the federal government and non-Indians as well as the state.''
Later in his ruling, Smith wrote that the state met its burden in showing that Pojoaque Pueblo was probably exceeding its federal water rights significantly and that the pueblo hasn't taken steps to acquire more water rights on the open market.
However, Smith concludes the state wrongly asserted it has no obligation to prove Pojoaque Pueblo's overuse of water is causing the state irreparable injury.
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