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
``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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