From The Albuquerque Journal (Mark Oswald):
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.”
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.