Zuni Basin FAQ Page
FREQUENTLY ASKED QUESTIONS
FREQUENTLY ASKED QUESTIONS
ABOUT THE ZUNI RIVER BASIN ADJUDICATION
INTRODUCTION
The following are Frequently Asked Questions (FAQs) that have arisen during the course of the lawsuit known as the Zuni River Basin Adjudication, United States vs. A&R Productions, et. al., case number 01cv00072-BB/ACE, occurring in federal court in Albuquerque, New Mexico.
For even more specific information about the Zuni River Basin Adjudication, please visit the website at www.zunibasin.com, where you can view some of the legal documents that are referred to below.
PURPOSE AND EFFECT OF A WATER RIGHTS ADJUDICATION
2.Q. Who is trying to get my water rights?
3.Q. Will I have to meter my well?
4.Q. What am I consenting to if I sign my Consent Order?
5.Q. How is my water right measured?
6.Q. Are there other parts of the state where this kind of litigation is happening?
7.Q. What if I increase my use later?
8.Q. What are the benefits of having my water right adjudicated?
12.Q. Once I get an adjudicated water right, can anyone stop me from using water?
HISTORY OF THE ZUNI RIVER BASIN ADJUDICATION
13.Q. How did this lawsuit come about?
14.Q. Can I still get another domestic well for my property?
15.Q. Why don’t I get three acre feet?
16.Q. Why am I being offered 0.7 acre feet from my domestic well?
17.Q. Can I get more than 0.7 acre feet?
FEDERAL AND INDIAN WATER RIGHTS
18.Q. Are everyone’s water rights determined the same way?
19.Q. Do the Indians get the water that is taken from me?
20.Q. How are Indian water rights quantified?
21.Q. How do tribes fit in this adjudication process?
22.Q. Are Indian lands being surveyed?
23.Q. Why are tribes plaintiffs in this case?
24.Q. Why is the federal government acting on behalf of the tribes in this case?
PURPOSE AND EFFECT OF A WATER RIGHTS ADJUDICATION
1.Q. Am I being singled out?
A.You are not being singled out.Everybody in the stream system using and claiming to use waters of the stream system will ultimately be brought in to this adjudication.That includes not just you, but all other private individuals, the state land office, El Moro National Monument, the Zuni Tribe, the Navajo Nation, including lands of the Ramah Band of Navajos, and anyone else claiming a water right.
2.Q. Who is trying to get my water rights?
A. No one is trying to take your water rights. The purpose of an adjudication is solely to identify all the water rights in a particular area and who owns them.It is a lawsuit that is designed to identify what water you are already using and then confirm a water right to you; no water rights will be taken from you.
3.Q. Will I have to meter my well?
A.No.There is nothing in this lawsuit which would require you to meter your well.That being said, generally speaking, and throughout the state of New Mexico, metering is becoming more and more prevalent.In the Pojoaque Valley, in the Lower Rio Grande and elsewhere, systematic metering is already starting to occur.The possibility exists that at some point in the distant future, most or all uses in this state will be metered, but that is not part of this lawsuit.
4.Q. What am I consenting to if I sign my Consent Order?
A. You are agreeing with the United States and the State of New Mexico that your Consent Order accurately defines your water right. That is the end of the lawsuit for you, at least as between you and the State and the U.S.; the Consent Order provides a basis for the Court ultimately to confirm a water right for you. You have not, however, settled with any other party to the lawsuit, and at a later time, your neighbors will be permitted, if they wish, to challenge your water right in a process known as inter se (pronounced “enter say”).You will also be permitted to challenge theirs.
5.Q. How is my water right measured?
A. Your water right is measured by the amount of water you have legally used in the past, your Historical Beneficial Use. It is important to note that if you have recently been unable to use water in the quantities you have in the past due to impossibility, as the result of drought conditions and lack of supply, for example, the quantity of your water right is not reduced as a result. The amount you were using before the recent shortage is the amount you may claim.
6.Q. Are there other parts of the state where this kind of litigation is happening?
A. Yes. There are a number of stream systems in New Mexico where adjudications have been completed, and many more where they are still ongoing. Examples of places where adjudications have been undertaken and completed are the Cimmaron, the Jemez, Red River, and the Dry Canadian. Places where lawsuits like this are still ongoing are the Pojoaque Valley, Taos, the Lower Rio Grande, the Pecos, the Rio Chama, the Rio San Jose, the San Juan, Santa Cruz-Truchas and Santa Fe.
7.Q. What if I increase my use later?
A. An adjudication can only look at what you are using today. It is a snapshot in time of your water right. For that reason, future uses cannot be taken into account with regard to quantifying your water right. Any future uses will be addressed through application to the Office of the State Engineer.
8.Q. What are the benefits of having my water right adjudicated?
A.Your water right will have received formal recognition by the Court, and as a result will have more certain status and will add value to your property.
9.Q. After my water rights claim is resolved, can I continue to develop my water right in the future?
A. Yes, pursuant to state procedures. After your water right claim is resolved in the adjudication, any future ability to develop a water right must be done by filing an application with the State Engineer. The State Engineer will evaluate the application and determine whether the application should be granted or denied.
10.Q. If I settle my water rights claim with the United States and the State Engineer, can they later take away my water right?
A. Once the Consent Order you sign with the United States and the State of New Mexico is approved and entered by the Court, they are bound by it. Other parties may challenge the water rights described in the Consent Order during the inter se phase, but the United States and the State of New Mexico cannot oppose you in those proceedings.
11.Q. Once this adjudication is completed, can the State Engineer or the United States come in at some subsequent time and take away my water rights?
A.Once the adjudication is complete, you will have a court order that describes your water rights.It is a property right that can be taken away only in accordance with legal procedures, such as through forfeiture, abandonment or condemnation.
12.Q. Once I get an adjudicated water right, can anyone stop me from using water?
A. Every water right has a priority date. During times of shortage, those with junior (more recent) priority dates may be required to stop using water for the duration of the shortage so that senior (older) rights can be exercised. Thus, for example, a rancher who has an adjudicated right to use water from a well with a 1932 priority date may be able to stop a neighbor from using water from a well with a 2002 priority date.
HISTORY OF THE ZUNI RIVER BASIN ADJUDICATION
13.Q. How did this lawsuit come about?
A.The action which brought about this particular adjudication lawsuit was the filing by the United States of a Complaint in early 2001 with the United States District Court.This was not the first time an attempt had been made to determine water rights in the Zuni River stream system.In 1982 a lawsuit was filed in federal court for similar purposes.It was dismissed in favor of a 1984 lawsuit filed by the City of Gallup.That action was dismissed in 1990.The 2001 lawsuit filed by the United States is the third attempt to undertake an adjudication of water rights in the Zuni River area.In a broader sense, however, these lawsuits are called for by New Mexico’s water code, which requires the adjudication of all the waters of the state through a process which involves lawsuits just like this one.It is a process which would occur here in any event at some point.
DOMESTIC WELLS
14.Q. Can I still get another domestic well for my property?
A.Yes.If you subdivide your property, construct another dwelling, or otherwise develop a need for another domestic well, you can still get a permit from the State Engineer for that purpose.The adjudication of water rights in this lawsuit has no affect on your future ability to get a permit.
15.Q. Why don’t I get three acre feet?
A. Because in most cases you are not using three acre feet. The water rights of private individuals are adjudicated based on the quantity of your historical beneficial use. Stated another way, the Constitution of the State of New Mexico limits your water right to the amount you have used in the past. Three acre feet is equal to almost a million gallons a year.It is a rare household that is using that much water.
The Plaintiffs’ position on the amount of water rights that should be adjudicated for a domestic well is the subject of disagreement with some defendants in the case and will likely be litigated in this adjudication.
16.Q. Why am I being offered 0.7 acre feet from my domestic well?
A.As noted above, your water right is quantified based on your historical beneficial use.In arriving at an offer of beneficial use up to 0.7 acre feet, and in the absence of meters to provide precise use data, the State turned to the quantities of water it has seen consumed for domestic purposes elsewhere in New Mexico.In the Pojoaque Valley, for example, the State has been receiving meter readings from hundreds of domestic well owners there which reflect average usage of between 0.29 to 0.3 acre feet.That includes water for both indoor and outdoor use.In some cases, more is being used, but in only a few cases do records reflect amounts of water for domestic use approaching 0.7 acre feet.Virtually never do they go over that amount.This is also consistent with state records and studies of domestic uses throughout New Mexico.It was felt by the state that an offer of 0.7 acre feet would be equal to or greater than the amount actually used by claimants in the Zuni River stream system for their domestic uses.
17.Q. Can I get more than 0.7 acre feet?
Yes, if you are using more. When you receive your Consent Order, there will be a packet of documents and in that packet is a document called a Request for Consultation. With that, you may request to meet with the United States and the State of New Mexico at field offices held monthly out in the area. The United States and the State invite you to come in and describe how much water you are using and for what purpose, if you believe the quantity of your Historic Beneficial Use to be greater than 0.7 acre feet.
FEDERAL AND INDIAN WATER RIGHTS
18.Q. Are everyone’s water rights determined the same way?
A. No. All State based water rights are quantified based on the constitutional measure of beneficial use: your water right is equal to the amount you have legally used in the past. Federal and Indian water rights are adjudicated based on different rules established by federal law
19.Q. Do the Indians get the water that is taken from me?
A. No water rights will be taken from you as a result of this lawsuit. You already either have a water right or you don’t: if you have a water right, it will be recognized and adjudicated in this lawsuit; if you are not using water, you do not have a water right and you will not be affected by this lawsuit. In any event, the Indians won’t get any more or any less in the way of a water right because of what you do or do not receive. The quantity of the water right you are adjudicated has nothing to do with how the Indian rights are calculated.
20.Q. How are Indian water rights quantified?
A. The U.S. Supreme Court has confirmed that Indian tribes are entitled to use all of the water necessary to create a permanent homeland on their reservations, and the federal courts have established standards for measuring the past, present and future needs of Indian tribes. Those standards and methodologies will be used by the court here to quantify the tribal water rights.
21.Q. How do tribes fit in this adjudication process?
A. As parties to the adjudication, tribes are subject to the procedural and scheduling order for federal and Indian water rights claims issued by the Court in 2004. The procedural and scheduling order guides the course of the adjudication, and provides a framework for the quantification of the Federal and Indian water rights, in addition to all other water rights in the basin.
22.Q. Are Indian lands being surveyed?
A.Yes.Indian lands are surveyed like all other lands.County ownership records, State Engineer water rights records, historical records, filed surveys, historical aerial photography, and current aerial photography may be used to conduct the survey of Indian lands.Information gathered about Indian lands will be used to legally describe a part of the tribe’s water right and will be recorded in a hydrographic survey report and associated maps that will be filed with the court.
23.Q. Why are tribes plaintiffs in this case?
A. This case was brought, among other things, to quantify the water rights on the federal lands within the Zuni River Basin. Those water rights include the rights of the tribes. The tribes intervened so that their interests can be fairly and fully protected just like the other parties to the adjudication.
24.Q. Why is the federal government acting on behalf of the tribes in this case?
A. The United States has a unique legal relationship with federally recognized American Indian tribes based on the inherent powers of tribal sovereignty and self-government of tribes recognized by the U.S. Supreme Court two hundred years ago. This relationship creates certain federal duties relating to tribes—also known as a trust relationship. In its role as trustee, the United States is charged with responsibility for administering trust property, including water resources, in order to ensure that tribes have the water resources necessary for their reservations to serve as permanent homelands. The federal government brought this suit in its capacity as trustee to protect tribal water rights, as well as water rights on other federal lands, including National Forests and National Monuments.
25.Q. If I sign a Consent Order, can I still object later to the amount of water offered in the Consent Order?
A: No, the signing of a Consent Order is a settlement of all your water rights claims as they are specified in the Consent Order. Therefore, it is very important that you carefully examine all details of the Consent Order and that you agree with everything before you sign.
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