(The Center Square) – A New Mexico court ruling has the State Engineer's Office and others petitioning for a rehearing, saying the state has been stripped of its rights to control its own water.
While the background is complex, the dispute initiated when a water rights settlement between the Navajo Nation and the state was contested by the San Juan Agricultural Water Users Association.
Within the State Court of Appeals’ decision to uphold the settlement is the root of the issue. In its finding, the court wrote that the state of New Mexico “lacks any ownership claim” on the water within its borders and that the settlement agreement “preempts” state law.
This decision is radical, according to Victor Marshall, attorney for the San Juan Agricultural Water Users Association.
“It upends New Mexico water law completely,” Marshall told The Center Square.
Joined by others, including the Albuquerque Bernalillo County Water Utility Authority and the city of Gallup, the State Engineer's Office filed a motion to reconsider the ruling, which their attorneys said in the request “robs New Mexico of its authority to control the appropriation and use of the waters of the State.
“Its rationale improperly eviscerates the primacy of the State over its water resources, in the face of 150 years of unwavering federal deference to State authority,” the attorneys said in the motion.
By upholding the settlement, which was approved by U.S. Congress, the Court of Appeals declared the federal government can preempt state law concerning water rights.
“This overturns more than a century of Western water law,” Marshall said. “The crucial thing is out here in the West where it’s dry, everything is based on prior appropriation and beneficial use, and that overturns all of it.”
The state Supreme Court initially planned to hear the State Engineers' appeal, but then changed its mind.
Interested parties have filed for the court to reconsider the case and are awaiting the court's response. Marshall stressed the importance of this case.
The effects of the current ruling are far-reaching and don’t only affect the few residents along the San Juan River, but many others including the approximately 700,000 residents who depend on the Albuquerque Bernalillo County Water Utility Authority.
“The practical effect of this ruling is utter chaos,” Marshall said. “Nobody knows how it will play out, but it endangers everybody’s water rights in New Mexico.”