Friday, September 26, 2008

Court: No reserved water rights for NM trust land

There are no federally reserved water rights for the millions of acres of state trust land in New Mexico, the state Court of Appeals has ruled.

In an important case involving water law in the West, the court rejected claims made by the State Land Office that a federal legal doctrine reserved water rights for lands granted to New Mexico by the federal government when it became a territory and then a state.

At issue is a legal doctrine that recognizes water rights for tribal lands as well as federal lands that make up national forests, military bases and national parks.

The court's decision Wednesday came in a case involving the adjudication of water rights in the San Juan River Basin of northwestern Mexico. In the river system, there are nearly 300,000 acres of trust land.

The Land Office manages about 13 million of acres of land across New Mexico, generating money for public schools and other institutions from oil and natural gas production on the lands as well as grazing, mining and real estate development.

New Mexico's top water official, the state engineer, as well as the Navajo Nation, Jicarilla Apache Nation and Ute Mountain Ute Tribe had opposed the water rights claim for trust lands.

"The Court of Appeals got it exactly right," D.L. Sanders, chief counsel for the state engineer, said in an interview.

He said no state court has recognized federal reserved water rights for state trust lands in the West although the legal question has come up in other places, including Arizona and Montana.

"By everybody's calculation, this was a huge stretch in the legal theories," Sanders said.

Had water rights been reserved for New Mexico's trust lands, Sanders said, it would have been a "sweeping change in law" and disrupted the current system that allocates rights for using water. Federal reserved water rights typically are more senior than those held by private landowners or municipalities in New Mexico, giving them a greater priority in times of drought when not enough water is available to cover the demands of all users.

Last year, a state district court in San Juan County rejected the claim made by the Land Office.

The Court of Appeals affirmed the decision.

The lands conveyed to New Mexico by acts of Congress from 1850 to 1910 "were never withdrawn from the public domain and reserved for a federal purpose. As such, it necessarily follows that any attendant federal reserved water rights that the commissioner now claims in connection with those lands were also not impliedly reserved," the court said in an opinion written by Judge James Weschler.

A spokeswoman from the Land Office did not immediately return a telephone message seeking comment on the case or whether the ruling would be appealed to the state Supreme Court.

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