New Mexico, State of, et al v. Aamodt, et al

Filing 11493

ORDER by District Judge William P. Johnson GRANTING 11208 Motion for Clarification on the Binding Effect of the Settlement Agreement on Rules and Regulations to be Promulgated by the State Engineer. (mag)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

STATE OF NEW MEXICO ex rel.
State Engineer,
Plaintiff,
v.

No. 66cv06639 WJ/WPL

R. LEE AAMODT et al.,
Defendants,
and
UNITED STATES OF AMERICA,
PUEBLO DE NAMBÉ,
PUEBLO DE POJOAQUE,
PUEBLO DE SAN ILDEFONSO,
and PUEBLO DE TESUQUE,
Plaintiffs-in-Intervention.
ORDER DENYING MOTION FOR CLARIFICATION
THIS MATTER comes before the Court on the Rio de Tesuque Association, Inc.’s (“the
Association”) Motion for Clarification on the Binding Effect of the Settlement Agreement on
Rules and Regulations to be Promulgated by the State Engineer, Doc. 11208, filed December 23,
2016.
On March 21, 2016, the Court approved the Settlement Agreement. See Doc. 10543.
Section 5.3 of the Settlement Agreement provides, in relevant part:
In consultation with counsel for the other Settlement Parties, counsel for the State
Engineer, the United States, and the Pueblos shall agree on a set of rules to be
proposed for adoption by the State Engineer to govern his responsibilities in his
various capacities set forth in Section 5.2 of this Agreement and the Interim
Administrative Order.
Doc. 10547-1 at 38. Section 5.2 of the Settlement Agreement provides, in relevant part:
Pursuant to his statutory authorities, the State Engineer shall administer the Non-

Pueblo water rights adjudicated by the Decree Court as set forth in this
Agreement and the Final Decree.
Doc. 10547-1 at 37. Section 5.2.1 of the Settlement Agreement provides, in relevant part:
5.2.1.1. The State Engineer has the authority, pursuant to state law, to curtail nonPueblo surface and groundwater diversions and shall exercise his authority as
necessary in order to ensure compliance with the terms of, and the delivery of
water in accordance with, this Agreement, the Interim Administrative Order, and
the Final Decree.
5.2.1.2 The Water Master shall have the authority to curtail Pueblo surface and
groundwater diversion in order to ensure compliance with the terms of, and the
delivery of water in accordance with, this Agreement, the Interim Administrative
Order, and the Final Decree.
Doc. 10547-1 at 38.
After the State Engineer circulated its proposed rules and regulations for comment from
counsel for other parties, the City of Santa Fe, the County of Santa Fe, and the Pueblos “noted
the need for provisions in the propose rules and regulations that in the event of conflicts between
the Settlement Agreement and the rules and regulations, the Settlement Agreement would
control.” Motion for Clarification at 3. The Association also “made it clear that in its view the
Settlement Agreement controlled in the event of conflict between it and any rules and regulations
promulgated by the State Engineer.” Motion for Clarification at 4. After telephone conferences
and in-person meetings to discuss the proposed rules and regulations, “the State Engineer
continues to refuse to acknowledge that in the event of conflict between the Settlement
Agreement and the rules and regulations, the Settlement Agreement controls and to put such a
provision in the rules and regulations.” Motion for Clarification at 5.
The Association seeks clarification of the binding effect of the Settlement Agreement on
the State Engineer and the State of New Mexico. Specifically, the Association asks for an order
that:

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in the event of conflict between the Settlement Agreement and any rules and
regulations promulgated by the State Engineer to govern the administration of
water rights within the Pojoaque Basin, whether such rules and regulations are
promulgated pursuant to the Settlement Agreement or pursuant to the State
Engineer’s authority under state law, or both, the Settlement Agreement controls.
Further, the Association moves this court for an order directing the State Engineer
to include such a provision in the rules and regulations in order to minimize any
further litigation on the issue.
Motion for Clarification at 1, 6. The Association notes that Congress and this Court approved
the Settlement Agreement and states that a “determination of this issue at this time is critical to
the decision of non-pueblo water users in the Pojoaque Basin to accept the Settlement Agreement
and become settlement parties, or not.” Motion for Clarification at 2.
“The United States and the Pueblos agree with the Association that the State Engineer
cannot alter or amend the terms of the Settlement Agreement by the promulgation of rules
puruant to [State law],” and “to the extent there is any ambiguity in the rules, the rules must be
interpreted consistently with the Settlement Agreement.” US/Pueblos’ Response at 2-3, Doc.
11218. The United States and the Pueblos assert that “the Association’s request for clarification
may be challenged as asking the Court for an advisory opinion,” because “the State Engineer has
not sought to promulgate the draft rules and no actual controversy has arisen over the application
of the draft rules to issues governed by the Settlement Agreement.” US/Pueblos’ Response at 3.
The United States and the Pueblos ask the Court “to appoint a settlement judge to assist the
parties on the issues that have arisen in the drafting of the rules.” US/Pueblos’ Response at 4.
The State Engineer also asserts that the Association improperly seeks an advisory opinion
because “[n]o rules have yet been proposed for promulgation under [State law],” and,
consequently, there is no case or controversy for the Court to review. State’s Response at 2-3,
Doc. 11270. The State indicates it “would need further information from the United States and
the Pueblos regarding their proposal [for the appointment of a settlement judge to assist the
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parties on issues that have arisen in the drafting of the rules] before formulating an opinion about
the efficacy of such a proposal.” State’s Response at 9.
In their Reply, the United States and the Pueblos state that “the parties have agreed to
work with Michael Nelson, who formerly served as settlement judge [in this case], in an effort to
resolve the issues that have arisen in the drafting of the rules required by the Settlement
Agreement,” that the “United States and the Pueblos have secured funding to assist in retaining
Mr. Nelson as a settlement judge,” and that “counsel for the State and the Asssociation concur in
the approach of seeking the assistance of Mr. Nelson.” US/Pueblos’ Reply at 1-3, Doc. 11369.
The Court will deny the Motion for Clarification because the parties have agreed to work
with settlement judge Michael Nelson to resolve the issues that have arisen in the drafting of the
rules required by the Settlement Agreement.
IT IS SO ORDERED.
__________________________________
UNITED STATES DISTRICT JUDGE

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