In Re: State Of NM, et al v. Aragon, et al

Filing 11337

ORDER by Magistrate Judge Kirtan Khalsa denying 11314 State of New Mexico's Motion for Pretrial Order for Section 3, Canjilon Creek, and denying 11329 State of New Mexico's Motion for Pretrial Order for Section 3, Rio Cebolla. (jdm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
STATE OF NEW MEXICO ex rel.
State Engineer, et al.,
Plaintiffs,

69cv07941 MV/KK
Rio Chama Adjudication

v.
Section 3: Canjilon Creek
ROMAN ARAGON, et al.,
Section 3: Rio Cebolla
Defendants.

ORDER DENYING MOTIONS FOR PRETRIAL ORDERS
THIS MATTER is before the Court on the State of New Mexico’s (“State”) Motion for
for Entry of Proposed Scheduling and Pretrial Order in the Canjilon Creek Subsection of
Section 3 of the Rio Chama Stream System, Doc. 11314, filed December 20, 2017 (“Canjilon
Creek Motion”), and Motion for Entry of Proposed Scheduling and Pretrial Order in the Rio
Cebolla Subsection of Section 3 of the Rio Chama Stream System, Doc. 11329, filed February
15, 2018 (“Rio Cebolla Motion”).
Canjilon Creek
The Associación de Acéquias Norteñas de Rio Arriba (“Acéquias Norteñas”) and five
member acéquias (collectively “Acéquias”) filed objections to the proposed priority dates and
irrigation requirements for Section 3, Canjilon Creek. See Doc. 11043, filed August 22, 2014.
The State’s proposed scheduling and pretrial order for resolving those objections notes that
“there is a potential conflict of interest between the ditches, who propose a single, shared priority
date, and the individual irrigators, who may or may not wish to give up their seniority between
each other.” Doc. 11314-1 at 5. To avoid the conflict of interest, the proposed order directs the
Acéquias Norteñas to identify each individual water user defendant who objects to the State’s

proposed priority dates, and requires each such defendant or his/her attorney to file an individual
objection within 60 days of entry of the proposed order.
In their Response to the Canjilon Creek Order, the Acéquias note that they will need to
confer with approximately 350 individual parciantes to confirm that no conflict of interest exists,
which will require at least 180 days. See Doc. 11315 at 2, filed January 3, 2018 (“Canjilon
Creek Response”). The Acéquias also note that with respect to the irrigation requirements, the
State and the Acéquias Norteñas recently completed a successful resolution of that issue in
another subsection. See Canjilon Creek Response at 3. The Acéquias believe that such a
resolution and stipulation can be reached here, and the Acéquias Norteñas have directed their
hydrologist to conduct the required survey in Canjilon. The hydrology survey in Canjilon will
not be completed until mid-summer. The Acéquias request that no deadlines for discovery,
pretrial disclosures or dispositive motions or other pretrial filings be set until after 180 days from
the date of entry of the Court’s scheduling and pretrial order, and note that substantial portions of
the pretrial work described in the proposed pretrial order may prove to be unnecessary. See
Canjilon Creek Response at 7. The State did not file a reply opposing the 180-day schedule
requested by the Acéquias.
Rio Cebolla
The Acéquias Norteñas and two member acéquias (collectively “Acéquias”) filed
objections to the proposed irrigation requirements for Section 3, Rio Cebolla. See Doc. 11309,
filed December 11, 2017. The State’s proposed scheduling and pretrial order for resolving those
objections requires that the Acéquias file, within 60 days of entry of the pretrial order, a
statement indicating which individual water right owners have authorized the Acéquias to act on
their behalf and demonstrating that the Acéquias have obtained the approval of each affected

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individual water right owner in support of the specific irrigation requirements proposed by the
Acéquias. See Doc. 11329-1 at 8.
In their Response to the Rio Cebolla Order, the Acéquias state that if the Court requires
the Acéquias to provide a statement regarding the authorization of each individual water right
owner, that the deadlines in the pretrial order be delayed until that process is complete. See Rio
Cebolla Response at 3. The Acéquias also state they believe a resolution of the irrigation
requirements issues could be achieved by the end of this summer, and ask that the schedule
entered by the Court accommodate sufficient time for them to complete the hydrology survey
and resolve the irrigation requirements issues that proved successful in another subsection. The
State did not file a reply opposing the Acéquias’ requests.
Discussion
The Acéquias seek a 180-day delay in the deadlines in the proposed pretrial orders to
allow them time to confer with the individual water rights owners and to conduct the hydrology
survey/resolve the irrigation requirements issues. The State does not contest the length of or the
need for the delay.

Nor does the State contest the Acéquias’ assertion that the irrigation

requirements issues can be resolved by the end of this summer. The Court finds that entering the
pretrial orders at this time would be premature and will deny the motions for entry of pretrial
orders without prejudice. The State may file motions for entry of pretrial orders for Canjilon
Creek and Rio Cebolla after the earlier of (i) September 3, 2018, or (ii) when the Acequias have
conferred with the individual water rights owners and the State and Acequias have resolved the
irrigation requirements issues.
IT IS ORDERED that:
(i)

the State of New Mexico’s Motion for for Entry of Proposed Scheduling and Pretrial

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Order in the Canjilon Creek Subsection of Section 3 of the Rio Chama Stream System, Doc.
11314, filed December 20, 2017, is DENIED; and
(ii)

the State of New Mexico’s Motion for Entry of Proposed Scheduling and Pretrial Order

in the Rio Cebolla Subsection of Section 3 of the Rio Chama Stream System, Doc. 11329, filed
February 15, 2018, is DENIED.

______________________________________
KIRTAN KHALSA
UNITED STATES MAGISTRATE JUDGE

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