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

Filing 11648

ORDER GRANTING NEW MEXICO'S MOTION REGARDING PRIORITY DATE FOR THE ACEQUIAS DE CHAMITA, HERNANDEZ AND SALAZARES by District Judge Kea W. Riggs. (ve)

Case 6:69-cv-07941-KWR-KK Document 11648 Filed 07/05/23 Page 1 of 4

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

No. 6:69-cv-07941-KWR-KK
Rio Chama Adjudication

v.
Section 1: Main Stem
ROMAN ARAGON, et al.,
Defendants.

Acequia de Chamita
Acequia de Hernandez
Acequia de los Salazares

ORDER GRANTING NEW MEXICO’S MOTION REGARDING PRIORITY DATE
FOR THE ACEQUIAS DE CHAMITA, HERNANDEZ AND SALAZARES
On December 16, 2009, Special Master Vickie L. Gabin filed her Report on Priorities for
Three Acequias which states:
This Report recommends that the Court find no abandonment of water rights by the
original settlers in the areas of the current day Acequias de Chamita, Hernandez
and Los Salazares, and that the first use of water was 1600.
Doc. 9546 at 1.
On February 10, 2010, the State of New Mexico filed a motion to adopt the recommended
priority date of 1600 for the Acequias de Chamita, Hernandez and Los Salazares (the “Three
Acequias”), objected to some portions of the Report and requested that the Report be modified.
See Doc. 9597 (“Motion to Adopt”). The State requested that the Court correct minor errors and
clarify four of the Special Master’s Findings of Fact and proposed modified versions of Findings
of Fact Nos. 6-8 and 10. Motion to Adopt at 2-4. The State objected to discussion section of the
Report, the Special Master’s Statement of the Questions to be Determined and Conclusion of Law
No. 1 which states:
The State has failed to show abandonment by clear and convincing evidence with
regard to: a. the existence of a period of non-use between 1608 and 1714; and b.

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the settlers’ intent, either express or implied, to abandon the lands irrigated by water
diversion structures which are substantially the present-day Acequias de Chamita,
Hernandez and Los Salazares.
Report at 10. The State objected to the Question to be Determined, the Discussion and Conclusion
of Law No. 1 “because they represent a misstatement of the requirements of New Mexico law
regarding the abandonment of water rights and a misreading of the New Mexico Supreme Court’s
opinion in South Springs.” Motion to Adopt at 13-14 (stating “the State does not object to the
ultimate recommendations of the Special Master, that the water rights initiated by the first Spanish
settlers in the area of the Acequias de Chamita, Hernandez and Los Salazares were not abandoned,
and that 1600 is an appropriate priority date for those rights”). The Three Acequias also requested
that the Court adopt the recommended priority date of 1600. See Doc. 9556, filed January 7, 2010.
Numerous pro se parties filed objections to the Report. The Court had previously provided
all claimants an opportunity to offer proof of an earlier priority date and limited its consideration
of objections to the Special Master’s Report to those persons that timely objected to the Notices
and Orders to Show Cause. See Doc. 9700, filed April 28, 2010. The Court also ordered the
Special Master to serve the owners of five subfiles, who were not previously served, with a Notice
and Order to Show Cause. See Doc. 9979, filed November 16, 2010. Only David and Cecilia
Ortiz, who had a water right on the Acequia de Chamita, timely filed an objection to the
recommended priority date of 1600. See Doc. 10680, filed January 11, 2012 (seeking a priority
date of August 11, 1598, based on an entry in Don Juan de Oñate’s journal stating “On the 11th
we began work on the irrigation ditch”).
The State of New Mexico then filed its Renewed Motion to adopt the Special Master’s
Report regarding the recommended priority date of 1600 for water rights under the three acequias
other than the lands owned by David Ortiz and Cecilia Ortiz. See Doc. 10865, filed October 8,

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2012 (“Renewed Motion”). The only objection to the State’s Renewed Motion was filed by David
Ortiz. See Doc. 10869, filed October 17, 2012. The Court deferred ruling on the State’s Renewed
Motion until after it held an evidentiary hearing to determine the priority date of the Ortizes’ water
right.
United States Magistrate Judge Lorenzo F. Garcia held an evidentiary hearing on
February 11-12, 2013, regarding the Ortizes’ priority date. See Doc. 10900, filed March 8, 2013,
(indicating that the Oñate party began digging irrigation ditches on the east side of the Rio Grande
at the confluence with the Rio Chama on August 11, 1598, but did not begin using water from the
Rio Chama on the west side of the Rio Grande, where the Three Acequias are located, until 1600).
United States District Judge Martha Vázquez adopted Judge Garcia’ Findings and Recommended
Disposition that the priority date for the Ortizes’ water right is 1600. See Doc. 10981, filed
December 16, 2013.
The State of New Mexico now moves the Court to rule on its Renewed Motion stating:
“Now that all objections to the priority date of 1600 are resolved, it is proper for the Court to enter
its order adopting the recommended priority date.” Motion by State of New Mexico for Court to
Rule on Doc. No. 10865 [the Renewed Motion] at 3, Doc. 11634, filed February 1, 2023. No
responses opposing the State’s Motion for a ruling on its Renewed Motion have been filed.
IT IS ORDERED that:
(i)

The Motion by State of New Mexico for Court to Rule on Doc. No. 10865,
Doc. 11634, filed February 1, 2023, is GRANTED.

(ii)

The Renewed Motion by the State of New Mexico to Adopt, in part, to Modify and
Objections to the Special Master’s Report on Priorities for Three Acequias, Doc.
10865, filed October 8, 2012, is GRANTED as follows:

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(a)

The Court grants the State of New Mexico’s request to modify Findings of
Fact Nos. 6-8 and 10 as proposed by the State.

(b)

The Court grants the State of New Mexico’s request to not adopt the Special
Master’s Statement of the Questions to be Determined, the discussion
section of the Report and the Special Master’s Conclusion of Law No. 1.

(c)

The Court adopts the Special Master’s Findings of Fact as modified and the
Special Master’s recommendation that statements that the priority date for
the Acequias de Chamita, Hernandez and Los Salazares is 1600.

_________________________________
KEA W. RIGGS
UNITED STATES DISTRICT JUDGE

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