State of NM Ex Rel. Reynolds v. Aamodt

618 F. Supp. 993, 1985 U.S. Dist. LEXIS 15852
CourtDistrict Court, D. New Mexico
DecidedSeptember 18, 1985
Docket6639-M Civil
StatusPublished
Cited by9 cases

This text of 618 F. Supp. 993 (State of NM Ex Rel. Reynolds v. Aamodt) is published on Counsel Stack Legal Research, covering District Court, D. New Mexico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State of NM Ex Rel. Reynolds v. Aamodt, 618 F. Supp. 993, 1985 U.S. Dist. LEXIS 15852 (D.N.M. 1985).

Opinion

MEMORANDUM OPINION AND ORDER

MECHEM, Senior District Judge.

The State Engineer of New Mexico filed this action to adjudicate the water of the Tesuque & Nambe/Pojoaque Stream System, a tributary of the Rio Grande, between the various water users within the watershed, including, among others, the United States and the Pueblos de Nambe, Pojoaque, San Ildefonso and Tesuque (Pueblos). N.M.Stat.Ann. 75-2-9 (1953). The United States purported to represent the Pueblos located within the watershed.

The Pueblos sought to intervene in their own right, to have their own counsel and to have their right to the use of the water of the stream system determined under the law of the United States, rather than the law of the State. The district court denied the right to intervene and determined that New Mexico law would establish the right of the Pueblos to the use of the water of the stream system.

The opinion was appealed to the Tenth Circuit Court of Appeals which ruled that the Pueblos were entitled to intervene, to have their own counsel, and to have their right to the use of the water of the stream system determined under the law of the United States. State of N.M. v. Aamodt, 537 F.2d 1102 (10th Cir.1976).

The two streams under adjudication, the Rio Tesuque and the Rio Nambe or Pojoaque, rise on the West slope of the Sangre de Cristo Mountains in the Santa Fe National Forest at an elevation above 11,000 feet and join at the Pueblo de Pojoaque, then flow as the Rio Pojoaque into the Rio Grande at the Pueblo de San Ildefonso. (Exhibit A). Both are relatively short, the Rio Tesuque being about 19 miles long, the Rio Nambe or Pojoaque being about 15 miles long. The two flow together as the Rio Pojoaque about seven miles. They are perennial in the upper reaches and torrential in the lower reaches, being fed by spring snow melt and rain generated primarily by summer thunder storms. The Little Tesuque is a tributary of Rio (Big) Tesuque. It flows out of the Forest through private lands where it joins the Big Tesuque south of Pueblo de Tesuque. There is a relatively heavily settled area of privately owned land located just north of Santa Fe along the Rio (Big) Tesuque be *996 tween the National Forest and the Pueblo de Tesuque, upstream from the Pueblo. The Rio Nambe flows from the Santa Fe National Forest through the Nambe Executive Order land then through the Pueblo proper and onto Pojoaque Pueblo land before meeting the Rio Tesuque. Its tributaries, Rio Chupadero and Rio en Medio, rise in the Forest, flow through privately owned land then across the Tesuque and Nambe Pueblo lands and again across privately owned land before meeting Rio Nambe on Nambe Pueblo land.

The Pueblos existed in the area in which they are now located when the first European entry was made by Coronado’s band in 1540. They were irrigating their lands at that time by means of diverting water from the stream system sought here to be adjudicated. Florence Hawley Ellis, Summaries of the History of Water Use of the Pojoaque Valley Pueblos Tesuque Section p. 40 et seq.; San Ildefonso Section p. 33 et seq.; Pojoaque Section p. 40 et seq,; Nambe Section p. 34 et seq. (August 1979, as revised November 1979).

In 1598, Juan de Onate established the first Spanish settlement at what is now called San Juan Pueblo. The litigant Pueblos were still practicing cultivation by irrigation on their lands. Id.

This Spanish settlement was moved to Santa Fe about 1610 where the capital was established.

Tesuque Pueblo is about 7 miles north of Santa Fe city limits.

The Pueblos continued to occupy and cultivate their lands in the Spanish period from 1598 to 1821 (except for a relatively short period after the 1680 Pueblo Rebellion) and under Mexico when it became independent. On August 18, 1846, the United States occupied the territory. The Pueblos were still occupying and cultivating their lands. Id.

THE SPECIAL MASTER’S FINDINGS OF FACT

The Special Master made the following findings of fact on the rights of the Pueblos under Spanish and Mexican law, which I adopt or modify as noted, pursuant to Fed. R.Civ.P. 53(e)2.

General Finding No. 2: The lands and waters of the Pueblos of San Ildefonso, Tesuque, Nambe and Pojoaque were expressly “recognized” by the Spanish from the time of the Spanish conquest as their community patrimony, having been used and occupied exclusively by those Pueblos beginning some time prior to the 14th Century A.D. The law prohibited grants of land used and occupied by the Pueblos to anyone else and required the revision of non-Indian grants if they impaired the Pueblos’ rights, including water rights, in such lands.

I have modified the Master’s General Finding No. 2 to change the word “reserved” to the word “recognized” in reference to Pueblo lands and waters. The word “reserved” made the finding clearly erroneous, as it is a term of art in federal land law which applies to the federal government’s setting aside of particular land for a particular purpose, such as for National Forests or Indian Reservations. It is the basis for the Winters doctrine of federal reserved water rights, which does not apply to Pueblo lands recognized by Spain and Mexico. See Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908). The Spanish government did not reserve Pueblo lands in the same way the United States reserves public land for use as an Indian reservation. It simply recognized them and protected them.

General Finding No. 6: The property rights of the Pueblos, whether characterized as a right to use, as occupancy and possession, as equitable title, or as restricted grants of ownership, continued to be recognized under Mexico. The Pueblos continued to be entitled to lands used and occupied outside their four-square-league boundaries. The Pueblos’ right to their common lands, or ejidos, were also restricted against alienation and further were exempt from adverse possession or prescription.

*997 I have modified the Master’s General Finding No. 6 to change the words “grant boundaries” to the words “four-square-league boundaries.” No physical evidence of grants from the Spanish crown to these four Pueblos exists today, nor did it exist in proceedings before the Surveyor General of New Mexico in 1856. Rather, their claim to royal grants is based on oral tradition. It is clearly erroneous to refer to their lands as formal grants.

However, their four-square-league boundaries plus additional lands in their possession were protected by Spanish law. The royal decree of October 15, 1713 provided:

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Bluebook (online)
618 F. Supp. 993, 1985 U.S. Dist. LEXIS 15852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-nm-ex-rel-reynolds-v-aamodt-nmd-1985.