Unsettled Waters

Rights, Law, and Identity in the American West

Eric P. Perramond

• Publisher: University of California Press
• Year: 2018
• Print ISBN:
  9780520299368
• Edition: 1
• eBook ISBN:
  9780520971127
• Topic: Social Sciences
• Subtopic: Science History
• Index: Social Sciences

In the American West, water adjudication lawsuits are adversarial, expensive, and lengthy. Unsettled Waters is the first detailed study of water adjudications in New Mexico. The state envisioned adjudication as a straightforward accounting of water rights as private property. However, adjudication resurfaced tensions and created conflicts among water sovereigns at multiple scales. Based on more than ten years of fieldwork, this book tells a fascinating story of resistance involving communal water cultures, Native rights and cleaved identities, clashing experts, and unintended outcomes. Whether the state can alter adjudications to meet the water demands in the twenty-first century will have serious consequences.

PART ONE

Unsettled Waters

How Water Adjudication Works, What It Does, and What Happens When It Fails

1

How Local Waters Become State Water

Miguel never understood the logic in water adjudication. In his late fifties and a retired employee of the Los Alamos National Laboratories, he was now a constant gardener. Most of his concerns were for the younger generation along his ditch and those few people under the age of thirty still living nearby. Sitting on a lawn chair in the shade of his backyard apple tree, he reflected on adjudication’s implications for him and his neighbors.

I mean, I get that we have to know how much water we have, right? That makes sense, so that Texas doesn’t get it all (he smiles a bit). But beyond that, what do we get out of this whole thing? They haven’t even done my valley, and now they’re warning us that the adjudication is coming to us soon, and we’re not ready. We haven’t organized yet like the Taos folks. My neighbors don’t seem to be worried or alarmed, but they will be once it’s here. Once the state engineers show up, it’s all over, and it’ll be too late for them to make any claims about having irrigated this or that patch, and then that water number gets fixed, and it’s done. There won’t be any future ability to expand water needs, I think. That’s what no one here tends to get—once the process is over, you don’t get another chance, and the amount of water we are using at the time of the process means that is the water we get, assuming no one sells their water or goes out of business … Then the engineer can figure out if there is any water we aren’t using and then have that available for sale if there’s some left over. It [adjudication] will change everything, even if people want to pretend that it won’t change anything.¹

ACEQUIAS AND THE HISTORICAL ROOTS OF LOCAL SOVEREIGNTY

Like most of his neighbors in Rio Lucio, a small hamlet outside Picuris Pueblo, Miguel’s home sits along an acequia, which provides the water for his small agricultural plot. It is a shared ditch with the nearby Indian Pueblo as it crosses through both indigenous fields and lands occupied by Hispanos like Miguel.² Acequias are gravity-fed irrigation ditches and institutions that were brought from the Iberian Peninsula when Spain was ruled by Moors. Acequia as a word has Arabic origins, meaning water carrier in its original form.³ These institutions moved with the Spanish to Mexico and eventually to New Mexico during the Spanish Colonial period (1598–1821).

Notably, New Mexico underwent two major episodes of settler colonialism and three political shifts, starting with the Spanish and shifting to brief Mexican rule (1821–1846) and finally ending with US governance beginning in 1848. This resulted in complex political, legal, and cultural overlays and understandings of natural resources, including water and its governance.⁴ Well into the twentieth century, acequias were the scale of daily water use, water governance, and life in New Mexico. Hundreds of these ditches exist across the state and are especially common in northern New Mexico, where there is greater water availability (see map 2).

MAP 2. Distribution of acequias in New Mexico. Adapted from Utton Center (2013).

Acequias as institutions function with the aid of a water boss (mayordomo), three commissioners, and the individual members of the ditch who use and maintain the ditch (known as parciantes). These institutions were vital to agrarian life and livelihoods in New Mexico’s semiarid valleys. Today, the dependency on agriculture has decreased, but hundreds of acequias still remain functional. They are microdemocracies unto themselves, functional governing units of the state. They survive because they work.

Acequia members like Miguel and Hector (whom we met in the introduction) understand that water is work. It is work to be shared, via direct labor and through annual financial dues, before the water can be allocated. Members contribute to the annual spring cleaning of the ditch, known as la saca or la limpia, and to its upkeep. On most ditches, mayordomos coordinate with commissioners and other ditch officials on the same stream to estimate when all members on the stream system can begin irrigating and how much water might be available that year based on snowpack. Estimates are adjusted weekly and sometimes daily as fresh rain and snow events occur. This is a highly adaptable and responsive system that works with the actual amount of flowing surface water available rather than stored waters behind a massive dam.

In good years, parciantes can access the water when they need it for crops, gardens, and livestock. When drought or scarcity strikes, the hard part of a mayordomo’s job begins: allocating water by shorter time rotations and watching individual water use to ensure all members’ needs are met. The mayordomo designates when and how much parciantes can irrigate and monitors the water flow. Access to the ditch can be blocked if parciantes fail to pay their dues or take water out of turn. This is an important point: The institution of the acequia—run by the commissioners and mayordomos—controls access to and use of the ditches that carry the water to which individuals have rights. In other words, acequia rights are not the same as individual water rights. Parciantes have to follow the rules of the acequia institution to keep their access to ditch water and maintain their individual water rights.

Acequias as physical features extend the riparian habitat, stitching together patches of emerald floodplain that weave through dry hills dotted with piñons, junipers, and cacti. Ditches can be on one or both sides of a diverted stream (see figure 1). They serve to both widen the floodplain and to store more water underneath the upper watersheds for longer time periods. Acequia landscapes are deeply altered. The ditches were built and are maintained for human use. They benefit agriculture at the expense of natural stream flows and have consequences for fish as well as mammals such as beavers and muskrats.

FIGURE 1. A hypothetical valley in New Mexico with acequias. Adapted from Utton Center (2013).

Long before New Mexico existed as a state, acequias were the essential institutions and objects of Hispano community formation. Pueblo Indians adopted the ditch and institution system. The overlapping cultural and historical layers surrounding these ditches and their impacts on landscapes and communities make New Mexico fascinating and often distinctive compared to other western states. The state of New Mexico’s 1907 water code, written when the region was still a US territory, imposed a new set of water laws and water-user expectations. The reverberations of new and conflicting water regimes still resonate in Miguel’s village.

Miguel expressed suspicion, even fear, about upcoming water adjudication. Many other interviewees, especially those of indigenous and Hispano descent, echoed his sentiments. Such feelings are associated with the historical use of this word adjudication. Whether accurate in the long term or not, many New Mexicans fear that adjudication signals the final dismantling of the Hispano moral and communal economy of water. This perception has logical roots considering the historical record of land and resource dispossession in New Mexico.

Miguel put it bluntly. “Look,” he told me, anxiety clear in his tone and face. “First the US came for us as people, then they took our land grants, then they took away access to our forests, they took our animal grazing permits, and now a lot of us think they want our water.” It was the A word, adjudication, that stripped Spanish and Mexican-era land grants away from Hispano villages more than a century ago.

Just after the Treaty of Guadalupe Hidalgo was signed in 1848 ceding Mexican territory to the United States, plans and bills to incorporate the Southwest into the union were well underway. During the US territorial period (1850–1911), vast tracts of the old Spanish and Mexican community land grants were dissected through legal procedure, as well as through graft and outright fraud. By the 1920s, over 90 percent of community land grants were dispossessed.⁵ The loss of land has not been forgotten in New Mexico and resurfaces in debates regarding water adjudication. Other losses to resource access compound the distrust, such as the limits on forest use and plant collection and the loss of grazing permits in forested regions. These losses and restrictions particularly affected female property owners.⁶

One of the early US congressional bills to receive consideration in 1849, just after Nuevo México became a territory of the United States, proposed that a commission be established to adjudicate all lands and gold claims in both New Mexico and California. Even Senator Benton from Missouri, a proponent of manifest destiny, had deep reservations about forcing New Mexicans to beg and plead in a commission setting for their rights. As he argued to the US Senate:

Two hundred and fifty years have elapsed since that country was granted to its conqueror, Don Juan de Oñate: almost ten generations have lived and died there. Yet they are all to be called upon now to show their land titles, and to prove them also, back to the time of the conquest. All titles are to be ripped up, and rooted up, back to the original grant, two hundred and fifty years ago. What would Virginia say if she had been conquered by a foreign Power, and should be served in the same manner?⁷

Benton was no champion of Mexicans (or New Mexicans), yet even he saw the lurking danger of this federal move to humble new citizens before a kind of quasi-administrative and legal court proceeding.⁸ Few Spanish and Mexican land grants were ever confirmed or honored. However, that does not mean their traces have disappeared. In rural communities, families with long roots vividly remember the fraud and shady legal procedures by which their lands were taken. Given this history of dispossession of communal land and resource access, suspicion about water adjudication is understandable. It is not just the state asserting its territoriality over water that is of concern. More central is the state’s insertion into local and regional water governance.⁹ New Mexicans worry about the delocalization of water and the potential loss of collective water sovereignty.

For Miguel and his neighbors, the concern is less with the awarding of a water right, per se, but rather with what individual rights might allow: a potential and future sale of those water rights away from their shared ditch. In the new system of water law established in 1907, a privately sold water right would no longer be used on the adjacent land. It would “leave” the ditch’s institutional control, leaving less water for the community to work with in the long term.

Adjudication also has institutional implications on the ditch. Adjudication certifies an individual’s water rights, not the community ditch water rights under Spanish and Mexican norms of water distribution. Acequia members fear that adjudication will endanger their closely controlled water commons, where participatory labor, citizenship, and water use are tightly conjoined. The results of adjudication create a patchwork of private water rights owners who are then less tied to the community that built the ditches. These private owners could also theoretically dispose of their individual water rights as they see fit—to their economic benefit but potentially harming the communal aspects of the ditch as a whole.

Adjudication quietly sorts a water-use right as a private-use right, abstractly moving water out of the realm of communal and acequia institutional control. In doing so, adjudication reveals much. I have come to think of this in geologic terms, which, given the pace of adjudication, seems apt. Geologists study stratigraphic layers to understand deep time and Earth’s formation. In adjudication, the state is seeking to extract a single “core” meaning to water, a fixed amount to be bestowed as a private-use right. To get to that layer, the state bores down through time, through the different cultural values given to water and the historical disputes between cultures. Looking over the state’s shoulder, peering down this conceptual borehole, studying adjudication and its results, illuminates those past layers of cultural water: the communal water in acequias, the shared indigenous waters of the Pueblo, and the individual water rights of later settlers and city utilities. To enrich political theorist James Scott’s thoughts on the “state visioning” of water users, adjudication has multidimensional side effects: it reveals old water conflicts and produces new adversarial relationships between water users.¹⁰ Adjudication litigation as a singular state coring of water activates the multiple (vertical) layered definitions of water, even as the state continues to insist on a singular horizontal, two-dimensional private-use right for water users.¹¹

For community ditches across the state and for indigenous sovereign nations, there is fear that water is being translated as only a private good, as only a resource, so that others can locate and buy it as a “commodity.” These competing sovereign views of water, and cultural identity, not only reflect the multiple waves of colonialism in New Mexico. They also reflect how modern capitalism has rolled out in this state, severing ties between communities and the surrounding landscape, resource by resource, layer by layer. For so many people that live along traditional ditches, putting individual price tags on natural features of the landscape can seem like madness.

Forests, land, livestock, and now water are all subject to new commodity definitions. Like the peeling of an onion, the old land grants created initially to serve Hispano villages were separated into redefined layers of timber, real estate property, animals as commodities, and “water resources,” or “water rights,” that can be made profitable and mobile throughout the state.¹² Fundamental cultural, political, and economic differences clash in the proce...

Table of contents

• Series Page
• Title Page
• Copyright
• Contents
• List of Illustrations, Maps, and Tables
• Preface
• Acknowledgments
• Introduction. The Cultures of Water Sovereignty in New Mexico
• Part One.  Unsettled Waters: How Water Adjudication Works, What It Does, and What Happens When It Fails
• Part Two.  The Production of Water Expertise: The Adjudication-Industrial Complex and Its Consequences
• Part Three.  Adjudicating the Unknown Future of New Mexico’s Water
• Notes
• References
• Index