WSP07982

• File Number: 8021
• Description: Section D General Correspondence - Western States Water Council
• State: CO
• Basin: Statewide
• Date: 1/8/1993
• Author: Western States Water
• Title: Western States Water 1993 - Issues 973-1024
• Water Supply Pro - Doc Type: Publication

would look at remedies available to us under that
Section, which could include civil injunction actions to
stop pumping.'

On the other hand, Babbit added that state
legislation '...could provide a basis for the Service's
issuance of a permit pursuant to Section 10...which
would authorize the incidental 'take' of some
endangered species during periods of drought...
provide relief from the potential consequences...and
could give the state greater flexibility in the
management of the Edwards aquRer system, as long
as the level of take will not appreciably reduce the
likelihood of the survival and recovery of the species.'
Babbit concluded, 'I want to assure you that it is not
my desire to place the Department in a central role in
what is more appropriately a matter requiring state
action. The management of the Edwards aquifer is as
much a human resource issue as one involving
endangered species,...'

UllGATlON/WATER RIGHTS

Reserved RightslNew Mexico
The New Mexico Court of Appeals has handed
down a decision concerning the scope of the
Mescalero Apache Tribe's reserved water rights, New
Mexico v, Lewis, No. 11,718 (May 12, 1993). The case
is a continuation of the general adjudication of the Rio
Hondo River system. The appeals court reviewed a
trial court holding that the United States, on behalf of
the tribe, is entitled to a diversion of 2,322 acre-feet
per year with a priority date of 1873, the date of the
first executive order delineating boundaries of the
Mescalero Apache Reservation. On appeal, the United
States and the tribes contended that the tribe was
entitled to a 17,750 acre-feet per year diversion under
the practicably irrigable acreage theory, with a priority
date of time immemorial based on an aboriginal water
right. In the alternative, the tribe claimed its priority
date was 1852, based on a federally reserved water
right implied under a treaty between the tribe and the
United States.

The court dismissed the tribe's contention that an
aboriginal water right with a time-immemorial priority
date should be recognized, noting that the difference
between a priority date of 1852 and an earlier date
would afford no practical relief, because the area was
not settled by non-Indians until after 1852. 'We will
not issue advisory opinions,' the court said of the

earlier date. Regarding whether the tribe's 1852 treaty
(which established peace between the tribe and the
federal government) or a set of executive orders .
which began in 1873 (which actually set aside the
tribe's reservation lands) should be the basis for the
priority date, the appeals court reversed the trial court
and held that the priority date should be 1852. The
court acknowledged the apparent anomaly in
declaring a priority date earlier than the date the
boundaries of the reservation were established, given
that it would be impossible to quantity the reserved
water right without related lands, 'Regardless of
difficulties with quantRication,' the court noted, 'which
was not attempted for over 100 years in any event,
pertinent cases do not focus on such exacting
measures.' The 'lynch pin' is 'whether the documents
have...an unmistakable meaning,'the court found. 'As
we have said,' it continued, 'they do not, and that is
what compels us to rule in accordance with the
cannons governing liberal construction in favor of the
Indians. .

"This same liberality, however,' the court said, 'is
neither necessary nor desirable in our review of the
trial court's decision applying the [PIA] standard.' The
court found that, 'This case turns on whether the trial
court erred in its essential conclusion that [certain]
acres were not irrigable at reasonable cost.... The trial .
court found that under generally accepted standards
for economic feasibility analysis, the projects are
infeasible.... The..,reasons for this finding included: (1)
the Tribe's reliance on specialty crops did not comport
with appropriate economic procedures, which consider
the proper ratio of specialty crops to basic crops; (2)
the tribe's analysis of markets for these specialty crops
was faulty; (3) the tribe's estimates of crop yield were
overstated and unrealistic; (4) the terrain and location
of the reservation dictated high-quality, top-level
management for which the tribe failed to adequately
budget; (5) the tribe failed to adequately address risks
such as weather, insects, and disease; (6) the tribe
failed to include factors such as storage,
transportation, supply and demand, and market
structure in its budgets; (7) the tribe understated its
labor costs; and (8) the tribe's accounting system was
inadequate.' Thus, the trial court applied the PIA
standard and held that fewer acres were practicably
irrigable than the number the tribe claimed, and that
certain proposed water storage projects were
infeasible '[e]ven making all favorable assumptions.'
This portion of the trial court's ruling was affirmed.

The WESTERN STATES WATER COUNCIL is an organization of representatives appointed by the Governors of .
member Slates - Alaska, Arizona, California, Colorado, Hawaii, Idaho, Montana, Nevada, New Mexico, North Dakota,
Oregon, South Dakota, Texas, Utah, Washington, and Wyoming, and associate member state Oklahoma