the state engineer. In fact, prior administration of waters is jokingly referred to in the OSE offices as “the nuclear option.” The slowing and vast storage of water changed both the timing of water releases and mitigated the need for prior administration of water by the state engineer. Massive infrastructure projects connected small farmers like Hector to state adjudicators, water managers, and urban residents across the state, as demonstrated in the next few chapters. Western states completely replumbed their rivers and streams. These new cultures of “expert water” and associated infrastructure were coproduced right alongside adjudication (see chapters 5 and 6).
LAWSUITS ILLUMINATE THE NEW MEXICAN LANDSCAPE
Adjudication as a process “was never meant to be personal,” as one senior adjudicator put it to me in 2009.27 Yet these lawsuits, filed by the state, call out defendants by name and thus feel deeply personal and adversarial. Some defendants’ names become infamous. Imagine that your name is Enrique Abeyta, for example. You come from a long line of Abeytas, a rather common family name in New Mexico, yet now your name has come to suggest something different: a lawsuit. The first alphabetically listed defendant (Abeyta, in this example, or Aamodt for another) in a water adjudication suit becomes the name by which the suit is colloquially known. As one adjudicated farmer joked ruefully, “No wonder they haven’t finished, all the adjudications start with the letter A, they never get to Z!”28 Each of these family names is shorthand for the basins under adjudication across the state of New Mexico.
Irrigators, municipal water employees, and even local politicians were all eager to talk to me about watersheds and water management. However, utter one of the A names associated with a case and their reactions changed. The dead stare, the aloofness, the skepticism on peoples’ faces were all clearly visible. Of course, it wasn’t about the defendants bearing the unlucky names. It was what those shorthand nicknames now meant—the cases themselves and the uncertainty they brought. Even adjudicators get tired of the process over time. “If we didn’t have to adjudicate, Eric, we wouldn’t,” a former adjudicator and OSE attorney told me, her voice and face betraying her weariness.
That said, adjudication was not always difficult, tiring, or perceived as problematic. In early test case basins with little cultural or legal diversity to contend with, the state engineer’s personnel were not regarded with suspicion. After all, the technicians were simply there to map, document, and title out property rights that individuals had long claimed and used. Such was the case along parts of the Mimbres River and the Canadian River, which were done and decreed efficiently. These were less controversial because of the lack of legal pluralism and the lack of indigenous and long-standing Hispano claims to water. Fewer cultures of water translated to fewer hiccups in thinking about water rights as property-use rights.
Technicians who worked on the Mimbres adjudication recalled it as simple and straightforward. “It was pretty easy in the long run … maybe part of it was that there were no Indian water rights claims there, for sure, but overall [shrugs shoulders], it was a cakewalk compared to some of the other cases up in northern New Mexico where everyone seemed ready to question every damn thing we were doing in the courts, in the fields, and everywhere in between.”29 These sentiments were echoed in other interviews from the more culturally diverse basins that remained stuck for decades.
It was the foreignness of prior appropriation water law that struck many as odd. The state seeks to find dates of first use in time to match up to these last names and land parcels for an orderly hydraulic state. There is a logic to the state’s approach in that prior appropriation water law is predicated on the “use it or lose it” basis of beneficial use. When state agents appear to map and quantify water use on a particular plot of land, it is in everyone’s best interest to look or act as if they are fully using their claimed (or historically used) water rights. There’s little incentive under prior appropriation to actually conserve water or to use it efficiently.30 Water rights holders often think they have to fully use their water rights to keep them perfected. That is not the case. But because beneficial use is the “limit” to individual water rights, as explained previously, irrigators and managers alike have no incentive to go below the maximum limit of their beneficial use or their assigned water duties, depending on crops.
Adjudication was supposed to be a template process using watersheds as a basis for doling out water rights.31 The new legal system and state code were nevertheless received as having to fully use one’s water rights under prior appropriation (“use it or lose it”). Local irrigators and water users quickly understood what was at stake and carried over that understanding into the “performance” of water use when OSE personnel were completing adjudication maps for the home office. In basins where all possible cultural-legal understandings were all present, the performance of using water was even more critical. This came through in all my interviews. When adjudication was underway in the mapping phase, it was good to be seen irrigating, pumping, or diverting.32 The 1907 water code did share much in common with Spanish Colonial practices for making good on property rights: the act of property possession was about visibly performing those rights and relationships between property owners and the authorizing agent.33
One water user from Taos, for example, claimed that “my neighbors started using a lot more water when the field mappers [from OSE] were here doing the maps and stuff.”34 Even in adjudicated areas that were less problematic, such as the Mimbres in southwestern New Mexico, an irrigator recalled that “that whole process [of adjudication] changed how we deal with each other; it added a lot of suspicion back then [1970s] that hasn’t really disappeared. It’s only made things worse in a dry area.”35 He went on to say, “Sure, the whole thing [adjudication] was wrapped in the late 1980s [1989], but we had no idea what it would trigger … in pockets of the valley, there were no issues, but in others … it just triggered bad blood and some civil suits, some of which just won’t go away.”
From the state of New Mexico’s perspective, the cultural histories and geographies of water use do not legally matter until adjudications are underway. However, differing federal and state views of identity and bloodline can splinter water users, sometimes in the same family. These complexities of identity were simplified, often reduced to a binary of “Indian” and “non-Indian” identity and citizenship in adjudication issues. This unfortunate splitting of water identities is the result of federal policies and definitions of who is considered an Indian within the United States. It is a kind of biopolitics that does not mince on identity: either you are Indian or you are not, as recognized by US federal entities. Native sovereign nations now also control their own tribal registry rolls for membership. Assertions or assigned definitions of who claims to be indigenous, Hispano, or of mixed Indo-Hispano identity are fraught with challenges, and these binary cultural borderlands are patrolled regularly.36
Binaries of identity and membership can work for creating transparent governance or rulemaking but can complicate cooperation in water matters in New Mexico. Federal versus state legal treatment matters greatly, dictating what kind of water right a person is entitled to according to his or her identity. Next, I present an example of this complex and often perverse cleaving, along with a later tale of two brothers divided by this water-identity issue.
IDENTITY, FEDERALISM, AND WATER SOVEREIGNS
Identity and history matter in New Mexico’s daily water governance. In 1598, new Spanish settlers arrived near Ohkay Owingeh Pueblo (which the Spanish quickly renamed San Juan Pueblo), home to one of the many Pueblo Indian groups along the Rio Grande. The Spanish eventually chose the western bank of the Rio Grande near what is today Chamita and the junction of the Chama River and the Rio Grande, their first attempt at a new capital, to be called San Juan de los Caballeros. The next year, however, the new capital was moved east to San Gabriel. An early ditch was dug in 1598, but the colony of San Gabriel also did not last and was officially abandoned by 1601, although some Spanish and Tlaxcalan stragglers may have stayed behind. By 1610, most officials had moved to the new capital, Santa Fe.37
Those
