united states court of appeals for the tenth circuit · katz, herdman, macgillivray &...

Nos. 18-2164 and 18-2167 ________________________________

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT ________________________________

UNITED STATES OF AMERICA, on its own behalf and on behalf of the Pueblos of Jemez, Santa Ana, and Zia,

Plaintiff/Appellant,

STATE OF NEW MEXICO, ex rel. State Engineer, et al., Plaintiffs/Appellees,

PUEBLOS OF SANTA ANA, JEMEZ AND ZIA,

Plaintiffs-in-Intervention/Appellants,

v.

TOM ABOUSLEMAN, et al., Defendants/Appellees. ________________________________

On Appeal from the United States District Court for the District of New Mexico

No. 6:83-cv-01041 (Hon. Martha Vazquez) ________________________________

EL RITO DITCH ASSOCIATION, LA ASOCIACIÓN DE LAS ACEQUIAS

DEL RIO VALLECITOS, TUSAS Y OJO CALIENTE, RIO CHAMA ACEQUIA ASSOCIATION, ASOCIACIÓN DE ACEQUIAS NORTEÑAS

DE RIO ARRIBA, LA ACEQUIA DE LA SIERRA, AND RIO QUEMADO, RIO FRIJOLES, RIO EN MEDIO AND SANTA CRUZ STREAM

SYSTEMS’ COMMUNITY DITCH ASSOCIATION’S AMICI CURIAE BRIEF IN SUPPORT OF APPELLEES

STATE OF NEW MEXICO, EX REL. STATE ENGINEER, AND THE JEMEZ RIVER BASIN WATER USERS’ COALITION AND IN SUPPORT OF AFFIRMANCE OF SEPTEMBER 30, 2017 MEMORANDUM OPINION

AND ORDER OF THE DISTRICT COURT ________________________________

Appellate Case: 18-2164 Document: 010110209547 Date Filed: 08/08/2019 Page: 1 Appellate Case: 18-2164 Document: 010110209910 Date Filed: 08/08/2019 Page: 1

Mary E. Humphrey Seth Fullerton Connie Odé HUMPHREY & ODÉ, P.C

KATZ, HERDMAN, MACGILLIVRAY & FULLERTON, PC

P. O. Box 1574 P. O. Box 250 El Prado, N.M. 87529 Santa Fe, NM 87504-0250 (575) 758-2203 (505) 988-1286 Attorneys for the El Rito Ditch Association, La Asociación de Las Acequias del Rio Vallecitos, Tusas y Ojo Caliente, and La Acequia de la Sierra

Attorneys for Rio Chama Acequia Association and Asociación de Acequias Norteñas de Rio Arriba

Adán E. Trujillo, Esq. P. O. Box 127 Chimayó, NM 87522 (505) 459-8635 Attorney for Rio Quemado, Rio Frijoles, Rio En Medio and Rio Santa Cruz Stream Systems’ Community Ditch Association


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CORPORATE DISCLOSURE STATEMENT

Pursuant to Fed. R. App. P. Rule 26.1, Acequia Amici— the El Rito Ditch

Association, La Asociación de Las Acequias del Rio Vallecitos, Tusas y Ojo

Caliente, the Rio Chama Acequia Association, Asociación de Acequias Norteñas

de Rio Arriba, La Acequia de la Sierra, and the Rio Quemado, Rio Frijoles, Rio en

Medio and Santa Cruz Stream Systems’ Community Ditch Association—state that

each is a New Mexico non-profit corporation that has no parent corporation and

that no publicly held corporation has any ownership interest therein.

By: /s/Connie Odé


TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ......................................................... i

TABLE OF AUTHORITIES ............................................................................... iii-iv

INTEREST OF ACEQUIA AMICI ........................................................................... 1

SUMMARY OF THE ARGUMENT ........................................................................ 5

STANDARD OF REVIEW ....................................................................................... 7

ARGUMENT ............................................................................................................. 7

A. The District Court’s decision is consistent with the evidence and the law. .. 7

B. Aboriginal rights are not expanding rights. .................................................14

C. The US/Pueblos’ claims are barred by the passage of time and the doctrine of impossibility. ....................................................................................................18

D. Pueblo Amici misrepresent the state of the law as well as the status of several pending water rights adjudication. ...........................................................23

CONCLUSION ........................................................................................................25

CERTIFICATE AND STATEMENT PURSUANT TO FED. R. APP. P.

29(A)(4)(E) ..............................................................................................................26

CERTIFICATE OF COMPLIANCE .......................................................................27

CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY REDACTIONS 28

CERTIFICATE OF SERVICE ................................................................................29


iii

TABLE OF AUTHORITIES

Cases

Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674 (7th Cir. 2000) ...................11

Cayuga Indian Nation of N.Y. v. Pataki, 413 F.3d 266 (2d Cir. 2005) ...................22

City of Sherrill, N.Y. v. Oneida Indian Nation of N.Y., 544 U.S. 197 (2005) ... 21, 22

Confederated Tribes of the Warm Springs Reservation of Or. v. U. S., 177 Ct. Cl.

184 (1966) ...................................................................................................... 18, 19

Johnson v. M’Intosh, 21 U.S. 543 (1823) ................................................................18

McFarlin v. Conseco Servs., LLC, 381 F.3d 1251 (11th Cir. 2004) .......................11

Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237 (1985) .....15

New Mexico v. Aamodt, 537 F.2d 1102 (10th Cir. 1976) ........................................26

New Mexico v. Aamodt, 618 F. Supp. 993 (D.N.M. 1985) ......................................27

Oneida Indian Nation of N.Y. v. Cnty. of Oneida, 617 F.3d 114 (2d Cir. 2010) .....23

Pueblo of Jemez v. U. S., 790 F.3d 1143 (10th Cir. 2015) .................... 13, 14, 18, 19

Sac and Fox Tribe of Indians of Okla. v. U.S., 161 Ct. Cl. 189 (1963) ...................19

Seneca Nation of Indians v. New York, 382 F.3d 245 (2d Cir. 2004) .....................14

Snow v. Abalos, 140 P. 1044 (N.M. 1914) ................................................................. 1

State ex rel. Martinez v. Kerr-McGee Corp., Nos. CB-83-190-CV and CB-83-220-

CV (D.N.M. filed 1983) .......................................................................................26


iv

State of New Mexico, et al. v. Abbott, No. 68cv07488 & 70cv8650 (D.N.M. filed

Aug. 31, 1970) ........................................................................................................ 4

State of New Mexico, et al. v. Aragon, No. 69cv07941 (D.N.M. filed Mar. 5, 1969)

................................................................................................................................ 2

U.S. v. Pueblo of San Ildefonso, 513 F.2d 1383 (Ct. Cl. 1975) ........................ 13, 18

U.S. v. Abousleman, No. 83cv01041 MV-ACE (D.N.M. filed Oct. 4, 2004) .........17

U.S. v. Santa Fe Pac. R.R. Co., 314 U.S. 339 (1941) ..................... 12, 13, 18, 19, 25

Uintah Ute Indians of Utah v. U. S., 28 Fed. Cl. 768 (1993) ..................................18

Yankton Sioux Tribe of Indians v. U. S., 272 U.S. 351 (1926) ......................... 22, 25

State Statutes

N.M. Stat. Ann. 1978 § 73-2-28 (1965) ..................................................................... 1

N.M. Stat. Ann. 1978 § 73-2A-2 (1988) .................................................................... 2

Other Authorities

Michael C. Meyer, Water in the Hispanic Southwest: A Social and Legal History

1550-1850 37 (1st ed. 1984) ................................................................................... 1


INTEREST OF ACEQUIA AMICI

Acequia Amici are associations of acequias that irrigate lands within various

stream systems of the State of New Mexico. The term “acequia” refers both to the

canal that delivers water from the stream to lands to be planted, and to the political

institution that governs the distribution of water to the parciantes, the members of

the acequia who have the right to use water from the ditch. The institution evolved

in the Iberian peninsula and was brought by the Spanish to the New World. As

Spanish settlement spread pursuant to land grants from the Spanish crown, the

construction of a community acequia often began even before houses and

churches, in order to have ditches for the delivery of water for growing necessary

foods and for domestic purposes. Michael C. Meyer, Water in the Hispanic

Southwest: A Social and Legal History 1550-1850 37 (1st ed. 1984). “The

community irrigating ditch or acequia is an institution peculiar to the native people

living in that portion of the southwest which was acquired by the United States

from Mexico. It was part of their system of agriculture and community life long

before the American occupation.” Snow v. Abalos, 140 P. 1044, 1047 (N.M.

1914).

Acequia and community ditch associations are political subdivisions of the

State of New Mexico. N.M. Stat. Ann. 1978 § 73-2-28 (1965). The Acequia

Amici are structured as New Mexico non-profit corporations, incorporated for the


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purposes of receiving funds from the State of New Mexico “to develop

hydrological studies, acquire technical and legal research and other information

and services necessary to conserve and protect water for New Mexico’s future

through the adjudication of water rights.” N.M. Stat. Ann. 1978 § 73-2A-2 (1988).

Four of the Acequia Amici are parties in State of New Mexico, et al. v.

Aragon, No. 69cv07941 (D.N.M. filed Mar. 5, 1969), the streamwide adjudication

suit for the Rio Chama stream system. The quantification of the water rights of

Ohkay Owingeh1, also known as the Pueblo of San Juan, from the Rio Chama is

currently before the Aragon Court.

The El Rito Ditch Association is comprised of eleven acequias that provide

water from the Rio El Rito to approximately four hundred parciantes for irrigation

of approximately 2,244 acres. The Rio El Rito is a tributary of the Rio Chama.

Hispanic settlers began using water from the Rio El Rito prior to 1735 upon lands

granted to Juan Estévan Garcia de Noriego, Antonio Ulibarri, José Antonio Torres

and Francisco Trujillo by the Spanish government.

La Asociación de Las Acequias del Rio Vallecitos, Tusas y Ojo Caliente is

comprised of approximately thirty acequias that provide water for approximately

1 Ohkay Owingeh is one of several Pueblos that were permitted to file an amicus brief in support of Appellants the US/Pueblos in this case. The Acequia Amici request similar permission to file an amicus brief in support of Appellees the State of New Mexico and the Jemez River Basin Water Users’ Coalition.


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five hundred parciantes for the irrigation of approximately 4,000 acres. The Rio

Ojo Caliente is formed by the confluence of the Rio Vallecitos and the Rio Tusas

in Rio Arriba County and is a tributary to the Rio Chama. Hispanic settlers began

using water from the Rio Ojo Caliente prior to 1739 upon lands granted to Antonio

de Abetia and Antonio Martin by the Spanish government.

The Rio Chama Acequia Association (“RCAA”) is made up of 31 acequias,

21 of which are organized as acequia associations. These acequias serve nearly six

hundred families and more than 5,000 irrigated acres located within the

mainstream section of the Rio Chama, with flows originating from the base of

Abiquiu Dam and joined by flows from Abiquiu Creek, El Rito Creek, Rio del

Oso, and Rio Ojo Caliente. The members’ water rights were adjudicated in a

Partial Final Judgment and Decree entered in Aragon. The majority of the

RCAA’s parciantes are situated on numerous land grants within the Rio Chama’s

mainstream section that have acequias with18th century priority dates, with the

oldest dating back to 1600, the earliest priority acequias in New Mexico.

The Asociación de Acéquias Norteñas de Rio Arriba is comprised of 18

acequias located in the northern half of the Rio Chama stream system, above

Abiquiu Lake to the Colorado State line, consisting of 545 parciantes irrigating

nearly 11,000 acres. Most of the acequias were established within the Tierra


4

Amarilla Land Grant, which was granted by the Republic of Mexico in 1832 as

land for settlement by Mexican citizens.

Two of the Acequia Amici associations are parties in State of New Mexico, et

al. v. Abbott, Nos. 68cv07488 & 70cv8650 (D.N.M. filed Aug. 31, 1970), the

consolidated streamwide adjudication suit for the Rio Santa Cruz and Rio de

Truchas stream systems. The quantification of the water rights of Ohkay Owingeh

from the Rio Santa Cruz and the Rio de Truchas is currently before the Abbott

Court. The quantification of the water rights of the Pueblo of Santa Clara2 will

follow that of Ohkay Owingeh.

La Acequia de la Sierra is comprised of five acequias that provide water to

approximately five hundred parciantes for the irrigation of approximately 2,100

acres. La Acequia de la Sierra delivers water both from the Rio de Truchas and

from the North Fork of the Rio Quemado, a tributary of the Rio Santa Cruz, via a

trans-basin diversion bringing water to the Rio de Truchas via the Rito Cebolla.

Both the Rio de Truchas and the Rio Santa Cruz are tributaries to the Rio Grande.

Hispanic settlers began using water from the Rio de Truchas prior to 1754 and the

establishment of the Nuestra Señora del Rosario San Francisco y Santiago Grant.

2 Like Ohkay Owingeh, Santa Clara is one of several Pueblos that were permitted to file an amicus brief in support of the US/Pueblos in this case.


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The Rio Quemado, Rio Frijoles, Rio en Medio and Santa Cruz Stream

Systems’ Community Ditch Association (“Santa Cruz”) is made up of 72 acequias,

30 of which are organized as an irrigation district—the Santa Cruz Irrigation

District. The Santa Cruz member acequias serve more than 4,000 parciantes and

7,170 irrigated acres, with flows originating from the above-mentioned stream

systems located within the Santa Cruz de la Cañada Grant. The majority of Santa

Cruz’ parciantes have 18th century priority dates, with the oldest dating back to

1692, making Santa Cruz some of the earliest priority acequias in New Mexico.

SUMMARY OF THE ARGUMENT

Having exhausted other theories for obtaining expanding, first priority,

future use water rights, see Coalition Resp. Br. at 1-2, 5, 16-173, the US/Pueblos4

now claim an entitlement to such rights on the basis of their aboriginal land rights.

Although they asked the trial court to determine whether their aboriginal water

rights were modified or extinguished in any way by any actions of Spain, Mexico,

or the United States, they now ask this Court to find that the District Court erred in

concluding, on the basis of the magistrate judge’s findings and conclusions

following a three-day evidentiary hearing, that “the circumstances cited by the

3 “Coalition” refers to Appellee Jemez River Basin Water Users’ Coalition. 4 “US/Pueblos” refers to Appellants United States of America and the Pueblos of Santa Ana, Jemez and Zia.


6

expert for the United States and Pueblos plainly and unambiguously indicate

Spain’s intent to extinguish the Pueblos’ right to increase their use of public waters

without restriction.” Mem. Op. and Order Overruling Objections to Proposed

Findings and Recommended Disposition Regarding Issues 1 and 2 (“Mem. Op. and

Order”), at 7, App. at 287. More specifically, the US/Pueblos contend that, based

on the singular fact that there is no evidence of a repartimiento in the Jemez River

valley, Spain did not abolish the Pueblos’ future-use aboriginal water rights by its

exercise of complete dominion over the determination of the right to use public

waters.

Acequia Amici would show that the issue on appeal is stated too narrowly by

the US/Pueblos, that the District Court correctly interpreted and applied the law of

extinguishment of aboriginal title, and that a theory of expanding, first-priority,

future use water rights5 is at odds with the doctrine of aboriginal rights as

heretofore recognized by the courts. At the same time, the US/Pueblos’ claims are

barred by the passage of time and the doctrine of impossibility. The District

Court’s decision should be affirmed.

5 The parties may argue as to how exactly these water rights are characterized, but the fact remains that the US/Pueblos both claim aboriginal—that is, first priority—rights that include rights for future needs. US Opening Br. at 22; Pueblos’ Opening Br. at 33, 38-39, n.15. These are waters never before used by them, “not limited to their actual, historical uses.” US Opening Br. at 21


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STANDARD OF REVIEW

Contrary to the standard of review articulated by the US/Pueblos, the

standard of review is correctly stated by the Coalition in its Response Brief at 18-

19.

ARGUMENT

A. The District Court’s decision is consistent with the evidence and the law.

i. Proceedings below

This appeal follows a three-day evidentiary hearing held in March and April

2014 at which the magistrate judge was asked to determine, among other things,

the following issue agreed to and submitted by the parties:

Have the Pueblos ever possessed aboriginal water rights in connection with their grant or trust lands, and if so, have those aboriginal water rights been modified or extinguished in any way by any actions of Spain, Mexico, or the United States?

Proposed Findings and Recommended Disposition Regarding Issues 1 and 2

(PFRD), at 2, App. at 2896.

Based on the evidence presented, including the testimony of experts for the

United States and the State of New Mexico, the reports of those experts, extensive

6 References to Appellant’s Consolidated Appendix shall be as follows: “App. at (page).” References to Appellee Coalition’s Supplemental Appendix shall be: “Supp. App. at (page).”


8

briefing by the parties and the relevant law, the magistrate judge found and

concluded (a) that the Pueblos possessed aboriginal water rights in connection with

their grant or trust lands, and (b) that those aboriginal water rights had been

extinguished by Spain. With respect to the latter, the court wrote:

I find that Spain imposed a legal system to administer the use of public waters and that regalia ended the Pueblo’s exclusive use of the public waters and subjected the Pueblo’s later use of public waters to potential repartimientos. Such a system is a plain and unambiguous indication that the Spanish crown extinguished the Pueblo’s right to increase their use of public water without restriction and as such is an exercise of complete dominion adverse to the Pueblo’s aboriginal right to use water.

PFRD at 13, App. at 300.

The magistrate judge’s PFRD on this point were objected to by the

US/Pueblos, and subsequently reviewed by the District Court. The Court again

considered the issue submitted by the parties, and after reviewing the objections,

evidence, expert reports, and relevant law, again concluded, consistent with the

PFRD, that the Pueblos’ aboriginal water rights had been extinguished by Spain.

The Court wrote:

Although Spain allowed the Pueblos to continue their use of water, and did not take any affirmative act to decrease the amount of water the Pueblos were using, the circumstances cited by the expert for the United States and Pueblos plainly and unambiguously indicate Spain’s intent to extinguish the Pueblos’ right to increase their use of public waters without restriction and that Spain exercised complete dominion over the determination of the right to use public waters adverse to the Pueblos’ pre-Spanish aboriginal right to use water.


9

Mem. Op. and Order, at 7, App. at 287. The US/Pueblos disagreed with this

decision and requested an interlocutory appeal, which was granted, resulting in this

appeal.

On appeal, the Pueblos rephrase the issue they ask this Court to address, as

follows:

Whether the extension of Spanish authority over the territory of New Mexico, in the absence of any affirmative act adverse to the rights of occupancy of the Indian tribes in the territory, had the effect of extinguishing the aboriginal water rights (but not land rights) of the Indian tribes inhabiting the territory.

They represent that “[t]his issue is the sole issue that was ruled on by the lower

court decision,” and that this was the issue addressed in all the briefing, expert

reports, testimony, and objections, Pueblos Opening Br. at 3, n.2, but as reflected

by the issue that was in fact presented to the trial court, the Pueblos’

recharacterization of the issue here is far more narrow.

The United States likewise narrows the issue on appeal, as follows:

Whether the aboriginal water rights of the Pueblos . . . were extinguished by the extension of Spanish colonial law over the area even though the Spanish crown took no affirmative action to reduce or alter the water use of the Pueblos.

US Opening Br. at 2. The United States argues, as do the Pueblos, that the

mere assertion of sovereign authority over an area is insufficient to

extinguish aboriginal title absent an affirmative action specific to the

Pueblos in question.


10

Acequia Amici disagree that the issue on appeal is correctly phrased by the

US/Pueblos, and further contend that the law does not provide, as the US/Pueblos

argue, that rights to water over which Pueblo Indians could exercise complete

dominion, including the right to increase their use of public waters without

restriction, can be extinguished only by an affirmative action of the kind claimed

by the US/Pueblos.

ii. Issue on appeal

Acequia Amici agree that the issue on appeal is correctly articulated by the

Coalition, as follows: Did the district court commit reversible error in its

September 20, 2017 Memorandum Opinion overruling the US/Pueblos’ objections

and adopting Magistrate Lynch’s Proposed Findings and Recommended

Disposition Regarding Issues 1 and 2 (PFRD)? Coalition Response Brief at 4. The

issue thus phrased better reflects the proceedings below and the issue that was

presented to the trial court. The US/Pueblos cite no authority expressly stating an

affirmative action is required to extinguish Indian title, and, as shown below,

extinguishment can be accomplished in a multitude of ways. To focus now solely

on an affirmative action requirement as a matter of law effectively


11

mischaracterizes this case—it distorts the issue that was decided and ignores

substantial evidence supporting the trial court’s decision.7

iii. The law of extinguishing aboriginal rights

The parties generally agree that U.S. v. Santa Fe Pac. R.R. Co., 314 U.S. 339

(1941), is a leading authority on the subject of aboriginal title to land and its

extinguishment. In Santa Fe Pacific, the Supreme Court explained:

If it were established as a fact that the lands in question were, or were included in, the ancestral home of the Walapais in the sense that they constituted definable territory occupied exclusively by the Walapais… then the Walapais had ‘Indian title’ . . . .

* * * Certainly it would take plain and unambiguous action to deprive the Walapais of the benefits of that policy.

314 U.S. at 345-346. The Court went on to explain: “whether it be done by treaty,

by the sword, by purchase, by the exercise of complete dominion adverse to the

right of occupancy, or otherwise” extinguishment of Indian title was a political, not

a justiciable issue. Id. at 347.

7 As the Coalition points out in its Response Brief at 18 – 19, 26 - 36, the US/Pueblos both make “contrary to the evidence” claims with respect to the trial court’s decision. These claims require a “clearly erroneous,” rather than a de novo, standard of review as advocated by the US/Pueblos. They also call into question the propriety of an interlocutory appeal in the first place. As explained in McFarlin v. Conseco Servs., LLC, 381 F.3d 1251 (11th Cir. 2004):

[W]hat the framers of [28 U.S.C. § 1292(b)] had in mind is more an abstract legal issue or what be called one of “pure” law, matters that the court of appeals “can decide quickly and clearly without having to study the record.”

Id. at 1258 (quoting Ahrenholz v. Bd. of Trs. of Univ. of Ill., 219 F.3d 674, 676 – 77 (7th Cir. 2000)).


12

Notwithstanding their recognition of Santa Fe Pacific as “unquestionably

the leading authority in Supreme Court jurisprudence on the subject of Indian

aboriginal title,” Objections of Intervenors [Pueblos] to Proposed Findings and

Recommended Disposition Regarding Issues 1 and 2, at 4-5, ECF No. 4384, the

Pueblos now attempt to dismiss this language, arguing:

The district court seriously erred in reading this passage about justiciability as establishing a more lenient standard for extinguishment of aboriginal rights based on the mere “exercise of dominion,” absent any adverse act. Rather consistent with the discussion of extinguishment elsewhere in the decision, the phrase “exercise of complete dominion,” 314 U.S. at 347 (emphasis added), must be read as requiring an affirmative and adverse act by the sovereign to extinguish aboriginal rights.

Pueblos’ Opening Br. at 22. They state that “[t]he district court’s ruling was based

almost entirely upon a misapplication of [this] single passage in” Santa Fe Pacific.

Pueblos’ Opening Br. at 13.

This Court did not share the Pueblos’ concerns about “justiciability” when it

interpreted Santa Fe Pacific in Pueblo of Jemez v. U. S., 790 F.3d 1143 (10th Cir.

2015). There, also addressing extinguishment of aboriginal title to land, this Court

adopted the very language disputed by the Pueblos now to conclude that

“aboriginal title may be extinguished ‘by treaty, by the sword, by purchase, by the

exercise of complete dominion adverse to the right of occupancy, or otherwise.’”

Pueblo of Jemez, 790 F.3d at 1160 (quoting Santa Fe Pacific). Later in the

opinion, this Court quoted with approval from U.S. v. Pueblo of San Ildefonso, 513


13

F.2d 1383 (Ct. Cl. 1975), which explained with respect to Indian aboriginal land

title:

[T]here are no fine[-]spun [or] precise formulas for determining the end of aboriginal ownership. Unquestionably, the impact of authorized white settlement upon the Indian way of life in aboriginal areas may serve as an important indicator of when aboriginal title was lost. But such authorized settlement is only one of various factors to be considered in determining when specific lands were “taken.”

Pueblo of Jemez, 790 F.3d at 1167. In other words, neither Santa Fe Pacific nor

later cases can be read as establishing an absolute affirmative action requirement

for extinguishment of title as argued by the US/Pueblos. Extinguishment can be

accomplished in a myriad of different ways, not just by affirmative adverse

actions, so long as the intent is “plain and unambiguous.”8 It is a factual question

to be determined based on a variety of factors and the facts, circumstances and

history of each case. Pueblo v. Jemez, 790 F.3d at 1165-66. See also Seneca

Nation of Indians v. New York, 382 F.3d 245, 260 (2d Cir. 2004):

It is well settled than an intention to authorize the extinguishment of Indian title must be “plain and unambiguous,” either “expressed on the face of the [instrument] or . . . clear from the surrounding circumstances.”

Id. (quoting Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237,

276 (1985) (alterations in original)). The District Court correctly concluded that

8 Acequia Amici also believe it is highly unlikely that in discussing the political versus justiciable nature of extinguishment, the Supreme Court in Santa Fe Pacific would have used broad language to describe means of extinguishment if far more exacting standards were required.


14

“the circumstances cited by the expert for the United States and Pueblos plainly

and unambiguously indicate Spain’s intent to extinguish the Pueblos’ right to

increase their use of public water without restriction.” Mem. Op. and Order, at 7,

App. at 287.

B. Aboriginal rights are not expanding rights.

The Pueblos attempt to sound the alarm concerning the District Court’s

decision, contending that what is at stake in this case are all the water rights

appurtenant to all of the Pueblos’ lands, Pueblos’ Opening Br. at 9-10, that the

decision “creates complete uncertainty as to the nature and measure of the Pueblos’

water rights,” Pueblos’ Opening Br. at 13, and that the Court “gave no hint as to

how whatever water rights remained to the Pueblos would be characterized or

quantified.” Pueblos’ Opening Br. at 44. The Pueblos’ concerns, however, are

overblown, as (a) the trial court’s decision itself talks only about “Spain’s intent to

extinguish the Pueblos’ right to increase their use of public water without

restriction” Mem. Op. and Order, at 7, App. at 287 (emphasis added), and (b) both

the State of New Mexico and the Coalition have acknowledged, since the

beginning of these proceedings, that they dispute only the Pueblos’ and United

States’ claims to an expanding, first priority, future use water right. See also State

of New Mexico’s Opening Br. on Issues 1 and 2, at 21, ECF No. 4363:


15

The Pueblos’ water rights based on their aboriginal use of the resource prior to 1848 are the rights that are protected by the Treaty [of Guadalupe Hidalgo] and entitled to an aboriginal priority. In addition, after 1848, the Pueblos could, and did, acquire water rights by putting water to beneficial use, and those rights are entitled to a priority of the date of first use.

and the Coalition’s Opening Br. on Issues 1 and 2, at 74, ECF No. 4361:

The US/Pueblos claim an “aboriginal” or first priority to a quantity of water that far exceeds the actual amount of water ever put to beneficial use by the Pueblos. Courts have recognized future use claims with a reservation priority date based on the Winters Doctrine and courts have recognized an “aboriginal” or first priority based on actual, prior use. But no court has ever recognized an aboriginal or first priority for a future use right measured by PIA or other reservation purpose as proposed by the US/Pueblos. Both the Treaty and federal law limit the quantity of the Pueblos’ aboriginal rights to the amounts actually used as of 1848.

While it is true that the Pueblos now seek a multi-fold increase in their

first priority water rights, having historically irrigated only 1,971 acres and

now claiming first priority rights on nearly 37,000 acres, thus arguably

placing 35,000 acres in question. Coalition’s Resp. Br. at 47. No party,

including Acequia Amici, disputes the Pueblos’ first priority rights on its

historically irrigated acreage. What is at issue is only whether the Pueblos

are entitled to expanding, first priority, future use water rights, a quantity of

water far in excess of any amounts previously used by them.

In this regard, the US/Pueblos argue that to the extent the Pueblos

have aboriginal title to lands, they simultaneously have aboriginal title to


16

water, title that includes the use of water for their present and expanding

future needs. Pueblos’ Opening Br.at 38-39, n.15; US Opening Br. at 22.

The United States explains: “This appeal seeks recognition of the Pueblos’

aboriginal water rights—which the United States contends entitle the

Pueblos to sufficient water to maintain their tribal communities in their

homelands into the future . . . .” US Opening Br. at 22.

From an historical and logical standpoint, the concept of expanding,

first priority, future use water rights makes no sense. Such rights are

inconsistent with the very notion of aboriginal rights, which are generally

defined as “the right of Indians to occupy those lands that were occupied and

used by them and their ancestors before the United States exercised

sovereignty over those areas.” U.S. v. Abousleman, No. 83cv01041 MV-

ACE at *9 (D.N.M. filed Oct. 4, 2004) (citing Johnson v. M’Intosh, 21 U.S.

543, 574, 585 (1823).

In order to prevail on an aboriginal title claim, “[t]here must be a

showing of actual, exclusive and continuous use and occupancy ‘for a long

time’ prior to the loss of the land.” Pueblo of San Ildefonso, 513 F.2d at

1394 (quoting Confederated Tribes of the Warm Springs Reservation of Or.

v. U. S., 177 Ct. Cl. 184, 194 (1966)); see also Pueblo of Jemez, 790 F.3d at

1165-66. A tribe must also show a) actual and continuous use and


17

occupancy of the land; b) exclusive use of the land and resources; and c) the

actual, continuous use and occupancy of the land and resources for a long

time prior to cessation of the use of that land. It must show a specific,

definable territory occupied exclusively by the tribe. Santa Fe Pacific, 314

U.S. at 345. “Without actual and continuous Indian use . . . the court cannot

find aboriginal possession.” Uintah Ute Indians of Utah v. U. S., 28 Fed. Cl.

768, 787 (1993). The “long time” requirement is not fixed by a specific

number of years, but must be long enough to allow a tribe to transform an

area into its domestic territory. Confederated Tribes, 177 Ct. Cl. at 194

(citing Sac and Fox Tribe of Indians of Okla. v. U.S., 161 Ct. Cl. 189, 206

(1963), cert. denied 375 U.S. 921). See also Pueblo of Jemez, 790 F.3d at

1166:

To show “actual” and “continuous use” . . . the Jemez Pueblo must show . . . that the Jemez people have continued for hundreds of years to use the Valles Caldera for traditional purposes, including hunting, grazing of livestock, gathering of medicine and of food for subsistence, and the like.

“Occupancy necessary to establish aboriginal possession is a question of fact

to be determined as any other question of fact.” Santa Fe Pacific, 314 U.S.

at 345.

Expanding, first priority, future use claims to water are by definition

inconsistent with the concept of aboriginal rights. They have not been used


18

previously, they have not been used continuously for a long time, and they

are not specifically definable. The concept of aboriginal rights originated

with land rights, and no court has ever found that an Indian tribe or pueblo

has expanding aboriginal land rights. Each of the cases cited above

concerned claims to aboriginal title to land, and none of them recognized an

expanding right to land. Aboriginal rights to land are confined to specific

areas limited in size that have been used continuously and for a long time for

traditional purposes. Expanding, first priority, future use water rights satisfy

none of these criteria and should not be recognized by this Court now.9

C. The US/Pueblos’ claims are barred by the passage of time and the doctrine of impossibility.

As both the Coalition and the State of New Mexico point out, the expanding,

first priority, future use water rights now claimed by the Pueblos increase

exponentially the water rights historically used by them. Coalition’s Resp. Br. at

47, and State of New Mexico Resp. Br. at 1. A judgment in the Pueblos’ favor

would have the effect of diminishing if not extinguishing vested and existing water

rights held by others, water rights that have been protected for more than 150 years

9 The US effectively conceded as much in earlier briefing in this case, when it explained with respect to future use water rights: “the Court cannot ‘guess’ what any Pueblo’s future needs will be, and the practicably irrigated acreage standard adopted in Arizona adequately approximates the likely future needs of the tribe.” Supp. App. at 637-38. Moreover, as the Coalition points out, the concept of “aboriginal rights” does not apply to a pueblo’s grant lands inasmuch as those grant lands have not been lost to the pueblos but are held in fee by them. Coalition Resp. Br.at 45-46.


19

by international treaty and that, for the most part, have already been adjudicated.

The State of New Mexico pointed out early on in these proceedings:

The combined claims of Zia and Jemez far exceed the amount of water which is reasonably available from ground or surface sources in the Jemez basin.

State of New Mexico’s Resp. to the Supplemental Statement of Water Claims by

the Pueblos of Jemez and Zia, Supp. App. at 139. More recently, the Coalition

explained:

The Jemez River Basin Water Users’ Coalition is comprised of 12 acequias or community ditch associations first established in the later 1700s by land grants from the Spanish Crown. These acequias share the limited water supply from the Rio Jemez with the Pueblos of Zia and Jemez. If the Court recognized the expanding first priority water rights claimed by the U.S. and Pueblos, the Pueblos could increase their water use over time, assert a senior priority and leave nothing for the acequias, even though these Spanish ditches have existed and provided water for traditional irrigation for more than two centuries and were protected under Spanish and Mexican sovereignty and then by the United States through the Treaty of Guadalupe Hidalgo’s protections of existing property rights.

[Coalition’s] Consolidated Answer in Opposition to Petitions [of the US and

Pueblos] for Permission to Appeal Pursuant to 28 U.S.C. § 1292(B), filed Oct. 11,

2018, Appellate Case 18-707.

In City of Sherrill, N.Y. v. Oneida Indian Nation of N.Y., 544 U.S. 197

(2005), the Supreme Court addressed the effect of the long passage of time on

Indian claims. It wrote:


20

When a party belatedly asserts a right to present and future sovereign control over territory, longstanding observances and settled expectations are prime considerations.

* * * This Court has recognized the impracticability of returning to Indian control land that generations earlier passed into numerous private hands.

* * * [T]he unilateral reestablishment of present and future Indian sovereign control, even over land purchased at the market price, would have disruptive practical consequences similar to those that led this Court in Yankton Sioux to initiate the impossibility doctrine.

Id. at 218-20 (citing Yankton Sioux Tribe of Indians v. U. S., 272 U.S. 351, 357

(1926) (footnote omitted). In City of Sherrill, the Court concluded that the Oneida

Nation was precluded from relief, pointing out the long lapse of time—two

centuries—during which they did not seek to revive sovereign control, combined

with dramatic changes in the character of the property during that time:

[T]he distance from 1805 to the present day, the Oneidas’ long delay in seeking equitable relief against New York or its local units, and developments in the city of Sherrill spanning several generations, evoke the doctrines of laches, acquiescence, and impossibility, and render inequitable the piecemeal shift in governance this suit seeks unilaterally to initiate.

Id. at 221 (footnote omitted). See also Cayuga Indian Nation of N.Y. v. Pataki, 413

F.3d 266, 275 (2d Cir. 2005) (this type of “possessory land claim…seeking

possession of a large swath of central New York State and the ejectment of tens of

thousands of landowners—is indisputably disruptive.”), and Oneida Indian Nation

of N.Y. v. Cnty. of Oneida, 617 F.3d 114, 140 (2d Cir. 2010) (“Cayuga’s holding . .


21

. was that all claims that are ‘disruptive’ . . . are barred by the defense recognized

in Sherrill.”).

Here the Pueblos claim future use water rights based on aboriginal title—

that is, since time immemorial—yet Acequia Amici are aware of no attempts made

by them to contest interference with those rights until 1983, when the United States

commenced the present action. Naming literally hundreds of defendants, the

United States’ Complaint sought, in the United States’ own right and on behalf of

the Pueblos, (a) to have its water rights and those of the Pueblos determined and

adjudicated, and (b) recovery of money damages and injunctive relief against the

defendants for the “unlawful diversion and use of water to which the Pueblos hold

a prior right.” Supp. App. at 1-13.

Evidence admitted in this case establishes that the Spanish Crown authorized

Spanish settlements along the Jemez River upstream of the Pueblos prior to 1800,

by establishment of the San Ysidro Grant in 1786 and the Cañon de San Diego

Grant in 1798. These farming settlements necessarily would have used water,

drawn from the Jemez River, for their farming and domestic needs, thereby

extinguishing the Pueblos’ right to expand their water uses without restriction.

In this regard, the lack of evidence of repartimientos in the Jemez River

valley is, if anything, a better indication that the Pueblos were satisfied with the

status quo post-Spanish settlement than it is evidence that the Spanish crown did


22

not intend to limit the Pueblos’ water uses in some manner, as argued by the

US/Pueblos. Use of public waters by the land grant settlers worked to the

detriment of the Pueblos, not the Spanish settlers who were able to use sufficient

water to meet their needs, while the Pueblos lost water previously available to

them. Logically, if the Pueblos believed their rights were being infringed, they

were the parties that would have requested or wanted a repartimiento, not the

Spanish settlers. (Alternatively, the Pueblos could have sought injunctive and

other relief in the courts, as Indian tribes have done for decades on other issues.)10

Instead, the Pueblos here waited almost two centuries to assert their claims,

during which time settlers arrived, acequias were dug, crops were planted, and the

land was developed. Entire ways of life were built around the joint use or sharing

of the waters of the Jemez River. Literally thousands if not tens or hundreds of

thousands of non-Indians became/have become dependent on those waters for their

livelihoods and day-to-day existence. They should not now be dispossessed by this

Court’s recognition of future use water rights never before used by the Pueblos.

Yankton Sioux, 272 U.S. at 357 (restoration of the Indians’ former rights

impossible because “the lands have been opened to settlement and large portions of

10 The US/Pueblo argument concerning repartimientos strikes Acequia Amici as akin to arguing that if a driver has not received a speeding ticket, then speed limits don’t exist. But a speed limit law is a “plain and unambiguous” indication of the State’s intent to limit a driver’s use of the public roads, regardless of whether tickets have been issued.


23

them are now in the possession of innumerable innocent purchasers . . .”), and

Santa Fe Pacific, 314 U.S. at 358 (“acquiescence in that arrangement must be

deemed to have been a relinquishment of tribal rights in lands outside the

reservation and notoriously claimed by others.”) (citations omitted).11

D. Pueblo Amici misrepresent the state of the law as well as the status of several pending water rights adjudication.

In their Brief of Amici Curiae, Pueblo Amici rely generally on the same

arguments as the US/Pueblos in urging this Court to overturn the District Court’s

decision. Br. of Amici Curiae All Pueblo Council of Governors, et al., April 19,

2019, ECF No. 010110156166870. These arguments are addressed above and by

the briefs filed by the State of New Mexico and the Coalition.

Acequia Amici address here the Pueblo Amici’s representation concerning

the status of the Rio San Jose stream system adjudication pending in state court,

see Brief of Amici Curiae at 2, and their contention that the New Mexico v.

Aamodt, 537 F.2d 1102 (10th Cir. 1976) (Aamodt I) ruling “that aboriginal water

rights were not extinguished by Spain or Mexico . . . has guided the litigation and

settlement of Pueblo water rights in the four decades since Aamodt I.” Pueblos’

Br. of Amici Curiae, at 19.

11 Acequia Amici alone represent more than 6,000 parciantes, or irrigators, who stand to be deprived of the water they have relied on for the past 200 or more years to irrigate more than 20,000 acres, should this Court rule in favor of expanding, first priority, future use water rights.


24

State ex rel. Martinez v. Kerr-McGee Corp., Nos. CB-83-190-CV and CB-

83-220-CV (D.N.M. filed 1983), is the pending Rio San Jose stream system

adjudication to which Amici Pueblos of Acoma and Laguna are parties. With

respect to Kerr-McGee, Pueblo Amici assert that the Special Master made a

recommended ruling adopted by the District Court that the Pueblos “continue to

hold aboriginal water rights and these rights were not extinguished by Spain or

Mexico.” That, however, is not accurate—the issue of the Pueblos’ aboriginal

water rights in Kerr-McGee was and is sharply contested and remains pending

before the Special Master on dispositive motions; those motions are presently

stayed at the request of the parties to allow settlement discussions. See also

Coalition Resp. Br.at 41, n.14.

As to the effect of this Court’s ruling in Aamodt I, Acequia Amici would

point out that: (a) the Pueblo Amici cite no examples of past or pending stream

system adjudications where Aamodt I “guided the litigation and settlement of

Pueblo water rights,” (b) stream system adjudications are generally so fact and

circumstance specific, including applicable law, that one is unlikely to guide

another to a substantial degree, (c) the ruling in Aamodt I is limited to the facts and

circumstances of that case, and (d) the ruling in Aamodt I resulted in a remand, and

as a trial court decision on a par with the trial court decision here, New Mexico v.

Aamodt, 618 F. Supp. 993 (D.N.M. 1985), petition for interlocutory appeal denied,


25

Nos. 85-8071 and 85-8072 (10th Cir. Dec. 1, 1987) (Aamodt II) is not binding on

this Court. Neither Aamodt I nor Aamodt II control the outcome in this

proceeding. See also Coalition Resp. Br.at 39-40, 59-65.

CONCLUSION

The District Court’s decision should be affirmed.


26

CERTIFICATE AND STATEMENT PURSUANT TO FED. R. APP. P. 29(A)(4)(E)

I certify as counsel for the El Rito Ditch Association, La Asociación de Las

Acequias del Rio Vallecitos, Tusas y Ojo Caliente and La Acequia de la Sierra, I

authored this Amici Curiae Brief with the assistance of other counsel shown on this

Motion. No party or person other than the actual proposed amici Acequia

Associations contributed money intended to fund preparation of this Motion.

By: /s/Connie Odé


27

CERTIFICATE OF COMPLIANCE

I hereby certify that the forgoing Amici Curiae Brief complies with the word

limits set forth in Fed. R. App. P. 32(a)(7)(B)(i) and 29(a)(5), in that it contains

6213 words using 14-point Times New Roman, a proportionally-spaced typeface.

The word count was obtained using Microsoft Word for Office 365.

Dated: August 8, 2019

By: /s/Connie Odé


28

CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY REDACTIONS

I hereby certify that a copy of the foregoing Amici Curiae Brief, as

submitted in Digital Form via the court’s ECF system, is an exact copy of the

written document filed with the Clerk and has been scanned for viruses with the

Microsoft Windows Defender Antivirus and, according to the program, is free of

viruses. In addition, I certify all required privacy redactions have been made.

By: /s/Connie Odé


29

CERTIFICATE OF SERVICE

I hereby certify that on the 8th day of August, 2019, I caused the foregoing

Amici Curiae Brief to be filed electronically filed with the Clerk of the Court for

the United States Court of Appeals for the Tenth Circuit using the appellate

CM/ECF system and that all case participants, with the exceptions listed below,

were served through that system.

I further certify that on August 8, 2019 I served the foregoing Amici Curiae

Brief by US first class mail to the following:

Mr. Joseph Van R. Clarke Cuddy & McCarthy 1701 Old Pecos Trail P.O. Box 4160 Santa Fe, NM 87502-4160 Mr. Stephen G. Hughes Office of the Commissioner of Public Lands P.O. Box 1148 Santa Fe, NM 87504-1148 Nacimiento Community Ditch Association c/o Anthony M. Jaquez 651 Fairway Loop Rio Rancho, NM 87124 Michael B. Campbell Campbell Trial Law 110 North Guadalupe, Suite 6 Santa Fe, NM 87504

By: /s/Connie Odé


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