ATTEMPT TO FEDERALIZE RIO GRANDE WATER REJECTED
By
Tania Soussan
Albuquerque Journal Staff Writer
SANTA FE — A federal judge's decision to send a water-rights dispute to state court could have far-reaching implications, legal experts and officials involved in the case said this week.
U.S. District Judge James A. Parker ruled Tuesday that his court is not the right place to sort out who owns the water in Elephant Butte Reservoir and on the lower Rio Grande. He said the battle should be fought in ongoing cases before a state court in Las Cruces and a Texas environmental board.
Gary Esslinger, general manager of the Elephant Butte Irrigation District, said the decision would be felt across the West.
"The United States was trying to usurp their authority," he said in a telephone interview. "This kind of stops them in their tracks for now."
At a water law conference in Santa Fe on Thursday, lawyers for the district and the state of New Mexico applauded Parker's ruling.
Stephen A. Hubert, who represents the district, said the lawsuit was just the latest attempt by the United States to "federalize" the Rio Grande.
"The federal government was trying to get something they weren't entitled to," he said.
The government's claims to ownership of water in the lower Rio Grande is "a template for other rivers in the West," Hubert added.
Attorney Ted Apodaca of the state Engineer Office said he considers the ruling vitally important in protecting the state's authority over water-rights adjudications.
The federal government in 1997 filed suit, claiming it owns 3 million acre-feet of water in and below Elephant Butte, the U.S. Bureau of Reclamation reservoir in southern New Mexico.
"Federal assertion of water rights in (Bureau of) Reclamation projects is a recurring theme in New Mexico," Apodaca said.
The Bureau of Reclamation came under criticism recently for claiming ownership of the dams, canals and other works of the Middle Rio Grande Conservancy District.
Lynn A. Johnson, the lead federal attorney on the case, refused to comment on Parker's ruling other than to say she disagrees with it.
"We think the ownership of federal water rights on the Rio Grande should be determined by a federal court so the interests of all water users in New Mexico and Texas can be taken into account," she said.
Johnson said the government might appeal.
The power to keep agricultural water on farms or move it to urban or environmental uses was one of the issues at stake in the case, Apodaca has said.
Some feared that if the government won its claim, it could have moved water from one use to another, he said.
Environmentalist Steve Harris of Rio Grande Restoration said the ruling demonstrates the federal court's confidence that New Mexico, along with its courts, can sort out water rights.
"It will clarify the position of the states' authority in these adjudications," he said.
