State ex rel. State Eng'r v. Aamodt

171 F.Supp.3d 1171

State of New Mexico ex rel. State Engineer, Plaintiff,

v. R. Lee Aamodt et al., Defendants,andUnited States of America, Pueblo De Nambé, Pueblo De Pojoaque, Pueblo De San Ildefonso, and Pueblo De Tesuque, Plaintiffs–in–Intervention.

No. 66cv06639 WJ/WPL

United States District Court, D. New Mexico.

Signed March 21, 2016

Arianne Singer, Edward C. Bagley, Gary B. Storm, Jennie Lusk, Barbara A. Brill, Office of the State Engineer, John E. Stroud, Stroud Law Office, Santa Fe, NM, Stephen R. Farris, Attorney General of New Mexico, Brett J. Olsen, Abramowitz, Franks & Olsen, Christopher D. Coppin, Conference of Western Attorneys General, Albuquerque, NM, for Plaintiff.

A. Blair Dunn, Western Agriculture, Resource and Business Advocates, LLP, Charles T. Dumars, Tanya L. Scott, Law & Resource Planning Associates, Albuquerque, NM, Andrea Lynn La Cruz-Crawford, The Streeper Firm, Adam G. Rankin, Holland & Hart, LLP, Santa Fe, NM, for Defendants.

Dolores Baros, Santa Fe, NM, pro se.

Marianne and Jerome Coe, Houston, TX, pro se.

Gary Norman Davis, Santa Fe, NM, pro se.

Bruce B. Donnell, Santa Fe, NM, pro se.

Garry R. Osan, Houston, TX, pro se.

Brenda J. Rigos-Montoya, Santa Fe, NM, pro se.

Pauline N. Candee, Santa Fe, NM, pro se.

Jacqueline D. Cordova, Santa Fe, NM, pro se.

David F. Neunuebel, Santa Barbara, CA, pro se.

James T. Ortiz, Santa Fe, NM, pro se.

Aurelia Roybal, Santa Fe, NM, pro se.

Ted Floyd Roybal, Santa Fe, NM, pro se.

Kenny Kalfin, Santa Fe, NM, pro se.

Karen Schmidt, Tesuque, NM, pro se.

Ronald B. & Geraldine R. Dirks, Sugar Land, TX, pro se.

Erma G. Pearson, Los Alamos, NM, pro se.

Robert L. Pearson, Los Alamos, NM, pro se.

Gilbert R. Hitchcock, Tesuque, NM, pro se.

Mark McNown Tucson, AZ, pro se.

Robert Preston Smith, Tesuque, NM, pro se.

Danny Ray Campos, Santa Fe, NM, pro se.

Marguerite Valencia-Reed, Albuquerque, NM, pro se.

Regina Ann Valencia, Santa Fe, NM, pro se.

Alexander J. Gancarz, Santa Fe, NM, pro se.

Audre Gutierrez, Santa Fe, NM, pro se.

Henry H. Carey, Santa Fe, NM, pro se.

Michael Wilding, pro se.

MEMORANDUM OPINION AND ORDER APPROVING SETTLEMENT AGREEMENT

WILLIAM P. JOHNSON, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on approximately 800 Objections to the Settlement Agreement and Proposed Partial Final Judgment and Decree on the Water Rights of the Pueblos of Tesuque, Pojoaque, Nambé and San Ildefonso, and Interim Administrative Order. See Doc's 8094–9877. For the reasons stated below, the Court will OVERRULE all of the Objections, APPROVE the Settlement Agreement, Doc. 7970–1, ENTER the proposed Partial Final Judgment and Decree of the Water Rights of the Pueblos of Nambé, Pojoaque, San Ildefonso, and Tesuque, Doc. 7970–3, and ENTER the proposed Interim Administrative Order, Doc. 7970–2.

PROCEDURAL BACKGROUND

Settlement negotiations regarding the water rights of the Pueblos began in 2000 and resulted with a completed Settlement Agreement in 2006. On December 18, 2007, the Court entered an order establishing the procedure for approval of the Settlement Agreement. See Doc. 6282; amended by Doc. 7310, filed February 9, 2011. Both the initial and the amended procedural orders provided that after notification of federal approval of the Settlement Agreement, or notification of completion of the process to address any required modifications of the Settlement Agreement, the Court would enter an order to show cause why the Court should not approve the Settlement Agreement. The Court entered its Second Amended Procedural Order which shortened deadlines and approved the proposed Objection form. See Doc. 7988, filed November 4, 2013. The Objection form instructs objectors to “state the specific legal and factual basis for your objection,” and to “state how your water rights will be injured or harmed in a legally cognizable way by the Settlement Agreement and entry of the proposed decree and interim order.” Doc. 7971–3 at 2, filed October 3, 2013.

On December 8, 2010, the Aamodt Litigation Settlement Act was enacted. Pub.L. No. 111–291 §§ 601 et seq ., 124 Stat. 3134. The Settlement Act authorizes the Settlement Agreement on the condition that the Court approves a partial final decree that sets forth the water rights and other rights to water to which the Pueblos are entitled under the Settlement Agreement and a final decree that sets forth the water rights for all parties to this case by September 15, 2017. Settlement Act §§ 621(a) and 623(a)(2)(G) and (H). If the final decrees are not approved by September 15, 2017, the Settlement Agreement will no longer be effective and any unexpended federal funds appropriated to carry out the activities authorized by the Act will be returned to the federal government. Settlement Act §§ 621(b)(1) and (3). The Settlement Act also authorizes the design and construction of a Regional Water System to distribute water to the Pueblos and the Santa Fe County Water Utility. Settlement Act § 611(a).

During 2011 and 2012, the Settlement Parties revised the Settlement Agreement to conform to the provisions in the Settlement Act. In October, 2013, the State of New Mexico certified to the Court that modifications to the Settlement Agreement necessary to conform it to the Aamodt Litigation Settlement Act have been completed and that the conformed Settlement Agreement has been executed by the Settlement Parties. See Doc. 7970. Copies of the proposed Interim Administrative Order and the proposed Partial Final Judgment and Decree were attached to the Certification.

On December 6, 2013, the Court entered an Order to Show Cause why the Court should not approve the Settlement Agreement. See Doc. 8035. The Order to Show Cause provided summaries of the Settlement Agreement, the Interim Administrative Order and the proposed Partial Final Decree, and gave notice where complete copies of the Settlement Agreement, the Interim Administrative Order and the proposed Partial Final Decree may be reviewed. The deadline for objections was April 7, 2014.

Approximately 800 Objections have been filed. Pursuant to the Court's Case Management Order, Doc. 9506, several Settlement Parties filed memoranda summarizing the 800 Objections and stating arguments in support of the position that the Court should approve the Settlement Agreement and enter the Partial Final Decree at this time. See Doc's 9910 (United States and Pueblos of Nambé, Pojoaque, San Ildefonso and Tesuque), 9911 (Rio de Tesuque Association, Inc.), 9912 (Members of the Rio Pojoaque Acequia and Water Well Association, Inc.) and 9913 (State of New Mexico, Santa Fe County and City of Santa Fe). Of the 800 Objections, three groups filed responses in opposition to the memoranda in support of approval of the Settlement agreement. See Doc's 9957 (Paul White), 9972 (the Dunn Group) and 9973 (the Atencio Group).¹ The Settlement Parties that filed the four memoranda in support also filed reply briefs. See Doc's 10009 (Rio de Tesuque Association, Inc.), 10010 (Members of the Rio Pojoaque Acequia and Water Well Association, Inc.), 10011 (United States and Pueblos of Nambé, Pojoaque, San Ildefonso and Tesuque), and 10012 State of New Mexico, Santa Fe County and City of Santa Fe). The Court has reviewed the Objections as well as the pleadings in support of and in opposition to the Court approving the Settlement Agreement and entering the Partial Final Decree.

STANDARD OF REVIEW

In its Order granting the motion of the Settlement Parties to establish procedures for approval of the Settlement Agreement, the Court ordered:

The burden shall be on the objecting party to demonstrate that the rights proposed to be settled pursuant to the Settlement Agreement should not be quantified and administered as proposed in the Settlement Agreement. Objections shall be required to demonstrate that adoption and implementation of the Settlement Agreement is not fair, adequate, reasonable, is not in the public interest, or is not consistent with applicable law. Objections must include the following: (1) name and address of objector; (2) description of water rights claimed by objector; (3) statement of the specific legal and factual basis of the objection; and (4) how the objector will be injured or harmed by the Settlement Agreement in a legally cognizable way.

Doc. 6282 at 4–5.

In exercising its discretion, the trial court must approve a settlement if it is fair, reasonable and adequate. In assessing whether the settlement is fair, reasonable and adequate the trial court should consider:

(1) whether the proposed settlement was fairly and honestly negotiated;(2) whether serious questions of law and fact exist, placing the ultimate outcome of the litigation in doubt;

(3) whether the value of an immediate recovery outweighs the mere possibility of future relief after protracted and expensive litigation; and

(4) the judgment of the parties that the settlement is fair and reasonable.

Jones v. Nuclear Pharmacy, Inc., 741 F.2d 322, 324 (10th Cir.1984).

DISCUSSION

The Objections can be generally characterized as: (i) complaints about the procedure for the approval of the Settlement Agreement; (ii) concerns about the implementation of the Settlement Agreement; and (iii) disagreements about the application of state and federal laws.

Settlement Agreement Approval Procedure

Many of the Parties objected to the Settlement Agreement approval procedure asserting: (i) they were excluded from the Settlement negotiations; (ii) the Executive Branch of the State of New Mexico did not have authority to settle; (iii) service of the Order to Show Cause was not proper; and (iv) there was insufficient time and information to assess the Settlement and file objections.

Excluded from Participation in Settlement Negotiations

Some Objectors complain that they were excluded from the settlement negotiations and that information regarding the settlement negotiations was kept confidential. See Doc. 8424 at 8.

The Court has previously addressed this issue stating:

In litigation involving numerous parties,

...