Negotiated Settlements Effectiveness in Untying the Gordian Knot of - - PDF document

1 New Mexico Water Resources Research Institute 63rd Annual New Mexico Water Conference At the Tipping Point: Water Scarcity, Science, and Policy October 17-18, 2018 Las Cruces Convention Center, Las Cruces, New Mexico

Negotiated Settlements’ Effectiveness in Untying the Gordian Knot of Basin Adjudications

Matthew Reynolds, Chief Judge, Seventh Judicial District, State of New Mexico I thank the Institute for inviting me to speak with you today, and thank you all for

• attending. An annotated version of my presentation will be available, either through the

Institute or my office. This talk is entitled, “Negotiated Settlements’ Effectiveness in Untying the Gordian Knot of Basin Adjudications.” A Gordian knot is an extremely complex problem with seemingly no solution. The term comes from an ancient story: Once there was a kingdom with no king. A prophet foretold that the next person to come through the city gates in an oxcart would be their new ruler. A peasant named Gordias rode through the gates just then sitting on his oxcart, and the rest is history mixed with

• legend. The city was named after Gordias, and his son, the famous King Midas of the

Golden Touch, had his father’s oxcart tied to its yoke in such an intricate knot with no ends visible that nobody could untie it, despite the prophecy that whoever loosened the knot would rule the whole world.1 I’ll tell you the rest of that story a little later. Here’s another story: In the time of our recent ancestors, the territory of New Mexico wanted to become a state and to be approved for big dam and reservoir projects. So in 1907 our legislators substantially adopted a comprehensive model water code to satisfy the federal government. The code included sections governing the determination

• f all the water use rights in New Mexico’s stream systems, called general stream

adjudications, which a quarter century later included underground waters as well,

2 collectively referred to here as basin adjudications. When it was enacted at the beginning

• f the 20th century, the code was hailed as forward-thinking and scientific in its approach

to resolving water allocation issues.2 Based upon the courts’ adjudications and his licenses, the State Engineer would supervise the waters throughout the state and no new uses would be allowed after the enactment of the code except upon his approval and the availability of water. The adjudications were a preliminary matter to be resolved by the courts to create a foundation of secure knowledge of everyone’s legitimate water usage for moving forward in effective management of the state’s waters. An early adjudication started here in Las Cruces for the lower Rio Grande, but it faded away upon the completion of the Elephant Butte Dam, supply and demand at work, for with more stable supplies of water, lawsuits were in less demand.3 There were always more pressing needs when it came to water than pursuing and completing the complex tasks required to determine everyone’s water rights in a basin. The task became more complex in the 1950s through the federal McCarran Amendment allowing the rights of the United States and Native American tribes, pueblos and nations to be included in adjudications.4 At the beginning of the 21st century, about 20 percent of New Mexico’s adjudications were complete, with about 50 percent underway,5 a total of a dozen or so split evenly between state and federal courts,6 and 30 percent still to be undertaken, including the middle Rio Grande Basin providing water for more than half the state’s

• population. Eighteen years into the new century, about 20 percent of adjudications are

complete, with about 50 percent underway, and 30 percent still to be undertaken, including the middle Rio Grande Basin.7

3 But let’s back up a little, to 2002, when an exceptional drought gripped New

• Mexico. New Mexicans had already been meeting in sixteen water regions to implement

long-range water plans, and in 2003 the legislature directed the State Engineer and the Interstate Stream Commission, headed by the State Engineer, to establish a comprehensive state water plan.8 The legislature recognized that statewide completion of water rights adjudications is an essential element of an effective water management plan, and further recognized that completion of adjudications will require substantial time and resources until such time as the adjudications are complete. Therefore, the legislative act mandating the state water plan required that it include work plans and strategies for completion of water rights adjudications.9 In December 2003, the State Engineer and the ISC published the State Water

• Plan. Part of that Plan mandated that “[a]djudication of water rights in all basins will be

expedited.”10 Completing water adjudications was one of eleven “fundamental statewide common priorities, goals, and objectives.”11 Therefore, the Plan required the State to “accelerate the adjudication of water rights by prioritizing adjudications, setting out projected schedules and timelines for their completion, allocating the necessary State resources, and obtaining federal funding where possible.”12 The active adjudications were given specific timelines for their progress with estimated completion dates for non-Indian water rights, in Appendix D to the Plan. All but two were to have been completed by December 2017, with the lower Rio Grande finishing up at the end of this year and the San Juan complete in 2020. Adjudications not yet underway were to have benchmarks for initiation and completion in an appendix that was to be forthcoming13 but never forthcame.

4 The 2003 Water Plan was to be supplemented by five-year updates,14 so in 2008 an eight-page review and update plan reported briefly on water adjudications that there were three Indian water rights settlements reached in 2005-2006, some Supreme Court rule changes for adjudications, the creation of water courts in every judicial district, and an Indian water rights settlement fund. The plan also noted that “report on progress in licensing or adjudication of water rights” was one of ten priority areas for an update, subject to funding availability.15 In 2013, the State Engineer and the ISC submitted a water plan review, acknowledging that “[c]ompleting water rights adjudications is one of the eleven common priorities, goals, and objectives identified in the 2003 State Water Plan.”16 The Review noted significant improvements to the adjudications for improved efficiency, including new procedural rules, a single adjudication judge,17 computer-based technical tools to conduct hydrographic surveys, “use of field offices, individual field visits, and informal negotiations to address and resolve objections of water right owners before resorting to litigation; [a]n ombudsman program at the Utton Center at the University of New Mexico School of Law to help water right owners better understand and navigate the adjudication process;” enhanced use of electronic notices and court websites, and “[u]se of mediators to resolve disputes short of trial.”18 The 2013 Review made no mention of the lapsed timelines of the pending adjudications outlined in Appendix D to the 2003 Plan. The 2013 Review also failed to propose timelines for uninitiated adjudications promised in the Plan. It did, however, describe the twelve active adjudications and their progress:

5 “Twelve adjudication suits . . . include the Pecos River stream system . . , initiated in 1956, seven adjudications on tributaries to the Rio Grande, filed between 1966 and 1983, the San Juan River stream system, filed in 1975, the Lower Rio Grande system, filed in 1986, and the Zuni River stream system, filed in 2001. These adjudications encompass the water right claims of an estimated 72,000 individual claimants, federal government agencies, irrigation districts, reclamation and conservancy projects, large municipalities, community ditches, and most of New Mexico’s Indian Pueblos, Tribes, and Nations.”19 The progress for the decade since 2003 included “approximately 10,000 subfile orders determining the elements of water rights held by individuals,” numerous complex multi-party proceedings, and the three Indian water rights settlements from 2005 and 2006, namely, “the Navajo Nation Water Rights Settlement in the San Juan River adjudication;20 the Settlement Agreement that resolves the water rights claims of the Pueblos of Nambe, Pojoaque, Tesuque, and San Ildefonso in the Aamodt adjudication; and the Taos Pueblo Settlement that settles the water rights claims of Taos Pueblo in the Rio Pueblo de Taos/Rio Hondo Abeyta adjudication.”21 Earlier this year, the State Engineer and the ISC presented a draft of a new State Water Plan, incorporating the results of the sixteen regional water plans developed in 2016 and 2017. Six regions “noted the importance of completing adjudications so that water rights are defined,”22 and recommendations regarding water rights, including adjudications, topped the list of recommendations for statewide implementation.23 For instance, “[s]ome regions have significant ‘paper rights’ that have never been put to beneficial use which presents challenges for planning and managing the water resources.”24

6 Unlike the 2003 Plan, the 2018 Draft Water Plan neither seeks to expedite basin adjudications nor provides work plans and strategies for completion of adjudications. It makes no mention of the missed benchmarks for progress and completion from fifteen years earlier. Instead, the Draft Plan states that adjudications “must proceed slowly, as it is important to make sure that permanent, judicial determinations of water rights are accurate, and that all parties interested have a full chance to be heard on each water right.”25 With the implementation of the Active Water Resource Management regulations,26 “the urgent issue of water management [can] be addressed under the State Engineer’s administrative authority while adjudications proceed at their own pace to make judicial determinations of water rights.”27 So how slow are New Mexico’s basin adjudications? Are we at a pace comparable to other western states? I contend that we are moving at a much slower pace than almost all of them.28 For example, Montana has nearly completed its adjudications for the entire state in less than forty years, thanks in large part to numerous settlements with Indian tribes and federal agencies. Idaho as well, thanks to key settlements with Indian tribes, among others, completed in less than thirty years the Snake River adjudication with nearly 160,000 claimants, which is more than twice as many claimants as we have in all of our active adjudications. As for Colorado, our immediate neighbor to the north has been done for some time with its general stream adjudications. In contrast, New Mexico has the infamous distinction of one of its adjudications being the longest- lasting federal litigation in U.S. history.29 And as for the lower Rio Grande Basin adjudication, scheduled in the 2003 Water Plan to have reached a final decree in the next two months, a recent estimate has it lasting for another thirty years.

7 Since we don’t compare with our sister states, let’s look elsewhere for a good analogy for New Mexico’s pace of completing the adjudication process statewide. At the end of my article on prior appropriation, I noted that “[a] key component to New Mexico’s system of water law is general stream adjudications, yet the pace is glacial. Even that analogy fails because glaciers are melting faster than cases are completed, and some have not even begun.”30 I usually research issues thoroughly, but I made this assertion last year without actually conducting a head-to-head comparison of pace between glaciers and New Mexico’s adjudications. In a scientific effort to measure this and other possible analogies, I created a thought experiment with snails, sloths and glaciers to see how fast they could move through New Mexico from the Colorado border on I-25 to the Texas border, 462 miles to the south, and then compare their speeds with the pace of New Mexico’s completion of

• adjudications. By consulting Wikipedia, the most reliable source of all modern research,

I found that the average snail slimes along at 2/1000th mile per hour, a sloth moves at 125 feet per day, and the fastest glacier on earth is receding at 17 kilometers per year. I chose the fastest glacier as a nod to climate change. I’ll give you math whizzes in the audience a few moments to calculate. Times up. Which of these is the closest analogy to New Mexico’s completion of its adjudications? First, the results of the race: The winner is the snail, making it from northern New Mexico to the Texas border in about 26 ½ years. The fastest glacier is a distant second, sloshing through the Land of Enchantment in nearly 44 years, and the sloth pulls up the rear by crawling to the border in over 53 years. As to whether the snail, the sloth or the glacier provides the best analogy for New Mexico’s completion of basin adjudications, the answer is none of the above. This was a trick

8 question, with the answer in the title to my talk. As for completing all of New Mexico’s adjudications, we are at a virtual standstill, moving at the same pace as Gordias’s oxcart tied up to its yoke. This brings us to the rest of the story of the Gordian knot. For many generations the oxcart and yoke sat tied together in the city square, until Alexander, son of Philip of Macedon, entered the city on his way to conquer much of the known world. Like many ancient tales, there are different versions as to how Alexander the Great undid the knot. In one version, Alexander tries to untie the Gordian knot, becomes frustrated, and then pulls out his sword and whacks the knot until it snaps. In another version, Alexander pulls out the yoke’s linchpin, thus relieving the tension of the knot enough to separate the yoke from the cart.31 The sword and the linchpin endings reveal two ways to loosen a Gordian knot, wielding the sword represents power and removing the linchpin ingenuity. Both ways of untying the Gordian knot are available in New Mexico. Let’s explore the way of the sword, or power, first. In 2003, the same year it mandated the State Water Plan, the New Mexico legislature ordered the State Engineer to make rules for priority determinations because “[t]he legislature recognizes that the adjudication process is slow, the need for water administration is urgent, compliance with interstate compacts is imperative and the state engineer has authority to administer water allocations in accordance with the water right priorities recorded with or declared or

• therwise available to the state engineer.”32

Based upon this directive, the State Engineer created the Active Water Resource Management regulations.33 A key provision in the regulations is the administration date the State Engineer can declare in a hydrologically connected drainage area called a water

9 master district,34 meaning that any water right junior to that date must be curtailed.35 For example, the State Engineer could choose January 15, 1963 as the administration date in a basin or part of a basin, and then the water master would order that all users with priority dates after January 15, 1963 stop using any water until further notice. For the great majority of basins that are not fully adjudicated, the State Engineer and his staff will use the best available evidence to determine each water user’s rights, including partially completed adjudications, licenses, permits, filings in the State Engineer’s office and

• ther documentary and field evidence.36

Some may think that this recently acquired power of the State Engineer obviates the need for adjudications. They would be mistaken in this assumption. Many generations of leaders in Gordium owned swords, but they never cut the Gordian knot –

• nly Alexander did, both because he was supremely confident and because the greatest

army in the world backed him up. The closest analogy in New Mexico to Alexander the Great was the legendary State Engineer Steve Reynolds, but he disliked the idea of priorities so much that he practically ignored that constitutional principle. According to Professor emeritus Em Hall, Reynolds thought it “[f]ar better . . . to use the tools of science in the hands of experts, rather than the crude club of priority in the hands of the unscientific courts to manage New Mexico’s scarce resources.”37 In hindsight, the rarely used crude club of priority by the courts exercised on a case-by-case basis38 is more like a surgeon’s scalpel compared to the broadsword of the State Engineer cutting off all junior users in a basin. When and if a State Engineer exercises the power to cut off wholesale numerous water users in a basin, those water users would immediately seek relief in court and would demand that the courts expedite the determination of their rights.39 Very

10 likely this rush to court would trigger other water claimants across the state to do the

• same. While it might be too late for many people denied access to water, the exercise of

the State Engineer’s power to cut them off would ensure that the standstill of adjudications statewide would come to an end. Yet until the State Engineer’s sword is wielded, the Gordian knot remains tied. Exercising this great power is made more difficult because New Mexico’s priority system has no priorities among types of uses, only among dates initiating beneficial uses.40 Since a number of municipalities have later priority dates for their wells, a number of those wells would have to be shut down. Just a few years ago, our Supreme Court decided that domestic wells fall under the prior appropriation system. As a result, cutting off all junior uses in a basin would mean many hundreds of domestic well owners would no longer be allowed to draw water from their wells. The Supreme Court in Bounds v. State ex rel. D’Antonio recognized the practical and political challenges facing the State Engineer as to whether he would ever cut off junior domestic wells. While promising that our “courts remain available, based upon sufficient evidence, to intervene in appropriate cases to ensure that ‘priority of appropriation shall give the better right,’” the Bounds Court concluded that “aggrieved citizens must look to the legislature and the State Engineer for relief from many of these problems, seemingly so intractable.”41 Who are these aggrieved citizens? From my vantage, it’s just about everybody in the state who is aware of our water issues, particularly those in identifiable groups that recognize survival depends upon a reliable source of water and see some other group as threatening their access. In Bounds v. D’Antonio, the Supreme Court acknowledges the judiciary’s limitations in resolving some of the most apparently intractable, or

11 unmanageable, problems. The Court directs aggrieved citizens to look to the legislature and the State Engineer for relief. But as we’ve seen, a decade and a half ago the legislature and the State Engineer tried to address these problems, but many of them are still tied up in seemingly irreconcilable conflicts among groups and between neighbors, the tension tying everyone in knots. The expectation that the State Engineer solve all these problems with less and less water simply stretches the expertise of the State Engineer to the breaking point. In fact, no expert or legislative body may have the solution to these apparently intractable problems. In a book published in 2013 entitled Water Diplomacy: A Negotiated Approach to Managing Water Networks,42 the authors tackle the century-old idea that engineers, armed with science and technology, and policy makers with their myriad plans can solve all water allocation issues. They write, “[M]any water professionals view governance as a set of exogenous laws, regulations, and institutions – yet, practical experience suggests something quite different. We now recognize that the driving force in formulating and framing water problems is the politics of competing interests and the values of different groups. Consequently, it is important to move beyond the familiar framing of water problems as technical tasks that can be passed along to experts who will find nonpolitical solutions. Instead, many water conflicts are best described in terms of differences in values and how to translate those values to policies and actions within the political domain.”43 This brings us to the second way of untying the Gordian knot of New Mexico’s basin adjudications. In the more satisfying version of the story, Alexander solves the puzzle of the impossible knot not by the sword but by his ingenuity in removing the

12 yoke’s linchpin so that the tension of the knot eases enough for him to separate the yoke from the cart. Every basin adjudication starts off as a Gordian knot with no end in sight, with so many litigants pulling against known and unknown opponents that the cord remains perpetually taut, and every adjudication has its own hidden linchpin, the removal

• f which can help ease the tension among litigants enough to end the adjudication.

Some litigants have realized that the linchpin of “us versus them” or the “zero sum game” has gotten them nowhere other than aches from the tension and lighter pocketbooks from the huge expenses in their tangled tug-of-war. Together, these co- Alexander the Greats have learned to think creatively to remove the linchpin so that they can solve mutual problems of water allocation. A sterling example of removing the “us versus them” mentality comes from several decades ago when the Taos Valley Acequia Association approached the Taos Pueblo Council with a proposal “to negotiate as neighbors rather than facing each other as adversaries in court.”44 That gesture of goodwill blossomed into the Taos Pueblo Settlement. Outside of the adjudication process, there are numerous stories in New Mexico of cooperation among neighbors, water user groups and governmental entities for day-to-day operations and for handling short-term water scarcities. We just need more of that goodwill to complete adjudications so that when the next crisis comes we don’t have to worry about the basics

• f who is using our water, when did that use start, where is it being used and so forth.

Parties, with the help of mediators and government funding and cooperation, have at times exercised ingenuity in resolving their issues through negotiated settlements.45 As we’ve seen, successes in Montana and Idaho provide good examples of how effective negotiations can be in resolving adjudications. The authors of the book, Negotiating

13 Tribal Water Rights, report that “[i]n some instances, negotiations have generated creative solutions to seemingly intractable problems, better working relations among the parties, and more integrated management of regional water resources.”46 Litigation is not the antithesis of negotiated settlements, though. While “litigation can foster animosity among parties, it can also help settle matters of law and provide impetus for negotiated

• settlements. . . . The choice to settle or to negotiate is not an either/or decision . . . .

[D]isputants have relied on a combination of litigation and negotiation to address the complex legal, political, cultural, and economic issues that arise in water conflicts.”47 Negotiated settlements in basin adjudications are not a one-time resolution of all the problems the water users in a basin will face. Remember that adjudications are just the preliminary step in effective water administration. The best settlements contemplate adaptation to change with dispute resolutions built into the agreements.48 The State Engineer’s Active Water Resource Management regulations encourage water users to form water user groups and reach water-sharing agreements as an alternative to curtailments resulting from administration date declarations.49 Earlier in this talk, I pointed out how slow we are in completing our basin adjudications compared to our sister states. But I must note that no state has the complexity of New Mexico’s history of water use, which directly impacts the complexity

• f a basin adjudication. New Mexico’s nearly two dozen pueblos, tribes and nations,

with their histories stretching back hundreds to a thousand years or more, provide only a portion of our state’s complex water history, laws and customs. For half a millennium descendants of early Spanish transplants have followed acequia customs going back to the Moors and northern Africa. Many farmers and ranchers of non-Spanish descent hail

14 back to ancestors who came to New Mexico nearly two hundred years ago. Rich in history and diversity though we are, these very attributes can cause frictions that prevent us from working together for a common good. We need to remember that our common good comes with a shared responsibility. Each of us uses water that has belonged to all of us. Article Sixteen, Section 2 of the New Mexico Constitution provides: “The unappropriated water of every natural stream, perennial or torrential, within the state of New Mexico, is hereby declared to belong to the public and to be subject to appropriation for beneficial use, in accordance with the laws of the state. Priority of appropriation shall give the better right.” Before use and after use, the water in the state of New Mexico belongs to the public, that’s you and me and every other New Mexican. That should mean something to us when we litigate and negotiate with one another over water: The water belongs to us collectively. Just as those who came before us helped create the New Mexico we are blessed to enjoy, we too have a responsibility to the next generations to provide them with a secure water future, and that means wrapping up these adjudications on an expedited basis through litigation where necessary and negotiated settlements where possible. Let’s hope there are some Alexanders here who can use their ingenuity to solve the riddle of the impossible knot before the urgency of water administration forces the State Engineer to wield the sword of his regulations, which may have catastrophic results for many New Mexicans. Thank you for your attention, and I wish you all well in your efforts to solve New Mexico’s many water issues.

1 Plutarch, LIFE OF ALEXANDER, ch. 18.

15

2 Katharine Coman, Some Unsettled Problems of Irrigation, 1 AM. ECON. REV. 1-19 (March 1911),

reprinted in 101 AM. ECON. REV. 36-48 (February 2011).

3 Snow v. Abalos, 1914-NMSC-022, 18 N.M. 681, discussed in Matthew G. Reynolds, Trial and Error:

How Courts Have Shaped Prior Appropriation in New Mexico, 57 NAT. RESOURCES J. 263-317, at 275- 276 (2017).

4 Elephant Butte Irrigation Dist. v. Regents of N.M. State Univ., 1993-NMCA-009, 115 N.M. 229, ¶ 16

(quoting the McCarran Amendment, 43 U.S.C. § 666(a)).

5 The percentage of ongoing adjudications fluctuates from 50% to 60%. According to the 2003 New

Mexico State Water Plan, approximately 60% of the State was subject to ongoing adjudications. 2003 New Mexico State Water Plan, p. 59. According to the ad hoc committee for the regional plans, New Mexico had only completed 15% of its adjudications. NM ISC Ad Hoc Committee Regional Water Plans – State Water Plan, p. 4.

6 Id., p. 62. 7 New Mexico State Engineer website http://www.ose.state.nm.us/Legal/adjudications.php (last visited

10/1/18): “About 20 percent of the state has been adjudicated. More than 50 percent of the state has adjudications in progress.”

8 N.M. STAT. ANN. § 72-14-3.1 (2003).

9 N.M. STAT. ANN. § 72-14-3.1(D)(1) (2003). 10 2003 New Mexico State Water Plan, p.2. 11 Id., p. 5-6. 12 Id., p. 58. 13 Id. 14 N.M. STAT. ANN. § 72-14-3.1(H) (2003). 15 2008 Review and Proposed Update, p. 6. 16 State Water Plan 2013 Review, p. 20. 17 for state court adjudications only. 18 Id., p. 21. 19 Id., p. 22. 20 The New Mexico Court of Appeals recently upheld the Navajo Settlement, with the New Mexico

Supreme Court denying certiorari. State of New Mexico ex rel. State Engineer v. United States of America, 2018-NMCA-053.

21 Id. 22 Draft 2018 New Mexico State Water Plan Part II: Technical Report, pp. 59-60. 23 Id., p. 79. 24 Id., Appendix A-1. 25 Draft 2018 New Mexico State Water Plan Part III: Legal Landmarks, pp. 7-8 (emphasis added). 26 Active Water Resource Management regulations (AWRM), 19.25.13.1-.50 NMAC (12/30/2004). 27 Draft 2018 New Mexico State Water Plan Part III: Legal Landmarks, p. 8. 28 For an introductory state-by-state comparison, see John E. Thorson, Reflections on Western General

Stream Adjudications Upon the Signing of Wyoming’s Big Horn River Adjudication Final Decree, 15

• WYO. L. REV. 383-411 (2015); see also Michelle Bryan, At the End of the Day: Are the West’s General

Stream Adjudications Relevant to Modern Water Rights Administration?, 15 WYO. L. REV. 461 (2015).

29 John W. Utton, Struggle Over Pueblo Water Rights: The Aamodt Case, ONE HUNDRED YEARS OF WATER

WARS IN NEW MEXICO: 1912-2012, 141 (ed. by Catherine T. Ortega Klett, 2012).

30 Matthew G. Reynolds, Trial and Error: How Courts Have Shaped Prior Appropriation in New Mexico,

57 NAT. RESOURCES J., 317 (2017).

31 I am using my artistic license as a storyteller to infer from Plutarch’s tale that the knot’s tension eased. 32 N.M. STAT. ANN. § 72-2-9.1 (2003). 33 19.25.13.1–.50 NMAC (2004). 34 19.25.13.12 NMAC (2004). 35 19.25.13.7(B), (C)(3)(b), (U), 19.25.13.24, 19.25.13.17 NMAC (2004). 36 19.25.13.27 NMAC (2004). 37 G. Emlen Hall, HIGH AND DRY: THE TEXAS-NEW MEXICO STRUGGLE FOR THE PECOS

RIVER, 120 (2002).

38 The State Engineer can also act upon priority calls. 19.25.13.7(U) (2004).

16

39 See 19.25.13.28 NMAC (2004) (Supersession by a Court). 40 N.M. Const., art. XVI, § 2, providing in part: “Priority of appropriation shall give the better right.” 41 Bounds v. State ex rel. D’Antonio, 2013-NMSC-037. For a general introduction to the idea of intractable

conflicts and possible ways out, see https://www.beyondintractability.org/essay/meaning_intractability.

42 Shafiqul Islam and Lawrence E. Susskind, WATER DIPLOMACY: A NEGOTIATED APPROACH TO

MANAGING COMPLEX WATER NETWORKS (2013). I thank U.S. Special Master John Thorson for recommending this book and other resource materials for today’s talk.

43 Id., p. 93 (citations omitted). 44 Bonnie G. Colby, John E. Thorson, and Sarah Britton, NEGOTIATING TRIBAL WATER RIGHTS:

FULFILLING PROMISES IN THE ARID WEST, 45 (2005).

45 For personal stories on successes (and failures) in environmental negotiations from a mediator’s

perspective, see Lucy Moore, COMMON GROUND ON HOSTILE TURF: STORIES FROM AN ENVIRONMENTAL MEDIATOR (2013).

46 NEGOTIATING TRIBAL WATER RIGHTS, supra, Introduction, p.1. 47 Id. 48 Id., p. 89. 49 See, e.g., 19.25.13.7 (C)(4), 19.25.13.16 (E), (F) NMAC (2004).