Adjudications, Conventional Wisdom, and New Mexico Reed D. Benson UNM School of Law

“[A]djudications are like a dusty trunk in the attic, without a key to explain the original reason and context for these cases.” John Thorson et al., Dividing Western Waters (part 2), 9 University of Denver Water Law Review 299, 452 (2006)

Attitudes about adjudications The conventional wisdom is somewhat conflicting as to water right adjudications You’ve got to do them They are the worst Are adjudications water law’s ‘necessary evil’? * 2 disclaimers *

What are adjudications about? Adjudications are rooted in the early, pre-water-code days of prior appropriation when new uses needed no gov’t approval Water codes grandfathered existing uses adjudications were the means to confirm and quantify established water rights

Why all the fear & loathing? Based on the experience of several states (incl. AZ, ID, MT) and their giant adjudications: these cases take forever (decades, not years) they cost millions in public & private $$$ they tend to be contentious and divisive they fail to deliver everything people want

How well do adjudications work? “From an effectiveness vantage point, it is difficult to demonstrate that adjudications have significantly improved water management in the region,” even in areas where courts have entered final decrees. “From an efficiency perspective, stream adjudications fare even worse.” Thorson et al., Dividing Western Waters (part 2) at 436

Why did they get started? Original idea for adjudications was to confirm state-law rights for all users within a basin Some adjudications were started to clear the way for big new water projects (incl. federal) In 1970s, states launched adjudications to gain jurisdiction over federal & tribal claims

Do they still serve a purpose? “Water users and managers all assume that most western waterways are overappropriated; they do not need an adjudication to come to that conclusion.” Thorson et al., Dividing Western Waters (part 2), at 457

What’s the point of them now? Today, adjudications might be seen as needed or valuable for various reasons, including: allowing for priority administration resolving major tribal water claims laying a foundation for water markets What is the water policy or management goal that motivates adjudications in New Mexico?

Will adjudications help NM? Do adjudications help New Mexico address its water management challenges for the future? … in a way that fits New Mexico’s water values? 2003 statute sought to make progress on key issues prior to adjudications being completed NM S.Ct. upheld AWRM rules on that basis

One last question Adjudications look backward in time, and focus on defining each individual water right. How does that approach help us look forward, meeting future challenges in managing New Mexico’s water resources for the public good?