Jicarilla Apache Nation Water Rights Settlement
The Jicarilla Apache Nation is located in north central New Mexico. The reservation was created by executive order in 1887 and now spans over 870,566 acres.[i]
The Nation has a population of over 4,000 people.[ii]
The Navajo River is the only consistently-flowing source of water on the reservation and more than half of the river is diverted through the San Juan-Chama Diversion Project into the Rio Grande. The Nation’s water supplies are stored in the Heron reservoir.[iii]
The Nation is entitled to divert a total of 40,000 afa of water (32,000 afa for consumptive use). Of the Nation’s settlement entitlement, 33,500 afa is allocated from the Navajo Reservoir or Navajo River (25,500 afa of this is for consumptive use), and the remaining 6,500 afa (all for consumptive use) will come from the San Juan-Chama Project. The Nation holds an additional 5,683.24 afa of water for historic uses.[iv]
The Nation settled water rights disputes with the State of New Mexico in the Jicarilla Apache Tribe Water Rights Settlement Act in 1992.[v] The settlement was initiated after the Nation brought a series of lawsuits to enforce its federal reserved water rights.[vi] The parties to the settlement included the United States, the Nation, and the State. The Act also authorizes $6 million to be given to the Nation to develop their water rights.[vii]
Under the terms of the Settlement, the Nation must pay a pro rata share of the annual operation and maintenance costs of delivery. The settlement explicitly permits the Nation to market water, but requires that it do so in accordance with New Mexico State law. These leases are limited to a term of 99 years. Additionally, the Act contains certain environmental provisions protecting New Mexico stream flows.
Marketing Under the Jicarilla Apache Tribe Water Rights Settlement Act
The Jicarilla Apache Tribe Water Rights Settlement Act explicitly permits the Nation to lease water off-reservation when the Nation is not using the water.[viii] This is also one of the only instances in which marketing water transbasin is permitted. The Nation sells water to users outside of the Colorado River Basin to the Rio Grande Basin through its Water Administration Office. The Nation leases around 6,500 afa to a number of different entities. Under the terms of the Act, the maximum duration of any lease is 99 years (including renewals) and must comply with state and federal environmental laws. All leases are subject to approval by the Secretary of the Interior.[ix]
The 1992 Act requires that the Nation adhere to state law when marketing water off-reservation. This most likely binds the Nation to interstate compacts creating the Law of the River and could prohibit the Nation from interstate water marketing.[x] Finally, the settlement explicitly asserts that the non-use of water by a subcontractor of the Nation shall in no event result in forfeiture or relinquishment of all or any part of the tribal water rights.[xi]
The Nation has taken advantage of the leasing provision in their settlement, and currently leases approximately 8,500 afa of water to electrical generation companies[xii], 3,000 afa to the City of Santa Fe[xiii], and a few other smaller industrial leases[xiv]. The Nation continues to seek out water leasing opportunities. For example, in August of 2012, the Nation proposed a transfer of 100 afa to the Sipapu Ski and Summer Resort near Peñasco, New Mexico.
Because the Nation has fairly extensive business experience and a history of on-reservation leasing, it has developed certain strategies for leasing its’ water rights. One such strategy is to limit leases to relatively short terms so that the Nation may easily recall water for “homeland uses” if necessary. This also helps the Nation meet another challenge: how to set the correct price for the water resources to avoid being locked into a less-than-ideal leasing arrangement.
The Nation uses its water entitlement in a variety of ways on-reservation. Presently the Nation is working to develop the Jicarilla Apache Reservation Rural Water System to replace existing wastewater facilities in Dulce, New Mexico.[xv] Water is also used for irrigation and oil and gas development.
In the 1990s the Nation sought to develop a hydropower project to provide electricity for domestic use and sale.[xvi] The Nation “pays among the highest electricity rates in the country” despite its wealth of natural resources. [xvii] In the mid-1990s, the Nation engaged in a study to examine hydropower feasibility at Heron Dam.[xviii] However, the proposed project proved unfeasible.[xix]
Interview with Herb Becker, Attorney for the Jicarilla Apache Nation, 10/31/2012. Further applications of Tribal Water Rights.
Jicarilla Water Auction
In July of 2011, the Jicarilla Apache Nation participated in the first-ever tribal water auction and auctioned off 6,000 afa. Becker was involved in the Nation’s recent water-marketing effort. Describing the atmosphere of the market, Becker explains that no one was quite certain what would happen and, in his opinion, fewer bidders engaged in the auction due to the uncertainty. However, spectators abounded. Becker explains that several state officials attended “just to see what would happen.”
Because of the uncertainty surrounding the market, Becker does not believe that the Nation received the true market value for water auctioned during this first marketing attempt. The final result of the 2011 auction was a sale price of $75 per afa. Becker describes that during this first round would-be bidders were waiting to see if the water auction would be challenged in court. Ultimately, only three private parties bid on the water.[xx] Bids were received from both the Bureau of Reclamation and Las Campinas, a wealthy suburban country club looking to secure flows for a golf course. The term of the lease was for 1 year with an option to renew at the end of the term. In September of 2012, the Nation had a second auction for 2013 water delivery which resulted in a price of $82.00 per afa. This time the Nation auctioned of 6,500 afa of water.
Aside from the water auction, the Nation also leases to a variety of other entities including oil and gas development, the City of Santa Fe, and individuals. Unfortunately, the Nation has experienced some difficulties with individual leases, particularly its lease with the City of Gallup that includes a provision requiring the approval of the Secretary of the Interior Becker reports that the Nation missed the opportunity for two lease payments because it was unable to obtain secretarial approval in a timely manner.
Becker explains that the Jicarilla Apache Nation’s settlement agreement has certain provisions that protect minimum flows for the San Juan River. The Nation was an active participant in arriving at these provisions and in crafting the RIP San Juan plan. The Plan was designed to create instream flows that would fulfill the Endangered Species Act. Today, the Nation is still an active participant in this program.
Interstate Water Marketing
Becker indicates that the Nation might be interested in interstate water marketing in the future. However, it is not eager to pave the way considering the litigation that would most certainly follow any interstate marketing effort. Becker commented that “there is some interest by the Nation to market interstate. But you want to get another entity to pay the price of that litigation.”
Mescalero Water Marketing Bill
Mr. Becker also served as the attorney for the Mescalero Apache Tribe in drafting their recent attempt to pass a water marketing bill.[xxi] The bill would expressly permit the Tribe to sell water off-reservation. In Becker’s opinion, one of the most crucial effects of the bill would be to allow the Tribes to maintain much more control over the agreement by eliminating the legal requirement that the Secretary approve of tribal water marketing. The language of the Mescalero Apache water rights decree requires that once water is moved off-reservation it becomes subject to state law. By its terms, leases are limited to 99 years and the only approval necessary to enter into leases off of the reservation is that of the Tribe.
Becker explains that certain practical matters help facilitate some leasing arrangements. Having “neighbors with need” is incredibly helpful because the closer the user, the fewer potential challengers there are, and the more likely it is that the necessary infrastructure is in place. Close proximity helps eliminate problems caused by what Becker refers to as “the pirates in between”- that is, users without valid state or federal reserved rights. With these interfering users, enforcement is often difficult.[xxii]
With greater authority over tribal water marketing, tribes will bear greater responsibility. Becker explains that tribes will be responsible for assuring that no actual injury occurs to state water users. “Careful accounting and ensuring that no state water rights users suffer actual injury is one way to prevent states from encroaching on federal reserved rights.”
Becker believes that the Tribe is merely following in league with the many New Mexico state water users which engage in water marketing. “New Mexico state law has a leasing statute – we’re just asking for the same rights [that] everyone else has under state law.”
PO Box 507
Dulce, NM 87528
Phone: (575) 759-3242
If you would like to learn more about the this tribe, click here to go to their website.
[i] U.S. Dept. of Health and Human Servs., Indian Health Serv., Jicarilla Service Unit, http://www.ihs.gov/albuquerque/index.cfm?module=dsp_abq_jicarilla (last visited March 24, 2013).
[iii] U.S. Dept. of Energy, Tribal Energy Program, Jicarilla Apache Nation – 1995 Project: Assessing the Feasibility of a Jicarilla Apache Tribe Hydroelectric Facility at the Heron Dam Site, http://apps1.eere.energy.gov/tribalenergy/projects_detail.cfm/project_id=10 (last visited March 24, 2013).
[iv] Herb Becker, reviewed draft amendment- Cite to email.
[v] Act of October 23, 1992, Pub. L. No. 102-441, 106 Stat. 2237 (relating to the settlement of the water rights claims of the Jicarilla Apache Tribe). A federal court approved the settlement in 1998.
[vi] New Mexico v. United States, No. 75-184 (11th Jud. Dist, N.M.); New Mexico v. Aragon, No. 79-41 SC (D.N.M.)
[vii] U.S. Dept. of Energy, supra.
[viii] § 7, 106 Stat.
[ix] Ten Tribes Partnership’s Proposed Option: Voluntary Tribal Water Transfers, 3, http://www.usbr.gov/lc/region/programs/crbstudy/144_Voluntary_Tribal_Water_Transfers.pdf.
[x] When the Tribe is not using its full allocation of water under the Act:
[T]he Tribe may subcontract with third parties, subject to the approval of the Secretary in accordance with this section, to supply water for beneficial use outside of the reservation, subject to and not inconsistent with the same requirements and conditions of State law, any applicable Federal law, interstate compact, and international law as apply to the exercise of water rights held by non-Federal, non-Indian entities. Jicarilla Apache Tribe Water Settlement Act, Pub. L. No. 102-441,106 Stat 2237. § 7.
[xi] The Secretary of the Interior shall approve a lease if he determines that the diversion of the water complies with state law, the term of the subcontract does not exceed 99 years that the use complies with the Endangered Species Act and other applicable environmental laws, and is in the best interest of the tribe.
[xii] Clay J. Landry & Christina Quinn, A New Era of Indian Water Marketing, 35 THE WATER REPORT, 2 (Jan. 15, 2007).
[xiii] Julie Ann Grimm, City’s cost for leasing water climbs, SANTA FE NEW MEXICAN (Jan. 10, 2008).
[xiv] Landry & Quinn, supra note 148, at 2.
[xv] U.S. Dept. of the Interior, Bureau of Reclamation, Bureau of Reclamation: Bureau Highlights, http://www.doi.gov/budget/appropriations/2013/highlights/upload/BH037.pdf.
[xvi] Karl R. Rábago, Jicarilla Apache Nation Utility Authority Strategic Plan for Energy Efficiency and Renewable Energy Development (2008), http://www.tribesandclimatechange.org/docs/tribes_163.pdf
[xvii] U.S. Dept. of Energy, supra.
[xviii] After securing a grant from the Department of Energy’s Title XXVI, “Indian Energy Resources” grant program the Nation assessed the feasibility of adapting 16 mW of generating capacity to Heron Reservoir in the San Juan Chama system. “In its proposal to DOE, the tribe envisioned taking delivery of its 40,000 afa of water in Heron and using this hydro resource to generate electric power.” U.S. Dept. of Energy, supra.
[xix] Rábago, supra.
[xx] Notably, one of the parties bidding was the Bureau of Reclamation. The Bureau was bidding in an attempt to obtain more water for endangered species.
[xxi] The bill passed unanimously in the house but Senator John Kyle, outgoing Republican Senator from Arizona, killed the bill in the Senate during the last week of the 112th Congressional Session. On the 21st of March 2013, the bill was reintroduced in the House by Representative Pearce, Republican from New Mexico. It was cosponsored by the Democratic representatives from New Mexico, Lujan and Grisham, as Bill 1377 for the 113th Congressional Session.
[xxii] The BIA might have trust obligations to enforce, which brings in federal oversight. Also, may need to call on the state to enforce.