Ruling denies motion to dismiss and vacate 2013 decrees

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FARMINGTON — The New Mexico Court of Appeals has upheld the Navajo Nation's claims to San Juan River water after a group of water users attempted to have a settlement re-evaluated.

The three-judge panel denied on Tuesday the emergency motion to dismiss and vacate rulings made by retired Judge James Wechsler, who approved decrees that allocated more than 600,000 acre-feet of river water to the Navajo Nation in August 2013.

Attorney Victor Marshall filed the motion to the appellate court on Feb. 26 on behalf of the San Juan Agricultural Water Users Association, the Hammond Conservancy District, the Bloomfield Irrigation District and various water users.

Marshall said Wednesday the case will be appealed to the state Supreme Court.

"Without a trial, the court awarded 635,000 acre-feet of water to serve approximately 43,000 tribal members on the reservation in New Mexico. That's six times as much water as the Albuquerque metropolitan area uses. The Navajo Nation is entitled to significant amounts of water but not that much," he said.

Marshall added the ruling can impact future water settlements with tribes and pueblos, and threatens the state's remaining water supply.

In the 32-page opinion, the court affirmed the settlement as "fair, adequate, reasonable and consistent with the public interest," and applicable with state and federal laws.

The Feb. 26 motion alleges Wechsler violated the state's Code of Judicial Conduct and Rules of Professional Conduct because he did not divulge a relationship with the Navajo Nation when he worked for DNA People's Legal Services in the 1970s.

The appellants claimed DNA is an agency under the tribal government.

An attorney in the tribe's Department of Justice denied the allegations last month, and stated DNA is not a tribal entity and had sued the tribe over matters regarding jails conditions and landfill closures.

The court ruled the water users claims lacked "factual foundation," and Marshall "needlessly caused" the court and the parties to expend resources.

The tribe requested the court on March 12 to deny the motion in addition to imposing sanction against Marshall, and awarding costs and fees related to the case.

The court, in its order, sanctioned Marshall, and ordered him to pay costs and attorneys' fees incurred by the parties.

Navajo Nation Attorney General Ethel Branch and Speaker LoRenzo Bates commended the decision in a press release Wednesday from the tribe's Justice Department.

"I hope that today's court ruling will serve to persuade all stakeholders to accept that the settlement is fair to all and move on, recognizing that the San Juan River is a shared resourse on which all communities are entitled to rely," Bates said. 

Branch said the action by the appellants represented "an unconscionable effort by those opposing the settlement to deprive the Navajo people of water recognized by Congress as belonging to the Navajo Nation."

Noel Lyn Smith covers the Navajo Nation for The Daily Times. She can be reached at 505-564-4636 or by email at nsmith@daily-times.com.

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