Appellate Case: 18-2164 Document: 010110438160 Date Filed: 11/16/2020 Page: 1
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`Plaintiffs - Appellees,
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`UNITED STATES COURT OF APPEALS
`FOR THE TENTH CIRCUIT
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`UNITED STATES OF AMERICA, on its
`own behalf and on behalf of the Pueblos of
`Jemez, Santa Ana, and Zia,
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`STATE OF NEW MEXICO, ex rel. State
`Engineer; JEMEZ RIVER BASIN WATER
`USERS COALITION,
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`and
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`PUEBLO OF SANTA ANA; PUEBLO OF
`JAMEZ; PUEBLO OF ZIA,
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`v.
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`TOM ABOUSLEMAN; DARWIN
`HOURIGAN; BOARD OF EDUCATION
`OF THE JEMEZ VALLEY PUBLIC
`SCHOOL DISTRICT; KING BROTHERS;
`NACIMIENTO COMMUNTY DITCH
`ASSOCIATION; PUBLIC LANDS
`COMMISSIONER,
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`------------------------------
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`ALL PUEBLO COUNCIL OF
`GOVERNORS; PUEBLO OF ACOMA;
`PUEBLO OF ISLETA; PUEBLO OF
`SANDIA; PUEBLO OF LAGUNA;
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`No. 18-2164
`(D.C. No. 6:83-CV-01041-
`MV-JHR) (D.N.M.)
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`Plaintiff - Appellant,
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`Plaintiff Intervenors,
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`Defendants.
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`Plaintiffs - Appellees,
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`UNITED STATES COURT OF APPEALS
`FOR THE TENTH CIRCUIT
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`UNITED STATES OF AMERICA, on its
`own behalf and on behalf of the Pueblos of
`Jemez, Santa Ana, and Zia,
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`STATE OF NEW MEXICO, ex rel. State
`Engineer; JEMEZ RIVER BASIN WATER
`USERS COALITION,
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`and
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`PUEBLO OF SANTA ANA; PUEBLO OF
`JAMEZ; PUEBLO OF ZIA,
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`v.
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`TOM ABOUSLEMAN; DARWIN
`HOURIGAN; BOARD OF EDUCATION
`OF THE JEMEZ VALLEY PUBLIC
`SCHOOL DISTRICT; KING BROTHERS;
`NACIMIENTO COMMUNTY DITCH
`ASSOCIATION; PUBLIC LANDS
`COMMISSIONER,
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`------------------------------
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`ALL PUEBLO COUNCIL OF
`GOVERNORS; PUEBLO OF ACOMA;
`PUEBLO OF ISLETA; PUEBLO OF
`SANDIA; PUEBLO OF LAGUNA;
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`No. 18-2164
`(D.C. No. 6:83-CV-01041-
`MV-JHR) (D.N.M.)
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`Plaintiff - Appellant,
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`Plaintiff Intervenors,
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`Defendants.
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`Appellate Case: 18-2164 Document: 010110438160 Date Filed: 11/16/2020 Page: 2
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`PUEBLO OF SAN FELIPE; PUEBLO OF
`SANTO DOMINGO; PUEBLO OF ZUNI;
`PUEBLO OF SANTA CLARA; PUEBLO OF
`OHKAY OWINGEH; ASSOCIATION OF
`COMMMUNITY DITCHES OF RIO SAN
`JOSE; TRI-STATE GENERATION AND
`TRANSMISSION ASSOCIATION, INC.;
`EL RITO DITCH ASSOCIATION; LA
`ASOCIACION DE LAS ACEQUIAS DEL
`RIO VALLECITOS, TUSAS Y OJO
`CALIENTE; RIO CHAMA ACEQUIA
`ASSOCIATION; ASOCIACION DE
`ACEQUIAS NORTENAS DE RIO
`ARRIBA; LA ACEQUIA DE LA
`SIERRA; RIO QUEMADO, RIO
`FRIJOLES, RIO EN MEDIO AND
`SANTA CRUZ STREAM SYSTEMS
`COMMUNITY DITCH ASSOCIATION,
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`Amici Curiae.
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`No. 18-2167
`(D.C. No. 6:83-CV-01041-
`MV-JHR) (D.N.M.)
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`STATE OF NEW MEXICO, ex rel. State
`Engineer; JEMEZ RIVER BASIN
`WATER USERS COALITION,
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`UNITED STATES OF AMERICA, on its
`own behalf and on behalf of the Pueblos of
`Jemez, Santa Ana, and Zia,
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`PUEBLO OF JEMEZ, PUEBLO OF
`SANTA ANA; PUEBLO OF ZIA,
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`Plaintiffs - Appellees,
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`Plaintiff,
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`Plaintiff Intervenors - Appellant,
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`Appellate Case: 18-2164 Document: 010110438160 Date Filed: 11/16/2020 Page: 3
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`Defendants,
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`TOM ABOUSLEMAN; DARWIN
`HOURIGAN; BOARD OF EDUCATION
`OF THE JEMEZ VALLEY PUBLIC
`SCHOOL DISTRICT; KING BROTHERS;
`NACIMIENTO COMMUNITY DITCH
`ASSOCIATION; PUBLIC LANDS
`COMMISSIONER,
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`-------------------------------
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`ALL PUEBLO COUNCIL OF
`GOVERNORS; PUEBLO OF ACOMA;
`PUEBLO OF ISLETA; PUEBLO OF
`LAGUNA; PUEBLO OF OHKAY
`OWINGEH; PUEBLO OF SAN FELIPE;
`PUEBLO OF SANDIA; PUEBLO OF
`SANTA CLARA; PUEBLO OF SANTO
`DOMINGO; PUEBLO OF ZUNI;
`ASSOCIATION OF COMMUNITY
`DITCHES OF RIO SAN JOSE; TRI-
`STATE GENERATION AND
`TRANSMISSION ASSOCIATION, INC.;
`EL RITO DITCH ASSOCIATION; LA
`ASOCIACION DE LAS ACEQUIAS DEL
`RIO VALLECITOS, TUSAS Y OJO
`CALIENTE; RIO CHAMA ACEQUIA
`ASSOCIATION; ASOCIACION DE
`ACEQUIAS NORTENAS DE RIO
`ARRIBA; LA ACEQUIA DE LA
`SIERRA; RIO QUEMADO, RIO
`FRIJOLES, RIO EN MEDIO AND
`SANTA CRUZ STREAM SYSTEMS’
`COMMUNITY DITCH ASSOCIATION,
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`Amici Curiae.
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`Appellate Case: 18-2164 Document: 010110438160 Date Filed: 11/16/2020 Page: 4
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`STATE OF NEW MEXICO’S
`PETITION FOR REHEARING
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`Arianne Singer
`Gregory C. Ridgley
`Special Assistant Attorneys General
`Office of the State Engineer
`P.O. Box 25102
`Santa Fe, NM 87504-5102
` (505) 827-6150
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`Brett J. Olsen
`Special Assistant Attorney General
`Abramowitz, Franks & Olsen, LLC
`5051 Journal Center Blvd., NE. Suite 320
`Albuquerque, NM 87109
` (505) 247-9011
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`Attorneys for the State of New Mexico
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`Appellate Case: 18-2164 Document: 010110438160 Date Filed: 11/16/2020 Page: 5
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`INTRODUCTION
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`Appellee State of New Mexico respectfully asks the Court on rehearing to
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`clarify that the scope of the September 29, 2020 opinion is limited to the legal
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`question defined by the Court: “whether, as a matter of law, a sovereign can
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`extinguish aboriginal rights by the mere imposition of its authority and without any
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`affirmative adverse act.” Op. p. 21. The Court held that it cannot. Id.
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` In its discussion, however, the majority opinion appears to reach beyond the
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`scope of the certified legal question on review to address a question of fact, stating
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`that “[i]ndeed, there is no evidence that Spanish sovereignty had any impact on the
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`Pueblos’ use of the water from the Jemez River at all,” and that “Spain’s water
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`administration system had no impact, let alone a negative impact, on the Pueblos’
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`right to use water . . . .” Op. at 26-27. These statements are not supported by the
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`evidentiary record below, conflict with the district court’s findings, and are not
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`necessary to the majority’s holding that an affirmative act is required to extinguish
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`aboriginal rights to water.
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`Further, these statements could be read to address an issue not raised by the
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`certified order, and the first issue to be addressed by the district court on remand:
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`whether the Pueblos’ aboriginal water rights have been modified in any way by any
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`actions of Spain. As the Court explains in the majority opinion, the issue before the
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`district court was Issue 1: “Have the Pueblos ever possessed aboriginal water rights
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`1
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`Appellate Case: 18-2164 Document: 010110438160 Date Filed: 11/16/2020 Page: 6
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`in connection with their grant or trust lands, and if so, have those aboriginal water
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`rights been modified or extinguished in any way by any actions of Spain, Mexico or
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`the United States?” Op. at 8. The majority opinion correctly notes that the district
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`court only decided this issue, and did not reach any sub-issues, or Issue 2. Op. at 9-
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`10. However, the majority opinion does not resolve several questions remaining
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`within Issue 1, which the district court must still decide on remand: Whether the
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`Pueblos’ aboriginal water rights were modified in any way by any actions of Spain,
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`Mexico or the United States; or extinguished by any actions of Mexico or the United
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`States? These questions were not decided by the district court and were not
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`presented to this Court for interlocutory review. Op. at 11-12 And the question of
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`modification is inextricably linked to the issue of the quantification of the Pueblos’
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`water rights. Appellee therefore respectfully requests that the Court vacate Section
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`V.B of the majority opinion or, in the alternative, clarify that the majority opinion
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`did not address or rule on the question of whether Spain modified the aboriginal
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`water rights of the Pueblos.
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`Rehearing is necessary to avoid prejudice to Appellees and confusion before
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`the district court on the issues on remand.
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`2
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`Appellate Case: 18-2164 Document: 010110438160 Date Filed: 11/16/2020 Page: 7
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`ARGUMENT
`SECTION V.B OF THE OPINION SHOULD BE VACATED.
`A.
`The Majority Opinion Exceeds the Court’s Jurisdiction on
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`Interlocutory Appeal by Unnecessarily Going Beyond the
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`Controlling Question of Law to Make Unsupported Factual
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`Findings.
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`The Court’s jurisdiction was invoked under 28 U.S.C. § 1292(b) to review a
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`I.
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`controlling question of law. Op. at 6. The Court narrowly and precisely defined the
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`purely legal issue, and the limits of its jurisdiction on interlocutory appeal. “[W]e
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`have jurisdiction to address only the controlling question of law presented by the
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`order below: Whether, as a matter of law, a sovereign can extinguish aboriginal
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`rights to water by the mere imposition of its authority over such water without any
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`affirmative act.” Op. at 12; see also pp. 10, 21.
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`While the State does not agree with the majority opinion and agrees instead
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`with the dissent, the Court properly acted within its jurisdiction in holding that: “For
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`the foregoing reasons, we conclude that a sovereign must affirmatively take an
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`action to exercise complete dominion in a manner adverse to the Indians’ right of
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`occupancy sufficient to extinguish aboriginal title.” Op. at 25.
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`However, the majority opinion goes beyond the scope of the Court’s
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`jurisdiction on interlocutory appeal to make factual findings unnecessary to
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`resolving the controlling question of law the Court defined. Rather than merely
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`considering whether an affirmative act was necessary to extinguish aboriginal water
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`3
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`Appellate Case: 18-2164 Document: 010110438160 Date Filed: 11/16/2020 Page: 8
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`rights, the majority opinion includes a sweeping conclusory statement that “there is
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`no evidence that Spanish sovereignty had any impact on the Pueblos’ use of the water
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`from the Jemez River at all.” Op. at 26 (emphasis added). This is expressed not as
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`a statement of controlling law, but as a determinative finding of fact which is
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`contrary both to the evidence in the record below and the findings of the district
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`court. Further, that finding has a direct impact on the issue of modification of the
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`Pueblos’ water rights, the first issue pending before the district court on remand, and
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`on the critical issue of the quantification of the Pueblos’ aboriginal water rights,
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`which the majority opinion expressly states was “not properly before us for
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`consideration on interlocutory review.” Op. at 12.
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`The Majority Opinion Overlooks Undisputed Evidence in the
`Record that Actions by Spain Ended the Pueblos’ Exclusive Use of
`the Waters of the Jemez River.
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`B.
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`The majority opinion overlooks evidence in the record when it states “[n]or is
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`there any evidence in the experts’ reports or testimony that Spain’s water
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`administration system was adverse to the Pueblos, as it never actually ended the
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`Pueblos’ exclusive use of water or limited their use in any way. A repartimiento was
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`never undertaken on the Jemez River, and there is no evidence that the Pueblos ever
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`decreased their water usage or were unable to increase their usage.” Op. at 26. In
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`fact, both the experts testified that Spain’s approval of Spanish settlements both
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`upstream and between the Pueblos ended the Pueblos’ exclusive use of the waters of
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`4
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`Appellate Case: 18-2164 Document: 010110438160 Date Filed: 11/16/2020 Page: 9
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`the Jemez River, and that as a result the Pueblos were no longer able to unilaterally
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`increase their use of water. The expert for the United States and Pueblos, Professor
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`Cutter, testified that Spanish sovereignty had an impact on the Pueblos’ rights to use
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`water, even if it did not have a direct impact on the Pueblos’ current use of water.
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`The district court expressly relied on his statement that in Spanish civil and water
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`law there was a general principle of no harm to other users and that under Spanish
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`law the Pueblos did not have a right to expand their use of water if it were to the
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`detriment of others. App’x at 286, citing Cutter Tr. at 111-115, 138-139 (emphasis
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`added.)
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`The majority opinion appears to discount this evidence by confusing the use
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`of water with the right to use water: “Indeed, there is no evidence that Spanish
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`sovereignty had any impact on the Pueblos’ use of the water from the Jemez River
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`at all. Because Spain’s water administration system had no impact, let alone a
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`negative impact, on the Pueblos’ right to use water, it cannot be said that the system
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`was ‘adverse’ to the Pueblos.” Op. at 26-27 (emphasis added). But the United States
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`and Pueblos’ expert addressed this distinction and testified that Spain’s sovereignty
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`did impact the Pueblos’ water rights, even if it did not immediately impact the
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`amount of their water uses: “Although Spain recognized the Pueblos’ pre-Spanish
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`use of water and allowed the Pueblos to continue to use water, Spain insisted on its
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`exclusive right and power to determine the rights to public shared waters.” App’x
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`5
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`Appellate Case: 18-2164 Document: 010110438160 Date Filed: 11/16/2020 Page: 10
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`at 347-48 (PFRD at 5-6) (quoting Dr. Cutter) (emphasis added). Dr. Cutter testified
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`that Spain retained an interest in the use of all public waters sufficient to allow it “to
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`adjust and readjust access to public waters according to a complex list of factors,
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`none of which was absolute and all of which applied simultaneously.” See Id.
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`Because these statements in Section V.B of the majority opinion are not
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`supported by the record, they should be deleted.
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`The Issue of Spain’s Modification of the Pueblos’ Aboriginal
`Water Rights was not Before the Court on Interlocutory Appeal.
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`C.
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` The statements in Section V.B of the majority opinion could be construed to
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`address the issue of whether Spain modified the aboriginal water rights of the
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`Pueblos, a question which was not addressed in the certified order. If the majority
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`opinion is construed as a binding determination that Spanish sovereignty had no
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`impact on “the Pueblos’ right to use water,” it could have the effect of excluding or
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`discounting all evidence in the record of the Spanish land grants, and the adjudicated
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`water rights established under those grants, from consideration by the district court
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`on remand, not just the evidence presented by the experts. If the majority opinion is
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`read to have determined that those acts by Spain had no effect on the water rights of
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`the Pueblos, the State and the non-Pueblo parties would be severely prejudiced in
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`presenting their cases in the district court on the issues on remand.
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`Finally, inherent in the question of modification is the “difficult” question of
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`the quantification of the Pueblos’ aboriginal water rights (see Dissent at 8), which
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`Appellate Case: 18-2164 Document: 010110438160 Date Filed: 11/16/2020 Page: 11
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`the majority opinion noted is not before it on interlocutory appeal. Op. at 11. This
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`Court expressed its intent that this was an issue to be resolved in future proceedings
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`in the district court. Op. at 11-12.
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`CONCLUSION
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`The statements of the majority opinion in Section V.B exceed the scope of the
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`Court’s jurisdiction to resolve the controlling question of law in this interlocutory
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`appeal and are not necessary for its holding. Appellee respectfully asks this Court
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`to grant rehearing to delete Section V.B of the Discussion or in the alternative, to
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`clarify that its holding does not apply to the question of whether Spain modified the
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`aboriginal water rights of the Pueblos in any way.
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`Dated: November 16, 2020
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`Respectfully submitted,
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`/s/ Arianne Singer
`Arianne Singer
`Gregory C. Ridgley
`Special Assistant Attorneys General
`Office of the State Engineer
`P.O. Box 25102
`Santa Fe, NM 87504-5102
`(505) 827-6150
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`/s/ Brett J. Olsen
`Brett J. Olsen
`Special Assistant Attorney General
`Abramowitz, Franks & Olsen, LLC
`5051 Journal Center Blvd NE, Suite 320
`Albuquerque, NM 87109
`(505) 247-9011
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`Attorneys for the State of New Mexico
`7
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`Appellate Case: 18-2164 Document: 010110438160 Date Filed: 11/16/2020 Page: 12
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`CERTIFICATE OF SERVICE
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`I hereby certify that on November 16, 2020, a copy of the foregoing State of
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`New Mexico’s Petition for Rehearing was filed with the Clerk of the Court for the
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`United States Court of Appeals for the Tenth Circuit using the appellate CM/ECF
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`system and that all case participants, with the exceptions listed below, were served
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`through that system:
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`Gregory Pelton
`Law Offices of Gregory Pelton, LLC 5003 Stonehill Road
`Colorado Springs, CO 80918
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`Nacimiento Community Ditch Association
`c/o Anthony M. Jaquez
`651 Fairway Loop
`Rio Rancho, NM 87124
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`New Mexico Office of the Commissioner of Public Lands
`P.O. Box 1148
`Santa Fe, NM 87504-1148
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`/s/ Arianne Singer
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`8
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