Deep Waters

When David Mielke began practicing water rights law in Albuquerque 27 years ago, he inherited a case that had been in dispute for more than a dozen years. It concerns quantifying the water rights of three pueblos—Jemez, Zia and Santa Ana—in the Jemez River Basin. More than two decades later, it still hasn’t been concluded.

“Water rights settlements typically take a long time to litigate or negotiate,” says Mielke, a partner at Sonosky, Chambers, Sachse, Mielke & Brownell. “Oftentimes, in my view, far too long.”
Does that mean lawyers could spend their entire careers working on a single case and never live to see an end to it?

“Oh, absolutely,” says Mielke, whose clients include the Native American tribes Zuni, Mescalero Apache and the Pueblo of Isleta. “Water is not just another resource you can put a dollar value on. It’s got a cultural value. It’s got an environmental value that people now are much more aware of. It’s an emotional issue.”

Welcome to what is one of the legal profession’s most challenging and unique specialties. Water rights law provides the who, what, where, when and how for the use of water in the jurisdiction to which it applies. Water law practice is governed by statutes at the local, state and federal levels. Its interested parties include anyone who has a claim to use water: individuals, industry, municipalities, states and Native American tribes settled in areas for thousands of years; major property development companies and individual property owners; businesses spanning big agricultural to small family farms; and environmental interests, also known as “bugs and bunnies.” At any given time, there are dozens of unresolved water rights lawsuits, mostly in the U.S. Southwest.

“There are a lot of elements that make it arguably more interesting but also much more complicated. There’s a technical science component and a historic component that extends into the period before there was written history,” Mielke says. “It’s fair to say it’s not going to be a practice where you’re going to have lots and lots of clients. You’re going to have a fewer number of clients with lots and lots of different matters and cases.”

The work can be challenging and frustrating and requires patience, Mielke says, but “this is part of what we want to do as lawyers, resolve matters and resolve disputes.”
Carla Consoli, a shareholder with May, Potenza, Baran & Gillespie in Phoenix, says water rights work requires an attorney to be a generalist as well as a specialist.

“It’s a very different kind of practice, because you cover all the different major types of law that lawyers practice. We do litigation, we do transactional work, and we do client counseling,” says Consoli. “You have the opportunity to do all of those different kinds of things and to work for clients who are in all different kinds of industries. Every day, you get to learn something new, but you use your foundational experience and knowledge to assist [your clients] to meet their goals.”

Successful water rights attorneys understand that there isn’t enough time in a single career for any practitioner to be fluent in all of the past cases and current conflicts involving one single body of water: the Colorado River. “America’s Nile,” as it has been called, runs through four states, provides drinking water for an estimated 40 million people, irrigates more than five million acres of farmland, and produces billions of kilowatt-hours of electricity. It’s been called the most litigated river in the world at multiple times by multiple sources, including those representing state and federal government agencies.

Though Mielke hasn’t worked with such cases directly, he says, “They’ll be fighting over it forever.”

Most lawyers who specialize in water rights work tend to be based west of the Mississippi River, where water—and the scarcity of it—has long been a major concern. These practitioners know the difference between riparian water rights, which stem from English Common Law and are mostly in use east of the river, and the system of prior appropriation, also known as “first come, first served” or “first in time, first in right,” which is used by states west of the Mississippi. Some states, like California, may create confusion by adopting more than one method of prioritizing claim to water. Arizona, Consoli says, uses a unique system of differentiating between surface water or groundwater. “Out here in New Mexico, you have folks who date back to the Spanish era who say, ‘My ancestors go back 300 years’ and the tribes say, ‘Well, we were here before that,’” Mielke says, “and then you have municipalities that creep in and they have their own water needs.”

But that doesn’t necessarily mean that entities established more recently have no chance of making a successful water claim. Consoli’s clients include The Nature Conservancy, an international environmental nonprofit founded in Virginia in the 1950s, which means it “obviously came into being much later in time than, for example, one of the tribes,” she says. “But your water right isn’t based on when you as an institute or an individual started using it. It’s based on when anybody who owns that particular piece of property started using it.”

That means if land now owned by the Conservancy was occupied in the 1880s and its occupants started using water then, that’s the priority date. “But what’s so challenging is where do we get records from 1880?” Consoli asks. “It’s a lot of research and the further back in time you go, the more difficult it is to prove water use. … Some of us have had to go through microfiche at the library to find old articles in newspapers. The National Archives in Washington, D.C., keeps records that we can draw upon. There are Homestead Act records. There are letters people wrote making their initial claim to the Department of Water Resources, ‘I built my house here in 1891 and here are letters from all of my neighbors that confirm that I did that.’”

Mielke studied history in college and previously worked in Washington, D.C., as a researcher investigating claims that the federal government mismanaged tribal resources. That’s helped prepare him for his current role.

“You use any available sources, both primary and secondary sources,” he says. “A lot of work is anthropological and archeological, so you rely on experts in the field, oftentimes college professors, who try to put together a history of irrigation on a particular reservation and its use of water.”

For those unfamiliar with water law, the long list of specialists and agencies involved in its adjudication, with varying titles and roles depending on the state, can seem fantastical. Colorado, for example, is divided into seven water divisions with each having its own “water judge” appointed by the state’s Supreme Court. These water judges then appoint “water referees.” Multiple states have “special masters” assigned by a federal judge to act as trial judges to oversee water disputes.

New Mexico and Arizona are among them, but the latter is only when it concerns surface water disputes. “If you don’t like a decision that the Department of Water Resources has made, then you find yourself appealing to superior court in whatever county is affected. The judge acts as an appellate judge in that instance, in accordance with the Administrative Procedure Act,” Consoli says.

Some cases require information best obtained by very specialized organizations. Consoli was involved in a case that required knowing which water courses in Arizona were navigable when it became a state in 1912, and required determination by the Arizona Navigable Stream Adjudication Commission.

“The question was, ‘Who owns the bed in streams and rivers in Arizona? Does the state or entities that use it?’” Consoli says. “The federal and state law on that is it’s owned by the state if it was navigable at the time of statehood in its natural condition. So is it its condition in 1912 at the time of statehood, or isn’t that its natural condition, because often in the West things occurred that altered the natural course of water?”

The case took years but has since been resolved—with a ruling that mostly determined the entity owns the bed and banks—and is an example of just how complicated these disputes are. “You could write a 10-page article on just that,” Consoli says.

“In order to determine, for example, whether or not the Salt River was navigable, one had to understand how the Native Americans were using the population at the time, before all the dams were built,” Consoli says. “How were people using the river? Were they using it for transportation of themselves? Were they using it for the transportation of goods? What was happening on that river? That, I think is the quintessential example of using every kind of historical resource and record you could get access to.”

It’s rare that water adjudication cases make national news, but when they do, the details hint at the complexity of these cases. In June 2023, the U.S. Supreme Court held by a 5-4 decision that the country owes no “affirmative duty” to the Navajo Nation to help it secure water. The majority ruling, which reversed a decision by the U.S. Court of Appeals for the 9th Circuit, said the 1868 Treaty of Bosque Redondo, called the “Old Paper” by the Navajo, did not require the U.S. to do more than recognize Navajo Nation’s water rights.

These cases also demonstrate that, despite the best efforts of all parties on the state and local levels, there are no guarantees that carefully negotiated agreements will receive final approval from the federal government as required. In June 2024, the high court rejected an agreement between Texas, New Mexico and Colorado over management of the Rio Grande that had also been recommended for approval by the special master. That effectively reopened a dispute that had started a decade earlier when Texas charged that New Mexico wasn’t providing it with the proper amount of water as established by the Rio Grande Compact of 1938.

As 2024 was coming to an end, water rights attorneys including Consoli and Mielke were keeping an eye on Washington to see if Congress would approve any of the record 12 pending water rights settlements before it. Such agreements, which would end litigation, require Congressional approval and usually a substantial appropriation of funding for infrastructure before they can be put into action.

One of the settlements, the Northeastern Arizona Indian Water Rights Settlement Act of 2024 resolved claims of three Arizona tribes: The Navajo Nation, the Hopi Tribe and the San Juan Southern Paiute Tribe. At attorney on Consoli’s team represented the Paiute Tribe in what Consoli calls “an historic settlement years in the making—probably one of the biggest things to happen in the area of water resources in the past two or three years.

“Water is a limited resource and everybody would like to have more of it, but there’s only so much to go around,” she says. “It’s a difficult task to bring all of the parties together and create a settlement as opposed to taking everything through a litigation process.”

Another settlement, one Mielke played a role in, would have ended a long-standing dispute between the Pueblo of Zuni, the U.S. and New Mexico.

In the end, none of those 12 hard-fought agreements were put to a Congressional vote before Dec. 31, 2024, despite the efforts of elected officials from the affected states and advocacy groups including the Native American Rights Fund.

“It’s likely the settlements will be reintroduced to the current Congress, and we’re hopeful they’ll pass them,” Mielke says. Otherwise, “We may be back to the drawing board.”

The Course of History

Water rights law is as much history as science. Attorneys practicing in this area often must turn to historical record to find when various bodies of water were first used. The use can date back hundreds of years, and the bodies of water themselves go back even further.

The Colorado River: The Colorado River is somewhere between 5 million and 6 million years old, according to the National Park Service. It flows over 1,450 miles, making it the fifth longest river in the United States. Its flowing waters carved the Grand Canyon and it has more than 25 significant tributaries.

The Rio Grande: The Rio Grande was first formed nearly 35 million years ago, according to Texas Water Resources Institute. The fourth longest river in the country, it flows over 1,896 miles from Colorado to the Gulf of Mexico.