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WATER RIGHTS CAN'T BE SAVED

USE THEM OR LOSE THEM

By

Dr. William M. Turner
July 9, 2004

In a timely case, the State Engineer of New Mexico has denied the validity of water rights that Phelps Dodge, a large American mining company, thinks it continues to own.

Phelps Dodge many years ago had mining operations near the Village of Pecos, New Mexico.  Those operations were shut down in 1939 and water used with those operations have not been used for 65 years.  Under New Mexico law, if water rights have not been exercised for 4 years, they are void.  This is the "use it or lose it" principle derived directly from the ancient Moslem law of Indirass as it came to Spain with the Al Moravid Confederation and as it came to the Indies with the Spanish after 1492 and it is the Law of New Mexico today.  Simply put, water rights can't be saved for later.

Phelps Dodge had been reluctant to expose their supposed water rights to review by the State Engineer for fear of losing them.  They were forced to recently by the Village of Pecos, New Mexico under an agreement between the company and the village whereby the company had agreed to transfer 20 acre feet to the village.

The denial by the State Engineer of the transfer of the 20 acre feet also means that the company will probably lose the remaining 2,200 acre feet that it thinks are still valid.

The water rights at issue were adjudicated back in 1933 under the Pecos River adjudication but they hadn't been used since 1939.

Now, the State Engineer, an administrative agency, has applied the judicial doctrine of common law abandonment.  We believe this is inappropriate and that the proper course for the State Engineer to take is issue a letter or intention to forfeit to the mining company.  However, it is well established that if the water rights have not been used for 4 consecutive years prior to 1965, they are forfeit by operation of law.

This recent decision by the State Engineer should alert everyone in New Mexico and elsewhere where the doctrine of abandonment and water rights forfeiture are in use.

It should particularly inform Phelps Dodge which has supposed rights to more than 12,000 acre feet in southwestern New Mexico for mining purposes.  Most of these water rights are not used and have not been used for many years.  The same issue raised by the State Engineer was recently raised by Lion's Gate Water, a British Columbia Company doing business in New Mexico, when it filed a protest against the planned transfer of 500 acre feet of water rights from the Gila River.  Lion's Gate had previously applied for up to 48,000 acre feet on the Upper Gila River which application would include the water rights that it believes are no longer used by Phelps Dodge and others.

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