related issues in colorado or in the rio grande compact litigation which is also to some degree implicated here but nothing that struck me as disqualifying for my presence on the case let me say that for you benefit of all parties now let me ask you this the doctor prior appropriation a new mexico is certainly not altered in any way b more senior to other junior non police users can actually have their rights and paired because of the way this agreement will work and that is one of the one of the heightened concerns that we have well in the status quo ante was the utilization of the basin to such an extent that it basically left virtually no water or no on senior users correct that is that time was that over appropriated the base yesternight times are so the government let me make sure i understand the facts the government steps in and says we will seek to augment the water supply to the basin my right and that statement yes all right that is the priority so a couple of on i think discrete ways going back to the basic premise here is that the agreement itself is not an appropriate agreement and the reason is because it is an agreement is a compact between sovereign entities without the approval of the legislature new mexico now what happens because of that in the case of interstate compact there's clear legislation and constitutional provisions of that what is the new statute seventy two dash one that's twelve that pretty particular provision talks about the funding of any types of indian settlement agreements any agreement that's going to fund be funded through these systems must be approved by the legislature and that didn't happen now in basin yes that's a given and under that limited supply the same your rights of the public are such that they can utilize the entire supply legal and leave no supply for junior use correct i don't think that is the case and it's not how all the individual adjudications came out so you have to look at the individual rights of the different parties the public does have the prior use but not the one hundred percent you s there are nonpublic junior users the problem is it has changed the relationship between the senior and junior nonpublic users versus the problem and that's where the real rub comes and that's where the problem occurs and that's what's volatile here but on top of that there are many people who didn't sign on to this agreement who otherwise would have if it had been approved by the legislature they were tonight you know under under property law you have the right to hold your property to dispose of your property to give it away to transport what have you many people were denied the right to actually transfer some of their interests away under the terms of the settlement agreement because the concern that the agreement was not legal for example if you had reduced your water right and there's an adjudication of that reduced right and then the legislature said you know what we don't like these aspects of the second agreement we're not going to fund this we're not going fun at those levels we're not going to do that then the question would be do those rights that were transferred away to become part of the settlement agreement that is never full effect that they can back the people they don't so the problem is that the illegality of the agreement because it was not approved by the legislature creates a problem where their hope their rights have actually been impacted their ability to engage in the contract basically they were told it's an it's in process but again those are all after the fact the problem was when the agreement was approved by the court initially the court didn't look at the required legal standards and the u s versus colorado it is more than just a fair and reasonable standard that's the parties who engage in the in the agreement self they have to look at public policy equity and other parties that are harmed that did not occur so even if the agreement were ok the problem was as it was approved by the lower court it didn't look at the legal standards necessary required examples of how they may not be harmed and how they might be harmed that requires a factual development that was never done there is no factual record in this case to rely on any of the representations of government it's legal argument  never used one hundred percent of it's right to lose twenty five or thirty but in the water here they know that the junior user of nine hundred isn't going to get water so the problem makes a call for more water they could even though they've never had to use it before and give it to those other two new users that's the marginalization of the parties you know how does that impact you when you never had the right to use it to begin with they actually got it out right because they entered into the agreement but they didn't have a right to it either and nothing's changed you never did have a right to it but there never was one hundred percent right there have been determinations adjudications of water rights out there that that people do have adjudicator frights whether or not they're part of the settlement agreement there has been adjudicated all the rights out there and it hasn't been no you have absolutely no rights at all so there has been rights to water that's that that is and i did i didn't say it that way i guess but i'm still struggling to figure out how you are actually harmed and i guess not just any harm but specific harm and not just specific harm but how about the plain legal prejudice that the district court said was required for you to challenge or to have standing to challenge the settlement agreement and then you ignore that on appeal and at this point we've asked you to supplemental brief and even in the supplemental briefing you concede you've never proved plain legal prejudice and you didn't argue against it so i'm confused in terms of standing you seem to have conceded there is no plain little prejudice proven here so if we apply that which is what the district court said you you've waived any argument you have to make your honor with regard to a plain legal prejudice and we did a supplemental briefing we argue that that particular test really should not be incorporated into water law because it's very disparate when you look at the primary cases looking at it the class action lawsuits the protections the federals a civil procedure and a real twenty three place to make that argument would have been in your opening brief or certainly down below when you didn't object when the district court said plain little prejudice please the court john spencer for the united states will be sharing time even li with greg ridley counsel for the state of new mexico your honors we all of the settlement parties in this case the state united states the pub loz the county and city of santa fe and the private water users who are represented on appeal by the rio de to sue k association asked this court to affirm the final judgment in the creed of the district court in this longstanding litigation including the approval of the settlement of the pour water into the base that's right you're out of this water right from the shop at the time launch on a project from the top of the world farm both were acquired by the united states and by the county of santa fe and the reserve right at the pueblo nom de is being contributed towards providing water for municipal water system that will serve ground her private owners in the area including and the water on the stream that they have a right to but him historically not necessarily use and then the share that water that is appropriated with outside of priority signers of the agreement but not the priority list itself is that correct well your honor if it's shared water within the priority right that belongs to the plant below it would not be out of priority administration as water to the will but most certainly is certainly bypassing the priority list to to allow a what is senior user to pick favorites and send water out of priority to a junior to the sufferer and an intermediary person on the priority list if that's true what she says is some picking would be curtailed what we explained in our brief is that it's possible that where there's a circumstance where junior users can use because of a settlement agreement that doesn't mean an injury to say the middle or senior than you have junior water rights users and non selling parties have the middle priority date that's not an injury to their rights if it doesn't change the fact that they would have been curtailed in any event as a result of the s boat ride what the the parties agreed to as part of the the settlement was specifically that the state engineer would act as water master for the administration of the plate lower rights and all private administration to the extent such curtailment would occur without the settlement agreement so what that means is there can be no additional curtailment of non telling parties rights as a result of the alternative administration rules that the  quote the non tonic party seeking priority administration shall have the same rights and benefits that would be available without the settlement agreement and that means they have the ability to see priority enforcement in accordance with the regular rules of priority administration the person who is sharing the water it seems to me that if there's water in the stream and somebody has a priority they place a call on that water under normal  circumstances and you have and that's what i asked before have those ground water rules been problem is what the rules are the rules that i read and those are the rules that say that they their rights are exactly the same as they were and will be  they would have to be in order to be called on you know to satisfy the public rights of the certain psychological mechanics that would have to come into play and all we're saying is if that happens at that point the state engineer then has to decide for the accounting rules how to apply these particular procedures the rules tell the state engineer that he cannot curtail the rights of the non selling parties in any way that he didn't already have the authority to without the settlement the rules tell us didn't you near that the not settling parties have their full rights of hydrologic logically connected to streams and that's the case in this basin excuse me i wanted to start well i'm sorry your honor your judge the star your question business i think mr smelter answered correctly to that question the settlement agreement is between the parties the problems in the settling parties agree to it there's a in fact the senate near through his rules has made clear that he will administer water rights according to party missed ration and in the special case of the selling parties according to their agreement to share water rights that are in the time of a call by the pub lowes and water master will determine which water rights need to be curtailed and they will be curtailed then the public has if they are green it will be treated as an agreement to share water with the settling parties who are being curtailed when those are saying how you could do that in that goes to your question earlier your honor the non selling parties are not harmed by that sharing and as mr smelter made clear on it's on their face the rules expressly prohibit type of harm that  are raising the hypothetical harm they're raising here today and that point but how it works is that the the problem is in effect would bring to share water those settling parties will be allowed to divert water that  being shared with them under the public water right that is not at the expense of the non selling parties they are not home armed because they have no and i think judge moore it's you your question went straight to this they have no right to the water that is being shared with  settlement parties their rights as not so many parties are junior to the rights of the pub so they even judge was here if they made a call it would be ineffective as to the water being shared by the pub those with the settlement parties because that water is under the public water which is senior to the water rights of the appellant's who are complaining today about this this arrangement you're on as i would had two main points i wanted to make to you today about new mexico state law first the settlement agreement is in accordance with new mexico law as the district court correctly ruled and opponents have not shown otherwise and second to the extent appellants are alleging that future administr of shortage might harm their water rights they're wrong with respect to the first point is really three some points there are constitution and water code allow alternatives to strict party administration of water rights in times of water sharing the new mexico attorney general express statutory authority to settle indian water a claims raised in water rights adjudications does not offend the separation of powers and the new mexico indian water rights settlement fund act of which villain's discussed with you before does not require the legislature to approve indian water rights settlements with respect to the second point and we've talked about that a little bit already water master in ministration of water rights in this basin will be governed by not by the settlement agreement but by the rules promulgated by the state engineer and judge us to earlier that that problem again is complete there was full due process afforded to the public opportunity to comment on and on their face appellants cannot show on their face those rules expressly protect appellants against the kind of hypothetical possibility of injury that they're raising here  to the point about new mexico water law we have the lewis case that makes clear that there are constitution and water code do not require strict priority enforcement as the sole and exclusive means to resolve water shortages when senior can be protected by other means and that's what's going on with this settlement agreement that the administration provisions of which are being implemented under the state engineers authority our water code gives this danish near broad authority to manage the distribution of our state waters and that has been upheld many times over the decades by our courts and under this broad a delegation of authority the stage near promulgated what are called active water resource management rules that govern the distribution water in the across the state they allow what's called alternative administration based on water sharing precisely what this settlement agreement contemplates and those rules were upheld by our supreme court is constitutional in two thousand and twelve  just as a new from the district court entry the partial final judgment and degree thank you very much all of the impacts flow from the actual agreement to the question that has to be answered first as was the agreement of valid agreement they've argued that the very general authority of the attorney general's office to sign off on random settlements is official in a water rights situation when  a clerk versus johnson for example even in that case it states twenty years ago that and since one thousand twenty three twenty two different contacts with sovereigns have been entered into interstate including interstate water usage we're talking about an agreement between sovereigns here publisher sovereigns united states is a sovereign mexico's a sovereign so to allow the attorney general to overstep that authority to take the random of the general out of general authority delegate it to him by the legislature to engage in that's never been raised for the same thing with colorado the same thing with joaquin valley at this point we have a problem with the attorney general overstepping the general settlement authority and not giving effect to the will of the legislature which has broad authority versus the limited authority delegated down to the attorney general to engage in these types of settlements so the question that has to be answered is is the agreement a valid agreement in the first instance if it was a valid agreement if many of our folks have entered into because they did not believe it was a valid agreement we wouldn't be here today and i have to ask what's the harm what is the harm with having a one hundred right settlement that's going to impact the entire north of new mexico it's going to impact communities and traditionally a second as the use of water irrigation well it is ground water it is irrigation water this affects farming in the lifestyle for everyone up there but when you have an agreement specifically between the sovereign entities of the publice we need to respect that sovereignty and it should be approved by the legislature that's what the law calls for here especially when as indian water rights those funds cannot be lose unless the settlement agreement is approved by the legislature that's what new mexico statutes me to dash one that's twelve