is arguing for the pub loz i plan to argue for six minutes and turn it over to mr hughes for six minutes and we'd like to reserve three minutes for rebuttal the district court heard in relying on an exercise sovereign authority if an exercise sovereign authority to resolve disputes over the use of natural resources or sufficient to extinguish aboriginal rights there would be no doctrine of aboriginal rights in federal law that is because every conquering european sovereign help ultimate power to control the use of natural resources including water within its territory yet every conquering sovereign recognized the aboriginal rights of the native indians to their land and resources the supreme court made this clear when st articulating the federal doctrine of aboriginal water rights and johnson versus mcintosh now i interrupt for a moment to make sure what's at stake here that is not an issue before us the extent of the aboriginal right is that correct that is correct that is issue number three which is quantifying the aboriginal right so you're asking us to find that they still have the aboriginal right but it would still be left for the district court in the st instance to determine the extent of that right that's correct your honor and so the only issue is what is sentence one of the order of of a certification the only issue ok and how much water are we talking about in the stream your honor i do not know that because work is still ongoing as i understand it to quantify the flow of the stream which of course cut to the chase on the united states theory is is that your allegation that you're in title meant to future use would would allow you to take the entire stream historically your honor it's theoretically possible but as it works out these cases are typically settled and they're that's the policy of the federal government to come up with a solution that would include  that might or should be helpful to elucidating the the answer to that question and one thing we don't know is are what the united states what what your position is on future uses or you know water bottle clamped i mean more what are the future uses we're talking right here on earth that does remain to be determined as a general matter of theory we are arguing for water rights that are commensurate with the federal reserve water right as this court said in the abbott decision in one thousand nine hundred and ninety six that these are not technically reserved water rights but the court directed attention to arizona versus california where the idea of practically in agriculture was discussed so that does remain to be determined but basically the united states is asking for these to be treated like other indian tribes as they should understand of all and evidence would be put forward and that would be decided should should we should we send it back to see what uses are being asserted by the by now i mean if the parties agreed to a staged briefing and we've run into this issue where we believe that the court should decide it at this point so then the parties can go forward with an understanding that there are aboriginal water rights but with full ability to shape  rights you would have no problems if we entered an order in your favor saying that we believe affirmative actions are necessary abrogate water rights but we express no opinion whatsoever about the scope of those rights rights are qualified so we are not talking about an infinitely expanding future right i'm talking how many other users are on there on the stream besides that there are several one hundred non indians who live that the district court decision and the recommended decision of the not just read below rested their conclusion that the imposition of spanish sovereign in the southwest had totally extinguished all aboriginal rights of the for those on a single phrase  the problem was the property rights and the one report to me into the water dispute that occurred in the entire quarter millennium of spanish mexican rule in new mexico the house case of of eight hundred and twenty three this is under mexican rule not spanish refutes the decision below completely because in that case you to me at the local governing body that conducted the proceeding recognize the tiles problem although there were other users on the real s so that while the agent minto allowed the squatter community of a real sucker to take a small amount of water when water was abundant when in times of shortage the decree that they had to cut that use back so that there would be after according to the decision below can you hold those rights have been extinguished you know a little bit on the on the history and you know one thing i struggle with in this case is you know the aboriginal right to the property the real estate that's clear i mean you occupy it exclusively you know whatever the task is but what water's a little different property right it's you know i took a modern lot see law school long time ago in practice a little latin so  know historical facts inconsistent with more or less your right to the stream i'm maybe overstating it a little bit but i think that's the implication of your argument yet as i understand it the hemas tribes were relocation and not have the pows not famous problemo at one time originally had a number of different villages just reaching farther up into the mountains and the spaniards did because of because they were having a somewhat inconsistent with or somewhat consistent with the sovereign spain exercising control over at least some of the resources of the tribe there is nothing in that history is a city that was a time of hostilities between the spaniards and the head was a problem but there is nothing in the historical record that suggests that that had anything whatever to do with the water rights of the famous probably they still had to feed the same number of people what  two hundred years after according to the decision below the problems aboriginal rights have been extinguished so they really are are relevant secondly i might i might mention of course that neither of those grants is mentioned in either the recommended decision of  court decision so technically they're just not even an issue here but rd under your theory of the case then could whatever water they've been using historically would be nd in priority to the absolute buffalo's certainly nd priority and there is absolutely no evidence that the use of water by the by the of the settlers on those two grants had any effect on the problem was use of the water that they needed for their purposes so there and that's an a a fallacy that pervades the briefs of the state no one in that aboriginal use necessarily means exclusive use of the water that is simply not true there is no basis for that if there is plenty of water for everybody to take what they need will is the argument of the united states and the blows in the adjudication days of this that they're entitled to any reasonable future uses of the water and if that's your argument how how how was that quantified in the the issue three of the five issues that were done the five in the district court that needed to be decided before you have a trial of the water rights of one of those issues three homeland they ought to be quantified in the same manner by looking at a practical would be your google acreage we suggest that we suggest that as a as a measure now the district court of course is free to find any other measure it finds appropriate and there are other courts that have said the other factors could be looked at but what the pin porton point is we do not seek an infinitely expanding right we simply seek the right to have aboriginal e characterized right places where they were before except for the problems and the other all in the places where they were before the spanish were in that's all on the rio grande a watershed that's on the rio grande why should there also that i should say that there are also a couple of tributaries that are still in that's correct the cases that are in litigation are all tributaries to the rio grande all right let's hear from that singer them see is here for the rios and has a association of community ditches it's hard to know where to begin your honour's because first thing i would like to clarify for the court is that the state and the court have not taken the position that the public is water rights are extinguished by this court's ruling the ruling before the court is actually very narrow it's the issue of whether the district court correctly determined that the aboriginal water rights is who controls that right who has access to the right when the spanish crown imposed its regularly upon the waters of new mexico the waters of the humus river system the brandts were made the waters became a shared source and the spanish crown imposed its authority over the use and distribution of that water that's what's the difference between the spanish ground rights so every right in the us rights if congress wanted to abrogate any of the sovereign rights of any pueblo or any other tribe it has authority under our constitution do that it hasn't done it and the cases say until it does it in the specific way and exercises that right they have original rights remain so what's different between what's the difference between the rights of the spanish crown and the rights of the united states here i don't understand that but we're i'm not sure i understand it i've made a difference between the rights of the spanish crown and the rights that i mean i just you're saying the fact that spanish law gives the rights them to say you can't use this water you can't use this land and i and i don't understand what's the difference between that power under the spanish sovereign and the power of the united states sovereign which i think it's uncontested tribe now in the united states and no it is we're talking about the publisher rights aboriginal rights to use water for consumptive use your area and your theory is that those were lost simply because the spanish crown had sovereign said laid out a pattern of how the unite the spanish crown had asserted its authority over the uses of the waters of shared public resources shared public stream systems in new mexico is not just by the mere act of the discovery that those water right the water of this he mr became a shared public resource it was by spanish colonization and by conquest which by the way is also another one by the to to actually assign and restrict the water right before you have which required by the santa fe decisions in court well your honor i think it's more of a kin to does the state of new mexico have jurisdiction  the waters of the state by virtue of the constitution or only by virtue of an adjudication in the event of a dispute a spanish crown impose its authority control over their right to the use of waters of the shared stream action against the blows to limit their use of that right i mean i i kind of i'm struck by judge towards the argument that the u s government has potentially the same power does that just the existence of the power extinguish the aboriginal rights or do you need concrete restrictions on those rights because the least with the  stripper but there is evidence that the population of the problem is possibly reduced by spanish contact and spanish conquest so the public did not need the same amount of water they had used before and in fact the land abuses were inconsistent and interfered the users of those but they were they say kids interfered why do you say they were inconsistent if the pueblos could still didn't still didn't have to reduce their use at all if there was some evidence that at one point when the stream was very low that the authorities under spanish or mexican said you can't you can't use as much water this year it gets to elsewhere that would be the sort of exercise of the sovereign power but just the existence of sovereign power seems to be what you're relying on we're on our again it's a kid to a right to use water you cannot use it to the detriment of others so even if the problems were not required to decrease their uses of water based on the facts that may have existed at the time that they did not need the same amount of water as they used let the experts agree that they cannot increase those uses to the detriment of others and that is precisely fe that's three hundred and fourteen us it starts out it quotes from kramer vs united states it says the quote from kramer is unquestionably it has been the policy of the federal government from the beginning to respect the indian which could only be interfered with or determined by the united states and then later its is later in that paragraph it says whatever may have been the rights of the wallop i hope i pronounce it correctly under spanish law the kramer case assume that lands within the mexican session i guess that's the land acquired from mexico were not excepted from the policy to respect indian right of occupancy now i would i would have read that as saying the united states is going to recognize  aboriginal rights regardless of whether spain did it can you do can you straight me out why that is not the correct reading of that your honor let me let me yes i agree your honor that is correct and actually that that statement it what that seems to be saying is it's not enough that that's the law that's the spanish law there has to be action has to be action that's what judge ebell was asking about what action was taken you're relying on the possibility of a pine some law that says you can't take water to the detriment of others but the only time that law was applied that the test for extinguishment about aboriginal title does not require affirmative acts this is only to deprive them of the benefit of assuming that the policy of indian title applies to the land next concession but this test for extinguish does not require specific affirmative acts in fact it says it can be implied from the circumstances should not be lightly implied but it can be implied from the circumstances it's a question of intent so there may not be a specific affirmative uses and was told by the spanish crown that they could not make those new uses to the dutchman of downstream settlers on the spanish land grant so their apartment was not the only way the spanish promise or its authority nor did the spanish crown find there or the mexican i should say that they were the sovereigns of the water the spanish crown applied the same factors that applied to everybody else in america in the territory to find that they had primacy priority need are familiar with those grants those grants included in it's uncontroverted the implied right to use water subsequently there was a partial final decree entered in this case in two thousand between now they claim the quantification isn't before this court but it's but you cannot consider their aboriginal water right claim without considering what the nature of that claim it  whether it was abrogated in some way but but unfortunately at least in my view the party picked a different order so you're right that's extremely important but we're not going be able to decide that know your honor i think what is before the court is the nature of that right no we're not going to do this quantify excuse me but we're wrecking what they want is a future water right to future expanded uses with a st priority which would basically if this are eight all my clients property rights and that was done they're interested in that but that's the next step in the process but what the district courts that is there's opinion i'll start spanish law plainly provided the waters were to be uncomfortable stan years in pubs and at the pueblos did not have the right to stand or use it but were to the detriment of others that's all we're claiming although spain allowed order was very lengthy and dealt with a lot of things but we have a certified question which is in the st and very discreet the issue of whether the imposition of sovereign authority with an affirmative act sufficient to extinguish the pueblos aboriginal water rights and they say that's novel and difficult a st impression and because the it may help decide the case and indeed the way the district court ruled it did help solve the case it got rid of it and so we are now if we are we only have the authority at this point for that one certified question has nothing to do with the scope of the rights or whether they would allow the public to expand their water use or not or whether they could use for bottling versus drinking or anything else is just that one question your honor as stated in our brief under paper allied under what question is certified it's the order which is the actual two thousand and seventeen or you didn't that was the full state in the we said it's very restricted how much we might possibly expand the question and those requirements are certainly not satisfied here act if you look at it i maintain that what is here is talking about the entire history of the spanish or easy regime and basically the acts that are present now i think what judge to was that extinguish an absence of a report to me and to which he was always the claim below by the us they said there is no report to man so there was no act extinguishing are taught however during the clearly the court and nan magistrate lynch found that the interests in land was different than interests and want spain recognised the indians right occupied their land but spain don't have anything over the spaniards with regard to the allocation of water the other thing the fact that there were ran to the predecessor to the to our clients predecessor that shows that the king of spain recognized banier as the right to use water ought the as of the end of spanish sovereignty i think the rule was either one could expand  i believe there is no such thing as an aboriginal indian water right no cases the only case that even comes close to coming to an end aboriginal water right was the quantified by t i a under an aboriginal title it just doesn't exist count council thank you appreciate it and give your own three minutes reb thank you your honor we would ask you to address the certified question and we believe we've demonstrated that the district court was an error in holding these aboriginal rights extinguished and we ask you to reverse we do think that the petition was appropriately granted and this will facilitate the resolution of this litigation there was no affirmative act the grants were not an affirmative act spain they swear brought in by the state in the coalition late in the briefing but those grants gave no definite water rights to the spanish settlers in pueblo of him as this court held that the to that the state and the coalition have pointed to provisions of the rayco plessy on as x they're not x and they even ignore the provisions that straight that there was a solicitude and a preference shown toward the native indian community so we rely on santa fe pacific that it does require something more than happened here that this notion that somehow  the were have fewer rights than other indian tribes because they were under the sovereignty of spain has no basis in the law because two thirds of the country was under the sovereignty of spain and there is absolutely no way of distinguishing the and exercised spanish authority over the plug loz from the un exercised spanish authority over the indian tribes who live throughout the rest of their massive there may be disputes about many resources in the future your honor but this is not the way to resolve the problems water rights by saying that they were extinguished by operation of spanish law that is simply wrong