This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO ex rel. 2 STATE ENGINEER, 3 Plaintiff-Appellee, 4

v. NO. A-1-CA-33437 5 UNITED STATES OF AMERICA, 6 Defendant-Appellee, 7

v. 8 NAVAJO NATION, 9 Defendant-Intervenor-Appellee, 10

v. 11 GARY HORNER, 12 Defendant-Appellant. 13 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 14 James J. Wechsler, District Judge 15 Arianne Singer, Special Assistant Attorney General 16 Santa Fe, NM 17 Utton & Kery, P.A. 18 John W. Utton, Special Assistant Attorney General 192 Santa Fe, NM 1 for Appellee State of New Mexico, New Mexico Office of the State Engineer 2
Navajo Nation Department of Justice 3 Stanley M. Pollack 4 M. Kathryn Hoover 5 Window Rock, AZ 6 for Appellee Navajo Nation 7 United States Department of Justice Appellate Section 8 Environment & Natural Resources Division 9 John C. Cruden, Assistant Attorney General 10 Andrew J. Guarino 11 Mark R. Haag 12 Washington, D.C. 13 for Appellee United States of America 14 Gary L. Horner 15 Farmington, NM 16 Pro Se Appellant 17 Tully Law Firm, P.A. 18 Richard T. C. Tully 19 Farmington, NM 20 for B Square Ranch; Bolack Minerals Co mpany, a/k/a Bolack Minerals Company 21 Limited Partnership; Estate of Tom Bol ack; a/k/a Thomas Felix Bolack, Deceased; 22 Bolack Minerals Foundation; Tommy Bol ack Revocable Trust; Estate of Juanita 23 Velasquez, Deceased; David A. Pierce; Maxi ne M. Pierce; David M. Drake; and 24 Shawna Drake 25 Victor R. Marshall & Associates, P.C. 26 Victor R. Marshall 273 Albuquerque, NM 1 for San Juan Agricultural Water Users, Hammond Conservancy District, Bloomfield 2 Irrigation District, Various Ditches and Various Members Thereof 3 Law Office of Priscilla A. Shannon 4 Priscilla A. Shannon 5 Farmington, NM 6 for McCarty Trust et al., Stephen Albert McCarty, Trustee; and Estate of Mary 7 McCarty, a/k/a Mary Louise McCarty, Deceased 8 Public Service Company of New Mexico 9 Mikal M. Altomare 10 Albuquerque, NM 11 for and Tucson Electric Power Company 12 Ute Mountain Ute Tribe 13 Office of General Counsel 14 Leland Begay, Associate General Counsel 15 Peter Ortego 16 Lee Bergen 17 Towaoc, CO 18 Samuel L. Winder 19 Albuquerque, NM 20 for Ute Mountain Ute Tribe 21 Modrall, Sperling, Roehl, Harris & Sisk, P.A. 22 Maria O’Brien 23 Christina C. Sheehan 24 Zoë E. Lees 25 Albuquerque, NM 26 for BHP Billiton New Mexico Coal Inc. and Enterprise Field Services, LLC 274 Stein & Brockmann, P.A. 1 Jay F. Stein 2 James C. Brockmann 3 Santa Fe, NM 4 for Albuquerque Bernalillo County Water Utility Authority, City of Española, and 5 City of Gallup 6 Keleher & McLeod, P.A. 7 Cassandra R. Malone 8 Richard B. Cole 9 Albuquerque, NM 10 for Cities of Aztec and Bloomfield 11 Taylor & McCaleb, P.A. 12 Elizabeth Newlin Taylor 13 Jolene L. McCaleb 14 Corrales, NM 15 for Appellee San Juan Water Commission 16 Dumas Law Office, LLC 17 Jenny J. Dumas 18 Albuquerque, NM 19 for Appellee Jicarilla Apache Nation 20 C. Brad Lane Cates 21 Fairacres, NM 22 for Amici Paul Bandy, Steve Neville, and Carl Trujillo 235 MEMORANDUM OPINION 1 BLACK, Judge. 2 Factual and Procedural Background 3
{1} In light of the Navajo Nation’s potential claim for the majority of water in the 4 San Juan River Basin, the State of New Mexico initiated a general stream adjudication 5 to determine the water rights of the major claimants to water fro m that surface water 6 system in 1975. The United States asserted cl aims as trustee for the Navajo Nation and 7 the Navajo Nation intervened on its own behalf. Following years of litigation, the 8 State entered into settlement negotiations with the Navajo Nation and the United 9 States during the 1990s. The State proposeda blueprint for a settlement and held 10 public meetings in Farmington and Bloomfield seeking input from the non-Indian 11 water users. In response to substantial public input, the State revised its settlement 12 proposals. 13
{2} In 2005, following more than a decade of negotiation, the Navajo Nation, the 14 United States of America, and the State of New Mexico reached an agreement settling 15 the Navajo Nation’s claims to water in the San Juan River Basin (the Settlement). 16 Federal legislation to approve and implement the Settlement agreement was enacted 176 by Congress in 2009 under the Omnibus Pub lic Land Management Act of 2009, Pub. 1 L. No. 111-11, § 10301, 123 Stat. 991 (2009) (Northwestern New Mexico Rural 2 Water Projects Act), and signed by the Presi dent. The New Mexico Legislature then 3 appropriated $50 million to pay New Mexico’s cost of the Settlement and authorized 4 the New Mexico State Engineerto bring a suit seeking judicial approval on the State’s 5 share of the water. SeeNMSA 1978, § 72-1-12 (2005); St ate of New Mexico, Office 6 of the State Engineer, 2017 Indian Water Rights Settlement Fund Report, 3-4 (2017), 7 https://www.nmlegis.gov/handouts/IAC%20112717%20Item%206%20Office 8 %20of%20the%20State%20Engineer% 202017%20Indian%20Water%20Rights%2 9 0Settlement%20Fund%20Report.pdf; see also United States Department of the 10 Interior Bureau of Reclamation, Navajo -Gallup Water Supply Project: Cost Share 11 Agreement Between the United States and the State of New Mexico, 11 (2011), 12 http://www.ose.state.nm.us/Legal/settlements/ NNWRS/NavajoSettlement/NGWSP 13 -OriginalCostShareAgreement.pdf. 14
{3} In the subsequent suit, the settling parties asked the San Juan County District 15 Court to approve the water rights previouslyallocated in congressional legislation for 16 the Navajo Indian Irrigation Project (N IIP), Fruitland-Cambridge Irrigation Project, 17 Hogback-Cudei Irrigation Project, Navajo Gallup Water Supply Project (NGWSP), 18 Animas-La Plata Project (ALP), San JuanRiver municipal and industrial uses, 191 Normally in an inter se proceeding, th e parties objecting to settlement have the 16 burden to prove the settlement is notfair, adequate, or reasonable. See State ex rel. 17 State Eng’r v. Aamodt , 582 F. Supp. 2d 1313, 1317 (D.N.M. 2007); In re Crow Water 18 Compact , 2015 MT 217, ¶ 28, 382 Mont. 46, 354 P.3d 1217. In the present case the 19 district court shifted this burden to proponents of the Settlement. Moreover, the 20 district court did not require those challe nging the Settlement to make a showing that 21 it would affect their rights, as is usually required. See State ex rel. Office of State 22 Eng’r v. Lewis , 2007-NMCA-008, ¶ 16, 141 N.M. 1, 150 P.3d 375. 23 7 reserved groundwater, and rights based on stoc k, irrigation, and recreational uses as 1 of January 1, 2011. Others with an interestin the Settlement were invited into this 2 inter se proceeding through widely distributed radio announcements, newspaper 3 notices, and over 19,000 first class letters to those water rights holders who had title 4 of record. 5
{4} At the initiation of the proceedings, the district court imposed an unusually 6 stringent evidentiary burden on the settling pa rties to prove the Settlement was fair, 7 adequate, and reasonable as we ll as in the public interest. 1 After giving all other water 8 rights claimants in the Basin notice and anopportunity to conduc t discovery as well 9 as to file dispositive motions in accord ance with Rule 1-071.2 NMRA, the district 10 court entered its order granting the settlement motion for entry of partial final decrees 11 describing the water rights of the Navajo Nation. The Court then entered the partial 12 final judgment and decree of the water rights of the Navajo Nation, and the 13 supplemental partial final judgment and d ecree of the water rights of the Navajo 14 Nation. The non-settling parties objected to several terms of the Settlement Agreement 158 and to the inter se procedures adopted by the district court. After full briefing and 1 argument the district court rejected the obj ections and issued its order approving the 2 settlement agreement and proposed decrees (the Settlement). The district court 3 concluded that the Settlement was fair, ade quate, reasonable, and consistent with the 4 public interest as well as all applicable laws. 5
{5} Although they have several issues in common, the non-settling parties have 6 consistently refused to consolidate their appeals, so it will be necessary to address 7 their claims in three separate opinions. To the extent Defendant herein, Gary Horner, 8 advances arguments virtually identical to those advanced by the other defendants, this 9 Court will dispose of those i ssues by reference to its previously filed opinions in the 10 related San Juan adjudications. 11 I. Indian Tribes Are Not Required to Prove Immediate Beneficial Use to 12 Quantify and Preserve Their Water Rights 13
{6} Defendant Horner initially argues that “[s] tate law limits water rights to existing 14 beneficial uses.” Treaty rights of Indians are “not a grant of rights to the Indians, but 15 a grant of right from them,—a reservation of those not granted.” United States v. 16 Winans , 198 U.S. 371, 381 (1905). “Trust obligations to Native Americans were 17 enshrined in reserved water rights that exis t without exercise and may be asserted as 18 prior and more senior to allocated state water rights.” Sally Fai rfax, Helen Ingram, & 19 Leigh Raymond, Historical Evolution & Future of Natural Resources Law & Policy, 202 This argument also ignores the fact that New Mexico has recognized and 16 participated in several tribal water settlements. SeeJicarilla Apache Tribe Water 17 Rights Settlement Act, Pub. L. No. 102- 441, § 2, 106 Stat. 2237 (1992); The Claims 18 Resolution Act of 2010, Pub. L. 111-291, §§ 501, 601, 124 Stat. 3064 (Taos Pueblo 19 Indian Water Rights Settlement Act and Aamodt Litigation Settlement Act). More 20 specifically, the Legislature set aside funds for this and other settlements. Section 72- 21 1-12. 22
3 Both the State and the district court relied on the hydrographic survey 23 conducted by the United States. This is standard and acceptable practice in New 24 Mexico water law, and Defendant offers no admissible evid ence to rebut this survey. 25 9 The Evolution of Natural Resources Law & Policy19 (Lawrence MacDonnell & 1 Sarah F. Bates eds., 2010). As we explained in Navajo Nation v. San Juan 2 Agricultural Water Users Ass’n , ___-NMCA-___, ¶ 16, ___ P.3d ___ (No. A-1-CA3 33535), an Indian tribe’s federal reserved water rights cannot be lost under state 4 theories of failure to perfect by beneficial use. See Arizona v. San Carlos Apache 5 Tribe of Ariz. , 463 U.S. 545, 574 (1983) (“[F]ederal law issues . . . should be 6 performed by federal rather th an state courts whenever po ssible.”). New Mexico state 7 law does not control water allocated to the Navajo Nation by the United States. 8
{7} This disposes of several points of Defendant’s appeal, to-wit: 9 [(1) s]tate law limits water rights to existing beneficial uses; [(2) t]he 10 New Mexico Court of Appeals has es tablished that the federal reserved 11 rights doctrine must be construed narrowly; [(3) t]he State of New 12 Mexico has acknowledged that Indiantribes are not entitled to water 13 rights for future uses; [(4) g]enerally, negotiated water rights settlements 14 are inappropriate and violate the Constitution and laws of New Mexico 2 ; 15 [(5)] New Mexico law requires th at water rights be determined 16 by hydrographic surveys 3 ; [(6) t]he Navajo [Nation] Settlement . . . 17NMSA 1978, § 72-4-16 (1919). 23

4 This argument was thoroughly discussed in San Juan Agricultural Water Users 20 Ass’n , ___-NMCA-___, ¶¶ 9-13. 21 10 violates the [New Mexico Cons titution] doctrine of separation of 1 powers. 4 2
{8} This Court agrees with Defendant that whatever its viability generally, the State 3 pueblo water rights doctrine is totally inapplicable to this case. We do not agree, 4 however, that the New Mexico Supreme C ourt abolished federally reserved water 5 rights in State ex rel. Martinez v. City of Las Vegas , 2004-NMSC-009, ¶ 1, 135 N.M. 6 375, 89 P.3d 47. SeeU.S. Const. art. VI (federal law supremacy clause). Indeed, 7 Defendant admits, “since such rights are fe deral reserved rights they are not subject 8 to state law.” Moreover, as discussed in the San Juan Agricultural Water Users Ass’n 9 case, even if it could be presumed that State law had some applicability herein, it 10 would be preempted by federal law. See___- NMCA-___, ¶ 14. 11
{9} More fundamentally, Defendant’s statement that “there really exists no federal 12 reserved right for Indian tribes for future uses” is clearly in error. InUnited States v. 13 Ahtanum Irrigation District , 236 F.2d 321, 327 (9th Cir. 1956), the Ninth Circuit went 14 back to its 1908 precedent, Conrad Inv. Co. v. United States , 161 F. 829 (9th Cir. 15 1908), to again flatly reject the concept th at Indian water allocations are frozen in 16 time: 1711 It is plain from our decision in the Conrad Inv. Co. case, that the 1 paramount right of the Indians to the waters of Ahtanum Creek was not 2 limited to the use of the Indians at any given date but this right extended 3 to the ultimate needs of the Indian s as those needs and requirements 4 should grow to keep pace with the development of Indian agriculture 5 upon the reservation. Some effort is made here to assert that the 6 reservation of waters for the benefit of the Indians must be limited to the 7 amount or quantity actually used bene ficially by the Indians within some 8 period of time or within what the court might find to be a reasonable 9 time. . . . Nothing in the Winters [ v. United States , 207 U.S. 564 (1908)] 10 case or in any other decided case le nds any support to such an argument. 11 As indicated, exactly the c ontrary was held in the Conrad Inv. Co. case[.] 12 Ahtanum Irrigation Dist. , 236 F.2d at 327 (citations omitted). 13
{10} Nor does logic support Defendant’s time- limited rights theory. From the earliest 14 reservations, the courts recognized that ev en if the United States Government could 15 persuade tribes to adopt irrigated farming, they would clearly have to learn to apply 16 this more agrarian lifestyle to often barren desert. Inherent in the learning curve would 17 be trying various forms of irrigation such th at tribal water allocations clearly could not 18 be fixed at the time a reservation was created. See United States v. Walker River 19 Irrigation Dist ., 104 F.2d 334, 339 (9th Cir. 1939). 20 II. A Viable Reservation Homeland Ha s Long Been a Recognized Criterion 21 in Indian Water Law Cases 22
{11} Defendant argues, as did the defendants in the San Juan Agricultural Water 23 Users Ass’n case, that the district court impermissibly allocated water to the Navajo 24 Nation based on the need to make their homeland viable now and in the future. 2512 Defendant maintains, “[f]eder al reserved rights are limited to the minimal needs of a 1 tribe, and do not include water rights for future uses.” While it is true many of the 2 early cases focused on the amount of water toprovide a tribe an agricultural existence, 3 recent judicial trends appear to recognize reservation allocations should not be limited 4 to only an amount of water sufficient to s upport the pastoral life contemplated in the 5 nineteenth century, but rather, calculated to provide the trib es sufficient water to allow 6 them a moderate living in the twentieth century and thereafter. Indeed, several 7 opinions specifically refer to the reservation goal of providing sufficient water to 8 sustain a “permanent home.” See, e.g ., Winters , 207 U.S. at 565; Agua Caliente Band 9 of Cahuilla Indians v. Coachella Valley Water Dist ., 849 F.3d 1262, 1270 (9th Cir. 10 2017). The Navajo Nation Treaty of 1868 return ed them to a portion of their ancestral 11 territory as their “permanent home,” the very language at issue in the Winterscase. 12 Treaty with the Navajo , art. 13, June 1, 1868, 15 Stat. 667. 13
{12} Nor is Defendant’s argument advanced by his analysis of the Wintersdoctrine. 14 This Court can agree with Defendant that the rigid and hard to apply “practicably 15 irrigable acreage” (PIA) standard is no longer the only appropriate measure of Native 16 aboriginal or reservation-ba sed water rights. The Court also agrees with Defendant 17 that Washington v. Washington State Comme rcial Passenger Fishing Vessel Ass’n , 18 443 U.S. 658, 686 (1979), requires an allocation of natural resources sufficient “to 1913 provide the Indians with a livelihood—that is to say, a moderate living.” Again this 1 focuses on adapting the reservations tochanging conditions. Barbara A. Cosens, The 2 Measure of Indian Water Rights: The Arizona Homeland Standard, Gila River 3 Adjudication , 42 Nat. Resources J. 835, 853 (2002). 4
{13} As this Court explained in San Juan Agricultural Water Users Ass’n , the district 5 court employed appropriately these more modern and flexible guidelines, rather than 6 a strict PIA standard, in reaching its decision herein. See___-NMCA-___, ¶¶ 24-27. 7 The district court’s decision therefore is not an abuse of discretion. 8 III. Defendant Fails to Cite Evidence That the Settlement Is Not Fair, 9 Adequate, Reasonable, and Consistent With the Public Interest 10
{14} Given Defendant’s failure to comprehend the federal law that governs the 11 Indian water rights involved, this Court could simply ignore his grumbling about how 12 the non-Indians have senior appropriati on rights and “the [Office of the State 13 Engineer] agreed to bundling up all of the undeveloped and unused water supply to 14 give to the Navajos.” However, these arguments are not only based on erroneous legal 15 principles but on a misinterpretation or misrepresentation of the facts in this case so 16 must be addressed. 17
{15} Defendant admits “in the case of the Navajo Nation, such upper limit, based on 18 the PIA standard, would be well in excess of all of the water av ailable, due to the 19 enormous size of the Navajo [Nation] Reservation.” Since the Navajo Nation might 2014 well be entitled to all the water in the San Juan Basin if the trial had proceeded, 1 eliminating this risk was prudent advocacy fo r the State and benefits all users in the 2 Basin. SeeReid Peyton Chambers & John E. Echohawk, Implementing the Winters 3 Doctrine of Indian Reserved Water Rights: Producing Indian Water & Economic 4 Development Without Injuring Non-Indian Water Users , 27 Gonz. L. Rev. 447 (1991- 5 92). The Settlement substantially limits the Navajo Nation’s potentially disruptive 6 claims to water rights in the San Juan Bas in by adjudicating the Navajo Nation’s water 7 rights in a reduced amount to be exercised almost entirely under a junior priority date 8 and with shortage sharing and other conditions to protect other water rights in the 9 stream system. 10
{16} The district court explicitly contrastedthe amount of water the potential trial 11 evidence would allow the Navajo Nation w ith the amount contained in the Settlement 12 saying the former 13 establishes a reasonable basis for a potential claim for a total diversion 14 of 920,745 afy and a total correspondi ng depletion of 591,401 afy. The 15 Proposed Decrees, in contrast, limit to tal diversions to 635,729 afy, and 16 total depletions to 334,542 afy. Thes e limitations result in less diversion 17 and consumptive use of water by th e Navajo Nation in the Basin and 18 ultimately reduce impacts on junior water users. 19 (Footnote omitted.) 20
{17} Indeed, as the district court found, “thetotal amount of water in the Settlement 21 Agreement is less than the Navajo Nation’ s current[] federally authorized rights to 2215 water pursuant to the 1962 NIIP Act and the long-established Hogback-Cudei and 1 Fruitland-Cambridge irrigation projects.” As important as the Navajo Nation’s 2 agreement to take a substantially reduced amount of total water is their agreement to 3 have the majority of their water, almost 90 percent, allocated on a priority date of 4 1955 or later. This is more than a cen tury later than its Reservation treaty. 5
{18} The Settlement also includes numerous other specific mitigating provisions as 6 well. For example, when the direct flow of the San Juan River is insufficient to supply 7 direct-flow diverters in New Mexico, the Navajo Nation is re quired to make up to 8 12,000 afy of water available to service its reserved rights for Shiprock municipal uses 9 and the Hogback-Cudei and Fruitland-Cambridgeirrigation projects prior to making 10 a call for priority administration of the river system. This reduces the risk of shortage 11 to direct-flow users. 12 CONCLUSION 13
{19} For the reasons stated, the district court’s decision is affirmed. 14
{20} IT IS SO ORDERED. 15

________________________________ 16 BRUCE D. BLACK, Judge Pro Tem 1716 WE CONCUR: 1

_______________________________ 2 LINDA M. VANZI, Chief Judge 3

_______________________________ 4 J. MILES HANISEE, Judge 5